Scottish Sheriff Court Decisions

(R272/07)

JUDGMENT OF

SHERIFF PRINCIPAL EDWARD F BOWEN QC

 

 

 

Application by the AUTHORITY Reporter under Section 65 of the Children's (Scotland) Act 1995 in the case of

 

MU (Appeal by RU)

 

 

Act: Murray, Solicitor, Brodies LLP for Authority Reporter

Alt: Party

 

EDINBURGH, 11 March 2008

 

The Sheriff Principal, having resumed consideration of the cause, answers the first question of law complained in the stated case in the affirmative; finds it unnecessary to answer the second question; recalls the Sheriff's interlocutor of 20 July 2007 remits the application to the Sheriff for re-hearing and directs that the hearing be heard by a Sheriff other than Sheriff Mackie.

 

(signed) E Bowen

NOTE:

1. This case raises in my view a somewhat difficult question as to whether the right of the appellant to a fair hearing under Article 6(1) of the European Convention of Human Rights has been breached.

 

2. On 11 June 2007 an application was presented by the Authority Reporter by virtue of a direction under Section 65 of the Children's (Scotland) Act 1995 to find whether grounds for referral of the child MU to a Children's Hearing were established. The present appellant is the father of MU and as such a "relevant" person within the meaning of Section 93(2) of the Act. The ground of referral was that contained in sub-section 52(2)(c)(i) of the 1995.

 

3. On 11 July 2007 a similar application in respect of MU's sister DU was presented and a diet of proof for both cases was fixed for 20 July 2007. In her stated case the Sheriff sets out that on that date the Authority Reporter indicated that she was ready to proceed to proof. The appellant appeared without representation. He sought a continuation to allow him time to instruct a fresh solicitor. That request was opposed on the ground that it was not in the best interests of the children that matters be delayed. The Sheriff, who formed the impression that the appellant was prevaricating, refused his motion for a continuation.

 

4. The Sheriff sets out the following: "Thereafter the appellant stated that he could not conduct the hearing because he had no papers and in any event he had a very important business meeting to attend that morning. The Authority Reporter offered to make copy papers available to him. I advised him that I would adjourn the hearing briefly to allow him to obtain the copy papers but that if he was not present when the cases recalled the hearing would proceed in his absence. When the cases recalled the appellant was not present. I was advised that he had rejected the copy papers from the Authority Reporter and had left the Court saying that he did not intend to return."

 

5. The Sheriff proceeds to narrate that she then heard evidence from the social worker and from Mrs U. She states: "When the case adjourned for lunch the Reporter had already led evidence from Mrs U. Although the witness did remain in the witness box no further evidence was adduced from her. Following an adjournment for lunch the appellant appeared. I explained that I had heard evidence in his absence and on the basis of that evidence intended to hold the grounds as established. The appellant stormed out of Court making some reference to having been at a meeting involving a £125,000,000 transaction. Thereafter I found the grounds established and remitted the cases to the Children's Hearing for disposal".

 

6. In a concise and well focused written submission which he presented in person at the appeal hearing the appellant contends that this turn of events breached his right to a fair hearing as provided for by Article 6(1) of the European Convention of Human Rights. He takes issue with the Sheriff as to whether he stormed out of Court and contends that he remained in Court until after the Sheriff's decision to hold the ground of referral established was given. Be that as it may his central position is that his right to a fair hearing was breached because whilst he was present in Court and the opportunity existed the Sheriff "refused to take his evidence". He does not dispute, nor raise any issue over the fact the hearing proceeded initially without him. He makes no complaint about the Sheriff's refusal to adjourn the proceedings, accepting the point that any delay would have impacted upon the right of the children to an early determination of their future. He does not claim to be unfairly treated because he was not present when the evidence was adduced or that he did not have an opportunity to cross-examine the witnesses for the Authority Reporter. His simple proposition is that he was not given the opportunity to be heard. He states: "The appellant is claiming that his rights under Article 6(1) of the European Convention of Human Rights were breached because whilst he was present in Court and the opportunity existed, the Sheriff refused to take his evidence thus denying him the right to a fair hearing".

 

7. As part of his submissions the appellant made reference to Rule 3.47 of the Children Care and Maintenance Rules 1997. Paragraph (2) thereof provides "that at the close of the evidence led by the Principal Reporter...a Sheriff shall consider whether sufficient evidence has been led to establish that condition is satisfied and shall give all the parties an opportunity to be heard on the question of sufficiency of evidence". The important part of the Rule (which I have not quoted) refers to a case where it is disputed that the condition mentioned in paragraph (i) of section 52(2) of the 1995 Act is satisfied. That rule accordingly applies to cases where it is alleged that the child has committed an offence and in consequence, whilst of interest, is not of direct relevance to the present situation.

 

8. The appellant goes on however, to refer to two decisions of the European Court of Human Rights. AB v Slovakia ECHR 41784/98 delivered on 4 June 2003 had a somewhat complicated factual background and involved the Social Security Commission in Bratislava and proceedings before a Civil Court for determination of certain pension rights. The applicant's complaint was nevertheless straightforward. She contended that her right to a fair hearing had been violated in that requests for a lawyer to be appointed to represent her in the proceedings had not been granted and that the Courts had decided her claim in her absence. Paragraph 54 of the judgment of the Court of Human Rights, which found in the applicant's favour states: "The key principle governing the application of Article 6 is fairness. The right to a fair trial holds so prominent a place in a democratic society that there can be no justification for interpreting the guarantees of Article 6(1) of the Convention restrictively". It proceeds to state in paragraph 55: "The principle of equality of arms - one of the elements of the broader concept of fair trial - requires that each party should be afforded a reasonable opportunity to present his or her case under conditions that do not place him or her at a substantial disadvantage vis a vis his or her opponent...in this context importance is to be attached to inter alia the appearance of the fair administration of justice. Here, as in other aspects of Article 6, the seriousness of what is at stake for the applicant will be of relevance to assessing the adequacy and fairness of the procedures". It goes on to state that a hearing may be held "unfair" and in breach of Article 6 even in the absence of proof of actual prejudice. The appellant further founded on the case of PC & S v The United Kingdom 35 EHRR 31 in which a claim of a breach of Article 6(1) was upheld where the applicants had not had an opportunity of obtaining legal representation in freeing for adoption proceedings.

 

9. The appellant also referred to paragraph 22 of the Judgment of the Court of Appeal in B & T 2001 1FCR 512 in which it is stated that Article 6 is concerned with the "overall fairness" of the proceedings. The Court said that "both the jurisprudence of the European Court and simple common sense, of a kind that an English lawyer can immediately identify, do require in general terms that certain elements are present in any judicial proceedings. An obvious example is the right and ability of those concerned in the proceedings to put their case". Under reference to that passage the appellant maintains that his right to put his case was infringed. He states that evidence was not taken from him when the opportunity arose; he was in Court and the Sheriff could have taken his evidence but did not. He goes on to say that when he raised the question of the Sheriff reaching a decision without taking evidence from him the Sheriff said that she could do so.

 

10. In response the solicitor for the Authority Reporter took issue with any suggestion on the appellant's part that he had sought an opportunity to give evidence when he returned to the Court in the afternoon. This had been specifically rejected by the Sheriff in a Note to proposed adjustments. Both the Sheriff and the Reporter who conducted the hearing further were of the view that the appellant had stormed out of the Court at that stage. In respect of those cases referred to by the appellant the solicitor pointed out that AB v Slovakia was a case which related to a right to be present and was not necessarily directly in point with the present circumstances. In paragraph 21 of B & T the Court of Appeal pointed out that Article 6 "requires the entire proceedings to have been conducted on a fair basis". The Court said it was not appropriate simply to extract part of the process and look at that in isolation. The Reporter's solicitor accepted that the Sheriff's actings immediately after lunch were "not ideal" but when one examined the totality of the proceedings, and in particular took into account the fact that the appellant had been afforded an opportunity to take part in them at their outset, it could not be said that there was unfairness.

 

11. If the Court did arrive at the conclusion that there had been a breach of Article 6 the Reporter's solcitior submitted that the appropriate course in exercise of the power to remit as contained in section 51(14) of the 1995 Act, would be to remit the case to the same Sheriff with a direction to hear the evidence of the appellant. This would avoid the need to re-hear the evidence of the social worker and Mrs U.

 

 

12. DISCUSSION

Article 6 of the Convention is concerned with fairness. The first point which is worthy of observation is that in proceedings relating to children the protection which Article 6 gives to the rights of parents may not override the interests of the children when one comes to balance out considerations relating to advancement of the Court process (see B & T supra at paragraph 21). It was in the light of that consideration that the Sheriff decided, correctly, at the outset of the proceedings not to grant an adjournment as requested by the appellant. The point, which I consider to be of some significance when one comes to consider what happened later, is a wholly distinct one from the paramountcy test which a Court requires to apply in proceedings of this type by virtue of section 16(1) of the 1995 Act.

 

13. From the authorities referred to it is not difficult to extract a number of principles as to how the provisions of Article 6 should be applied. First, the Article guarantees a right to a fair hearing and it is not to be interpreted restrictively. Second, the seriousness of what is at stake is of relevance in assessing the adequacy and fairness of proceedings. Third, proceedings must be looked at as a whole and it is an error to examine what happened at one stage in isolation.

 

14. Viewing the proceedings as a whole in the present case there is no question that at the outset the appellant was afforded an opportunity to be heard. The decision not to take that opportunity was his. The difficult question is whether, viewed in the context of the proceedings as a whole, what happened when he returned after lunch falls to be regarded as rendering the proceedings unfair to him.

 

15. I am of course quite prepared to proceed on the basis of what is said by the Sheriff to the effect that at that stage the appellant did not request an opportunity of being heard. That however, does not seem to me to be important. What is important is whether at that stage he should have been asked if he wished to be heard and whether failure to do so had the effect of denying him the right which Article 6 guarantees.

 

16. With hesitation and some regret I have come to the conclusion that the appellant's right to be heard was infringed. I fully appreciate that by this stage of the proceedings witnesses had been led and examined. They had not been cross-examined and from a legal point of view it might be argued that anything that would be said contradictory to their evidence was of limited value. Such an approach would, however, amount in my view, to a restrictive interpretation of Article 6, since it would constitute an interpretation by reference to a technical rule of evidence. Further, there was at this stage of the proceedings no necessity to consider whether the rights of the children in obtaining an early determination had to be balanced against the right of the appellant. Affording him the opportunity to give evidence or make a statement at that stage was not going to result in material delay in the proceedings. In these circumstances, having regard to the significance of the Article 6 guarantee it is my view that the appellant should at least have been asked whether he wished to say anything at that stage. The position I am bound to say would not have necessarily been the same had he returned to Court at a point when the evidence had concluded.

 

17. A further matter has caused me concern and if nothing else leads to the conclusion that the present case is not an easy one. The appellant does not appear at any stage of these proceedings to give any indication as to what he would intend to say in relation to the allegations contained in the grounds of referral. One would normally be disinclined, at least in civil proceedings, to allow a party to make representations at a late stage without an indication of their position on the merits. The jurisprudence of the Court of Human Rights, however, suggests in fairly clear terms that the right to be heard is an absolute one and that it is unnecessary to demonstrate prejudice in order to establish a breach of Article 6. In the present circumstances I am prepared to assume that the appellant has something of significance to say in relation to the grounds of referral although for the purposes of disposal of the appeal that assumption is probably unnecessary.

 

18. The first question contained in the stated case posed for my opinion is whether the appellant's rights in terms of Article 6(1) of the European Convention on Human Rights were breached. I answer that question in the affirmative. Question 2 then asks "in the event that the answer to question 1 is in the affirmative was I entitled in the best interests of the children and on the facts stated to find the grounds established?". I find it unnecessary to answer that question. Having held that the appellant's rights were breached the only course open is to hold that the case be reheard in some form.

 

19. I accept that it would be open to me to remit the cause to the Sheriff who heard this case for the purpose of hearing the evidence of the appellant. Whatever the benefits in terms of expedition, I do not consider that this would have the effect of granting a "fair" hearing. The Sheriff who heard the matter originally has already determined that the grounds of referral fall to be regarded as established, and has further expressed an adverse view of the appellant. I do not consider that there is any alternative but to direct that this case be reheard by a different Sheriff.