Aitken v Aitken
| Jurisdiction | Scotland |
| Judgment Date | 14 March 1978 |
| Date | 14 March 1978 |
| Docket Number | No.22 |
| Court | Court of Session (Inner House - First Division) |
FIRST DIVISION.
Lord Cowie.
Minor and pupilCustodyJurisdictionAward of interim custodyChildren's hearing made subsequent supervision requirement with residential conditionCompetency of order of children's hearingEffect of order on award of interim custodySocial Work (Scotland) Act 1968 (cap. 49), sec. 44.1
A pursuer in an action of divorce was awarded interim custody of the three children. Thereafter, because the children appeared to be in need of compulsory measures of care, a reporter referred the children to a children's hearing under section 32 (2) (c) of the Social Work (Scotland) Act 1968 on the ground that lack of parental care was likely to cause the children unnecessary suffering or seriously to impair their health or development. The pursuer did not accept the referral and the reporter was directed to apply to the Sheriff for a finding as to whether the ground of referral was established.
On 3rd February 1978 a Lord Ordinary granted interim custody of two of the children to the defender in the divorce action, under the supervision of the Regional Council. On 13th February 1978 the Sheriff decided that the ground of referral to the children's hearing was established. On 21st February the children's hearing made a requirement under sec. 44 (1) of the Social Work (Scotland) Act 1968 that the three children should be under the supervision of the director of social work of the Regional Council, subject to a condition that the children resided with the pursuer.
The Regional Council sought a direction from the Lord Ordinary as to what they should do. The Lord Ordinary reported the matter to the Inner House for advice as to whether it was competent for the children's hearing to make an order after he had awarded interim custody and whether the Regional Council were obliged to act under
the interlocutor of the Lord Ordinary of 3rd February 1978 or were bound to implement the supervision requirement of the children's hearing of 21st February 1978Held (1) that an award of custody by a Court to a parent did not mean that the exercise of the right of custody which was a right of private character conferred only upon an individual might not be inhibited temporarily by other lawful orders which made it impossible for the parent with custody of a child to care for the child in his own accommodation or to arrange for the care of the child by persons of his choosing. (2) That the Social Work (Scotland) Act 1968 was not concerned with the question of the rights of parents or of the right of an individual to whom custody of a child had been awarded. Part III of the Act was concerned only with the provision of compulsory measures of care; and it was perfectly clear that under that Part of the Act and in terms of sec. 44 (1) a supervision requirement might be made notwithstanding the rights of parents or a person to whom custody had been awarded by the Court. (3) That the existence of parental rights in relation to a child or of rights to his custody did not and could not disable a children's hearing from making a supervision requirement in respect of a child in need of compulsory measures of care; and such a requirement was properly to be regarded as just another of those lawful orders which might temporarily prevent the exercise of those rights. (4) That accordingly the supervision requirement made by the children's hearing on 21st February 1978 under sec. 44 (1) of the 1968 Act was not incompetent by reason of the interlocutor of the Lord Ordinary of 3rd February 1978. (5) That the exercise of the right of custody granted by the interlocutor of the Lord Ordinary was inhibited for so long as the supervision requirement of the children's hearing subsisted. (6) That the obligation of the Regional Council under the interlocutor of the Lord Ordinary was in abeyance until the supervision requirement of the children's hearing was discharged; and they had to give effect to the supervision requirement in accordance with their duty under sec. 44 (5) of the 1968 Act.
Browne v. Browne 1969 S.L.T. (Notes) 15 and W. v. Glasgow Corporation 1974 S.L.T. (Notes) 5 referred to.
Maureen M'Gowan Or M'Queen Or Aitken raised an action of divorce against her husband Bernard Aitken. She sought custody of the two children of the marriage and a child of hers by a former marriage who was accepted into the family by the defender. The case was reported to the Inner House of the Court of Session by the Lord Ordinary on 7th March 1978 on a matter arising out of an award of interimcustody.
The following narrative of facts is taken from the opinion of the Court:"The...
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