THE PRINCIPAL REPORTER AGAINST JPN and CG [2014] ScotSC 90 (17 September 2014)

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Cite as: [2014] ScotSC 90

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2014SCDUMF52

SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES

AND GALLOWAY AT DUMFRIES

APPLICATIONS BY THE PRINCIPAL REPORTER UNDER SECTIONS 93(2) (a) and 94(2) (a) OF THE CHILDREN’S HEARINGS (SCOTLAND) ACT 2011

 

                                                                                       JUDGMENT

          of

SHERIFF GEORGE JAMIESON

                                                            In the causes

 

                                    THE PRINCIPAL REPORTER                                       APPLICANT

    Against

                                    J. P. N.                                                                       FIRST RESPONDENT

                                                                                          And

                                    C. G                                                         SECOND RESPONDENT

       For

A determination in cause B303/13 that section 67(2) (b) of the Act applies in respect of C. N. born 18 June 2013 and in cause B302/13 that section 67(2) (d) of the Act applies in respect of K. N. born 18 June 2013.       

                                          ________________________________________   

 

 

B 303/13

 

DUMFRIES:                                                          24 July 2014

 

Act: Miss S                             Alt: Miss P (First Respondent)

 

 

The Sheriff, having resumed consideration of the cause, Finds the ground to which the application relates is established; Directs the Principal Reporter to arrange a children’s hearing to decide whether to make a compulsory supervision order in respect of the child C. N.; and Finds no expenses due to or by any party in the cause.

 

 

 

 

Sheriff George Jamieson

 

 

 

 

 

 

B 302/13

 

DUMFRIES:                                                          24 July 2014

 

Act: Miss S                             Alt:  Miss P (First Respondent)

 

 

The Sheriff, having resumed consideration of the cause, Finds the ground to which the application relates is not established; Dismisses the application; and Finds no expenses due to or by any party in the cause.

 

 

 

 

Sheriff George Jamieson

 

 

 

 

 

 

 

B 302/13 and B 303/13

DUMFRIES:                                                          24 July 2014

 

Act:  Miss S                            Alt: Miss P (First Respondent)

 

The Sheriff, having resumed consideration of the causes,

 

Finds in fact:

 

  1. On 5 November 2013 FR was given charge of CN by mother. He was alone with CN in his bedroom. He was sleeping on the bed. He left CN in her bouncy chair. He was awoken by her cry. He found her bouncy chair toppled over, with CN facing the bedroom cabinet. He rescued her from this predicament. He put her on or near the edge of the bed while he went to the bathroom to run a bath for her. While there she fell off the bed. He heard a thud and returned to the bedroom where he found CN crying and in distress.

     

  2. At some point immediately thereafter FR placed CN’s face between his hands. He applied significant force in so doing. She was injured as a result of him squeezing her face.

     

  3. CN has a twin sister KN.

Finds in fact and in law:

 

  1. FR had charge of CN within the meaning of section 27 of the Children and Young Persons (Scotland) Act 1937. FR was over 16 years of age and CN was under 14 years of age at the time.

     

  2. The statutory offence of wilful neglect contrary to section 12(1) of the Children and Young Persons (Scotland) Act 1937 was committed in respect of CN.

     

     

  3. The common law offence of cruel and unnatural treatment of persons was committed in respect of CN.

     

  4. The common law offence of reckless conduct which causes actual injury was committed in respect of CN.

     

  5. Each of these three offences was a schedule 1 offence within the meaning of section 67(6) of the Children’s Hearings (Scotland) Act 2011.

 

 

 

Sheriff George Jamieson

NOTE TO THE FOREGOING INTERLOCUTORS:

 

This Note is in four Parts: The Applications; Causation; Determination regarding K.N; and Expenses:

 

  1. THE APPLICATIONS

     

    References

     

    Legal references

     

 



 

[1] As amended by the Act of Sederunt (Children’s Hearings (Scotland) Act 2011) ( Miscellaneous Amendments) 2013, SSI 2013 No. 172

[2] I was not invited to make an incidental finding in fact as to paternity arising from other evidence such as his assertion to that effect made in the course of his evidence or in documentary records made at his or the second respondent’s assertion produced in the course of the conjoined proof tending to show he was the children’s father. The evidential requirements for a finding of paternity contained in section 8 of the 1988 Act were therefore not fulfilled.

[3] It is not disputed that he is a “relevant person”. Although most fathers are relevant persons qua parent by virtue of Article 3 of the Children’s Hearings (Scotland) Act 2011 (Review of Contact Directions and Definition of Relevant Person) Order 2013, SSI 2013, No.193, that does not assist the first respondent since no evidence of presumption of his paternity was put before the court in these proceedings.

[4] Section 5 of the Law Reform (Parent and Child) (Scotland) Act 1986 deals with presumptions as to a man being father of a child; it does not apply to the mother.

[5] But not at that stage the applications, as I did not think that appropriate then as there were different grounds of referral in each case; identical outcomes were assumed by the Applicant, but that did not necessarily follow as a matter of law or logic.

[6] Rhesa Shipping Co SA v Edmunds (The Popi) [1985] 1 WLR 948 (HL) at pp955,956 , per Lord Brandon of Oakbrook

[7] Extra Division,18 July 2001, unreported

[8] Paragraph [17]

[9] Paragraphs [14] and [15]

[10] Paragraph [15]

[11] 1988 Act, section 1

[12] 1988 Act, section 2

[13] I consider the onus and standard of proof in more detail later in this Note.

[14] Sienkiewicz v Grief (UK) Ltd 2 [2011] AC 229 at paragraph [143], per Lord Rodger

[15] Wilson v North Lanarkshire Council [2011] CSOH 178 at paragraphs [99] (c) and (d), per Lord Woolman

[16] In Re B (Children) [2008] UKHL 35, at [59], per Lady Hale

[17] Federal Judicial Center Reference Manual on Scientific Evidence , 3rd edition (2011), pages 552 and 553

[18] Federal Judicial Center Reference Manual on Scientific Evidence , 3rd edition (2011), page 566; McTear v Imperial Tobacco Ltd 2005 2 SC at paragraph [6.158], page 475

[19] Dingley v Chief Constable  1998 SC 548 at 570, per Lord Rodger (the decision in this case was approved on appeal - 2000 SC(HL) 77); Sienkiewicz v Grief (UK) Ltd 2 [2011] AC 229 at paragraph [163], per Lord Rodger

[20] Federal Judicial Center Reference Manual on Scientific Evidence , 3rd edition (2011), page 51

[21] CCMR 1997, rule 3.45(1)

[22] McGregor v D 1977 SLT 182

[23] CCMR 1997, rule 3.48

[24] Norrie, paragraph 8-36

[25] I use here the language employed in Statements of Fact 8, which omit the word “years” after 17. Paragraph 3 of schedule 1 refers to a “child under the age of 17 years”; where I refer to the paragraph in this Note I use the phrase employed in the statute in preference to the abbreviated phrase in the pleadings.

[26] Norrie, paragraph 3-07, page 42

[27] CCMR 1997, rule 3.50

[28] CCMR 1997, rule 3.50

[29] CCMR 1997, rule 3.48

[30] Norrie, paragraph 8-36; the “grounds hearing” in this passage refers of course to the grounds hearing before the children’s hearing when it orders the reporter to refer the ground or grounds to the sheriff for determination if disputed by a relevant person or because the child or a relevant person does not understand or is not capable of understanding an explanation given in relation to any ground.

[31] Sometimes the onus of proof is on a respondent. In Smyth v St Andrew’s Insurance plc [2012] EWHC 2511(QB), the defendant insurance company claimed the fire had been started deliberately by the claimant’s domestic partner. Since it was relying on an exclusion clause to that effect in the insurance policy to escape liability, it had to prove the defendant’s partner started the fire in order to avoid paying out under the policy. It failed do so and was found liable to pay out to the insured.

[32] McTear v Imperial Tobacco Ltd 2005  2 SC1 at [1.6] at page 10

[33] Norrie, paragraph 3-07, page 42 and paragraph 8-17

[34] In Re B (Children) [2008] UKHL 35, per Lord Hoffman at paragraph 4 and Lady Hale at paragraph 32

[35] [2008] UKHL 35

[36] In Re B (Children) [2008] UKHL 35, per Lord Hoffman at paragraph 3

[37] For that reason, I am of the opinion that reported care proceedings cases from England and Wales, even at House of Lords or Supreme Court level, should be treated with caution in the Scottish context. As is apparent from In Re B (Children) [2008] UKHL 35, the courts in England and Wales appear to have gotten themselves into a muddle over the applicable standard of proof in these proceedings, which the Opinions in that case were intended to dispel by making it clear there was only one standard of proof, the balance of probabilities, in such proceedings.

[38] Hendry v Clan Line Steamers Ltd 1949 SC 320 at 328, per Lord Jamieson

[39] At paragraph 5, Lord Hoffman usefully distinguishes three types of case in which the gravity of the conduct or even the seriousness of the consequences for the person concerned had caused “some confusion” that the standard of proof might vary in civil cases according to that gravity or seriousness. The first category which I mention only for the sake of completeness is where the proceedings are civil but “the criminal standard of proof or something like it should be applied”. This is not relevant to the application in respect of CN, but an example in Scottish practice would be proceedings for breach of interdict, where the criminal standard of proof applies though the proceedings are civil in nature. The second type of case is the inherent probability case where “strong evidence may be needed to persuade a tribunal that it more probably happened than not. The third type of case is that in which “judges are simply confused about whether they are talking about the standard of proof or the role of inherent probabilities in deciding whether the burden of proving a fact to a given standard has been discharged”.

[40] JB and BJ v Authority Reporter, Edinburgh Sheriff Court, 26 March 2014, Sheriff Principal Stephen

[41] See paragraphs 11 and 14, per Lord Hoffman

[42] Paragraph 15

[43] Paragraph 32

[44] Paragraph 70; at paragraph 72 she suggested there was no “logical or necessary” connection between seriousness and probability and noted that some seriously harmful behaviour such as murder was sufficiently rare to be inherently improbable in most circumstances whereas other seriously harmful behaviour such as drug abuse was common and not at all improbable

[45] Such facts are not necessarily decided on a weighing of probabilities in the balance as noted by Lord Mackay in Hendry v Clan Line Steamers Ltd 1949 SC 320 at 324 – 327. The test seems more apt when considering inferences to be drawn from other proved facts and circumstances.

[46] Hendry v Clan Line Steamers Ltd 1949 SC 320 at 328, per Lord Jamieson

[47] Hendry v Clan Line Steamers Ltd 1949 SC 320 at 328, per Lord Jamieson; Rhesa Shipping Co SA v Edmunds (The Popi) [1985] 1 WLR 948; McGlinchey v General Motors UK Ltd [2012] CSIH 91 at paragraph [36]; In Re B (Children) [2008] UKHL 35 at paragraph 2, per Lord Hoffman

[48] Stephens v Cannon [2005] EWCA Civ 222

[49] Watters v The Masters Golf Company Ltd and Urathon (Europe) Ltd [2013] CSOH 126

[50] Paragraph 32

[51] Sir Arthur Conan Doyle, The Sign of the Four (1890), ch 6; Famously cited by Lord Brandon of Oakbrook in his speech in Rhesa Shipping Co SA v Edmunds (The Popi) [1985] 1 WLR 948 (HL); See also McTear v Imperial Tobacco Ltd 2005  2 SC1 at [6.148] at page 471; and Patel v Vigh and Vigh [2013] EWCH 3403(Ch) at [44]

[52] Rhesa Shipping Co SA v Edmunds (The Popi) [1985] 1 WLR 948 (HL) at pp955,956 , per Lord Brandon of Oakbrook

[53] [2012] CSIH 91 at paragraphs [33 ] - [36]

[54] Omitting reference to other offences under other specified sections of the 1937 Act mentioned in paragraph 2, which are not immediately relevant to this discussion, and to the intervening paragraphs 2A, 2B and 2C, which are also not immediately relevant to this discussion.

 

[55] CCMR 1997, rule 3.50.

[56] Third Edition (2001) and Supplement (2005), Chapters 29 “Assault and Real Injury” and 31 “Offences Against Children”

[57] The range of offences, in abstract, would include murder, culpable homicide, or torture under section 134(2) of the Criminal Justice Act 1988, but none of these offences appear relevant to these cases.

 

[58] Section 12(1) has been amended by various enactments but most notably by section 51(5) (a) of the Criminal Justice (Scotland) Act 2003 which omitted reference to assaults. I omit reference to wilful exposure and abandonment, which do not appear relevant to these cases.

[59] 1937 Act, section 110(1); a young person is defined by the same section as a person who has attained the age of 14 years but is under the age of 17 years.

[60] Clark v HMA 1968 JC 53 at 56; FB v Procurator Fiscal, Aberdeen [2014] HCJAC 56

[61] Gordon, Criminal Law, paragraph 29.30

[62] Concise Scots Dictionary (Scottish National Dictionary Association, 1985), page 668

[63] Mackenzie, Matters Criminal , chapter 28; Forbes, Institutes of the Law of Scotland, Part I, Book IV, Title 6; Hume, Volume I, 327-328; Alison, Volume I, 633-634. Stellionate, as Forbes explained, is from the Latin stellio, “a subtil Kind of Lizzard having its Back spotted, as it were with Stars”. Using false pretence to entomb another as in EA Poe’s, The Cask of Amontillado provides a fictional example of stellionate.

[64] Gordon, Criminal Law,  29.47 at page 418

[65] Macdonald, Criminal Law, pages 124,125

[66] Gordon, Criminal Law, 29.49 at page 421

[67] McIntosh (1881) 4 Couper 389

[68] Macdonald, Criminal Law, page 126; Gordon, Criminal Law, paragraph 29.49

[69] HMA v Harris 1993 JC 150; cf Terrorism Act 2000, section 61(2)(c)

[70] Paton v HMA 1936 JC 19, at 22, per LJC Aitchison

[71] Quinn v Cunningham 1959 JC 22, at 24, 25 , per LJG Clyde and at 26, per Lord Sorn

[72] See footnotes 2 and 83 (regarding KN, but which points are equally applicable to CN), and supporting text to those footnotes for further explanation.

[73] See 1937 Act, section 27 which defines and creates presumptions as to the concepts of “charge” and “care”; see also Henderson v Stewart 1956 JC 94 for discussion of section 27.

[74] Clark v HMA 1968 JC 53; see the 1995 Act, schedule 5 for a form of complaint in respect of an offence under section 12(1) of the 1937 Act.

[75] Dunn v McDonald 2013 SLT (Sh Ct) 34 at paragraphs [45] – [63]; contra, S v Authority Reporter 2012 SLT (Sh Ct) 89.; neither of these cases are binding on me; but I prefer Sheriff Reid’s thorough analysis of the authorities and respectfully agree with the views of the law as expressed by him in Dunn v McDonald over the approach adopted by the sheriff principal in S v Authority Reporter.

[76]Dunn v McDonald 2013 SLT (Sh Ct) 34 at paragraph [47]

[77] Dunn v McDonald 2013 SLT (Sh Ct) 34 at paragraphs [42] – [44]

[78] As I noted previously, there is no specific Scottish practice to this effect, but it is always unfortunate to decide a case on the onus of proof as Lord Carloway noted in McGlinchey; and as Lord Reid stated in McWilliams v Sir William Arrol & Co 1962 SC (HL) 70 (at 83): “In the end when all the evidence has been brought out, it rarely matters where the onus originally lay: the question is which way the balance of probability has come to rest”.

 

[79] To borrow Lord Sorn’s phrase from Quinn v Cunningham 1959 JC 22 at 26

[80] Cf FB v PF, Aberdeen [2014] HCJAC 56

[81] I refer in this regard to the evidence of FP and the concurring and accepted evidence of CP to this effect.

[82] Kennedy v A 1993 SLT 1134; D v Irvine 2005 SLT (Sh Ct) 131; Peebles v Mac Phail 1989 SCCR 410; Byrd v Wither 1991 SLT 206

[83] Another reason for applicants to produce presumptive evidence of paternity under section 5 of the Law Reform (Parent and Child) (Scotland) Act 1986 in the form of an entry in a United Kingdom birth register in proceedings of this nature, is to let the court know if the father has parental responsibilities and rights in respect of the child in terms of section 1-3 of the Children (Scotland) Act 1995 and section 23 of the Family Law (Scotland) Act 2006. It can only acquire that knowledge by examination of the extract from the birth register confirming an unmarried male partner is registered as the child’s father where the child is born on or after 4 May 2006.

[84] See the extensive discussion in Norrie, paragraphs 3-12 and 3-13. The discussion in this Note of this concept draws upon and adopts the statements of principle at Norrie, paragraph 3-13, page 47.

[85] Norrie, paragraph 8-18 at pages 139, 140

[86] Norrie, paragraph 8-18 at page 140

[87] Norrie, 8-35 at page 150

[88] CCMR 1997, rule 3.19.


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