NOTE IN PERMANENCE ORDER PROCEEDINGS RELATING TO THE CHILD RT
SHERIFFDOM OF GRAMPIAN, HIGHLAND AND ISLANDS AT LERWICK
[2017] SC LER 9
AD2/16
NOTE
By
SHERIFF PHILIP MANN
In Permanence Order Proceedings
Relating to
THE CHILD RT
Lerwick, 2 February 2017
The sheriff directs parties to the note attached in explanation of his interlocutor dated 16 January 2017
Note
Reason for This Note
[1] I have agreed to write this note to provide a judicial opinion on a matter of considerable importance which children’s hearings and reporters ought to be aware of. It concerns a question whether or not a compulsory supervision order under and in terms of the Children’s Hearings (Scotland) Act 2011 has been allowed, inadvertently, to come to an end with consequent risk to the welfare of a child. The answer to the question depends on statutory interpretation.
Relevant Statutory Provisions
[2] The Children’s Hearings (Scotland) Act 2011 (“the 2011 Act”)
Section 83 of the Children’s Hearings (Scotland) Act 2011 defines a compulsory supervision order. Section 83(1)(c) provides that it shall have effect for the relevant period. “Relevant period” is defined by section 83(7) as:
“the period beginning with the making of the order and ending with—
(a) where the order has not been continued, whichever of the following first occurs—
(i) the day one year after the day on which the order is made,
(ii) the day on which the child attains the age of 18 years,
(b) where the order has been continued, whichever of the following first occurs—
(i) the end of the period for which the order was last continued,
(ii) the day on which the child attains the age of 18 years.”
Section 133 provides:
“Principal Reporter's duty to initiate review
The Principal Reporter must initiate a review of a compulsory supervision order in relation to a child if—
(a) the order will expire within 3 months, and
(b) the order would not otherwise be reviewed before it expires.”
Section 137 provides:
“Duty to arrange children's hearing
(1) This section applies where a compulsory supervision order is in force in relation to a child and—
(a) a review of the order is required or initiated by virtue of any of—
(i) sections 107, 108, 115 and 117 (all as modified by section 118),
(ii) sections 116, 125, 129 to 136 and 146, or
(b) the child's case is referred to the Principal Reporter under section 96(3) or 106 of the Adoption and Children (Scotland) Act 2007 (asp 4).
(2) The Principal Reporter must arrange a children's hearing to review the compulsory supervision order.
(3) …….. “
Section 138 provides:
“Powers of children's hearing on review
(1) This section applies where a children's hearing is carrying out a review of a compulsory supervision order in relation to a child.
(2) If the children's hearing considers that it is appropriate to do so, the children's hearing may defer making a decision about the compulsory supervision order until a subsequent children's hearing under this section.
(3) Otherwise, the children's hearing may—
(a) terminate the compulsory supervision order,
(b) vary the compulsory supervision order,
(c) continue the compulsory supervision order for a period not exceeding one year.
(4) ……….. “
Section 139 provides:
“Powers of children's hearing on deferral under section 138
(1) This section applies where under subsection (2) of section 138 a children's hearing defers making a decision about the compulsory supervision order in relation to a child until a subsequent children's hearing under that section.
(2) The children's hearing may continue the compulsory supervision order until the subsequent children's hearing.
(3) If the children's hearing considers that the nature of the child's circumstances is such that for the protection, guidance, treatment or control of the child it is necessary as a matter of urgency that the compulsory supervision order be varied, the children's hearing may make an interim variation of the compulsory supervision order.”
[3] The Adoption and Children (Scotland) Act 2007 (“the 2007 Act”)
Section 95 provides:
“Duty of children's hearing to prepare report for court
(1) Subsection (2) applies where—
(a) an application is made for a permanence order, or variation of such an order, in respect of a child,
(b) the application has not been determined (or, as the case may be, withdrawn or abandoned), and
(c) a children's hearing proposes to make or vary (other than by interim variation, as defined in section 140 of the Children's Hearing (Scotland) Act 2011 (asp 1)) a compulsory supervision order in respect of the child.
(2) The children's hearing must prepare for the court to which the application has been made a report containing such information as the Scottish Ministers may by regulations prescribe.
(3) …… “
Section 96 provides:
“Application: effect on compulsory supervision order
(1) Subsection (2) applies where an application is made for a permanence order, or variation of such an order, in respect of a child.
(2) A compulsory supervision order may not be made or varied (other than by interim variation, as defined in section 140 of the Children's Hearings (Scotland) Act 2011 (asp 1)) in respect of the child, until the application is determined (or, as the case may be, withdrawn or abandoned).
(3) Subsection (2) does not apply if the court to which the application is made refers the child's case to the Principal Reporter (whether following receipt of a report under section 95 or otherwise).
(4) …….. “
Section 97 provides:
“Interim orders and revocation of compulsory supervision order
(1) Subsection (2) applies where an application is made for a permanence order, or variation of such an order, in respect of a child.
(2) The appropriate court may make such interim order as it thinks fit.
(3) …… “
General Background
[4] Shetland Islands Council made an application to this court for a permanence order in respect of a child. At the commencement of the proceedings the child was subject to a compulsory supervision order in terms of the 2011 Act. The order was to be in force until 17 December 2016. On 25 November 2016, the children’s hearing was carrying out a review of the order in terms of section 138 of the 2011 Act. It made a decision “to defer making a decision on review of a compulsory supervision order s 138(2)”. The reason for that decision was, inter alia, that “The panel has made an application to the Sheriff to vary contact arrangements”. The hearing also decided “to continue the compulsory supervision order dated 18/12/2015 until the subsequent children’s hearing s 139(2)”. The reason for that decision was that “Compulsory measures are still required for R’s care and protection due to past levels of neglect; she is thriving in her current foster placement”.
[5] The children’s hearing duly made a report to the court in terms of section 95(2) of the 2007 Act. Having received the report and relevant forms of response in terms of rule 51 of the Adoption Rules 2009, I decided in terms of paragraph (6) of that rule to fix a hearing to enable me to have submissions from the parties to the permanence application to assist me in deciding whether or not to refer the child’s case to the reporter. At that hearing, on 16 January 2017, Mr Murphy, solicitor, appeared for one of the relevant persons.
Submissions
[6] Mr Murphy took me through the statutory provisions. He submitted that by simply deferring consideration of the order until “a” subsequent hearing, without fixing a date for that hearing, and then continuing the order until “the” subsequent hearing the children’s hearing were purporting to continue the order without limit of time. This, he said, was incompetent because, in combination, sections 83(7)(b)(i) and 138(3)(c) of the 2011 Act provided that the period of continuation had to be for a definite period not exceeding one year. Section 96(2) of the 2007 Act only precluded the making or variation of a compulsory supervision order whilst a permanence application was ongoing. It did not prohibit the continuation of an order. Accordingly, the children’s hearing had the power at the review hearing to continue the order for a period of up to one year notwithstanding the currency of the permanence application. This is what the children’s hearing ought to have done in order to prevent the order coming to an end on 17 December 2016. The children’s hearing had not done so and the order had consequently come to an end. Mr Murphy’s contention was that, that being the case, it was now incompetent for me to refer the case to the reporter in terms of section 96(3) of the 2007 Act.
[7] All other parties, including the Local Authority applicant, concurred with Mr Murphy’s submissions. In addition, Mr Sharpe, advocate, for the Local Authority expressed disquiet that the fact that the compulsory supervision order had come to an end could have had very significant consequences for the welfare of the child had the child’s parents, in the interim period between the children’s hearing and this hearing before me, insisted on the right which had thereby opened up to them to have the child returned to their care. Fortunately, said Mr Sharpe, there was a remedy under section 97(2) of the 2007 Act, to which I will return later in this note. All other parties concurred with Mr Sharpe’s remarks.
[8] Having taken parties’ submissions, I thought it important to obtain the views of the reporter, who was not, of course, a party to the hearing on the permanence order. I made arrangements for the reporter to appear before me later that morning and I am grateful to Mrs McKay, for attending on behalf of the reporter at such short notice, having had little time to prepare.
[9] Mrs McKay was not able to say very much other than to assert, without reference to authority, that the compulsory supervision order remained in force because the children’s hearing had done exactly what sections 138(2) and 139(2) of the 2011 Act permitted them to do.
Discussion and Decision
[10] I had little difficulty in accepting Mr Murphy’s submission that in the circumstances of this case the Children’s Hearing had not competently continued the compulsory supervision order at their hearing on 25 November 2016. In my view the phrase “a subsequent children's hearing under this section” in section 138(2) must mean a hearing which has been assigned to a specific date which is no later than one year in the future. This is inevitable given that section 83(7)(b)(i) of the 2011 Act provides that the relevant period for a compulsory supervision order is the period beginning with the making of the order and ending with “the end of the period for which the order was last continued”. If no specific date has been fixed for the subsequent hearing, then continuation to such a hearing cannot result in a period having been set. It follows that the compulsory supervision order came to an end as at 17 December 2016.
[11] I observe that it could be argued that if, during the currency of an application for a permanence order, it is incompetent for a children’s hearing to make a decision to vary a compulsory supervision order unless the case is referred by the sheriff to the reporter in terms of section 96(3) of the 2007 Act then it is equally incompetent to defer making such a decision in terms of section 138(2) of the 2011 Act. However, I do not express a concluded view on that point, not having had the benefit of submissions.
[12] In my view, the only safe, if not competent, course of action for a children’s hearing to follow in the circumstances which arose in this case, if it considers that it is necessary for the child to remain subject to a compulsory supervision order beyond the current expiry date and during the currency of an application for a permanence order, is to continue that compulsory supervision order in terms of section 138(3)(c) of the 2011 Act. That is a perfectly competent thing for the children’s hearing to do, given that section 96(2) of the 2007 Act strikes only at the making or variation, and not the continuation, of a compulsory supervision order. There was no need for the children’s hearing to proceed in the manner in which they did in this case.
[13] The difficulty with Mrs McKay’s submission is that it does not take account of the consequences in the event that the court decided against referring the case to the reporter. In that situation, there could be no children’s hearing convened to review the compulsory supervision order. Therefore, the hearing to which that matter had been purportedly deferred could never take place. The effect of that would be that there would be no limit of time for the continuation of the compulsory supervision order. As explained in paragraph [10] above, that would be incompetent. Furthermore, the reporter would be relieved of the duty imposed by section 133 of the 2011 Act to initiate a review of the compulsory supervision order because the order would never be within 3 months of its expiry date. For the avoidance of doubt a section 133 review would be initiated by arranging a children’s hearing which would either decide to continue the supervision order, which could be done without reference to the court, or decide to make a report to the court in terms of section 95 of the 2007 Act to enable it to vary the order in the event that the court saw fit to refer the case to the reporter.
[14] I do not accept Mr Murphy’s submission that the fact that the compulsory supervision order had come to an end necessarily rendered the section 95 procedure incompetent. The application under section 95 in this case was made before the compulsory supervision order came to an end. But, and this basically comes to the same thing, there remained no point in referring the case to the reporter if there was no compulsory supervision order in force in respect of which any decision to vary could be made.
[15] In the foregoing circumstances, I declined to refer the case to the reporter in terms of section 96(3) of the 2007 Act.
The Remedy
[16] Fortunately, as Mr Sharpe submitted, there was a remedy available to the court under section 97 of the 2007 Act. Mr Sharpe made a motion that I should make an interim order in terms of section 97(2) of that Act providing that the child continue to reside with her present foster carers subject to conditions relating to contact with the relevant persons. All relevant persons concurred in Mr Sharpe’s motion except in relation to certain details of the contact arrangements. Suffice to say that I duly made an interim order in terms of section 97(2) of the 2007 Act.
The Lesson to be Learned
[17] I share the disquiet expressed by Mr Sharpe as described in paragraph [7] hereof. It is imperative that the children’s hearing does not inadvertently allow a compulsory supervision order to come to an end when there is a need for it to remain in place. Otherwise, the consequences for the child could be significant and serious. Fortunately, in this case no harm has been done because of the responsible attitude adopted by the relevant persons and their advisers. But, the greatest care should be taken to ensure that the welfare of a child is not left to such chance. The children’s hearing could have avoided the difficulty which arose in this case by the simple expedient of exercising the power vested in them by section 138(3)(c) of the 2011 Act.