PETITION OF KT FOR JUDICIAL REVIEW [2022] ScotCS CSOH

OUTER HOUSE, COURT OF SESSION

[2022] CSOH 80

P970/21

OPINION OF LORD BRAILSFORD

In the Petition

Petitioner

for

Judicial Review of decisions of Sheriffs at Hamilton

Petitioner: Aitken, Clan Childlaw

Respondent: Moynihan KC, Anderson Strathern

28 October 2022

[1]

The petitioner is KT who resides at an address in South Lanarkshire. The petition

concerns decisions of sheriffs at Hamilton in relation to an appeal to the sheriff against a

decision of the children's hearing. The appeal related to a Compulsory Supervision Order

("CSO") which was made in terms of the Children's Hearings (Scotland) Act 2011 ("the

2011 Act") in respect of a child DJT, born 20 June 2014. The petitioner is the elder sibling of

DJT. The petitioner is 16 years old. The CSO which was the subject of the appeal included a

measure regulating the petitioner's contact with DJT, specifically to provide that there

should be no contact between them. The appeal was at the instance of the mother of the

petitioner and DJT. Intimation of the petition was made to both KT's parents, the Principal

Reporter to the Children's Hearings who was a party to the appeal and who was responsible

for the administration of the children's hearing which had made the decision which was the

subject of the appeal. Only the Principal Reporter lodged answers and was represented at

the substantive hearing of this petition. He is referred to hereafter as "the respondent".

[2]

The decision of the children's hearing which was the subject of the appeal to the

sheriff was made on 22 July 2021 by the children's hearing in Hamilton. The petitioner

participated directly at that children's hearing having been invited to attend by the second

respondent and the chairing member of the hearing having determined, with reference

to section 78(2)(a) of the 2011 Act, that her attendance was necessary for the proper

consideration of the matter before the children's hearing, specifically her contact with DJT .

The children's hearing continued the CSO in respect of DJT and included a measure which

precluded contact between the petitioner and DJT. The first respondent lodged an appeal

in terms of section 154 of the 2011 Act against the decision. The appeal included bringing

under review the measure regulating contact between the petitioner and DJT. On

1 September 2021 a sheriff issued a first interlocutor in the appeal process. The interlocutor

of 1 September 2021 appointed intimation of the appeal on the first and second respondent

but did not appoint intimation on the petitioner. The appeal was not intimated on the

petitioner. On 17 September 2021, a sheriff refused the appeal.

[3]

Against the foregoing procedural background the petitioner sought declarator

that the sheriff's determination of the appeal on 17 September 2021 without affording

the petitioner any opportunity to participate in the decision -making process was, in the

circumstances, incompatible with the petitioner's Article 8 ECHR rights and, thus, unlawful

and reduction of the sheriff's interlocutor of 17 September 2021. The respondent's position

was that there was no merit in the challenge to the sheriff's decision . A secondary point was

advanced that reduction of the interlocutor of 17 September 2021 was impracticable and

unnecessary. It dealt with matters in addition to the contact for the petitioner and was not

severable.

[4]

Each party identified two issues for determination by the court. For the petitioner

these were; (1) did KT have an involvement in the decision-making process relative to the

appeal, seen as a whole, to a degree sufficient to protect her interest? (2) If KT did not have

such involvement, should the court resolve that by making the declarator of unlawfulness

sought in STAT 4(1) and reduce the sheriff's interlocutor disposing of the appeal as sought

in STAT 4(2)? For the respondent the issues were: (1) Was there any illegality in the failure

formally to intimate the first respondent's appeal to the petitioner? (2) If so, is it necessary

to grant a remedy other than declarator to that effect?

Factual background

[5]

There was substantial agreement between parties as to the relevant factual

background. The following is a summary thereof.

[6]

KT is the 16 year old sibling of DJT, who is aged 7. DJT is subject to a Compulsory

Supervision Order ("CSO") made in terms of the 2011 Act. The respondent scheduled a

review hearing to take place on 22 July 2021 to consider DJT's CSO. One of the issues to

be considered by the children's hearing on 22 July 2021 was the regulation of KT's contact

with DJT. The respondent invited KT to attend at children's hearings for DJT on each of

26 April 2021, 17 June 2021 and 22 July 2021. On each of those occasions, the chairing

member of the hearing allowed KT to attend at and participate in part of each children's

hearing. The chairing member's decision was made, on each occasion, in terms of

section 78(2)(a) of the 2011 Act, that is

"the person's attendance at the hearing is considered by the chairing member

of the children's hearing to be necessary for the proper consideration of the

matter before the children's hearing."

The petitioner did not suggest that the extent of her participation at any of these children's

hearings was insufficient. On 22 July 2021, the children's hearing made a decision to

continue DJT's CSO and included a measure that there was to be no contact between KT and

DJT. That order conflicted with a measure on KT's own CSO which made provision for

contact to operate. Despite the terms of KT's own CSO, the practical effect of the measure

included on DJT's CSO was that no contact could operate, as to permit that would be

incompatible with DJT's CSO and thus breach the "implementation authority's" statutory

duty in terms of section 144 of the 2011 Act. The mother of each of KT and DJT did appeal

the children's hearing's decision of 22 July. Her appeal was against all parts of the decision

including, but not limited to, the measure regulating KT's contact with DJT. The relevant

rules of court applying to the appeal are in Part VIII of the Act of Sederunt (Child Care and

Maintenance) Rules 1997 as amended ("the CCMRs"). On 1 September 2021, the sheriff

issued an interlocutor appointing the sheriff clerk to intimate the appeal to KT and DJT's

mother and the respondent. No order for intimation was made in respect of KT. The sheriff

considered the merits of the appeal on 17 September 2021. KT was not involved in the

decision-making process relative to the appeal. She did not receive formal intimation of it.

The sheriff neither sought nor otherwise had before him any representation from KT about

the appeal even though, in part, it concerned her interests.

Relevant statutory provisions

[7]

Sections 154-156 of the Children's Hearings (Scotland) Act 2011 are relevant in

determination of the issues in the petition:

"154 Appeal to sheriff against decision of children's hearing

(1) A person mentioned in subsection (2) may appeal to the sheriff against a

relevant decision of a children's hearing in relation to a child.

(2) The persons are --

(a) the child,

(b) a relevant person in relation to the child,

(3) A relevant decision is --

(a) a decision to make, vary or continue a compulsory supervision order,

(b) a decision to discharge a referral by the Principal Reporter,

(d) a decision to maket an interim compulsory supervision order,

(e) a decision to make an interim variation of a compulsory supervision order,

(f) a decision to make a medical examination order, or

(g) a decision to grant a warrant to secure attendance.

(4) An appeal under subsection (1) may be made jointly by two or more persons

mentioned in subsection (2).

(5) An appeal under subsection (1) must be made before the expiry of the period of

21 days beginning with the day on which the decision is made.

155 Procedure

(1) This section applies where an appeal under section 154 is made.

(2) The Principal Reporter must lodge with the sheriff clerk a copy of --

(a) the decision, and the reasons for the decision, of the children's hearing,

(b) all information provided by virtue of rules under section 177 to the

children's hearing, and

(3) The appeal must not be heard in open court.

(4) The sheriff may (but need not) hear evidence before determining the appeal.

(5) The sheriff may hear evidence from --

(a) the child,

(b) a relevant person in relation to the child,

hearing that made the decision,

(d) the Principal Reporter,

(e) where the appeal is against a decision to make, grant, vary or continue an

order or warrant including a secure accommodation authorisation in

respect of the child -

(i) the person in charge of the secure accommodation specified in the

secure accommodation authorisation, and

(ii) the chief social work officer, and

(f) any other person who the sheriff considers may give material additional

evidence.

(6) The sheriff may require any person to give a report to the sheriff for the

purpose of assisting the sheriff in determining the appeal.

(7) Subsection (6) applies in relation to a safeguarder only if regulations under

[section 34] so provide

156 Determination of appeal

(1) If satisfied that the decision to which an appeal under section 154 relates is

justified, the sheriff--

(a) must confirm the decision, and

(b) may take one or more of the steps mentioned in subsection (3) if satisfied

that the circumstances of the child in relation to whom the decision was

made have changed since the decision was made.

(2) In any other case, the sheriff--

(a) must --

(i) where the decision is a decision to grant a warrant to secure attendance,

recall the warrant,

(ii) where the decision is a decision to make an interim compulsory

supervision order or a medical examination order, terminate the order,

(b) may take one or more of the steps mentioned in subsection (3).

(3) Those steps are --

(a) require the Principal Reporter to arrange a children's hearing for any

purpose for which a hearing can be arranged under this Act,

(b) continue, vary or terminate any order, interim variation or warrant which is

in effect,

relation to the grounds that gave rise to the decision,

(d) make an interim compulsory supervision order or interim variation of a

compulsory supervision order, or

(e) grant a warrant to secure attendance.

(3A) If the sheriff continues or varies a compulsory supervision order under

subsection (3)(b), the sheriff--

(a) must, if the order contains a movement restriction condition (or is being

varied so as to include such a condition), require the order to be reviewed

by a children's hearing on a day or within a period specified in the order,

(b) may, in any other case, require the order to be so reviewed.]

(4) If the sheriff discharges a child under subsection (3)(c), the sheriff must also

terminate any order or warrant which is in effect in relation to the child.

(5) The fact that a sheriff makes, continues or varies an order, or grants a warrant,

under subsection (1)(b) or (2)(b) does not prevent a children's hearing from

continuing, varying or terminating the order or warrant."

Submissions

(a)

Petitioner

[8]

Counsel for the petitioner advanced three principles which he contended applied in

the present matter and upon which he relied.

[9]

First, the existence or non-existence of ``family life'' for the purposes of Article 8

ECHR was essentially a question of fact depending upon the real existence in practice of

close personal ties.

[10]

Second, Article 8 includes procedural as well as substantive rights: the

decision-making process leading to measures of interference must be fair.

[11]

Third, where a child is being cared for away from the family, what matters is the

maintenance and development of the relationship between the siblings, whether through

placing them together or through staying in regular contact with one another . In the context

of a children's hearing respect is shown to that interest if, in the particular circumstances of

the case, the sibling is enabled to have an involvement in the decision -making process, seen

as a whole, to a degree sufficient to protect his or her interest.

[12]

It was accepted that these principles did not mean that every sibling has a right to

participate by attendance in the forum where the decision -maker is hearing argument and

determining matters. That level of participation may or may not be required having regard

to the particular circumstances of each case. This was consistent with the Supreme Court's

discussion, in ABC & XY at paragraphs [51] [53], concerning each case requiring a bespoke

solution.

[13]

The courts attention was drawn to MB v SCRA,

where Lady Wise considered

the rights of participation of a sibling in a different form of court application, a reporter's

application for an Interim CSO which included regulation of sibling contact. In that case,

ABC v Principal Reporter [2020] UKS C 26, 2020 S C (UKS C) 48 at para [28].

ABC v XY at [27]

ABC v XY at [29]-[30]

[2021]CS OH 19, 2021 S LT 383

the Principal Reporter developed an informal procedure which enabled the sibling to

make representations to the sheriff on the issue of contact and that sibling was informed

of applications, hearings and the basis on which the sheriff was being asked to make the

determination. Lady Wise held that this informal procedure was sufficient to satisfy MB's

right to participate to an extent sufficient to protect his interests (save for an occasion when

representations lodged were not considered by the sheriff).

[14]

In the present case KT was not "...informed of the nature of the proceedings

concerning the child and of (her) rights in relation to the proceedings."

. From KT's

perspective, she had no rights in the proceedings. She received no formal intimation of

papers setting out the issues under consideration or notice of the date of the appeal. She

was given no opportunity to make any representation of any kind to the decision -maker

about an order which directly concerned her interests. In relation to the issues of intimation

and participation by way of representation, Lady Wise in MB at [31] with reference to the

Supreme Court's decision in ABC and XY, reasoned, "What the UK Supreme Court has

mandated is that issues of this type should be considered in every case, not that any

particular outcome is inevitable." In the present case neither the sheriff nor the second

respondent gave any consideration at all to how KT's rights should be protected in the

appeal.

[15]

The petitioner's position was submitted to be the same as that of the appellant in

DM v Locality Reporter,

where no notice was given to the sibling in respect of the review

ABC and XY at [53], relied upon in MB at [29])

[2018] CS IH 73, 2019 S C 179

by a children's hearing of a contact measure on an Interim CSO. In that case, the Principal

Reporter is noted, at [6], to have

"acknowledged that there had been a breach of natural justice when the children's

hearing made a contact direction removing the appellant's ability to spend time

with his half-sister, in that the appellant had been given no notification of the hearing

and no opportunity to make representations on the subject" (the Lord President,

Carloway at [13] and [14]).

KT had no opportunity to make representations to the decision -making sheriff either in

person or in writing.

[16]

Counsel then developed his submission by advancing propositions as to what

participation he contended KT should have been entitled in the appeal with which this

petition is concerned. The sheriff could have ordered intimation of the appeal on KT

in terms of CCMR 3.54(1)(e). In circumstances where her participation at the children's

hearing had been considered "necessary for the proper determination of the 9? matter",

it should have been considered that intimation of an appeal against the decision made

was equally "necessary". The second respondent avers that it was sufficient for the first

respondent to represent the interests of the whole family in the appeal. That line was

submitted to be inconsistent with the decisions by both the second respondent and the

chairing member of the hearing that it was "necessary" that KT herself make representations

to the children's hearing even though the first respondent also did so. There is no proper

basis to distinguish the necessity of making a representation to the hearing when it is

making a decision from the necessity to address the merits of that decision on appeal.

[17]

Intimation of the appeal would have permitted KT to lodge answers to it within

7 days; CCMR 3.55(1). Thereafter, the extent of her participation would have been a matter

for the sheriff. Applications to a sheriff in terms of the 2011 Act are sui generis. As explored

above, her right of participation need not necessarily extend to attendance at the appeal to

be heard in person or with a representative. It would be a matter for the sheriff to determine

what was necessary having regard to the protection of her interests in the matter being

determined. However, what was incompatible with her procedural rights in terms of

Article 8 was for her to have no ability at all to make a representation to the court. Both the

sheriff and the respondent, as public authorities, had duties to ensure that the procedure

was not incompatible with her procedural rights.

[18]

Insofar as the respondent was not responsible for the sheriff failing to order

intimation of the appeal on KT, the respondent could, and should, have taken one of two

steps, either to have sought representations from KT on the extent of her participation in

the appeal or on the substance of the appeal and to have ensured that these representations

be considered by the sheriff (akin to the informal procedure developed by the second

respondent in MB), or alternatively to have sought that the sheriff, prior to disposing of the

appeal, give consideration to how to allow KT to participate in the decision -making process

to a degree sufficient to protect her interests.

[19]

In response to the respondent's argument that the order sought, reduction of the

sheriff's decision, was impractical and unnecessary, the petitioner's position was that the

sheriff's order did not make any variation to the CSO which would be overturned to the

detriment of DJT if the order was reduced. The sheriff did no more than confirm the

decision of the hearing. That decision remains extant. Bringing it under review again in

the appeal would cause no prejudice to anyone including to DJT.

(b)

Respondent

[20]

Senior counsel for the respondent initially drew my attention to legislative changes

since the date of the decision challenged in the petition. I was informed that this was the

latest of a number of cases considering the participation rights of siblings in relation to

compulsory supervision orders. The cases of ABC and XY were determined by the Supreme

Court but in a third case heard by the First Division, DM v Locality Reporter 2019 SC 196, the

court added a postscript highlighting the need for review of section 126 of the Children's

Hearings (Scotland) Act 2011, the ineffective section ostensibly intended to widen the

opportunities for review of contact directions. ABC and XY was decided by the Supreme

Court on 18 June 2020 and on 1 October 2020 the Scottish Parliament passed the Children

(Scotland) Act 2020. The 2020 Act amends the 2011 Act significantly in relation to the

participation of siblings in contact decisions. The amendments came in to force on 26 July

2021, only days after the children's hearing (on 22 July 2021) in relation to DJT that is the

subject of these proceedings. These proceedings turn on the old legislative framework but

for the future the petitioner will have the rights provided by the amended legislation.

[21]

The present case was then considered in the context of the facts. The children's

hearing was under section 138 of the 2011 Act and the decision was to continue and vary the

compulsory supervision order for DJT with measures stating that the child was to have no

contact with his parents or two sisters, one of whom is the petitioner. No issue was taken

directly with that decision because the petitioner was allowed to participate in the relevant

part of the hearing and was represented by a solicitor. The petitioner was not a relevant

person and, accordingly, had no right of appeal. The petitioner's mother did appeal to the

sheriff under section 154. In terms of the Rule 3.54(1)(e) of the Act of Sederunt (Child Care

and Maintenance) Rules 1997 the sheriff clerk was required to assign a date for the hearing

and to make intimation to a number of persons including "any other person the sheriff

considers necessary ...". The sheriff issued two interlocutors fixing the hearing and

requiring intimation dated 1 and 3 September 2021. Neither made provision for intimation

to the petitioner. The appeal was heard on 17 September 2021 and refused. The petitioner

was not present or represented at the hearing. The complaint is that this was due to a failure

on the part of the sheriff to intimate the appeal to her (statements 16 and 18 in the petition)

and also failure on the part of the respondent to pick up the omission and to take steps to

enable her to participate (statement 19).

[22]

It was submitted that the petitioner's case was predicated upon the proposition that

the petitioner had a right to participate in the appeal and that the respondent should have

taken steps to ensure that the sheriff made "such other order as he considered appropriate to

enable the petitioner to participate in the decision-making process to a degree sufficient to

protect her interests". That proposition was said to "beg the question" what form or degree

of participation was "sufficient to protect her interests".

[23]

In answering that question counsel submitted that the decision of the Supreme Court

in ABC and XY was not prescriptive in that regard. That decision recognised that in some

circumstances collective representation of the wider family by, for example, a relevant

person may be sufficient. That endorses the view of the Inner House in ABC 2019 SC 186

at §§19-20. Compliance with Article 8 does not necessarily require personal attendance by

a sibling at the hearing: DM v Locality Reporter 2019 SC 196.

[24]

The submission was developed to contend that the critical point was that the

petitioner personally had no right of appeal. There was no reason to believe that the

petitioner's mother, who had a right of appeal as a relevant person, could not adequately

represent the interests of the wider family, including the petitioner. The mother's grounds

of appeal discussed the merits of sibling contact generally in paragraph 2 and included

material relevant to the petitioner in paragraph 3. There was no "necessity" for the

petitioner to be a direct participant. That was so having regard to the limited scope of the

appeal, a submission where reliance was placed on dicta of Lord Malcolm.

[25]

Even if the foregoing argument was incorrect, counsel further submitted that there

was no relevant basis to conclude that the Principal Reporter should have concluded that it

was necessary to take steps to ensure the petitioner's participation. The petition proceeded

on the basis that "the Petitioner did not receive formal intimation of the appeal."

(Statement 14). The adjective "formal" was said to be significant. It was a matter of

admission in statement 14 that the petitioner was aware of the appeal. It was also a matter

of admission that she did not contact the Principal Reporter about the appeal. Given that

the Supreme Court and the Inner House recognise that collective representation can be

sufficient, the absence of any contact by the petitioner is material. There was no reason to

believe that "formal" intimation to her would have been "necessary".

[26]

The final argument advanced on behalf of the respondent was that in the event that

the petition was granted, a declarator in terms of statement 4(1) would suffice. That would

determine the petitioner's rights. Reduction in terms of statement 4(2) would serve no

practical purpose. Reduction would necessitate a further hearing before the sheriff which

would serve no practical purpose given the passage of time since the children's hearing

see W v Schaffer 2001 S LT (S h Ct) 86 at 87K-88A; applied in CF v MF 2017 S LT 945 at paragraph 50

(Lord Malcolm).

on 22 July 2021. The petitioner's mother can now seek a review of the compulsory

supervision order at any time and, in any event, in April 2022, in line with section 133(a)

of the Children's Hearings (Scotland) Act 2011, the Principal Reporter will have to initiate a

review of the CSO to take place before its expiry in July 2022. Those are the more effective

means to secure reconsideration of the petitioner's arguments in favour of contact with her

brother.

Decision

[27]

The issue between the parties concerns the question of the involvement of KT in the

decision-making process relative to the appeal to the sheriff which is the background to the

current petition. In essence this resolves to the question of whether KT's involvement in the

decision-making process relative to the appeal was sufficient to protect her interests or, on

the other hand, whether the decision not to intimate the relevant appeal hearing to KT

constituted an illegal act which deprived her of a right to participation in that process.

[28]

There is no dispute between parties that KT had an interest in the process, the issue

of contact between her and her sibling who was the subject of the appeal plainly constitutes

an interest. If follows therefore in my opinion that the determining issue is whether that

interest required her to receive intimation of the relevant hearing before the sheriff and

consequent thereon a right to attend or alternatively that interest was protected by another

means such as participation by her mother in the appeal.

[29]

There is now authority which is binding upon me to the effect that compliance with

Article 8 ECHR does not necessarily require personal attendance by a sibling at a hearing.

What is required, on the basis of authority, is that the decision maker in a situation such as

that pertaining in the present matter must take "... a nuanced approach which addresses the

extent of family life in that relationship, the home circumstances, how far the interests of the

parents, the sibling and the child coincide and the possibility that the child, the parents and

other siblings may have Article 8 rights which are in conflict with those of the sibling."

That being the case it is, in my view, necessary to consider as a matter of practicality

whether the circumstances surrounding the relevant hearing protected KT's interest or failed

so to do.

[30]

The relevant factors in addressing that question are first that KT's mother, also the

mother of DJT the subject of the appeal, had rights to participate in the appeal to the sheriff

and was therefore able to address the wider interests of her family, including the question of

inter sibling contact between KT and DJT. Second it was not disputed that KT's mother's

grounds of appeal did discuss the merits of sibling contact. Moreover the mother's grounds

of appeal did contain material relative to KT and contact with her sibling.

[31]

Having regard to the foregoing factors it appears that the interests and rights of KT

were matters which were expressly before, and therefore brought to the attention of, the

decision maker at the time the decision complained of was made. Having regard to that

consideration I have concluded that the respondent's submission that these features would

entitle the decision maker to form the view that there was no need to formally intimate the

relevant hearing to the petitioner for the reason that her interest was protected is, as a matter

of law correct.

[32]

It follows, having regard to the foregoing consideration, that the challenge in this

petition fails. I will refuse the prayer of the petition.

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