SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Menzies Lord McGhie	[2013] CSIH 33 XA15/13 OPINION OF THE COURT delivered by LORD CARLOWAY, the LORD JUSTICE CLERK in the appeal by SG and MR Appellants; against THE AUTHORITY REPORTER, CITY OF ABERDEEN Respondents: _______________

Act: parties

Alt: C Dickson, solicitor advocate; Anderson Strathern LLP

19 March 2013

[1] On 15 September 2010 the sheriff at Aberdeen found certain grounds of referral established in relation to a child, namely LG, now aged eight, notably that, in terms of section 52(2)(c) of the Children (Scotland) Act 1995, the child was likely to suffer unnecessarily or be seriously impaired in her health or development as a result of lack of parental care.

[2] On 23 September 2010 the children's hearing determined that compulsory measures of care were required in respect of the child and her older brother. A supervision requirement was made whereby the children required to live with their grandmother. Contact with the appellant father was permitted on an unsupervised basis and with the mother on a supervised basis; that supervision being capable of being carried out by the father. In due course, on 28 June 2011, the court varied the contact condition whereby, although the children would continue to live with the grandmother, contact with both parents required to be supervised. An appeal to the sheriff against that decision was refused on 3 November 2011. The essence of the appellants' complaint in relation to this whole matter, then and now, appears to be the supervisory element in the contact arrangements.

[3] On 19 January 2012, the children's hearing decided to continue the supervision requirement with certain variations in relation to contact. This decision was again appealed to the sheriff, who, on 29 May 2012, ordered the children's hearing to reconsider the decision in terms of section 51(5)(c)(i) of the 1995 Act. Ordering reconsideration does not carry with it the consequence that the decision ceases to exist or an implication that it was wrong; merely that it ought to be reconsidered.

[4] The children's hearing reconvened on 6 September 2012. However, it determined that, upon a reconsideration, it was not possible to reach an informed decision on that date. For that reason, it continued the hearing to a later date. It also made certain other decisions on that day relative to: the extent of the documentation and other material that it would consider in due course; the attendance of the children at the hearing; and the necessity of having a safeguarder.

[5] The current appeal relates to the appeal taken to the sheriff against that decision. The sheriff determined that this was not an appealable decision in terms of section 51(1)(a) and, in so deciding, followed what he considered to be the ratio of H v McGregor 1973 SC 95. The appellants appeal that decision on competency to this court. Meantime, on 6 November 2012, the hearing before the children's hearing proceeded and the supervision requirement was varied. That decision was again appealed to the sheriff, who, once more, remitted it for reconsideration on the basis of inadequacy of reasons.

[6] On 21 February 2013 the children's hearing reconvened and again continued the case; this time until 22 March 2013. That decision has also been appealed, presumably on a similar basis to the current appeal. It was the court's understanding that the appellants did not wish that hearing to go ahead for certain reasons of convenience relative to their work.

[7] Following upon H v McGregor (supra) the respondents maintained that the appeal was incompetent. As a subsidiary argument, it was said that, in any event, the matter was academic standing what has now happened so far as the compulsory measures of care are concerned. In response, the appellants made a series of complaints focussed on the alleged failure of the social work department to abide by the orders of the children's hearing and, to a degree, a failure by the children's hearing to implement the orders of the sheriff. H v McGregor was distinguishable on its facts, since it dealt with a different stage in the procedure and did not involve what were said to be significant decisions made by the children's hearing on 6 September 2012.

[8] The court considers that the appeal to the sheriff, and hence the appeal to this court, was incompetent essentially for identical reasons to those given in H v McGregor 1973 SC 95. Although section 51(1) of the 1995 Act permits an appeal against "any" decision of a children's hearing, this refers to substantive decisions made in terms of the 1995 Act. In the context of this case, a competent appeal would then be one in respect of a discharge of a referral or against the making of a supervision requirement under section 69 or a termination, continuation or variation of such a requirement under section 73. Both sections 69 and 73 do allow a children's hearing to continue a case to a subsequent hearing because of the necessity of further investigation. A successful appeal against such a decision would have no practical consequence. The children's hearing would still need to make a decision on the merits of the supervision requirement. This appeal is then not only incompetent but its consequences have no practical import. It is essentially academic.

[9] The court has already observed that, leaving aside the complaints about the procedure and the actions of various people over the last few years, the appellants' basic point is that they do not wish to have contact with the children supervised. If that is the case, the appropriate forum in which to air that grievance is the children's hearing dealing with the substantial merits of the supervision requirement, or relative conditions. In the event that the children's hearing do not make an order of a nature acceptable to the appellants, they have the opportunity of appealing that decision to the sheriff. They may ask the sheriff not to remit any decision for reconsideration but to alter any condition in terms of section 51(5) in such terms as they deem appropriate. In the event of the sheriff declining to do that, then the appeal procedures in relation to this court will be applicable. In that event the court may require to review the merits of the supervision requirement. This appeal hearing, however, is not the forum in which such an exercise can be carried out, as, in essence, what is being sought is to appeal a decision continuing a hearing to another date which has already actually occurred.