EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
	[2014] CSIH 66
Lord Eassie Lord Drummond Young Lord Clarke	XA26/14   OPINION OF THE COURT   delivered by LORD DRUMMOND YOUNG   in the cause   by   MP Appellant;   against   ELIZABETH TEMPLETON Respondent:   _______________

 

Act:  Party

Alt:  Dickson, Solicitor Advocate;  Anderson Strathern LLP

 

15 July 2014

 

[1]        The appellant has presented an appeal to the Court of Session under section 51(11)(b) of the Children (Scotland) Act 1995.  The sheriff in Aberdeen issued an interlocutor and note on 5 September 2013, following upon an appeal under section 51(1) of the 1995 Act by the appellant against a decision taken by children’s hearing on May 2013.  The sheriff refused the appeal to her as incompetent.  The respondent is the Locality Reporter Manager of the Social Services Department of the City of Aberdeen Council who is responsible for the two children who were the subject of the proceedings at the children’s hearing.

[2]        The proceedings relate to two children, J, born on 28 April 2006, and H, born on 28 August 2007.  They are the children of TB and AM.  The appellant is a friend of the family but is not related to them.  The two children had been the subject of compulsory child protection measures owing to the inability of their parents to care for them adequately.  The appeal to the sheriff arose out of a review hearing in respect of the two children that took place on 2 May 2013.  The appellant accompanied the father, AM, to the hearing; the mother and children did not attend.  The appellant claimed that he was a “relevant person” within the meaning of section 93(2)(b) of the Children (Scotland) Act 1995.  The sheriff rejected that contention.

[3] Status as a “relevant person” is critical for two reasons.  First, such status would give the appellant a right, and an obligation, to attend any children’s hearing in respect of the two children.  Secondly, such status would entitle the appellant to challenge the decision of a children’s hearing through an appeal to the sheriff and, ultimately, to this court.  Section 93(2)(b) of the 1995 Act defines the expression “relevant person”.  It provides:

“’Relevant person’ in relation to a child means-

 

(a) any parent enjoying parental responsibilities or parental rights under Part I of this Act;

 

(b) any person in whom parental responsibilities or rights are vested by, under or by virtue of this Act;

 

(ba) any person in whom parental responsibilities or parental rights are vested by, under or by virtue of a permanence order (as defined in section 80(2) of the Adoption and Children (Scotland) Act 2007, including a deemed permanence order having effect by virtue of [certain specified statutory provisions]); and

 

(c) any person who appears to be a person who ordinarily (and other than by reason only of his employment) has charge of, or control over, the child or who appears to have established family life with the child with which the decision of a children’s hearing may interfere”.

 

The words in bold type fall to be implied into the section by virtue of the decision of the UK Supreme Court in Principal Reporter v K, 2011 SC (UK SC) 91, where it was held that the statutory power in section 3(1) of the Human Rights Act 1998 should be invoked to bring the section into line with the requirements of the European Convention on Human Rights: see paragraph 70 of that decision.

[4]        The sheriff held that the appellant was not a relevant person within the foregoing definition, and it is that part of the decision that is the primary focus of the present appeal.  The result of the sheriff’s holding is that the appeal to her by the appellant was incompetent, and if that is correct the appeal to the court must also be incompetent.  The respondent has presented a note of objection to the competency of the appeal, which argues in support of the sheriff’s finding that the appellant is not a “relevant person” in terms of section 93(2)(b) of the 1995 Act.

[5]        An appeal to the Court of Session under section 51(11)(b) of the Children (Scotland) Act 1995 proceeds by way of stated case.  In the stated case the sheriff has made findings in fact, which may be summarized as follows.  The family lifestyle of TB, AM and the children was “chaotic and at times violent, alcohol and drugs being major factors”.  Since June 2006 J and since April 2009 H have been the subject of compulsory child protection measures due to the inability of their parents to care for them adequately.  Supervision requirements were made in respect of the children, and they were placed in the care of their great aunt, LBB.  The supervision requirements were from time to time varied or continued or both, permitting the parents supervised contact with the children.  On 12 June 2012 the children were returned to the care of TB but under the condition that they would have respite care with LBB.  During 2013 concerns arose once again regarding the parenting skills of the parents, who had descended into drug taking and alcohol abuse as well as violence, and the impact that this had on the children.  Consequently a children’s hearing was scheduled for 2 May 2013.

[6]        The sheriff finds that the appellant is a long-standing friend of the family.  At the children’s hearing on 2 May 2013 TB and the children failed to attend, and the appellant accompanied AM, the father, to the hearing.  The Children’s Reporter, social workers, the head teacher of the children’s primary school and a consultant addiction psychiatrist were also present.  In advance of the hearing the appellant had discussed his status with the Reporter and had asked that he be treated as a relevant person.  The Reporter informed him that he was not, but stated that he could ask the hearing to treat him as such.  The appellant asked the panel who conducted the hearing for permission to address them as a relevant person.  The panel did not appear to have considered this request but allowed the appellant to remain at the hearing as a supporter for the father.  At the hearing AM, the father, left several times, was disruptive and argumentative and disagreed with many of the reports before the panel.

[7]        The sheriff then made a number of specific findings in fact that are pertinent to the present appeal:

“12)  Having heard from [AM, the headmistress and the social workers], the panel unanimously decided that the children were in continuing need of compulsory measures of care and ordered that the supervision requirements be varied so that the children live with [LBB], with the parents being afforded supervised contact once a week.

13)  The children currently live with [LBB].

14)  The care for the children was provided, from time to time, by their parents and is currently provided by [LBB].  The appellant does not have, and never has had, shared care of the children.

15)  The appellant is not related to the children.  He is not, and has not been, a foster carer for the children.

16)  The appellant does not have parental rights and responsibilities in relation to the children.  He does not have contact with them by order of the court.

17)  The appellant does not live with the children, or they with him.  The appellant has his own home.

18)  The children attend… Primary School.  Occasionally, when the children were living with their parents, the appellant assisted the parents by taking the children to school, collecting them at the end of the school day and returning them to the care of their parents.

19)  Occasionally the appellant took receipt of letters and reports from teachers at…  Primary School and delivered them to the parents.

20)  The appellant provided support for the parents in renting accommodation to them, and assistance to them in transporting them to important appointments and running errands for them.”

[8]        On the basis of the foregoing findings of fact the sheriff found in fact and law that the appellant did not appear to be a person who ordinarily had charge of or control over the children; nor was he a person who appeared to have an established family life with the children with which the decision of the children’s hearing might interfere.  Consequently he did not fall within the category of a relevant person within the meaning of section 93(2)(b) of the 1995 Act, as read in line with the decision in Principal Reporter v K, supra, and did not have a right to appeal to the sheriff.

[9]        The sheriff then summarized the evidence that had been led before her.  The deputy head teacher of the children’s school stated that their attendance was good, and that the appellant sometimes delivered the children to and collected them from school.  On occasion hand-outs in relation to school events or letters for parents were passed to him on his giving an assurance that he would deliver them to the parents.  The witness did not regard the appellant as a person with care of the children but rather as a helper for the parents.  A social worker concerned with the children gave evidence that the appellant ran errands for TB, the children’s mother, when she was ill, and on several occasions took the children to and from school.  He acted as a support for the father, AM.  In her opinion the appellant was not a person of significance for any continuing care programme for the children, and had never been regarded as such by the children’s hearing.  He did not at any time report to social workers or anyone else any concerns about the neglect of the children by the parents.

[10]      The appellant gave evidence, describing his relationship with the parents, how he came to know TB and provide her with lodgings, her relationship with AM and the birth of the children.  He spoke about the parents’ dependency on illegal drugs and alcohol and AM’s time in prison, and the ill-health of TB.  He described the assistance and support which he provided for the family, and he gave evidence about the children’s hearing.  He had prepared a written report for the hearing, but he thought that it had not been provided to the panel.  He had attempted to persuade the panel that he was a relevant person, but they failed to give a decision and refused a request for further submissions.  The sheriff concluded that the appellant’s evidence was exaggerated and lacked objectivity.  He believed that he had a significant role in the on-going care and protection of the children, but this was not borne out by anything that she had heard or read.  She made an adverse finding as to his credibility and reliability.

[11]      Evidence was also led from the reporter.  She described her involvement with the appellant at the children’s hearing, and stated that he did not fall within the category of a relevant person as he did not ordinarily have care and control of the children.

[12]      Following submissions, the sheriff decided that the appellant was not a relevant person.  She indicated that none of the authorities to which she had been referred was concerned with the relationship between a child and a family friend.  She had been referred to Principal Reporter v K, supra, and observed in relation to that case:

“The court considered that as a child is at the very heart of the proceedings before the panel and that child may come from an extended and complex family a widening of ‘the range of such people who have an established relationship with the child and thus something important to contribute to the hearing’ is crucial.  That cannot possibly mean any individual with a tenuous link to the children through other connections with family members for the court stated ‘… a parent (or other person) whose family life with the child is at risk in the proceedings must be afforded a proper opportunity to take part in the decision-making process’ (paras 69 & 48)”.  (Sheriff’s emphasis).

 

[13]      The sheriff further stated that the appellant did not have parental rights and responsibilities in relation to the children.  He did not have contact with them by order of the court.  He was not a relative, nor was he the children’s foster carer.  The parents had parental rights and responsibilities, but the children were subject to supervision requirements, were presently estranged from their parents and were being cared for by a family member, LBB, their great aunt, who had previously accommodated the children when the parents failed to look after their welfare.  She continued:

“I do not consider that the contact between the appellant and the children demonstrates a family life.  Nor did I consider that the appellant ordinarily had charge of, or control over the children.  He does not live with the family, or they with him.  The family unit had their own home and he has his own home.  It seems to me that he has exaggerated his involvement with the family and in particular with the children.  I prefer the evidence of the deputy head teacher about the level of the appellant’s input to the delivery of the children to and the collection of the children from school.  I also prefer the evidence of [the social worker] about his friendship with the family, his support of and for the parents and his limited role within the family unit”.

 

Furthermore there was no mention in reports of the children’s hearings between 2009 and 2012 of the appellant’s appearing in any capacity whatsoever or of making any request to be considered a relevant person.  When the children were removed from the care and control of the parents they were placed not with the appellant but with LBB.

[14]      In the stated case, the sheriff asks a number of questions, of which the first three are material to the question of whether the appellant is a relevant person:

1.  Did I err in finding that the appellant is not (1) a person who appears to be a person who ordinarily (and other [than] by reason only of his employment) has charge of or control over the children; and (2) a person who appears to have an established family life with the children with which the decision of the children’s hearing may interfere?

2.  Did I err in finding that the appellant does not fall within the category of a relevant person within the meaning of section 93(2)(b)(c) of the [Children (Scotland)] Act (as read in line with the declaration made in Principal Reporter v K…)?

3.  Did I err in finding that the appellant does not have the right to appeal to the sheriff under section 51 of the Act?

[15]      The appellant presented detailed written submissions to the court.  He sought recognition of his status as a relevant person, and to have it declared that he had established a family life with the children and had recently had significant involvement in their upbringing.  He sought a number of further orders, including the discharge of the supervision requirements, but those issues do not arise unless he establishes that he is a relevant person within the meaning of section 93(2)(b)(c) of the 1995 Act.  He accepted that the question of whether or not a person ordinarily has charge of or control over a child is one of fact.  He made detailed statements about his involvement with the children, and referred to the submissions that he had made to the children’s hearing and the sheriff.  He submitted that he had arranged the children’s education, providing substantial care, direction and guidance, alimented them, and was closely involved in the daily events, large and small, of their lives.  He had persisted in the care of the children since their birth, and his involvement had increased when the mother’s leg ulcers became severe.  He had prepared a report for the children’s hearing, but this had not been considered by the panel.

[16]      Reference was also made to another social worker who had been involved with the children and had given evidence to the children’s panel but who had not been available to give evidence to the sheriff.  Her evidence was summarized in the report of the children’s hearing held on 11 March 2013.  The appellant had also obtained a transcript of substantial parts of the proceedings at the children’s hearing held on 2 May 2013.  He submitted that both the evidence of that social worker and the statements made to the children’s hearing were inconsistent with the sheriff’s assessment of the evidence, and that on that account the sheriff’s decision should be overturned.  On the basis of the decision of the Inner House in Principal Reporter v K, 2010 SLT 308, he submitted that the aim of section 93(2)(b) was to include all those who had practical involvement in a child’s upbringing and welfare as relevant persons.  Furthermore, on the basis of the evidence, he submitted that he appeared ordinarily to have charge of or control over the children.  He also stressed his responsibility for arranging the children’s education, alimenting them and caring for them generally.  He further mentioned that the family of the children’s mother lived at a considerable distance from Aberdeen, apart from their great aunt, LBB, and the latter’s daughter.

[17]      We are nevertheless of opinion that the sheriff was fully entitled on the facts found by her to hold that the appellant was not a relevant person within the meaning of section 93(2)(b).  On that basis the appeal must fail.

[18]      The starting point is the terms of section 51(11) of the Children (Scotland) Act 1995, the provision under which the present appeal is brought.  This is in the following terms:

“… [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-

 

(a) to the sheriff principal from any decision of the sheriff-

(i) on an appeal under subsection (1) of this section;

…

(b) to the Court of Session from any decision of the sheriff such as is mentioned in subparagraphs (i) to (iii) of paragraph (a) above…”.

 

The appeal to the sheriff was under section 51(1).  Thus the appeal by way of stated case must be either on a point of law or in respect of an irregularity in the conduct of the case.  This was made clear in the leading case on such appeals, C v Miller, 2003 SLT 1379, where Lord Osborne, delivering the opinion of the court, stated (at paragraph [79]):

“[W]e consider that it is necessary to emphasize the nature of the present appeal.  It is, of course, one brought under s 51(11) of the 1995 Act….  Thus, the basis of such an appeal must be either an issue on a point of law, or one arising from an irregularity….  What is perfectly clear, but has unfortunately been frequently overlooked, as it was in this case, is that such an appeal as this cannot involve a general review of the decisions of fact made by the sheriff.  There is, however, a limited scope in an appeal under this enactment for the ventilation of certain issues of fact, but the only factual issues which can properly be raised are those which are associated with an alleged error of law.  The matter was explained by Lord President Emslie in Melon v Hector Powe Ltd.…  ‘It hardly requires to be mentioned that an appeal lies only upon a question of law.…  The law is clear that where it cannot be shown that the tribunal of original jurisdiction has either misdirected itself in law, entertained the wrong issue, or proceeded upon a misapprehension or misconstruction of the evidence, or taken into account matters which were irrelevant to its decision, or has reached a decision so extravagant that no reasonable tribunal properly directing itself on the law could have arrived at, then its decision is not open to successful attack.  It is of no consequence of the appellant tribunal or court would itself have reached a different conclusion on the evidence.  If there is evidence to support the decision of the tribunal of first instance then in the absence of misdirection in law… that is an end of the matter”.

 

[19]      Thus an error in law of the sort described in the foregoing quotation is necessary before an appeal against the sheriff’s decision can succeed.  In our opinion no such error of law is disclosed in the present case.  Much of the appellant’s argument was directed towards establishing the part that he played in the care and upbringing of the children; he repeatedly emphasized the degree of his involvement with the children and their family.  In particular, the appellant referred to the statements that were made to the children’s hearing of 11 March 2013 and in the proceedings before the sheriff; notes of the former and transcripts of the latter were available.  All that this amounted to, however, was an attack on the sheriff’s findings of fact which she made on the basis of the evidence led.  That is not the proper subject of an appeal under section 51(11), as the passage that we have quoted from C v Miller demonstrates.  This is fundamental; the sheriff heard the evidence of witnesses and was able to form a view as to their credibility and reliability and the factual picture that emerged from the totality of that evidence.  In doing so she enjoyed benefits that are denied to an appellate court.  Even in an ordinary appeal from the decision of a judge or sheriff following proof an appellate court should be slow to substitute its own views for those of the court of first instance.  In an appeal under section 51(11) the appellate court simply cannot do so.  For this reason we consider that the main grounds of challenge to the sheriff’s decision are misconceived; they attack her findings in fact, but that is not permitted by the governing subsection.

[20]      Although it is not relevant to our decision, we should add that we have examined the notes of the children’s hearing held on 11 March 2013 and the transcript of the evidence led before the sheriff, and in our opinion nothing in those documents is fundamentally at odds with the sheriff’s findings in fact.  Consequently, even if it were open to us to have regard to those documents, we would be quite unable to hold that any of the sheriff’s findings in fact were erroneous.  The appellant referred to the fact that the social worker who took part in the children’s hearing of 11 March 2013 was not available for the court proceedings.  In our opinion this is immaterial; the sheriff had to proceed on the basis of the evidence that was available to her.  Even if she had had information about the views of that social worker, however, as disclosed in the note of the children’s hearing, we consider that it would have been most unlikely to alter her decision.  The social worker’s views do not appear to us to be fundamentally inconsistent with the sheriff’s findings.

[21]      The appellant referred to a number of cases in the course of his written submissions.  He accepted that the question of whether or not a person ordinarily has charge of or control over a child is one of fact, on which the sheriff required to consider all the circumstances and make a judgment: C v Kennedy, 1991 SC 68, at 71; Kennedy v H 1988 SC 114, and 119.  We agree with those propositions; they emphasize that the task that faced the sheriff in the proceedings before her was the ascertainment and evaluation of facts and forming a judgment on the basis of those facts.  As we have explained, we are unable to interfere with her findings of fact.  The appellant emphasized that it is important that the facts found should be accurate, a proposition with which it is hard to disagree, but we are unable to interfere with the sheriff’s judgment on this matter, at least in the absence of perversity or other defects of the sort described in C v Miller.  In the present case nothing that was said by the appellant came close to suggesting a defect of that nature.

[22]      Reliance was placed on the decision of the Inner House in Principal Reporter v K, supra, where it was stated (at paragraph 71) that the aim of section 93(2)(b) was to include all those who have practical involvement in a child’s upbringing and welfare.  That statement must, we think, be read in context.  It cannot be intended that any person with any involvement in the child’s upbringing, however slight, should be a “relevant person”; that expression must be confined to those who have a sufficient involvement in the child’s upbringing to make their views of importance in making important decisions about the child’s welfare.  Consequently, as the sheriff expressly holds, the expression cannot mean any individual with a tenuous link to the children through other connections with family members.  In Principal Reporter v K, supra, in the United Kingdom Supreme Court, it was held (Lord Hope at paragraph [48]) that “a parent (or other person) whose family life with the child is at risk in the proceedings must be afforded a proper opportunity to take part in the decision-making process”.

[23]      This was supplemented by a further statement (at paragraph [68]):

“Persons other than parents may have article 8 procedural rights which require to be protected.  This is not as dramatic an extension as it may seem.  It is not every aspect of family life which attracts its procedural protection.  … If all that may be at risk is informal contact with the wider family, then the participation of each parent and the child will in most cases afford adequate procedural protection for any article 8 rights which the child and other family members may have.”

 

We consider that these are proper statements of the relevant principle.   In the present case, on the sheriff’s findings in fact it cannot be said that the appellant enjoyed a family life with the children as against the sort of connection that would be normal with a friend of the parents who lived elsewhere.

[24]      The appellant also relied on S v N, 2002 SLT 589, where the court held that the definition of “relevant person” was wide enough to include individuals who had care of a child under a supervision requirement, and that foster carers would fall into that category.  The relationship in such a case, however, is clearly well beyond any relationship that the appellant had with the children as disclosed by the sheriff’s findings in fact.

[25]      We accordingly consider that the sheriff’s findings in fact cannot be attacked on any proper basis.  Standing those findings, we are of opinion that her conclusions, including her findings in fact and law, were amply justified.  On the basis of the findings in fact, it appears to us that the appellant cannot be considered as anything more than a family friend who helped to look after the children.  As the sheriff notes, he had no parental rights and responsibilities, nor contact nor any court order; he was not a relative or a foster carer.  The level of contact between the appellant and the children, as disclosed in the findings in fact, did not demonstrate a family life; he and the family occupied separate homes.  In these circumstances it cannot be argued that the appellant was a person “who appears to be a person who ordinarily… has charge of, or control over” the children; nor can it be argued that he is a person “who appears to have established family life with” the children.  Thus the statutory tests that might be relevant to the present case are not satisfied, as the sheriff expressly held.  It follows therefore that the sheriff’s conclusion that the appellant was not a relevant person for the purposes of section 93(2)(b) was one that she was fully entitled to reach.

[26]      A significant part of the appellant’s written submissions was concerned with the underlying merits of the arrangements for the care of the children.  We have held, however, that the sheriff was fully justified in holding that the appellant was not a relevant person for the purposes of the legislation.  On that basis the submissions on the merits are not relevant.

[27]      In all the circumstances, we will answer the sheriff’s first, second and third questions in the negative.  She has added a fourth question, as to whether she was justified in her assessment of the witnesses in terms of credibility and reliability.  In our opinion this is not a question that should be considered in a stated case; the credibility and reliability of witnesses is, as we have indicated, a matter entirely for the sheriff, and in the absence of something akin to perversity her assessment cannot be challenged.