Scottish Sheriff Court Decisions

AIRDRIE SHERIFF COURT
Sheriff Principal B A Lockhart	B676/12 JUDGMENT OF SHERIFF PRINCIPAL B A LOCKHART   in causa AA Appellant   against JH, Locality Reporter Manager Respondent   in respect of the Child   BB

For Appellant: Mrs J Donnelly, Solicitor, Glasgow

For SCRA: Ms M L Johnstone, Solicitor, Edinburgh

The Safeguarder: Mrs L George, Solicitor, Hamilton

For the Fostercarer: Mr C Thomson, Solicitor, Glasgow

 

 

AIRDRIE: 30 August 2013

The Sheriff Principal, having resumed consideration of the cause, answers the three questions posed in the sheriff's stated case in the negative, refuses the appeal and adheres to the sheriff's interlocutor of 11 January 2013; finds no expenses due to or by any party in respect of the appeal.

 

 

NOTE:

Background

[1] The Social Work Department have been involved in the care of the child in this case for some time. On 10 February 2012 an appeal in terms of Section 51 was successful in

this court when the sheriff remitted the matter to the Scottish Children's Reporter Administration to review their decision taken at a hearing on 9 December 2011. That decision was to reduce contact with the child's mother to a minimum of once per month. That decision replaced the previous decision by the panel that contact should be a minimum of contact once every two weeks. Sheriff Dickson issued a detailed interlocutor on 10 February 2012 and of particular relevance he indicated that he found it difficult to understand on what basis the panel had halved the amount of contact which was in place. He said that while there may have been valid reasons for this they were not contained in the conclusions or reasons for the decision and accordingly he remitted the matter back.

 

[2] Thereafter subsequent children's hearings were convened and continued on 30 March 2012, 22 June 2012 and 17 September 2012. A hearing which had been arranged for 6 August 2012 had to be cancelled due to a panel member being ill and a subsequent hearing was assigned for 29 October 2012. The appellant failed to attend the hearing on 29 October 2012 and her solicitors were also not present but they had written to SCRA on 26 October 2012 setting out their client's position. The sheriff was advised that unsuccessful attempts were made to reach the appellant by telephone and the hearing was delayed for fifteen minutes before proceeding on 29 October 2012.

 

[3] On that date the hearing decided that the child would have contact with his mother once per month for one hour. They also decided that he would have additional contact with his mother during the week of his birthday and that all contact between the child and his mother would be supervised by an appropriate adult. The decision of the Children's Hearing was in the following terms:-

"After very lengthy discussion BB's Supervision Requirement was continued with a variation for the following reasons;" Grounds of referral are of a serious nature and BB needs the protection and guidance that a Supervision Requirement provides. BB is not able to return to the care of his mother as she is not able to give him the care and protection he requires. She is not able to prioritise his needs over hers meaning that BB could not be cared for on a voluntary basis. BB is well looked after by his Aunt who provides him with a safe, stable and nurturing environment. - AA (the appellant) supports this placement. CC (his Aunt) informed the hearing that BB enjoys nursery and is meeting his developmental milestones, she stated he does not mention his birth mother or contact but talks about his Aunt and Sister.

Contact was discussed at length and the representations of AA's solicitor were discussed too. Contact was made for AA for once per month for one hour and is to be supervised. Additional contact between BB and AA during his birthday week was also agreed...Panel members shared AA's concerns about contact not proceeding on occasion. The report from Linda George, Safeguarder...gave the same recommendation as the Social Work Department. The panel members felt there was no remit for another independent report from a Child Psychologist as the Safeguarder gave an independent view. Furthermore, the Social Work Department are capable of assessing contact with children and families. Panel members also stated that they could not find a remit for additional report in this area at present. It was discussed that this level of contact is in the best interest of and is sufficient for him to have an understanding of his origins. It was felt that any further contact could confuse BB and would be to meet AA's needs rather than his. Contact with AA must be supervised to protect BB, especially in light of past events where AA has been dishonest about her relationship with XX. A condition of no contact with the father was made. His father has minimal

contact in his life and a significant risk is posed to BB if he was to have contact with his father...."

 

It is against that decision that an appeal was lodged in Airdrie Sheriff Court on 16 November 2012. That appeal was heard and refused by the sheriff on 11 January 2013. The sheriff was requested to issue a Stated Case for my opinion. To understand the sheriff's Stated Case, the relevant sections of which I set out in paragraph 5 hereof, it is necessary to record the questions posed in the application for the stated case. They were as follows:-

"(1). Did the sheriff err in law in refusing the appeal on 11 January 2013 when there was no basis necessitating contact being limited to once per month given contact had operated successfully at the rate of once per fortnight until 9 December 2011 and there had at no time been an adequate justification for reducing same?

(2). Did the sheriff err in law in effectively holding that contact at a higher rate than once per month would prevent a risk of harm to the child's health or morals? Did her decision breach the Appellants Art 8 ECHR rights to respect for private and family life by limiting contact when there was no proper justification for doing so?

(3). When determining the Appeal did the sheriff err in law in giving weight to factors such as the child's father's contact and his previous relationship with the appellant, which are fully addressed by the supervision requirement and have no bearing on the issue of supervised contact between the child and the appellant?

(4).The said hearing was a continuation of a remit hearing from a successful S51 appeal on10 February 2012 against a decision of the Children's Hearing on 9 December 2011 which brought about the reduction of the appellant's supervised contact from fortnightly to monthly. Did the sheriff err in law by approaching her task as to consider whether contact should remain at once per month, whereas the task for the sheriff should have been to consider whether the original reduction in contact in December 2011, was justified in all the circumstances?

(5). Did the sheriff err in law in holding the hearing's decision to be justified in all the circumstances when the only basis for keeping contact at once per month referred to in the written reasons for the Children's Hearing's decision was the child being confused by increased contact, given that any increase back to fortnightly contact would be managed by adults giving the child appropriate information and his main care was not in dispute?

(6). Did the sheriff err in law in attaching too much weight to the views of Social Worker and Safeguarder when reaching her decision, in circumstances where the Safeguarder and Social Worker have not properly addressed or justified why contact cannot operate once per fortnight?

(7). Did the sheriff err in law in attaching weight to the view of the Safeguarder that contact should be limited to once per month due to the risk of nonattendance by the Appellant, when there was no adequate basis from which to apprehend a risk of non-attendance by the appellant?

(8). There was a significant gap in monthly contact of approximately three months in the summer of 2012 caused by the carer failing to comply with the condition by not making the child available for contact with the appellant? Did the sheriff err in law in failing to take account of the risk of further significant gaps arising through no fault of the appellant, when contact operates only monthly?"

 

[4] In her Stated Case the sheriff sets out clearly why she refused to adjourn the hearing on 11 January 2013. All the comprehensive reports which had been prepared were available. In particular there were available the up to date documents which had been before the Hearing, namely letters from the appellants solicitors dated 3 August 2012, 10 September 2012 and 26 October 2012, social work reports dated 27 June 2012 and 19 October 2012, and reports from the safeguarder dated 15 May 2012 and 10 October 2012. It was important for the child that the matter should proceed. The sheriff carefully records the submissions made to her on behalf of the appellant, the Reporter, the Safeguarder and the Fostercarer.

[5] Sheriff's decision, in which she deals with the various grounds of appeal in the application for a stated case, is in the following terms:-

"The remit of such an appeal is indeed restricted. In order to be successful I would have to be persuaded by the appellant that the decision which the panel reached on 29 October 2012 was one which no reasonable hearing would have taken on the information that was properly before them and on that basis their decision was not justified in all the circumstances of the case.

Paragraph one of the application for a stated case suggests that contact had operated successfully at the rate of once per fortnight until 9 December 2011. That was not the information which the panel had accepted. The note of their decision says, "It was felt that any further contact (ie. more than once per month) could confuse BB and would be to meet AA's needs rather than his". Accordingly it appeared to me that they had considered carefully whether or not contact operating fortnightly had been successful. There were a number of reports before the panel dealing with this and in particular the report by the Safeguarder dated 15 May 2012 which is at page 69 of the reporter's productions where it is stated, "The Safeguarder thought that contact went well but that BB had no closer a bond with AA than he would have with any other adult who was prepared to give him undivided attention for an hour" and at paragraph six of the same report the Safeguarder states "So far as contact is concerned while (the foster carer) said that she would be able to maintain a level of contact fortnightly the interests of the child are what is paramount for the panel. If the child is to be let down by AA not attending or a lack of commitment then it is better for the child that contact remains at once per month. This will maintain for the child a connection to AA while making the child feel more secure in the care of his foster carer and with his sisters". The panel also had the benefit of the Safeguarder's report

dated 10 October 2012 and at page 20 of the reporter's production in paragraph four of that report the Safeguarder states "The Safeguarder's assessment has not changed from the previous report and she would reiterate that contact with mum should remain at once per month supervised". Accordingly I considered that there was adequate justification for the panel to reduce contact to once per month.

The second paragraph of the application suggests that I effectively held that contact at a higher rate than once per month would present a risk of harm to the child's health or morals. I do not consider that I did so hold. My remit was to consider whether or not the hearing had made a decision justified in all the circumstances. As I have already indicated the panel made that decision on the basis of the information before them and state clearly in their reasons that any further contact could confuse the child.

Also in paragraph two of the application it is suggested that my decision breached the appellant's Article 8 ECHR rights to respect for private and family life by limiting contact. My understanding was that the appellant submitted that the decision of the panel breached the Article 8 rights. Any interference with private and family life obviously has to be proportionate and justified in the circumstances. I did not find that the panel had so acted. It flows from that that my decision in upholding the panel's decision does not breach the appellant's Article 8 ECHR rights.

Paragraph three of the application formed no part of my decision. The father's conduct and his previous relationship with the appellant was relevant only insofar as the panel had reached a decision that contact was to be supervised. Whether or not contact was to be supervised was not an issue that was raised before me.

Paragraph four should perhaps be read along with paragraph one of the application. I did not approach this matter as considering whether contact should remain at once per month. I approached the appeal on the basis of determining whether or not the children's hearing decision of 29 October 2012 was justified in all the circumstances. They appear to me to have considered that the reduction in contact was justified on the basis of the phrase I have already referred your Lordship to that current contact was in the child's best interest and any further contact could confuse him.

Paragraph five of the application for stated case appears to me to be a misreading of the children's panel decision which was very clearly to reduce contact to once per month.

With regard to paragraph six of the application for stated case I considered the views of the reporter and the safeguarder along with the submissions made on behalf of the appellant. The panel had before them the reports of the safeguarder and also the various social work reports. These in my view as already noted do address the question of why contact should not operate once per fortnight.

With regard to paragraph seven of the application for a stated case it is suggested that there was no adequate basis from which to apprehend a risk of non-attendance by the appellant. Clearly the panel had not accepted that there was no basis from which to apprehend a risk of non-attendance. They were entitled to reach that view on the basis of the history of the case and indeed of the appellant's non-attendance at the hearing on 29 October.

With regard to statement number eight it is clear that the panel were aware of the break in monthly contact in the summer of 2012 and appeared to me to have taken account of all the consequences that flowed therefrom."

 

[6] At the conclusion of her Stated Case the sheriff posed three questions for my opinion:-

"1. Did I err in law in holding that the decision of the children's hearing on 29 October 2012 was justified?

2. Did the decision of the children's hearing and my decision by affirming it breach the appellant's Article 8 ECHR rights?

3. Did I err in refusing the appeal?"

 

SUBMISSIONS FOR THE APPELLANT AT APPEAL

 

[7] It was submitted on behalf of the appellant that the sheriff had erred in law in holding that the decision of the children's hearing on 29 October 2012 was justified and that both the children's hearing and the sheriff's decision affirming it breached the appellant's article 8 rights.

The detailed written submissions which were made on behalf of the appellant were not assisted by the following;-

1.          The statement that "Psychological opinion would tend to demonstrate that a meaningful bond with a non-residential biological parent can enhance the child's self-esteem and benefit academic performance". There was no evidence at all before the hearing or the sheriff to that effect. It forms no part of this appeal.

2.          In the written submissions it is said on behalf of the appellant: - "It was conceded by the Reporter at the section 51 appeal that there was nothing within the papers to suggest that contact was negative - see page 6 of sheriff's stated case." As presented, the appellant's submission would appear to indicate that was the position before the hearing. However when one looks at page 6 of the sheriff's stated case, from which this quotation was said to derive, it was made in the following context "I was reminded that I was able to consider all of the papers before me and those that had been before the panel and I was urged to find that the panel reached a balanced decision based on all the information that was before them. There was nothing it was submitted within the papers to suggest that contact was negative but the difficulty was that the child's mother had missed a number of contacts prior to November 2011, when the contact arrangement was once every two weeks. Initially her attendance had been fine but that had not continued and there was no evidence the child's needs were being met by the contact provision that was in place. It was submitted that the main justification for the decision on 29 October 2012 was taken in light of the panel's consideration of the purpose of contact. The child in this case is in the care of his mother's sister and he is well settled there. The purpose of contact is to let him maintain his relationship with his mum and understand his position within the family. It was accepted that the safeguarder had felt that contact was positive. There was no evidence before the panel that reduction in contact would be detrimental. The panel fully recognised how important contact was but were very concerned by the prospect of the child being let down by his mother not attending. The reporter went through the detail of the decision on 29 October 2012 and submitted that in all the circumstances it was a reasonable decision and invited me to refuse the appeal. "

Accordingly there was no justification at all for the appellant in her written submissions to make the bold statement that it was conceded by the reporter that there was "nothing within the papers to suggest contact was negative." That statement requires to be read in the context in which it was made.

3.          It was said on behalf of the appellant that the safeguarder stated per stated case, page 10, that the foster-carer said "she would be able to maintain a level of fortnightly contact." However a perusal of page 10 of the stated case indicates the context of that remark. The sheriff stated;

"...Accordingly it appeared to me that they had considered carefully whether or not contact operating fortnightly had been successful. There were a number of reports before the panel dealing with this and in particular the report by the safeguarder dated 15 May 2012 which is at page 69 of the reporters productions where it is stated "Safeguarder thought contact went well but that BB had no closer a bond with AA than he would have with any other adult who was prepared to give him undivided attention for one hour." At paragraph 6 of the same report the safeguarder states "So far as contact is concerned while (the foster-carer) said she would be able to maintain a level of contact fortnightly, the interests of the child are what is paramount for the panel. If the child is to be let down by AA not attending or a lack of commitment then it is better for the child that contact remains at once per month. This will maintain for the child a connection to AA while making the child feeling more secure in the care of his foster-carer and with his sisters...The panel also had the benefit of the safe-guarders report dated 10 October 2012 and at page 20 of the reporters productions in paragraph 4 of that report the safeguarder states "The safeguarders assessment has not changed from the previous report and she would reiterate that contact with Mum should remain at once per month supervised. " The sheriff concluded "Accordingly I considered there was adequate justification for the panel to reduce contact to once per month."

 

I would have expected quotations from the sheriff's stated case, if to be used, to be quoted in context.

 

[8] The appellant refers to a note by Sheriff Dickson dated 10 February 2012 when he upheld an appeal against a panel decision of 9 December 2011. However, I would comment that it is not Sheriff Dickson's decision of 10 February 2012 which is relevant, but Sheriff Galbraith's decision of 11 January 2013. The question is whether the sheriff was entitled to take the view that the panel's decision of 29 October 2012 was justified in all the circumstances in light of all the material which was before the panel including the additional reports to which I refer in paragraph 4 hereof which were not before Sheriff Dickson.

 

[9] It was argued on behalf of the appellant that the sheriff had erred in law in refusing to uphold the appeal for the following reasons;-

1. The local authority had an onus to demonstrate the reduction in contact from once per fortnight to once per month was in the positive best interest of the child, before such a decision could be held to be justified, given the ECHR backdrop requiring close scrutiny of any further reduction in contact and the need to comply with the principle of minimum intervention. The Local Authority had failed to discharge this onus. The hearing was not provided, in terms of the information before it, with adequate reason or reasons to reduce contact as they did, halving the appellants entitlement to contact with her natural son. They state in the only part of the reasons for the decision found at page 2 of the Reporter's bundle that further contact "could confuse the child." They do not state that it would or would be likely to confuse him. They refer only to a possibility of such a confusion arising. It was suggested that the possibility of harm as opposed to the likelihood of harm is not a sufficient basis as to justify such intervention with the appellants ECHR article 8 rights as occurred by virtue of this decision. It was said that the sheriff failed to address this error in the Hearing's approach. At page 9 of the stated case she states "It was felt that any further contact (i.e. more than once per month) could confuse BB..." and at page 12 she states "They appear to have considered the reduction in contact was justified on the basis that I have already referred your Lordship to that current contact was in the best interest of the child and any further contact could confuse him..." It was submitted that this does not find or hold that further contact would on the balance of probabilities be likely to confuse him. There was no evidence or information before the children's hearing or the sheriff that would have enabled such a conclusion to be reached. In the absence of such a conclusion or finding the hearings decision was flawed and unjustified and the sheriff erred in law in affirming it.

2. It was submitted that written reasons for the hearings decision were inadequate. The basis for the decision reached to halve contact was not intelligible from the terms of the written reasons given for the decision. The hearing refers to having the safeguarders and social work reports before them. The decision refers to the fact that the recommendations in terms of both reports are the same, but does not further analyse whether the recommendations of the reports are justified. In terms of the Reporter's submissions in the appeal before the sheriff, the reporter states the "Difficulty was missed contact prior to 2011." The reporter referred to the fact that the hearing members were "Clearly concerned by the prospect of the child being let down by the mother not attending." The safeguarder also referred to the issue of the alleged pattern of non-attendance in her conclusions in her first report (page 62 of the reporters bundle) at pages 11 and 12 where she states that "AA's commitment to the child has not been as sustained as would have been hoped." Having regard to the sheriffs approach in the stated case, at page 9 of the stated case in the section "Decision" the sheriff refers to the hearing not accepting information that contact had operated successfully at the rate of once per fortnight until December 2011. However the reasons for the decision given by the hearing do not refer at all to having accepted any issue to do with the appellant's non-attendance. It was submitted that there was nowhere in the panel's decision where they say they agree with the proposition that there was a problem in respect of a pattern of attending by the appellant in the period up to December 2011 and subsequently. At page 13 of the stated case the sheriff states;

"Clearly the panel had not accepted that there was no basis for which to apprehend a risk of nonattendance".

 

However, the only reason the hearing gives for reduction in contact is further contact "could confuse the child". It was submitted it was far from clear that the panel had linked the issue of nonattendance by the appellant to any possibility of confusion on the part of the child. The basis for the decision was not intelligible and the decision was therefore not justified. There had been an error of law.

3. It was submitted that the sheriff had erred in law as, on the basis of the material available to her there was no adequate information before the hearing to enable it to be concluded that there was a pattern of nonattendance at contact by the appellant. The Note from Sheriff Dickson stated that he was not satisfied that there was sufficient information to allow it to be inferred that the mother would not attend for future visits at the rate of twice per month. It appeared there was missed contact on 20 May 2011 and 3 June 2011 but this was because the appellant did not wish contact to take place at her sister's house. This information was available to Sheriff Dickson when he wrote his Note. The only other reference to missed contact was intimated on 14 December 2011 that she would not be attending contact on 16 December 2011 as she had a cold. It was accepted that the appellant had not attended the children's hearing on 29 October 2012. It was submitted there was not sufficient information to infer that the mother would not attend for future visits at the rate of twice per month. It was further suggested there was no basis from which to conclude the child would be confused by contact operating once per fortnight.

4. The sheriff was tasked with determining whether the decision of the hearing on 29 October 2012 was justified in all the circumstances and she required to do so having regard to the appellant's article 8 rights and the backdrop of the ECHR jurisprudence. The sheriff accepted any interference with private and family life had to be proportionate and justified in the circumstances. It was suggested that she did not accept the minimum intervention principle. It was submitted the sheriff failed to take into account the requirement on her to ensure the hearing's decision to halve the appellant's contact was one that could be categorised as necessary in a democratic society for the prevention of harm and also complied with the principal of minimum intervention with the appellant's article 8 rights. The child had enjoyed contact at the rate of once per fortnight. He continued to enjoy contact. There was no allegation of the child being harmed. He was and is settled and happy in his placement. There was no compelling reason put forward for the reduction in contact. The decision of the hearing was in breach of the appellant's article 8 ECHR rights and in upholding the same the sheriff has erred and her decision should be overturned.

 

SUBMISSIONS FOR REPORTER

[10]The issue for the sheriff was whether the decision reached by the Hearing could be characterised as one which could not, upon any reasonable view, be regarded as being justified in all the circumstances of the case. It was submitted that the sheriff carefully considered the decision of the children's hearing and the reports which were before the panel. She considered the information that the panel had before it in coming to its decision to grant supervised contact with the appellant for one hour once per month. The sheriff's decision was fully explained in her decision which has been set out in para 5 hereof. The purpose of the appeal was not a reconsideration of the evidence which was before the Children's Hearing in order that she could form her own view of that evidence. Rather the sheriff, in considering whether the decision of the Children's Hearing was justified in all the circumstances, had to consider whether there had been any irregularity in the conduct of the case, whether the hearing had failed to give proper, or any consideration to a relevant factor in the case, whether the hearing had taken into account an irrelevant factor, and whether the decision reached by the hearing could be characterised as one which could not, upon any reasonable view, be justified in all the circumstances of the case.

 

[11] It was submitted that the sheriff had set out clearly in her stated case that she considered there was an evidential basis to justify the children's hearings reduction of contact to once per month for one hour. She considered the reasons set out in decision of the children's hearing dated 29 October 2012 which, inter alia stated;

"It was felt that any further contact (i.e. more than once per month) could confuse BB and would be to meet AA's needs rather than his."

 

The sheriff had regard to the reports produced within the inventory of documents for the reporter which included social work reports of 27 June 2012 and 19 October 2012, and the safe-guarder's reports of 15 May 2012 and 10 October 2012. These reports dealt with the consideration of the appropriate level of contact with reference to the welfare of the child. The safe-guarder's report of 15 May 2012 stated that;

"So far as contact is concerned while (the foster-carer) said she would be able to maintain a level of contact fortnightly, the interests of the child are what are paramount for the panel. If the child is to be let down by AA not attending or a lack of commitment then it is better for the child that contact remains at once per month. This will maintain for the child a connection with AA while making the child feel more secure in the care of his foster carer with his sisters."

 

It was submitted it could not be said that the decision of the children's hearing on 29 October 2012 was one which no reasonable hearing would have taken on the information that was properly before them. Accordingly, the sheriff was correct to hold that the decision was justified in all the circumstances of the case and she has not erred in law.

 

[12] It had been argued for the appellant that, in refusing the appeal the sheriff breached the appellants Article 8 rights under ECHR.

Article 8 of the European Convention on Human Rights provides,

"(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

(2) There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or economic wellbeing of the country, for the prevention of disorder of crime, for the protection of health or morals or for the protection of the rights and freedoms of others."

 

Contact between parent and child constitutes a fundamental element of family life. There had been interference with the appellants Article 8 right in this case, what requires to be considered is whether the interference was made in accordance with law and whether it was necessary in a democratic society. It was submitted that the sheriff correctly concluded at page 11 of her stated case when said;

"Any interference with private and family life obviously has to be proportionate and justified in the circumstances."

 

The case of Kutzner v Germany (2002) 35 EHRR 25 at paragraph 58 outlines how article 8 (2) should be considered:-

"Such an interference entails a violation of article 8 (2) unless it is in accordance with the law, has an aim or aims which are legitimate under 8(2) and is "necessary in a democratic society" for the achievement of those aims. The notion of "necessity" implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued."

 

[13] In this case it was argued that the interference of the appellant's article 8 rights was made in accordance with the law. It was made with a legitimate aim of protecting the "health and morals" and "rights and freedoms" of the child. What falls to be considered is therefore whether the interference was necessary and proportionate. Kutzner v Germany (supra) states;

"Although the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, there may in addition be positive obligations on the State inherent in an effective "respect" for family life. Thus, where the existence of a family bond has been established, the state must in principle act in a manner permitting this bond to develop and take measures with a view to reuniting the parent and child in question."

 

It was submitted that it was important to appreciate that this was not a case where contact with the appellant was being terminated. Rather, contact was reduced from fortnightly contact to contact once per month with extra contact agreed in the child's birthday week. It was submitted that, in accordance with the sheriff's decision there was proper justification in this case for contact to be reduced. The welfare of the child was the paramount consideration of the Children's Hearing and the court. It was considered to be in the best interest of the child that contact be continued at the rate of once per month for one hour. The panel gave reasons for this. In accordance with the case of Thorbergesson v Iceland (1994) 18 EHRR at para C where, as in the present case there is a conflict between the rights of the parent and the child in terms of article 8, and the conflict can only be resolved to the disadvantage of one of the parties, the interests of the child must prevail.

 

[14] The sheriff, in concluding that the decision of the Children's Hearing was justified in all the circumstances of the case had due regard to the appellants article ECHR rights. In considering whether the decision was justified in all the circumstances, the sheriff considered the panel's reasons. The sheriff considered the panel's finding that

"It was discussed that this level of contact is in the best interest of BB and is sufficient for him to have an understanding of his origins. It was felt that further contact could confuse BB and would be to meet AA's needs rather than his."

 

[15] It was submitted that the sheriff correctly held that any interference with the appellant's private and family life had to be proportionate and justified in the circumstances. In considering the appeal, the sheriff also required to have the welfare of the child as its paramount consideration. That the welfare of the child was in the sheriff's contemplation as the primary consideration of the case was clear from the sheriff's Stated Case which I have set out in paragraph 5 hereof. The case presented a conflict between the welfare of the child and the appellant's article 8 rights and the welfare of the child prevailed.

 

[16] Having found that the decision of the hearing was justified in all the circumstances of the case and for the reasons she set out, the sheriff considered that interference was necessary and proportionate. It was submitted that the decision of the Children's Hearing and the sheriff's decision affirming it did not breach the appellant's article 8 ECHR rights.

 

SUBMISSIONS FOR FOSTER CARER

[17] It was submitted on behalf of the Foster Carer that, in deciding whether the Hearings decision was justified in all the circumstances of the case, the sheriff considered the material which was before the panel which informed its decision and whether the reasons provided by the panel in support of the decision were sufficient. The sheriff was then compelled to exercise her discretion to determine whether to allow the appeal, only doing so where she found that the decision of the children's hearing was "not justified in all the circumstances of the case" in terms of section 51(5) of the 1995 Act. It was noted that Professor Norrie comments that "These words...do not permit the sheriff to allow the appeal merely because he has a difference of opinion with the hearing as to the correct disposal of the appeal. It is perfectly conceivable that two different, even opposing, disposals are justifiable in the circumstances of a single case. Rather the sheriff must be satisfied that there was a procedural irregularity in the conduct of the case before the hearing, or that the hearing failed to give proper consideration to some factor in the case." (Kenneth McK Norrie, Children (Scotland) Act 1995, Greens Annotated Acts, 1995 edn. at p.36/51.

 

[18] It was submitted that the appellant could only succeed in the current appeal if the Sheriff had either misdirected herself on a point of law or where there had been some procedural irregularity in the conduct of the case. There was no suggestion that there had been any procedural irregularity in the conduct of the case. Therefore, taking the appeal as a whole, the appellant's challenge was directed towards the exercise of the Sheriff's discretion in refusing the appeal. Reference was made to MacPhail's Sheriff Court Practice (3rd Edn.) paragraph 18.111.

"The underlying rationale of the appellate court's restrictive approach to the review of discretionary decisions is that it is of the essence of a judicial discretion that on the same material different minds may reach widely different decisions, any one of which may reasonably be thought to be the best, and any one of which, therefore, a Judge may made without being held to be wrong. The appellate court may intervene if it is satisfied that the judge did not exercise his discretion at all; or that in exercising it he misdirected himself in law; or misunderstood or misused the evidence or material facts before him; or took into account an irrelevant consideration; or failed to take into account some relevant consideration; or if his conclusion is such that, though no erroneous assumption of law or fact can be identified, he must have exercised his discretion wrongly. Expressions which have been judicially employed to describe such a conclusion include: 'completely' or 'plainly' wrong; 'wholly unwarranted'; 'manifestly inequitable'; 'unreasonable' and 'unjudicial'."

 

It was the submission by solicitor for the foster-carer that none of the foregoing descriptions set out towards the end of this passage equated with the careful and measured approach taken by the Sheriff in this case.

 

[19] It was submitted the Sheriff in her stated case had demonstrated the ample consideration which she gave to the question of whether the Children's Hearing decision was supported by information which justified the decision to reduce contact to once per month. The Sheriff observes that "there were a number of reports before the panel" and goes on to consider comments made by the safeguarder in her report dated 15 May 2012. Amongst the other reports before the panel were a full Social Work Department report dated 27 June 2012 and a Supplementary Social Work Department report dated 19 October 2012. The social worker author of 27 June 2012 report under a section entitled "Contact" observed, at page 36 of the Reporter's bundle, that, "Since BB does not appear to be distressed by the contact within the setting of the family home, the writer would not suggest that contact is stopped however in terms of maintaining a positive relationship, I would suggest that BB's needs can be met by the current arrangements." The 'current arrangements' referred to is monthly direct contact between BB and the appellant within the carer's home. The Children's Hearing also had two reports from the safeguarder dated 15 May 2012 and 10 October 2012 and letters from the appellant's solicitor dated 26 October 2012, 10 September 2012 and 3 August 2012 before it.

 

[20] In the reasons for decision panel members record that, "Contact was discussed at length and representations from AA's solicitors were discussed too." The panel members continue, "It was discussed that this level of contact is in the best interest of BB and is sufficient for him to have an understanding of his origins." It was submitted that the panel members, when referring to the 'best interest' of the child are guided in their decision by the overarching principle, contained within Section 16(1) of the Children (Scotland) Act 1995, which provides that the welfare of the child shall be their paramount consideration. On the basis of these comments it was submitted that the Sheriff was entitled to hold that the panel had regard to all of the information necessary to make a decision and that the decision reached was justified in all of the circumstances of the case. In refusing the appeal the Sheriff exercised her discretion in an entirely appropriate manner.

 

[21] In considering whether the Sheriff's decision breached the appellant's rights under Article 8 of the European Convention on Human Rights and Fundamental Freedoms, consideration must be given to the jurisprudence of the European Court of Human rights which had repeatedly affirmed that where the Article 8 rights of both a natural parent and a child are engaged, a fair balance must be struck between the individually and respectively held rights. Where the rights of the child are in conflict with those of the parent, the rights of the child can override those of the parent where the reasons for this are relevant and sufficient. The child's welfare must be the paramount consideration Where the tribunal requires to balance the Article 8 rights of the parent against those of the child, the Court will attach particular importance to the best interests of the child, which, depending on their nature and seriousness may override those of the parent (Johansen v Norway (1997) 23 EHRR 33, at para 78). It was submitted for the Foster Carer that the decision of the Children's Hearing and subsequent decision of the Sheriff were made in compliance with the Convention rights of the appellant and the child. The decisions of the Hearing and the Sheriff, when considered in light of the aforesaid paramountcy principle, did not constitute a disproportionate infringement of the appellant's right under Article 8 sufficient to amount to a breach of that right.

 

[22] It was submitted that the court should answer the questions posed by the sheriff in her stated case in the negative and refuse the appeal.

 

SUBMISSIONS FOR SAFEGUARDER

[23] The safeguarder submitted that the remit of the safeguarder in these proceedings was to safeguard the interests of the child. In protecting the interests of the child, the safeguarder had looked at the whole circumstances of the child, both on a historical basis, at the current time and in the future. However consideration was based on the needs of the child. Those were the priority for the safeguarder. The needs or wishes of the appellant in respect of that child were not so prioritised. The safeguarder had prepared and produced a report for the children's hearing which was considered by them. That report set out the reasons for the safe-guarder's recommendation to the panel.

 

[24] The safeguarder pointed out that the appellant had submitted that there was no proper justification for reduction in contact (from the current once per month). It was the view of the Reporter, the Safeguarder, the Foster Carer and the Panel that a proper justification did exist on the basis of the interests of the child. Conclusion was that contact at the level of once per month met the needs of the child. The children's hearing decision reflected those needs. Their response was proportionate.

 

[25] At the appeal hearing before me the safeguarder indicated that she had been present at the Hearing before the panel and was part of the discussion which took place. It was clear from the papers, and emphasised that BB was now 5 and would shortly be going to school. The foster carer is the appellant's sister - a kin-ship carer. BB has two older sisters who have no contact with their mother, the appellant. BB is part of a family with the foster carer acting as "mum" and three children, namely BB and his two sisters. It was accordingly the case that BB was out on a limb as far as the family which the foster carer was providing for the three children. He was the only one who was seeing the mother of the three children. At the time of the Hearing on 29 October 2012 contact was once per month and this had been the situation for 10 months. It was stated before the panel, which the appellant did not attend, that the original day offered in December 2011 did not suit the appellant as she said she had a cold. A different day was offered but that did not suit the appellant. The appellant did not see BB over the Christmas period. The safeguarder had stated to the panel that to her mind this displayed a lack of commitment and concern for the child. There should be no termination of contact as the safeguarder agreed maintaining the child's sense of identity was important. The various reports and this information was discussed by the panel who concluded that further contact than once per month would confuse BB and meet AA's needs rather than his own. It was also noted that as referred to in page 10 of the safeguarders report of 15 May 2012 regarding her discussion with CC, the social worker. It follows;

"CC confirms that the social work's recommendation remained that contact should be at once per month. She said there had been a space of some 10 weeks when mum had not seen BB and BB had been neither up nor down. BB seemed not to be the priority for AA. AA had cancelled planned contacts when she simply hasn't got her own way (20 May and 3 June 2011 and Christmas 2011). CC mentioned the contact at Christmas when mum had been anxious to change contact. It had not been convenient for DD, and mum had not seen the child for an extended period of time. The safeguarder had indicated that she had heard BB call AA, "mummy A" and CC pointed out that it was DD who encouraged the child to call AA, mummy. CC was quite clear that her recommendation had remained the same and that that recommendation was in BB's interests. She said that during her observations of contact was clear that any play was led by BB. There was no suggestion that AA brought anything for the child or sought to engage the child in anything other than what the child dictated. CCvery strongly felt that the child could be having any contact with anybody, there was no special bond between BB and AA."

 

[26] The safeguarder confirmed what had been said at the hearing namely, that the confusion for BB was his place within DD's family. It was always important for a child to know his origins, where he comes from, his sense of identity. So contact was maintained to meet BB's needs as he had to settle within a family where his siblings had no contact with their biological mother. The safeguarder emphasised that the whole thrust of the Hearing's decision was what was in BB's best interests and what would meet his needs.

 

[27] There had been reference to the appellant's human rights. The whole purpose of the Children's Hearing system was to promote and protect the welfare of the child. In so doing the court has to look at interference with the child's right to a family life. The foster carer was providing that family for BB. The very fact that AA could not commit to the child at the important period of Christmas gave rise to concerns about the appellant providing what the child needed. I was referred to the cases of R & H v United Kingdom 2012 54 EHRR 2 which confirmed "The child's best interests was paramount in all decisions concerning children" and Re W (Children) 2012 EWCA civ999"...the welfare of the child is the paramount consideration of any court concerned to make an order relating to the upbringing of a child. It cannot be emphasised too strongly that the court is concerned with the interests of the mother and the father only as in so far as they bear on the welfare of the child."

 

[28] The safe-guarder's position was that contact must meet the needs of the child. It did not require to meet the needs of the parents. While the needs and wishes of the parents will always be taken into account, the paramount consideration was the child. The safeguarders submission was that the child would maintain his sense of identity by contact with his biological mother once per month and that was all that the child required at this stage. Contact on a once per fortnight basis would confuse the child, particularly at a time when he was attempting to establish his identity in DD's family with his two sisters. If he was aware of his biological mother's existence and regular attendance once per month, this would not be a source of anxiety for the child, particularly in a situation where his two siblings were living with the foster carer in family.

 

[29] The safeguarder conceded that, whilst these were her views, the sheriff required only to consider whether the decision of the Hearing was justified in all the circumstances. The sheriff was only required to consider the panel's decision and whether that was justified given what the panel had heard and had before it at the time. Having considered the background carefully as the sheriff set out in her note, it was submitted that the sheriff was correct to find that the decision of the Hearing was justified in all the circumstances.

 

DECISION

 

[30]. The sheriff is correct in stating that the appeal before her, to be successful, required her to reach the conclusion that the decision which the panel reached on 29 October 2012 was one which no reasonable hearing would have taken on the information that was

properly before them and on that basis their decision was not justified in all of the circumstances. The sheriff had before her the Reporter's very large bundle of papers including reports, which were prepared after the Hearing before Sheriff Dickson, from the social work department dated 27 June 2012 and 19 October 2012 and from the safeguarder dated 15 May 2012 and 12 October 2012, and letters from the appellant's solicitors of 3 August 2012, 10 September 2012 and 26 October 2012.

 

[31] I would first deal with the tests which require to be applied by a sheriff and a sheriff principal in appeals under section 51 of the Children (Scotland) Act 1995. I consider the position is as follows:-

(A) The test to be applied by the sheriff

The test to be applied by the sheriff in an appeal under section 51(1) of the Children (Scotland) Act 1995 is set out in sections 51(3 ) to 51(5). In order for an appeal from the children's hearing to succeed the sheriff must be satisfied that the decision of the children's hearing was not justified in all the circumstances of the case. In my opinion the correct approach to this test is to be found in the case of W v Schaffer 2001 SLT (Sh.Ct.86). In that case Sheriff Principal Nicholson at pages 87 to 88 sets out the matters that must be looked at in ascertaining whether the test is met:-

"It follows, in my opinion that the task facing a sheriff to whom an appeal has been taken is not to reconsider the evidence which was before the hearing with a view to making his own decision on that evidence. Instead, the sheriff's task is to see if there is some procedural irregularity in the conduct of the case; to see whether the hearing failed to give proper, or any consideration to a relevant factor in the case; and in general to consider whether the decision reached by the hearing can be characterised as one which could not, upon any reasonable view, be regarded as being justified in all the circumstances of the case."

 

The case of O v Rae 1993 SLT 570 gives further guidance to the court as to the approach to be taken whether the decision was justified in all the circumstances. Commenting on the power afforded to the sheriff on appeal under section 49(3) of the Social Work (Scotland) Act 1968 (A similar provision) Lord President Hope observed at page 575;

"If the decision is one which no reasonable hearing would have taken on the information that was properly before them, then the sheriff has power under section 49(5) of the 1968 Act to intervene on the ground that it is not justified in all the circumstances of the case."

 

Professor Norrie in Children's Hearings in Scotland (2nd Edition) at 213 states;

"The words (whether the decision is not justified in all the circumstances of the case) do not permit the sheriff to allow the appeal merely because he has a difference of opinion with the hearing as to the correct disposal of the case or as to whether a warrant ought to have been granted. It is perfectly conceivable that two different, even opposing disposals are justifiable in the circumstances of a single case.

 

(B).The test to be applied by the sheriff principal

The test for the sheriff principal is set out in section 51(11) of the Children (Scotland) Act 1995 as follows;

"Subject to sub sections (13) and (15) below, an appeal shall lie by way of stated case either on a point of law or in respect of any irregularity in the conduct of the case."

Sheriff Principal Nicholson in W v Schaffer (Supra) at page 88 said:-

"It must in my opinion follow that an appeal to the Sheriff Principal or to the Court of Session will only be capable of succeeding if it can be shown that either the sheriff failed to apply the correct test under sub section (5) or that the sheriff mis-construed or mis-applied some other point of law which was pertinent to the issue before him."

 

There has been no suggestion by any party of any irregularity in this case. The only two issues which arise are (i) whether the sheriff has failed to apply the correct test and (ii) whether the sheriff mis-construed or mis-applied some other point of law which was pertinent to the issue before her.

In my opinion the sheriff clearly applied the correct test in considering whether the decision was justified in all the circumstances of the case. The sheriff in terms states in the Decision section of her stated case that she did apply that test. The only question for me is whether, on the material before her the sheriff was entitled, in the exercise of her discretion to hold that the decision of the hearing was justified in all the circumstances of the case.

 

[32] In deciding that issue, I propose to deal with the submissions in this appeal under two headings:-

(A). Was the sheriff entitled to hold that the decision of the Children's Hearing on 29 October 2012 was justified in all the circumstances of the case.

(B).Whether the Hearing in making its decision, and the sheriff, in refusing the appeal, breached the appellant's article 8 rights under ECHR.

 

A. Was the sheriff entitled to hold that the decision of the Children's Hearing on 29 October 2012 was justified in all the circumstances of the case?

[33] I have been able to consider the whole of what is described as "The Reporter's Bundle" extending to 243 pages which was before the members of the children's panel when they made their decision on 29 October 2012. In particular this bundle contains up-to-date social background reports dated 27 June 2012 and 19 October 2012, and reports from the safeguarder dated 15 May 2012 and 10 October 2012. These were available to the sheriff. I have been able to consider the statement of reasons by the panel which I have set out in paragraph 3 hereof. I have read the sheriff's Stated Case prepared in response to the questions posed on behalf of the appellant recorded in paragraph 5 hereof. I have considered the submissions of the Appellant, the Foster Carer, Safeguarder, and the Reporter which I have recorded in this Note.

 

[34] This was a discretionary decision made by the sheriff on the basis of the material placed before her. I can only interfere with that decision on the grounds set out in the well-known passage from Macphail at para 18.111 which is recorded at para 18 hereof in the submissions on behalf of the foster carer. The sheriff held that the decision of the children's panel of 29 October 2012 was justified in all the circumstances. Having considered all the papers to which I have referred, I am not in a position to say that the sheriff's decision was "completely" or "plainly wrong", "wholly unwarranted", "manifestly inequitable" "unreasonable" or "unjudicial". In my opinion it was a decision she was entitled to take on the basis of the information available to her. I accept the submissions which have been made on behalf of the foster carer, the safeguarder and the reporter which I have recorded in this note. I do not accept the submissions on behalf of the appellant.

 

[35] It is the case that the appellant's submissions concentrated on protestations that the occasional failure of contact to take place should not be laid at the door of the appellant. However, that is not the main thrust of the decision. It was pointed out that the grounds of referral are of a serious nature and BB requires the protection and guidance that a supervision requirement provides. He is not able to return to the care of his mother as she is not able to give him the care and protection he requires. She is not able to prioritise his needs over hers. He could not be cared for by her on a voluntary basis. He is well looked after by his aunt who provides him with a safe, stable and nurturing environment. He enjoys nursery and is meeting his developmental milestones. He lives in family with his aunt with his two older sisters, neither of whom wish to have any contact with the appellant. BB does not mention his birth mother. He talks about his aunt. BB is growing up. The panel gave careful consideration to the question of contact. They took the view that once per month was in the best interests of BB and sufficient for him to have an understanding of his origins. The panel took the view that any further contact could confuse BB and would meet the appellant's needs rather than his own. In my view, that is a perfectly tenable conclusion in light of the contents of the reports which were before the panel. While there is comment that the panel were concerned about contact not proceeding on occasion, the essence of the decision is not that contact is being reduced because the appellant is not attending for her contact. As I understand it, the essence of the decision is that, in view of the nature of the family at this stage in which he is placed, it was in BB's best interests that contact should be once per month.

 

[36] I consider the panel were entitled to come to that conclusion on the basis of the information before them as a whole. And what in my view puts the matter beyond doubt is a consideration of the following passages of the up to date reports which were before the panel:-

(i) Social background report dated 27 June 2012.

This report was compiled by the social worker, EE. It was made on the basis of the file to date, a home visit to DD and BB an office visit with AA and a Nursery report, together with all the previous social work records and reports. Having reviewed all the material the writer concludes;

"Since BB does not appear to be distressed by the contact within the setting of the family home, the writer does not suggest that contact is stopped. However in terms of maintaining a positive relationship, I would suggest that BB's needs can be met by the current arrangements. Contact within the family home will reassure BB and his siblings who may also be anxious for their brother, of the carer's ability to protect him while allowing BB to have some positive interaction with AA."

 

The writer recommends that contact continues as per the current agreement, that it is monitored by the worker completing a contact monitoring form after each contact and that it is reviewed annually in conjunction with the supervision requirement unless any concerns are noted during contact, in which case social work should assess and take action as necessary. The purpose of contact is to meet BB's needs and therefore the best interests of BB will be central to any contact arrangement. It is the writer's view that the current level of contact can meet BB's needs at present and this is one hour per month.

(ii) A supplementary social background report was provided dated 19 October 2012. The recommendation was;

"As regard contact with AA this is currently monthly for 1 hour....the writer recommends that the current level of contact meets BB's needs with the additional agreement that BB should be allowed contact on special occasions such as his birthday. The writer also recommends that contact is monitored and reviewed including the need for social work supervision."

 

It has to be emphasised that these conclusions were reached by social workers in light of all the facts set out in the voluminous file which was before the Children's Hearing and the sheriff.

[iii] The safeguarders report of 15 May 2012

The safeguarder was appointed by a panel sitting on 30 March 2012. That panel sitting followed a successful appeal in respect of level of contact and a decision had been remitted back to the panel for reconsideration. Contact had been restricted from once per fortnight to once per month for 1 hour at the home of DD, the child's aunt and full time carer. The safeguarder was tasked to consider the appropriate level of contact between BB and AA. It was noted that there were no plans to rehabilitate BB with his mother. The safeguarder was to look at whether the recommendation made for reduction of contact was appropriate. The panel was particularly concerned as to the conflict surrounding the relationship between mother and father and whether AA could provide BB with a safe, secure environment. In her report the safeguarder stated, inter alia:-

"Background and Circumstances of the Child - It was noted by July ((2011) that the child was obtaining very little benefit from the arranged contact. The view of social work is that contact remains at a superficial level and the observations of contact by social work indicate that BB is a child who has no meaningful relationship with his mother.

 

Conclusion and Assessment of Validity of Parents Views - The safeguarder was interested to see how unrealistic AA's proposals were particularly as she had been seen at Glasgow Airport with FF just recently and there had been a sighting on Cathcart Road. AA did not seem able to prioritise BB's needs and to look after BB first. It is unfortunate AA's position is that she would rather BB went to foster carers than stayed with DD. The safeguarder feels that this shows exactly the priority in which AA puts BB's best interests and his needs.

 

Views of the Child - The Safeguarder reports on observation of contact on 27 April 2012 as follows;

"There were no spontaneous shows of affection by BB. BB was certainly not upset when AA left. The safeguarder would have to say that contact was positive for the hour she observed it. However, that would have to be balanced against any child who has the total attention of an adult for 1 hour with that adult concentrating totally on the child. The safeguarder is not convinced that BB has any closer bond with AA than he would have with anyone else and he certainly does not have a closer bond with AA than he does with DD...safeguarder would have to say that all the play was led by the child. It was the child who chose what was to be done next, which book to read and it was clear that he was delighted to have an adult to himself for the hour. BB was very pleased to have the attention but the safeguarder noted that he was not committed in any way to AA and while AA would try to hug him or touch him, BB did not reciprocate. During the contact, AA also told BB that the contact needed to finish quickly because she was going to the doctor. She indicated at 9.45 am (45 minutes into the hour long contact) that she needed to help BB tidy up and get ready to go...BB certainly wanted her to stay and play for longer. The safeguarder thought that contact went well, that BB had no closer a bond with AA than he would have with any other adult who was prepared to give him undivided attention for an hour.

 

Report on her interview with CC - She felt however that over the period when AA had not made any effort to see the child, it was the lack of commitment to BB that she found most distressing. The safeguarder reported on an interview with CC, the social worker; CC confirmed that social workers recommendation remained that contact should be at once per month. She said there had been a space of some 10 weeks when mum had not seen BB and BB was neither up nor down. BB seemed not to be the priority for AA. AA had cancelled planned contacts when she simply hadn't got her own way. CC mentioned the contact at Christmas when mum had been anxious to change contact, it had not been convenient for DD and mum had not seen the child for an extended period of time....CC was quite clear that her recommendation remained the same and that that recommendation was in BB's interests....CC very strongly felt that the child could be having contact with anyone, there was no special bond between BB and AA.

 

Conclusion - Having spoken to DD and the social worker it is clear that AA is missing a huge element of trust in relation to her lack of clarity about her involvement with EE. Despite evidence to the contrary, AA continues to be adamant that she had no relationship with EE. DD finds this impossible to believe and the social worker has difficulty with this stance also. The concern is in relation to BB and the fact that BB's needs are not being prioritised by AA. The contact which AA has with BB, is for the benefit of BB. It is difficult to see the benefit if AA is not prepared to commit to the contact is shown by the lengthy period of non- contact over the December period last year and there is little doubt that DD is caring for BB on the same basis as she had cared for AA's two older children. There can be no concerns about DD's care and yet AA's position is that she would prefer foster carer for BB rather than BB staying withDD (and with his two sisters). The safeguarder is concerned that AA is letting her own feelings overcome what is in BB's best interests."

 

(iv) Safeguarders Supplementary Report - 10 October 2012.

"The safeguarders assessment has not changed from the previous report and she would reiterate that contact with mum should remain at once per month supervised."

 

[37] Another sheriff may have taken a different view on the basis of the evidence which was before the panel. However, that is not the test. The test is whether, on the basis of the information available the decision can be said to be justified in all the circumstances. I have no hesitation in taking the view that the evidence is capable of that interpretation.

 

B. Whether the Children's Hearing in making their decision and the Sheriff, in refusing the appeal, breached the appellant's Article 8 rights

[38] In my opinion this issue is properly and effectively dealt with in the submissions on behalf of the reporter which I have recorded in paragraphs 12 to 16 hereof, in the submissions by the foster carer which I have recorded in para 21 and the submissions of the safeguarder which I have recorded in para 27. I accept these submissions. It is my opinion that this case there has been no breach of the appellant's Article 8 rights. The welfare of the child is the paramount consideration. It is clear from all the work which has been done in connection with this case that the actions have been prompted by the application of that principle. The interference with the appellant's private and family life was proportionate and justified in the circumstances. The sheriff was entitled to so conclude.

 

[39] Accordingly, I answer the three questions posed in the sheriff's stated case set out in para 6 hereof in the negative and refuse the appeal. I have made no order in respect of expenses.