Father of young children in Annan loses appeal against ‘no contact’ order

The appellant, TJL, was the father of M, aged 19 months, and T, aged seven months, both of whom currently live with their mother and her three older children from a previous relationship. The decision was made in a conjoined hearing, with the same reasoning given in respect of both children. 

The appeal was heard in Dumfries Sheriff Court by Sheriff B Mohan. 

Violent and physical danger 

The substantive case before the hearing in respect of both children was originally heard in June 2020. The grounds involved allegations of domestic abuse by the appellant towards the children’s mother, his partner or ex-partner, and were brought under section 67 (2)(f) of the Children’s Hearings (Scotland) Act 2011. The grounds were accepted by neither party and sent to Dumfries Sheriff Court for proof, but such a proof had not taken place by the time of the appeal. 

Prior to the hearing, social workers involved with the parents were optimistic that the case could be resolved without formal orders as the appellant was undergoing rehabilitation treatment in respect of an alcohol problem. However, deterioration in the behaviour of the appellant resulted in the local authority suggesting that it would be appropriate to make an order regulating his contact with the children.

The day before the June hearing, a multi-agency meeting recommended that there should be no contact between the appellant and his children until he demonstrated some stability. The panel members decided that the relevant test for interim measures had been met and put in place Interim Compulsory Supervision Orders in respect of the two children, to remain in force for up to 44 days. 

Under the orders, contact between the appellant and the children was to take place for up to two hours on two occasions per week under appropriate supervision. No such contact in those terms ever took place. On 26 June the local authority wrote to the Children’s Reporter stating the social work department was unable to safely implement the conditions of contact. 

A further children’s hearing was convened on 17 July, which renewed the ICSOs with the contact condition modified to “no contact”. In the written reasoning for the decision, it was noted that the appellant was considered to be a “violent and physical danger” by the multi-agency risk assessment. 

The appellant submitted that it was inappropriate for the Reporter to have arranged the hearing of 17 July. Social workers had told the appellant immediately after the June hearing that they would not be complying with the order to supervise contact. The department was therefore acting in breach of its obligations under the ICSOs. 

It was further submitted that he concerns raised by social workers at the children’s hearing of 17July were a red herring, because they were the same concerns and facts which were before the hearing of 24 June. In the circumstances, it was inappropriate for the panel members on 17 July to give the objections made by social work the priority which they did. 

Limited options 

In his note of reasons, Sheriff Mohan noted that his task was to determine if there had been any procedural irregularity, saying: “Since the formal enforcement measures permitted under [the 2011 Act] were not available, the Reporter had limited options. She could have allowed the earlier ICSO to continue until the point when a renewal more usually would have been considered (within the week before its expiry).Had she done so, however, she would have been open to the criticism that she had not allowed the decision-making body –the children’s hearing –to be informed of and to address at an earlier stage the reasons why the contact which it had previously ordered was not taking place.” 

He continued: “The other course of action open to the Reporter was to arrange another children’s hearing under Section 96(2). The hearing so convened would enable the panel members to hear the positions of the parties, consider the renewal of the ICSO and to take account of the up to date circumstances. This was the step taken in this case. I did not agree that taking that approach amounted to a procedural irregularity.” 

Of the reasoning for the change in recommendation by the local authority, he said: “The record of the hearing on 24 June reveals that social work expressed concerns about the appellant’s alcohol intake, his increasingly erratic and dangerous behaviour ‘over the past couple of days’, and their belief that the parents were providing misleading information about whether or not they were still in a relationship. The social worker at that hearing gave the department’s view that they were by then against contact operating for the duration of the ICSOs then being made.”

On the argument that the social work department had disregarded the outcome of the June hearing, he said: “In the circumstances I did not accept the contention that the hearing on 17 July merely reversed the contact condition of 24 June because of social work intransigence. There was much up to date, relevant information before the hearing: panel members’ discussions did not focus only on the material which was before the earlier hearing.”

He concluded: “The decision makers at the hearing had all of that background before them, and were entitled to take that into account when assessing any new information. The new information included breaches by the appellant of different children’s hearing orders, including an unauthorised visit to the mother’s home, and unsupervised virtual contact with the children. It was clear from the written reasons that the events which had occurred since the ICSOs were first made on 24 June had a significant bearing on the hearing’s decision.” 

For these reasons, the appeal was refused.