Court allows appeal against sheriff’s decision that measure specified in CSO was not justified

A sheriff’s ruling that a Children’s Hearing decision to continue a Compulsory Supervision Order (CSO) was not justified, because it contained the sole measure that “the implementation authority will provide appropriate supervision and support to the child”, has been successfully challenged following an appeal.

 

The sheriff held that the measure was “incompetent” as it did not fall within the definition of “measure” in section 83(2) of the Children’s Hearings (Scotland) Act 2011, but the Sheriff Appeal Court ruled that the requirement that the implementation authority carry out “specified duties” in relation to a child did not mean that a measure had to be “specific”.

 

Sheriff Principal Ian Abercrombie, sitting with Appeal Sheriff Alasdair MacFadyen and Appeal Sheriff Norman McFadyen, heard that the Locality Reporter Manager of the Scottish Children’s Reporter Administration appealed by way of stated case against a ruling of the sheriff at Paisley to hold that the decision of the Children’s Hearing to continue a CSO on 27 February 2018 in respect of the child ‘CO or W’, who was then and still is 15 years old. 

 

 

A CSO is an order made by a Children’s Hearing which must contain one or more of the measures mentioned in section 83(2) of the 2011 Act, among which is that set out in section 83(2)(i), which reads: “a requirement that the implementation authority carry out specified duties in relation to the child”.  

 

The court was told that the child was accommodated by the local authority under a child protection order (CPO) granted by the sheriff and thereafter a series of Interim Compulsory Supervision Orders (ICSOs) was issued by Children’s Hearings. 

 

Further procedure followed before a CSO was made on 18 March 2016, which did not contain the measure at issue, although it had been included in earlier ICSOs made by the Children’s Hearing and/or continued by the sheriff. 

 

The CSO was continued with varied and specified measures, but not the measure at issue, although it was included as the sole measure when the CSO was varied on 7 March 2017, at which time the child was legally represented, but that decision was not appealed.  

 

On 26 September 2017 a review Children’s Hearing, before which the child was again legally represented, continued the CSO with the same sole measure, and again there was no appeal. 

 

However, following a review hearing on 27 February 2018 convened at the request of the solicitor for the child to review the continued CSO made on 26 September 2017, at which the CSO was continued with the same sole measure, the decision was appealed.

 

The sheriff upheld the submission by the solicitor for the child, with whom the mother and the solicitor for the step-father were in agreement, that the measure was not a competent measure as defined in section 83(1) and (2) of the 2011 Act.

 

The sheriff accepted the position of the solicitor for the child that the measure specified in the CSO was insufficiently specific, did not impose a requirement to carry out “specified duties” and was in effect a re-statement of the duties otherwise incumbent on the implementation authority under section 17 of the 1995 Act. 

 

 

Before the Sheriff Appeal Court, the solicitor for the appellant submitted that the measure was “prima facie sufficiently specified” and argued that the sheriff failed to read it “in context”, including that of the reasons provided in support of the decision.  

 

The Children’s Hearing had concluded that the child needed the support of a CSO and specifically the support which social work could offer.

 

It was also submitted that the measure had been included in previous CSOs with “no practical difficulty” and none raised by the child or his solicitor who had not suggested any alternative specification; it was a standard measure, which features in the Children’s Hearing Practice and Procedure Manual and has been used since the 2011 Act came into force, without challenge.  

 

But counsel for the respondent submitted that the Children’s Hearing was “not entitled” to make any decision which conflicted with a proper construction of the statute.  

 

It was argued that the other measures described in section 83(2) were “highly specific” and it would be “inconsistent with legislative clarity” if a measure specified under section 83(2)(i) lacked specification. 

 

However, the appeal sheriffs allowed the appeal and remitted the matter to the sheriff with a direction that he should confirm the decision of the Children’s Hearing dated 27 February 2018.

 

 

Delivering the opinion of the court, Appeal Sheriff McFadyen said: “We do not consider it helpful to get bogged down in issues of competence or otherwise of measures. The test for appeal to the sheriff – and indeed this court – is whether the decision was justified (2011 Act, section 156). If the decision is one which the Hearing was not entitled to make it cannot be justified. 

 

“It was accepted by all parties that the measure complained of in the appeal to the sheriff was made under section 83(2)(i). We were told that this measure is a standard one, routinely specified since the 2011 Act came into force and featuring in the relevant Manual for Hearings.

 

“Of course, it does not follow from the fact that something has been done for years, without apparent objection, that it is necessarily justified, but any court faced with a challenge to what has become a standard measure should examine with particular care any challenge which is brought, especially where it is a measure which has featured repeatedly in the same case and without any previous objection being raised on behalf of the legally represented child.

 

“We do not consider that a plain reading of words requires ‘specified’ to be read as demanding that the content is particularly ‘specific’. The words plainly have a common root, but we were presented with nothing other than bare argument to support the dubious contention that the word specified in some way derives from the word specific.

 

“It is not for us to say that the measure which was specified by the Hearing in this case will always be appropriate where a CSO is required and no other measure specified in section 83(2) is necessary. Whether any measure is justified will depend on the facts of the case. But in this case it was ultimately conceded for the respondent and the relevant person that it would have been sufficient if the measure had referred expressly to the Child’s Plan, without further specification.”   

 

He added: “In our view the continued CSO is not a stand-alone document to be considered in isolation. It has to be read along with the record of proceedings, which in this case included the Child’s Multi Agency Assessment and Plan and the Child’s Plan Review. 

 

“The Plan Review clearly specifies duties on the appellant…We consider therefore that there is no substance to the respondent’s submission that the child was not clear about the specified duties which the implementation authority would carry out in relation to him. 

 

“Given that context and the concession made by the respondent and the relevant person it seems to us that the general ambit of the measure in this case is clear and that the Hearing was justified in continuing the CSO with the single measure specified, accepting as we do that the measure as thus specified would and should allow some reasonable flexibility to deal with unanticipated developments.”