The Education (Miscellaneous Amendments) (Coronavirus) (Scotland) Regulations 2020 make a number of procedural changes to how placing requests will be dealt with including: relaxing the timescales to which local authorities and Education Appeal Committees are subject (these are set out here- https://www.gov.scot/publications/coronavirus-covid-19-school-placing-requests-and-appeals-in-2020/); allowing for Committee appeal hearings to take place by video link, telephone or other means of instantaneous multi-party electronic communication; and allowing, where all parties agree, for Committees to determine the reference following consideration of written representation from the parties, without the need for a hearing.
What is less clear is how matters will unfold when those making the placing request wish to appeal against the decision of a Committee.
Appellants still have 28 days to appeal to the sheriff, although if good cause is shown sheriffs can hear a late appeal. Sheriffs might be attracted to the argument that as the 2020 Regulations give local authorities and Committees more time to deal with placing requests, it would be even-handed for some latitude to be shown to appellants also, given the challenges, including educational, they too will be facing at the present time.
At present the Sheriff Courts are only dealing with business considered urgent and/or necessary. Cases relating to the care and protection of children fall within this. The guidance on the Scottish Court Service website relating to civil business includes applications relating to contact with children. It might then be difficult to counter the general proposition that cases relating to the education of children are urgent and necessary. However, as long as schools themselves are only open to the children of key workers, we suspect the courts will decline to treat placing appeals as urgent.
Another factor to bear in mind that might point to placing request appeals being delayed is that such cases are not merely a review of the decision appealed against; rather, they take the form of a re-hearing. Unless the parties to an appeal are able to agree all the relevant evidence, it is difficult to see how an appeal to the sheriff could conclude without evidence being led. Whilst it would be technically possible to do this, and the risks of witnesses in this type of case being coerced are surely significantly less than in criminal cases, it may be a little while before remote evidential hearings are in a position to take place in civil cases.
These are uncertain times. We cannot say how these hearings will proceed from a practical perspective. Some Sheriff Courts may arrange for remote hearings, others may hear them in person, and yet others may agree delays to the process. What is certain is that there will be appeals in placing request cases. Local authorities face these cases every year and, in this regard at least, 2020 is not likely to be any different.
