Professional Judgment in Scottish Child Protection Processes KENNETH M. NORRIE UNIVERSITY OF STRATHCLYDE LAW SCHOOL 2 ND DECEMBER 2013 CELTIC PARK, GLASGOW Re L (Care: Threshold Criteria) [2007] 1 FLR 2050, per Hedley J at 2063 society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the province of the state to spare children all the consequences of defective parenting. 1
Re S-B (Children) (Care Proceedings: Standard of Proof) [2010] 1 AC 678, per Lady Hale at para 7. It is not enough that the social workers, the experts or the court think that a child would be better off living with another family. That would be social engineering of a kind which is not permitted in a democratic society. The jurisprudence of the European Court of Human Rights requires that there be a pressing social need for intervention and that the intervention be proportionate to that need. CONCLUSION: WE MUST THEREFORE KEEP WELFARE IN ITS PROPER PLACE (WHICH IS NOT EVERYWHERE) The Threshold Analysis Has the threshold been crossed? This is a matter of law: has the statutory test been met? This is a matter of competency. Crossing the threshold does not imply that state intervention WILL follow. Welfare does NOT govern this judgment. If so, what is the appropriate response? This is a matter of professional judgment. There is NO statutory test, though the judgment is to be exercised giving primary consideration to the child's best interests, and taking full account of ECHR considerations, in particular proportionality. 2
Q.1: Is the Threshold Crossed? Re B (A Child) [2013] UKSC 33, Lord Neuberger s three stage approach: the judge must (i) determine the factual issues; this is an assessment of the evidence (including the veracity of witnesses) the judge s assessment is virtually impossible to challenge on appeal (ii) identify the nature of the threshold; this is a matter of law (usually statutory interpretation) there is a right or wrong answer in law so the judge can be challenged as having interpreted the law incorrectly (iii) determine whether the facts satisfy the test. This is an evaluation, or appraisal, or value judgment the exercise of judgment here allows for a generous ambit of reasonable disagreement Q. 2: Should the Order be Made? The archetypical professional judgment, to be made taking account of ECHR requirements, particularly proportionality. Lord Neuberger in Re B (A Child) [2013] UKSC 33: an appeal court may consider the trial judge s decision to be (i) The only possible view (ii) A view that it considers to be right (iii) A view that it has doubts about, but on balance considers was right (iv) A view which it cannot say is right or wrong (v) A view that it has doubts about, but on balance considers was wrong (vi) A view that it considers to be wrong, or (vii) A view that is unsupportable 3
Scottish Orders for the Protection of Children Emergency orders Child protection orders Granted by the sheriff Temporary orders Compulsory supervision orders Granted by the children s hearing Permanent protection Permanence orders or adoption orders Granted by the sheriff or the Court of Session Emergency Orders (CPOs) Children s Hearings (Scotland) Act 2011, s.38: Is the sheriff satisfied that the local authority has reasonable grounds to suspect that the child is being treated or neglected in such as way as to be likely to suffer significant harm? AND that the local authority is making enquiries which are being frustrated by unreasonable denial of access? What is to be evaluated here is not whether the child is likely to suffer significant harm but whether the local authority has reasonable grounds to suspect this. Likewise with s.39, that the local authority has "reasonable grounds to believe..." The child s welfare does NOT inform this decision. Once this threshold is crossed the sheriff must determine whether to make a CPO Welfare is the paramount consideration at this stage (bearing in mind proportionality). 4
The Local Authority's Duty Children's Hearings (Scotland) Act 2011, s.38 Local authority may apply for a CPO Children's Hearings (Scotland) Act 2011, s.39 Any person may apply for a CPO It is a matter of professional judgment whether to apply or not: there is neither statutory test, nor requirement to do so Child's welfare will be at forefront of decision-maker's mind There is no redress for failure to apply for CPO (subject to the state's positive obligation under art.3 ECHR). Temporary Protection (CSOs) Satisfying whether the threshold has been crossed lies with the sheriff in determining whether s.67 grounds of referral apply in relation to the child. A welfare judgment is NOT called for here. Existence of s.67 grounds is a mixed matter of fact and law Appeals to sheriff principal or Court of Session: Factual assessment difficult Interpretation of statutory test is it right or wrong? Evaluation of whether threshold crossed - is it wrong in the sense of being outwith the wide margin of disagreement permitted? Determining the appropriate response lies with the children s hearing. Welfare is paramount: s.25 of 2011 Act Appeals: was the response unjustified? This does not mean not necessary but one which could not, upon any reasonable view, be regarded as being justified in the circumstances of the case (per Sheriff Principal Nicholson in W v Schaffer 2001 SLT (Sh Ct) 86) 5
The Local Authority's Duty Children's Hearings (Scotland) Act 2011, s. 60 To pass information to reporter where the local authority considers: (a) that the child may be in need of protection, guidance, treatment or control, and (b) that it MIGHT be necessary for a compulsory supervision order to be made in relation to the child. This clearly indicates a sifting function for the local authority, but it is activated when the authority considers that compulsion MIGHT be necessary, not that it IS. This is a statutory DUTY, so must be followed. Permanent Protection: POs Permanence orders Threshold criterion is found in Adoption and Children (Scotland) Act 2007, s.84(5)(c)(ii) Is the child s residence with the person who has the right to determine child s residence likely to be seriously detrimental to the welfare of the child? An evaluation based on facts and obviously the child s welfare has some relevance to this threshold decision The court may make an order only if this test is satisfied a welfare assessment Appeals: was the evaluation at threshold stage or the welfare assessment wrong in the sense of being outwith the permitted margin of appreciation? 6
The Local Authority's Duty The application is in the hands of the local authority, and there is no statutory guidance directing how it should make its judgment of whether to apply. The authority must be convinced that the statutory test for its making is satisfied, but it is not obliged to make the application: indeed there is no mechanism to force it to do so. Welfare and policy will be determinants: Edinburgh City Council tends to seek authority to adopt as a provision in the permanence order Glasgow City Council tends not to seek authority to adopt when applying for permanence orders. Permanent Protection: Adoption Orders Adoption and Children (Scotland) Act 2007 No threshold criteria laid down, other than grounds for dispensing with parental agreement If parental inability cannot be shown, then welfare is the threshold, but in the sense of an imperative, where nothing less than adoption will suffice (per Lord Reed in S v L 2012 UKSC 30) 7
The Meaning of Welfare Welfare has no meaning. We must choose Factors that are relevant to the welfare judgment What relative weight to give to each of these factors These choices depend upon the decision-maker s, and society s moral and ethical preconceptions and values, and upon the changing fashions in developmental psychology, education and even our understanding of the nature of childhood itself. Welfare as a paramount consideration is NOT the determining feature of threshold judgments, though it is of outcome judgments. 8