ZM and AM v Locality Reporter [2016] SAC (Civ) 16 Appeal Court, 13 December 2016)

Background: Married couple (ZM and AM) with one child (LM) separated in 2012, following the reporting of a sexual assault by AM on another child. After a period of no contact between AM and LM, supervised and unsupervised contact took place until June 2015, when AM assaulted ZM in the presence of LM. The appeal concerned the meaning of the terms “close connection” and “significant contact” as contained in Section 67(2) of the Children’s Hearings (Scotland) Act 2011 and their application to the facts as found by the Sheriff.

Held: The Sheriff had held that “close connection” between father and child was established by being members of “same household” and by having “significant contact”. The Sheriff Appeal Court held that:

“Whether a child is a member of the same household as the person is a matter of fact and degree. The concept of a ‘household’ is of a group of persons and not the location in which they live. The question is about the ties of affection and regular contact which holds the persons together as a group – a question of relationship rather than locality.” [5]

The Sheriff was not entitled to hold that child was member of same household as father. The Appeal Court also held that:

“The term ‘significant contact’ is not defined in the 2011 Act; nor has it been the subject of judicial determination. We agree with the approach taken by Professor Norrie [p43]:

“A person who commits a Schedule 1 offence, which are nearly all serious offences against children, is nearly always, therefore, a risk to children, and any child who has a close connection with such a person might require, for his or her protection, guidance, treatment or control, to be made subject to a compulsory supervision order in order to minimise or remove that risk. Of course such an order might not be necessary, but the very existence of the offence, together with the connection between the offender and the child, justifies the raising of the question, which the children’s hearing must answer… “[S]ignificant contact” is intended to cover the situation where the source of the potential danger does not live with the child but nevertheless is regularly present in the child’s family circle – the typical example will be the boyfriend of the child’s mother who lives apart from the mother and the child but who regularly visits… “Significant” means regular, or at least frequent.” [10]