Jehovah’s Witnesses guilty of assaulting children lose appeal against permanence order

Scottish Legal News

A married couple who challenged a sheriff’s decision to grant a permanence order in respect of their youngest of four children following their conviction for assaulting her three older siblings have had their appeal rejected.

The appellant’s claimed that the sheriff erred in his assessment of the evidence and in his application of the law to the facts of the case, but Sheriff Appeal Court dismissed the appeal as “devoid of merit”.

Permanence order

Sheriff Principal Marysia Lewis, sitting with Sheriff Principal Duncan Murray and Appeal Sheriff William Holligan, heard that the appellants CE and EE, a Nigerian couple who practice the Jehovah’s Witness faith, were seeking to challenge an order made after a proof following an application by the respondents Glasgow City Council under section 80 of the Adoption and Children (Scotland) Act 2007 in relation to their 11-year-old daughter, who had been in the Scottish care system since 2009.

The court was told that the couple’s three older children, 21-year-old C, 19-year-old J and 16-year-old S were all born in Nigeria before the family moved to London in 2005, where D was born the following year, and the family then moved to Glasgow in 2007, when they came to the attention of social services.

In March 2009 S reported to his school that she had been beaten at home by her parents, following which C and J also alleged to police and social workers that they too had been beaten by the appellants, as a result of which child protection orders were obtained.

Later that year a Children’s Hearing made a supervision requirement for all four children and permanence orders were sought because social workers believed there was a “serious risk of recurrence of physical assaults” on each child by their parents.

Assault conviction

In May 2010 the appellants pled guilty on indictment to amended charges of assault in respect of C, J and S, but throughout the entire process they repeatedly justified the abuse and consistently refused to recognise the impact of their behaviour on the children, claiming that their methods of discipline were “cultural and consistent with the teachings of their church” – despite the accepted grounds of referral and their guilty pleas.

C, J and S were all placed in foster care, during which time they made additional allegations to social workers and to their respective carers about abuse inflicted on them by their parents, while D, who was also placed in care, had no direct contact with her parents since being accommodated in March 2007 and in 2014 a Children’s Hearing instructed a report from a consultant clinical psychologist which concluded that she should not be returned to the care of the appellants.

At the proof, the court was also told that in August 2016 the mother shared a piece of video footage on her Facebook page, which promoted physical chastisement involving the use of a belt as an appropriate form of child discipline, but she maintained she had “changed her view” and recognised that it was inappropriate.

Sheriff’s reasoning was ‘flawed’

The appellants sought to have D returned to their care, which failing to have direct contact with her, but the child had no desire to be returned to her parents and the sheriff granted a permanence order under section 80 of the 2007 Act on the ground that D’s residence with either of the parents was “likely to be seriously detrimental to her welfare”.

The appellants appealed against the order, which consisted of the mandatory provision set out in section 81 and certain ancillary provisions in section 82(1) as the sheriff thought fit.

The appellants challenged the sheriff’s approach to the evidence; his application of the law to the facts; the refusal to make provision for contact; and the failure of the sheriff to provide any reason for the imposition of the ancillary provisions.

In relation to the sheriff’s evaluation of the evidence, counsel’s simple proposition was that the sheriff had “not given sufficient reasoning” for his conclusions, and such reasons as he did give were “misconceived” because he attached “too much weight” to the Facebook post, to the “additional disclosures” and to the views of D.

It was also argued that the sheriff erred in determining that the threshold test was met because his assessment of the evidence was “flawed” for the same reasons.

Counsel further submitted that the sheriff’s approach to the refusal to make provision for contact was “fundamentally flawed” and violated the appellants’ right to a family life under article 8 of the European Convention on Human Rights (ECHR).

Appellants’ arguments ‘without merit’

However, the appeal sheriffs concluded that the contention that the sheriff’s findings in fact were not support by the evidence was “without merit”.

Delivering the opinion of the court, Sheriff Principal Stephen said: “The sheriff issued a lengthy and measured judgment. He set out the evidence of each witness in detail. He assessed the credibility and reliability of each witness with meticulous care. He tested the evidence of each witness against other sources of evidence, accepting some of the evidence and rejecting elements and explaining why he did so. In our view he cannot be faulted in his evaluation of the evidence.”

Many of the sheriff’s findings in fact were based on the terms of an extensive joint minute, revealing a “pattern of appalling sustained physical abuse” of C, J and S, which led to the children being taken into the care system, the allegations contained within the two referrals to the Children’s Hearings which were accepted by the appellants and the terms of the indictment to which the appellants pled guilty.

The court further rejected the appellants’ argument that the order breached their article 8 ECHR rights.

Sheriff Principal Stephen said: “The starting point is the interests of the child. Interference by the state in an existing family unit will be exceptional, assuming that there is a family unit in the first place. The child has, as the European Court puts it, the right to a safe and secure environment. The rights of the parents to have their child living with them are not absolute, especially where they have proved unfit.

“The sheriff concluded that D required certainty, stability and security for the rest of her childhood and that could be best provided by the present foster carers as opposed to the parents or remaining subject to compulsory measures of care. We do not agree that the sheriff failed to provide reasons to justify his decision.”