Sheriff Appeal Court finds infant child had close connection with father after two contact visits

About this case:

• Citation:
  [2022] SAC (Civ) 25
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal Aisha Anwar

An appeal was made by JT, the child’s father, against a decision of the Scottish Children’s Reporter Administration to place the child, JM, with a kinship carer, on the ground that he had had insufficient contact with the child to form a close connection. The mother, SM, who was the second respondent, accepted JM’s referral to a children’s hearing but was also supportive of contact between the appellant and JM.

The appeal was heard by Sheriff Principal Aisha Anwar along with Appeal Sheriffs Thomas McCartney and Wendy Sheehan. Melvin-Farr, advocate, appeared for the appellant, with Flannigan, solicitor, appearing for the first respondent and Sturdy, solicitor, for the second respondent.

Limited contact

JM was the fourth child of his mother, SM. All three of his older siblings had been placed with a kinship carer. Immediately after the birth of JM, he was also placed with a kinship carer after a child protection order was granting authorising his removal to a place of safety. The first respondent formed the view that JM was in need of compulsory measures of supervision and referred him to a children’s hearing, with an application made to the sheriff to find the grounds established.

In 2012, the appellant was convicted of penetrating the vagina and mouth of a 13-year-old child contrary to section 28 of the Sexual Offences (Scotland) Act 2009, listed as a schedule 1 offence in terms of the Criminal Procedure (Scotland) Act 1995. The sheriff therefore found that, per the 2011 Act, JM had a “close connection” with a person who had committed a schedule 1 offence.

It was noted that the appellant had been living separately from SM due to bail conditions, although they had lived together prior to JM’s birth, and had exercised supervised contact with JM in January and March 2022. The appellant was of the view that the current limitations placed on contact did not allow him to adequately bond with the child and wished to create and develop a bond between them.

Counsel for the appellant submitted that the fact that JT had parental rights and responsibilities in respect of JM and had lived with his mother prior to his birth was not sufficient to allow the sheriff to conclude that this created a household or a close connection for the purpose of section 67(2)(c). There had been no judicial consideration of the term “significant contact”, which the sheriff had considered existed in this case, as JT had only enjoyed two contact visits with JM.

Misguidedly preoccupied

Delivering the opinion of the court, Sheriff Principal Anwar said of the use of “close connection”: “The concept of a ‘close connection’ is easily recognised if the purpose of the legislation is borne in mind and a narrow or literal interpretation is avoided. The need for a liberal interpretation to the term ‘household’ has been repeatedly emphasised. A similar approach to the term ‘close connection’ is required.”

She continued: “It is plain that ‘significant contact’ in the context of the provisions of the 2011 Act is concerned with more than simply an arithmetical analysis of the frequency or the regularity of the contact between the child and the schedule 1 offender. Contact can be ‘significant’ because of the underlying relationship it is designed to promote and maintain. Having regard to the need to protect the child from harm, contact might be significant if it is direct or residential, even where it is irregular or infrequent.”

Addressing the facts of the present case, Sheriff Principal Anwar said: “The contact was direct, took place in the context of a developing relationship, at the request of JT, was familial, personal and regular. Notwithstanding that contact had taken place on only two occasions prior to the proof, the sheriff concluded that the contact was significant. He was, in our view, correct to do so.”

She explained further: “Regrettably, the submission advanced on behalf of JT both at the proof and on appeal was misguidedly preoccupied with the question of whether a close connection currently existed between JM and JT and largely ignored the prospective element of the grounds of referral set out in section 67(2)(c). The court requires to consider events in the past and to draw inferences by a process of inductive reasoning from those events and what else is known about the character or the persons involved to draw conclusions about what might occur in the future.”

The Sheriff Principal concluded: “The likelihood of a future close connection cannot be dismissed simply by reference to the lack of such a connection at the present time, particularly where the lack of contact is attributable to state interference. Here, both SM and JT wish there to be further contact between JT and JM, in furtherance of a paternal relationship. Any contrary conclusion would be perverse and would have the undesirable consequence of undermining the purpose of the grounds of referral; to protect the child from those whose conduct might create a risk of harm.”

The appeal was therefore refused, and the case remitted to the sheriff to proceed as accords.