Law and Legal Affairs: When 'natural justice' hit home for the children's reporter system

Published on Friday 28 January 2011 11:33

Separate judicial broadsides from as far apart as the UK Supreme Court and Kilmarnock Sheriff Court gave the Scottish Children's Reporter Authority (SCRA) an uncomfortable Christmas.

The system of children's hearings has drawn admiring comments from jurisdictions around the world for more than half a century for its welfare approach to children who need some "compulsory measure of care", either because of their own conduct or because they need protection from others.

The irritation of Sheriff Watson in Kilmarnock was unmistakeable at the failure of a children's reporter to assess the quality of the evidence, including the relevance and credibility of the witnesses called before him to support an allegation of sexual abuse by parents against a child. However, the Supreme Court judgment in the case of Principal Reporter (Respondent) v K (Appellant) and others (Scotland) (2010] UKSC 56 has required the SCRA to review many of its presumptions and assumptions.

Professor Kenneth Norrie of Strathclyde University Law School, and an author on family law in Scotland, says: "It is a wake-up call for the SCRA and for the other professionals involved in child protection."

Janys Scott QC represented K at the Supreme Court and assesses the judgment as returning to the original vision of the Kilbrandon Report, which led to the creation of the children's hearing system.

"It's prompting the reporters and the professionals they rely on to accommodate to the realities of modern family life."

The Supreme Court not only overturned the decision of the principal reporter who had decided to exclude K, an unmarried father, from hearings about his daughter, L, but also delivered a blunt rebuke about how the father had been dealt with as being unfair and "contrary to one of the fundamental rules of natural justice, the right to be heard."

Allegations had been made by the mother, JR, after they had separated in 2003 that K had abused the child. The allegation was denied by K. Police investigated and found no evidence. However, the mother persisted with the allegation and her persistence became a ground of referral to the children's reporter that L needed some compulsory measures of intervention.

The Supreme Court was critical of the way the grounds of referral consisted almost entirely of allegations against K but he was denied the opportunity to rebut them to a hearing of the children's panel or before a sheriff. K was denied all contact with his daughter and the children's panel was denied any information he had to contribute that would assist its deliberations.

In the Supreme Court judgment, Lady Hale observed: "If decisions are then made on an inaccurate factual basis the child is doubly let down.Not only is the everyday course of her life altered but she may be led to believe bad things about an important person in her life. No child should be brought up to believe that she has been abused if in fact she has not, any more than any child should be persuaded by the adult world that she has not been abused when in fact she has."

In terms of the European Convention of Human Rights both L and K had their rights to family life infringed. The Supreme Court drew attention to the inherently discriminatory date of 6 May, 2006 set out in Section 93 of the Children (Scotland) Act 1995, as amended, that define "relevant person" and set out a new form of words it found would be compatible with Article 8, viz "or who appears to have established family life with the child with which the decision of a children's hearing may interfere". It is the demonstrable quality of a relationship that matters, they instructed, not a specific date.

Malcolm Schaffer, head of practice and policy at the SCRA, says: "On the day the judgment was delivered, SCRA issued practice instruction to all our reporters advising them of the decision and of its immediate and significant impact on reporter practice. In particular, reporters were instructed that fathers who have established family life with the child should now be regarded as relevant persons with immediate effect. Other people who are not the child's parents, such as grandparents or other near relatives, may also meet the definition of relevant person."

Ian Maxwell, national development manager of Families Need Fathers Scotland, says: "Sheriffs are going to hear what the Supreme Court has said and take the new formulation as a general guide in child contact cases. It's a breath of common sense."

Professor Norrie believes the decision requires a change of approach by professionals to the way they deal with abuse allegations: "The court spelled out that it is clearly unsatisfactory that the procedure is deemed to be satisfied if the party who agrees the ground of referral is the same person who made the allegation.

"The judges were clearly concerned the unfairness had infiltrated the approach to important decisions.

"Sheriffs and judges have to ensure that parties don't play the system. Fairness has to be self-evident."