Sheriff finds Children's Hearing should have included an order for a DNA test in Compulsory Supervision Order

JS v Decision of a Children’s Hearing [2021] SC EDIN 1

This case concerned an appeal against a decision of a Children’s Hearing not to include measures on a Compulsory Supervision Order that would allow for the taking of a DNA sample (cheek swab) and facilitation of a DNA test. The Court allowed the appeal and varied the Compulsory Supervision Order to include a measure that the Local Authority arrange for a DNA test to be undertaken. The Sheriff also included a measure that the child provide a cheek swab for the purposes of that DNA test.

The Court allowed the appeal on the basis that the Children’s Hearing had erred by considering that such measures would be incompetent. The Court also considered the Panel had erred in applying a “necessity test” when considering measures to be added to a Compulsory Supervision Order.

In reaching her decision, the Sheriff’s view was that a measure providing for a cheek swab to be taken from the child was “clearly competent”. Such a measure could be considered a medical or other examination of the child (Section 83(2)(f) of the Children’s Hearings (Scotland) Act 2011); alternatively, it could be considered a measure that the child comply with any specified condition (Section 83(2)(h)). The fact that the mother refused to consent was not an obstacle to the Children’s Hearing.

The Sheriff’s view was that “competence does not depend on enforceability”.

The Sheriff also highlighted her opinion on the approach to be taken when the making of a Compulsory Supervision Order is being considered. The Sheriff highlights that the test of necessity for the “protection, guidance, treatment or control of the child” applies to the naming of the implementation authority. Measures added to the order follow the tests set out in Sections 25, 27 and 28 of the Children’s Hearings (Scotland) Act 2011.

In simple terms, this means that Panel members should be satisfied that it is necessary for the “protection, guidance, treatment or control of the child” that a Compulsory Supervision Order is made. Any decisions regarding measures contained on that Compulsory Supervision Order should consider the child’s best interests as paramount having had regard to the views of the child, and, considering whether the measure would be better made than not at all (i.e. the no order principle/proportionality). In this appeal, the Sheriff’s view was that the panel failed to adequately consider the benefits to the child of establishing the identity of her father at the earliest possible opportunity.

The Sheriff also gave interesting obiter* comments on the unsatisfactory nature of undefended actions for declarator of parentage in Scotland. In her opinion, if such actions were the only mechanism to seek clarity around one’s parentage, the United Kingdom may be considered to have breached Article 8 of the European Convention on Human Rights. However, for children and families within the Children’s Hearing system, there is a remedy.

*Obiter comments are comments on a matter arising in the case but which are not essential to the decision and do not create binding precedent for future cases.

 


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