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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M v Constanda [1998] ScotCS 94 (4 December 1998) URL: http://www.bailii.org/scot/cases/ScotCS/1998/94.html Cite as: [1998] ScotCS 94

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This is an appeal by way of Stated Case under section 51(11) of the Children (Scotland) Act 1995 ("the 1995 Act"). The appellant is the mother of the child J.M. (dob 4.10.92). That child is half-sister to L.B. (dob 29.6.87) and M.M. (dob 6.8.88). The first respondent is the Authority Reporter in respect of Glasgow East. The second respondent is the curator ad litem to the child J.M. The present appeal arises out of a decision by the sheriff in Glasgow, dated 27 October 1997, that a condition of referral under section 52(2)(e) of the 1995 Act was satisfied in respect of the child J.M. in terms of the first paragraph of the grounds of referral.

An appeal may be taken under section 51(11) of the 1995 Act inter alia against a decision of the sheriff on an application made under section 65(7) or (9) of the Act. Section 65(7) and (9) require the children's hearing, in the circumstances there specified, to direct the Principal Reporter to make an application to the sheriff for a finding as to whether the grounds for referral not accepted by the child and the relevant person are established. In the present case, the Principal Reporter, having been so directed by a children's hearing, applied to the sheriff for a finding as to whether a ground of referral was established in respect of the child, J.M.. The ground of referral was that the child was or was likely to become a member of the same household as a child in respect of whom one of the offences referred to in paragraph (d) of section 52(1) of the 1995 Act had been committed. Section 52(2)(d) refers to offences mentioned in schedule 1 to the Criminal Procedure (Scotland) Act 1995. In this case, the particular allegation of fact by the Principal Reporter in support of the ground of referral was that the offences had been committed by their mother, the appellant, against J.M.'s half-brother and half-sister, L.B. and M.M. The offence, in each instance, was said to be a contravention of section 12 of the Children and Young Persons (Scotland) Act 1937, namely,

There was no dispute before the sheriff that the child J.M. was, or was likely to become, a member of the same household as the two children L.B. and M.M. The factual issue which the sheriff therefore had to determine was whether or not the offences specified in the grounds of referral had been committed by the appellant in respect of the children L.B. and M.M. In support of the assertion that such offences had been committed by the appellant in respect of L.B. and M.M., the Reporter produced to the sheriff certified copy interlocutors in the following terms:

In each case in which these interlocutors were pronounced the Statement of Facts identified the appellant as the person who had committed the offence, being an offence under section 12 of the 1937 Act; so it is quite clear that in October 1989, in each case, the appellant herself had accepted both the specified Condition under section 32(2)(d) of the Social Work (Scotland) Act 1968, and the related Statement of Facts.

The only issue of law which this court was invited to decide was whether or not, on 27 October 1997, the sheriff was entitled, on the basis of the certified copy interlocutors alone, to hold that L.B. and M.M. were children in respect of whom an offence, referred to in schedule 1 of the Criminal Procedure (Scotland) Act 1995, had been committed in and before 1989. The arguments which were presented to the sheriff are narrated in the Note appended to his interlocutor. The same arguments were presented to this court and reference was made to the same authority. As will be seen from the sheriff's Note, reference was made to decisions in the Court of Session, namely McGregor v H. 1983 S.L.T. 626 and M. v Kennedy 1995 S.L.T. 123. The submissions of parties included considerable reference to these two cases and it is necessary to examine them closely against the background of the statutory provisions in force when they were considered by the courts. The statutory provisions which were in force at the time of the decision in McGregor were amended in 1983; but it was not in dispute that the decision in that case fell to be read against the background of the provisions in force immediately prior to the 1983 amendments. These will be considered later. It was not suggested in argument that the decision in M. v Kennedy governed the present case, but reference was made to pertinent obiter dicta in the Opinion of the Court. Reference was also made to J.F. and Others v McGregor 1981 S.L.T. 334, the case which had led to the 1983 amendment of the provisions in the Social Work (Scotland) Act 1968.

The statutory provisions governing the instant case are contained in Chapter 3 of the Children (Scotland) Act 1995. Section 65(1) provides,

Section 42(1)(c) enables the relevant rules to make provision with respect to how grounds for referring the case to a children's hearing under section 65(1) of this Act are to be stated. The relevant rules are the Children's Hearings (Scotland) Rules 1996 [1996 No. 3261 (s.251)]. Rule 17 requires the statement of the grounds for referral of a case to a children's hearing to be signed by the Principal Reporter, to specify which one or more of the conditions specified in section 52(2) of the Act is or are considered by the Reporter to be satisfied with respect to the child, and to state the facts on the basis of which it is sought to show that any condition is satisfied. Other rules require that the statement of grounds for referral must be intimated in writing to the child and to any relevant persons, including, in a case like the present, the mother. Section 68 makes provision in relation to applications under section 65(7) and (9), i.e. applications by the Principal Reporter to the sheriff for a finding as to whether the grounds for the referral are established. Section 68(8) provides for the situation where, in the course of the hearing before the sheriff, the child and the relevant person "accept" grounds of referral. It states:

Section 68(10) provides:

Section 69(1) provides that where the grounds of referral are accepted or established in accordance with section 68, the children's hearing "shall consider those grounds". Section 70(1) empowers the children's hearing, if satisfied that compulsory measures of supervision are necessary in respect of the child, to make a "supervision requirement" under that section.

In the present case, when the section 65 application was heard by the sheriff in October 1997, the relevant person, the appellant, accepted that the child J.M. was to be a member of the same household as L.B. and M.M. She did not, however, accept the ground of referral relating to the previous committing of a relevant offence by her in respect of either of those children, despite the fact that in October 1989 she had accepted the grounds and the Statement of Facts referred to in the 1989 interlocutors quoted above. Because of that non-acceptance by the appellant in October 1997, the sheriff could not dispense with the hearing of evidence, as envisaged by section 68(8). Accordingly the procedure at the hearing before the sheriff was governed by section 68(10), which requires "the hearing of... evidence" as the basis of a finding that the specified ground is "established". The issue, therefore, came to be whether or not the sheriff was entitled to hold that the two certified interlocutors dated 3 October 1989 afforded evidence, within the meaning of the sub-section, which could satisfy him that the appellant had committed the specified offences against L.B. and M.M. in and before 1989. In determining this issue of law we first consider the decided cases to which our attention was drawn.

When the case of McGregor v H. was before the court, the relevant Statutory Provisions were those contained in Part III of the Social Work (Scotland) Act 1968 (as amended by the Children Act 1975). Section 32(1) of the 1968 Act provided that a child might be in need of compulsory measures of care if any of certain specified conditions were satisfied with respect to him. One of these conditions was

The reporter in that case considered that the female child C.H. was in need of compulsory measures of care in respect that a relevant offence had been committed against her brother D.H., a member of the same household as C.H. Although both parents of the child C.H. accepted the ground of referral, the children's hearing, having regard to the child's age and inability to understand the explanations of the grounds of referral, directed the reporter to apply to the sheriff for a finding as to whether the ground of referral was established. This direction was given, in August 1982, in exercise of the power then contained in section 42(2)(c)

Section 42(6) of the 1968 Act then provided:

(The condition referred to in section 32(2)(g) is that the child "has committed an offence"). In these circumstances, it became necessary for the sheriff in August 1982, , as an essential part of deciding the issue placed before him by the application in respect of C.H., to determine the question as to whether a relevant offence had been committed at an earlier date against D.H. In relation to that matter, the facts were that, in May 1982, the reporter had referred D.H.'s case to a children's hearing, and that reference had resulted in the reporter's making an application to the sheriff under section 42. The sheriff, having heard evidence in D.H.'s case (as required by section 42(6)), found it established that D.H. had been the victim of a relevant offence. When the application in relation to C.H. came before a different sheriff at Kilmarnock on 31 August 1992, the reporter did not attempt to lead again the evidence which had recently been placed before and had satisfied the sheriff who had heard the application relation to D.H. The reporter simply tendered to the sheriff on 31 August 1982 a certified copy of the interlocutor pronounced in the earlier application and called as witnesses the parents of D.H. and C.H. The sheriff having concluded that the evidence of the parents of D.H. and C.H. did not enable him to hold the grounds established, decided that he could not be satisfied on the basis of the interlocutor pronounced on 26 May 1982 that an offence had been committed. He, therefore, concluded that "without hearing direct evidence" he was not satisfied that an offence had been committed.

On appeal, the Inner House concluded that the sheriff had erred and that "proof de novo" was not required; if there were several applications relating to persons in the same household, any common basis of fact would require to be "established" only once in an application to the sheriff. The decision in McGregor v H. thus makes it clear that, once there has been established, by evidence adduced before the sheriff, a matter of fact which is an essential ingredient of a condition under section 32(2), - such as the fact that a relevant offence has been committed in relation to a named child - that same fact does not need to be established afresh by the same or similar evidence in other related applications in which establishing the commission of the relevant offence in relation to that child is essential. The Lord President, delivering the opinion of the court, said at p.629:

It is important to observe that, at the material time and in the circumstances of that case, the requirement of the law was that the essential factual matter could be established, or "sufficiently proved", only by the leading of direct evidence which would satisfy the sheriff that the essential factual matter had been established.

In 1983, the statutory provisions were amended in a significant way by the Health and Social Services and Social Security Adjudications Act 1983. That amendment followed the decision in J.F. and Others v McGregor 1981 S.L.T. 334. At the hearing of an application under section 42(7) of the 1968 Act the sheriff in that case was informed at the hearing by the children's parents that they accepted the grounds of referral. The sheriff did not hear evidence but held the grounds of referral established on the basis of what he had been told. The Inner House on appeal held that he was not entitled to hold the grounds of referral established without hearing evidence. By the 1983 amendment the words "subject to sub-section (6A) of this section" were added at the beginning of section 42(6). A new sub-section was added in the following terms:

In M. v Kennedy 1995 S.L.T. 123 the facts were that the children's mother and step-father accepted the grounds of referral at the children's hearing itself: so there was no application to the sheriff and no interlocutors were pronounced by the sheriff. Distinguishing that situation from McGregor v H., the Lord President, delivering the opinion to the court said, at p.127:

It is clear, of course, that in none of these cases was the court addressing its mind to the situation which obtained here, in which there had been an earlier reference to a sheriff who had on the material before him pronounced an interlocutor to the effect that, in the course of the application to the sheriff, the mother had accepted both the relevant Condition and the Statement of Facts, and had thus accepted the fact that a child in the same household had been the victim of a relevant offence. It follows that none of these cases provides binding authority upon this court in relation to the matter which has now to be decided. Furthermore, although there are dicta which can be read to cover the situation which now arises, they were plainly not pronounced in the context of facts and circumstances which are the same as those in the case which is now before the court; and it is clear that no argument in relation to the point we have to consider was necessary for the decisions in the earlier cases.

We consider that a ground of referral arising in relation to a condition specified in section 52(2)(d) of the 1995 Act cannot be established in relation to one child on the basis of a finding by the sheriff in relation to another child if the sheriff has not heard evidence of any kind in support of the earlier finding. There can be no doubt that the two earlier interlocutors which narrate the mother's acceptance at their date of the Conditions and Statement of Facts narrated therein constitute "evidence" within the meaning of section 68(10) of the 1995 Act, at the hearing in respect of the third child: but evidence of what? They are not evidence of the material facts in the Statement of Facts presented to the sheriff hearing the application in respect of the third child. They provide evidence to establish that the appellant has previously accepted the facts contained in the Statements of Facts referred to in those interlocutors. It follows that if the reporter were to apply to the sheriff in consequence of a direction from the children's hearing in a case like the present it might well be appropriate, in circumstances such as obtained in this case, for him to adduce as a witness the mother of the child and to obtain her evidence as to how and why she came to accept the relevant facts on the earlier occasions but is not prepared to accept them now. If, however, she were able to produce an explanation which satisfied the sheriff that her earlier acceptance proceeded on some basis which could now be shown to be unsatisfactory, and if she asserted that no such offence had been committed by her, then it would be necessary for the sheriff to be satisfied on the basis of direct evidence that a relevant offence had been committed. Of the cases to which we have been referred, the nearest analogy would be to the situation discussed in the quoted observations of the court in M. v Kennedy.

Both in the original sub-section (6A), added to section 42 of the 1968 Act, and in the provisions now contained in section 68(8) of the 1995 Act, when the child and the relevant person have accepted grounds of referral the sheriff, if he dispenses with the hearing of evidence, may "deem" the ground to be established for the purposes of the application. (In sub-section (6A) the words were "deem that ground to have been established for the purposes of this section"). In either case, these words indicate to us that Parliament's intention was that, where an application has been made by the Principal Reporter to the sheriff on the direction of the children's hearing, the purposes of the section or the application would be served if the sheriff made appropriate findings in the light of evidence, or in the light of appropriate acceptances before him by those empowered by the section to accept the grounds, and proceeded to act as required by sub-section (9) or sub-section (10). The purpose of section 68 of the 1995 Act, once the grounds have been established, is to be seen in section 68(10) and in sections 69 and 70. In section 68(10) the sheriff is to remit the case to the Principal Reporter to make arrangements for a children's hearing to consider and determine the case. Section 69(1) directs the children's hearing to consider those grounds and certain other information. Section 70 provides for the children's hearing to take other steps. The scheme of the Act is to separate the establishing of disputed grounds - a process which is within the sheriff's jurisdiction - from the determining of the appropriate disposal in relation to any child in respect of whom the grounds are established: that is within the jurisdiction of the children's hearing. The sheriff's task is a distinct part of the process. It is not difficult to see why, in a case where the relevant person and the child have accepted the grounds for referral before the children's hearing, evidence is not required to establish the grounds. Where, as here, however, neither the relevant person nor the child has accepted the grounds for referral to which the application relates, where the separate and distinct interests of this child must be considered for the first time, and where there has never been any proof by evidence adduced before the sheriff that the grounds of referral are true, the section does not appear to us to permit dispensing with appropriate evidence of the fact or facts put in issue by the making of the application. We note that, even when appropriate persons have accepted the grounds of referral, the sheriff may still hear evidence. That might well be the course to follow, for example, where the condition to be satisfied is that specified in section 52(2)(i), namely that the child "has committed an offence". In this context, we draw attention to section 68(3) which provides that where one of the grounds for the referral is the condition referred to in section 52(2)(i) "the standard of proof required in criminal proceedings shall apply". If we were to hold that the sheriff could find a condition specified in section 52(2) established on the basis of an acceptance made in earlier proceedings in which no evidence was led, the reasoning in support of that ruling would apply also to section 52(2)(i). We do not, however, consider that a sheriff would be entitled to hold such a condition established in proceedings in which the child who had previously accepted that he had committed the offence now denied it and sought to produce substantial reasons for withdrawing his earlier acceptance of guilt. Just as in the case of the mother, of course, it would be open to the reporter to adduce the child as a witness and put to him the fact of his earlier acceptance of the matter which he now wishes to dispute. If, however, that process failed to establish proof of the fact beyond reasonable do

In all the circumstances, we have come to the conclusion that the sheriff erred in the present case; and that the appropriate course is to answer the first question of law in the affirmative and the second question in the negative.

If it should be thought expedient that any earlier finding of fact established not by evidence but by acceptance should be treated as being in effect res judicata in subsequent proceedings relating to the same household or parties then it is for Parliament to say so and to prescribe the conditions that should apply.