Elizabeth Knox, Authority Reporter+l. V. S+the Right Honourable Elish Angiolini, Q.c. Lord Advocate+norman Ritchie And The Right Honourable Elish Angiolini, Q.c., Lord Advocate

JurisdictionScotland
JudgeLord Kingarth,Lord Mackay of Drumadoon,Lord Clarke
Judgment Date26 May 2010
Neutral Citation[2010] CSIH 45
Published date26 May 2010
Docket NumberXA160/08&
CourtCourt of Session
Date26 May 2010

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Kingarth Lord Clarke Lord Mackay of Drumadoon [2010] CSIH 45

XA160/08& XA86/09

OPINION OF THE COURT

delivered by LORD KINGARTH

in appeal

by

ELIZABETH KNOX, Authority Reporter

Appellant;

against

S

Respondent:

and

THE RIGHT HONOURABLE ELISH ANGIOLINI, Q.C., Lord Advocate

Minuter:

And

in appeal by

L

Appellant;

against

NORMA RITCHIE, Authority Reporter

Respondent

And

THE RIGHT HONOURABLE ELISH ANGIOLINI, Q.C., Lord Advocate,

Minuter:

_______


Act (for S & L): Hajducki Q.C. Hughes, Louden; Thorley Stephenson SSC

Alt (for Authority Reporters): Wise Q.C., Brabender; Biggart Baillie LLP

(for Minuter): Johnston Q.C. , Dunlop; Scottish Government Legal Directorate

26 May 2010

Introduction

[1] These two appeals, brought by way of stated case, give rise to the same question -whether on a proper construction of the Children (Scotland) Act 1995 ("the 1995 Act") an unmarried father with a contact order in his favour in respect of his child is a "relevant person" in terms of section 93(2)(b), with consequent important procedural rights in respect of a Children's Hearing held in relation to that child.

Factual background in the case of S

[2] S is the unmarried father of a male child TQ who was born on 22 May 2007. He has been acknowledged as such by the child's mother, and the child bears his surname. He has, however, never lived with TQ's mother and is not named on the child's birth certificate. Nevertheless he had contact with the child on three occasions, in May and June 2007, the last such occasion being on 26 June 2007.

[3] On 21 February 2008 S was granted a contact order in Edinburgh Sheriff Court in the course of an action in which he applied for (1) declarator of paternity, (2) an award of parental rights and responsibilities in terms of section 11(2)(b) of the 1995 Act and (3) a contact order under section 11(2)(d) of the said Act. The action was brought at his instance against the mother of the child. By the time of the hearing before the sheriff contact was no longer opposed by her. The relevant interlocutor was in the following terms:

"The sheriff, on parties' joint motion, makes a contact order ad interim in favour of the pursuer entitling him to contact with the child [TQ] each week for a period of one hour, at Lothian Mediation Contact Centre, dates and times to be determined by the contact centre; thereafter continues today's Child Welfare Hearing until 17 April 2008 at 2pm within the Sheriff Courthouse, 27 Chambers Street, Edinburgh".

[4] TQ had been subject to grounds of referral by the Children's Hearing in January 2008 on the basis of an alleged lack of parental care by his mother and the said grounds were held established by the sheriff on 8 February 2008. It is S's position that he was not aware of this having happened.

[5] On 19 March 2008, prior to any contact being exercised in accordance with the sheriff's interlocutor, a Children's Hearing in Edinburgh, in knowledge of the Sheriff Court contact order, made a supervision requirement in terms of section 70 of the 1995 Act, and in particular resolved that S should have no contact with TQ. S was not notified of, nor invited to attend, the hearing. Nor was he provided with any papers in relation thereto, and the hearing proceeded in his absence on the basis that he was not a "relevant person" within the meaning of section 93(2) of the Act.

[6] On hearing of that decision S applied to the Sheriff Court in terms of section 11(1)(a) of the 1995 Act for an interim award of parental rights and responsibilities "to safeguard and to promote the child's health, development and welfare", but said application was, on 7 April 2008, refused by the sheriff who, in the knowledge of the decision by the Children's Hearing, indicated that he could not be satisfied that the granting of the motion could be justified having regard to the terms of section 11(7) of the Act.

[7] S appealed in terms of section 51(1) of the 1995 Act against the decision of the Children's Hearing of 19 March 2008, and in particular the decision to refuse him the status of a "relevant person". The sheriff allowed the appeal. He held that, applying the ordinary canons of statutory construction, S was a relevant person within the meaning of section 93(2)(b)(a) of the 1995 Act (in particular being a "parent enjoying parental responsibilities or parental rights under Part 1 of this Act"). The sheriff further held that if he was wrong about that, a Convention compliant reading of the Act would require S to be treated as such a "relevant person". The Reporter now appeals to this court by way of Stated Case.

[8] The questions of law for the opinion of the court are as follows:

"(1) Did I err in law by rejecting the appellant's argument that the respondent had no right of appeal to me and by refusing to dismiss that appeal as incompetent?

(2) Did I err in law by holding that the granting of an interim contact order under section 11(2)(d) of the 1995 Act of itself resulted in the respondent 'enjoying parental responsibilities and parental rights' under Part I of the Act?

(3) Did I err in law in holding that the respondent was a 'relevant person' in terms of section 93(2)(b) of the 1995 Act?".

Factual background in the case of L

[9] L is the unmarried father of MF who was born on 9 February 1999. He is named as such on the birth certificate and is admitted to be the father by the child's

mother. Regular contact between L and MF took place prior to 12 April 2002, when, at Edinburgh Sheriff Court, L was granted a contact order in terms of section 11(2)(d) of the 1995 Act. Said order was pronounced when the sheriff interponed authority to a Joint Minute settling an action by L against MF's mother. In that action L sought a residence order, which failing, contact. The terms of the interlocutor were as follows:

"The sheriff, on joint motion, discharges today's Continued Options Hearing, allows joint minute to be received at the Bar of court and to form No.12 of process, interpones authority of court thereto and in terms thereof finds the pursuer entitled to contact with the child (MF) every second weekend from 12pm on Saturday until 12pm on Sunday; quoad ultra dismisses the remaining craves of the Initial Writ and finds no expenses due to or by either party".

[10] From that date onwards L exercised said contact with MF on a regular basis for a period of more than 6 years, until contact ceased at the instance of the mother in May 2008.

[11] On 9 October 2008 the Children's Panel, following a referral under section 65, made a supervision order in terms of section 70 of the 1995 Act, a condition of which was that L should have no contact with MF. Said decision was based upon certain grounds having been established or admitted. L was informed prior to the said hearing that it was to take place and he was invited to attend, but he was told by the Reporter that he was not to be given "relevant person" status. Accordingly he was not supplied with papers, including the grounds of referral and relevant reports in connection therewith. He was only allowed to attend parts of the said hearing at the discretion of the Chairman in terms of rule 13(d) of the Children's Hearing (Scotland) Rules 1996, and was excluded therefrom when the grounds of referral were read out and discussed, and was not asked to respond to, dispute or challenge any of the said grounds. He has not been given reasons for the decision that there should be no contact between him and MF.

[12] L appealed to the Sheriff Court at Perth against the decision of the Children's Hearing of 9 October 2008, and in particular challenged the decision of the Hearing

not to afford him relevant person status. The sheriff refused the appeal. He held that L was not a relevant person within the meaning of section 93(2)(b) of the 1995 Act, and that such an interpretation was not incompatible with L's Article 6 and 8 rights under the Convention. L now appeals against that decision to this court.

[13] The questions posed by the sheriff for the opinion of the court are:

"(1) Did I err in law in dismissing the appeal by the appellant as incompetent on the ground that the appellant did not meet the test of who has the right to appeal to the sheriff under section 51 of the Children (Scotland) Act 1995?

(2) Did I err in law in not holding that the granting of a contact order under section 11(2)(d) of the Children (Scotland) Act 1995 of itself resulted in the appellant enjoying parental responsibilities or parental rights in terms of the said Act of 1995 for the purpose of section 93(2)(b) of that Act?

(3) Accordingly, did I err in law in not finding the appellant to be a 'relevant person' in terms of section 93(2)(b) of the Children (Scotland) Act 1995?".

Legislative Framework

[14] The 1995 Act is divided into four parts. These appeals concern the inter-relationship of Part I, which concerns the private rights of persons, including parents and children, with Part II, which provides for local authority intervention in the care of children, including the determination of matters by Children's Hearings.

[15] Part I commences with general provisions about parental responsibilities and rights; phraseology, it has been said, designed to promote a move away from the common law concepts of tutory and custody of, and access to, children. Thus, section 1(1) provides that "a parent" has, in relation to his child, the responsibility:

"(a) to safeguard and promote the child's health, development and welfare;

(b) to provide, in a manner appropriate to the stage of development of the child -

(i) direction;

(ii) guidance,

to the child;

(c) if the child is not living with the parent, to maintain personal relations and direct contact with the child on a regular basis; and

(d) to act as the child's legal representative....."

"Parental responsibilities" are defined as the matters referred to in sub-sections (a)...

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6 cases
  • Petition Of Abc Against The Principal Reporter And Others
    • United Kingdom
    • Court of Session
    • 31 July 2018
    ...may interfere” into section 93(2)(b) of the 1995 Act. That subsection had already been read down in the case of Authority Reporter v S 2010 SC 531 to include any parent enjoying a right of contact under part 1 of the 1995 Act. [16] Senior counsel pointed out that ensuring effective particip......
  • Principal Reporter v K
    • United Kingdom
    • Supreme Court (Scotland)
    • 15 December 2010
    ...to have been given all the parental responsibilities and parental rights). As a result of the decision of the Extra Division in Authority Reporter v S [2010] CSIH 45, 2010 SLT 765, it also includes "any parent enjoying a right of contact in terms of a contact order under Part I of this 64......
  • C.w. V. Decisions Of A Children's Hearing Dated 9 May 2013 In Relationto The Children R And S
    • United Kingdom
    • Sheriff Court
    • 29 July 2013
    ...it would be safer to include him and let others argue than to leave him out. The fact that the Extra Division in Authority Reporter v S [2010] CSIH 45, 2010 SLT 765, with the support of all the parties, felt able to read words into section 93(2)(b)(a) fortifies us in the belief that it is o......
  • ABC v Principal Reporter
    • United Kingdom
    • Supreme Court (Scotland)
    • 18 June 2020
    ...cases, including W v UK [(9749/82) (1988) 10 EHRR 29], McMichael v UK [(16424/90) (1995) 20 EHRR 205], S v Miller [2001 SC 977], Knox v S [2010 SC 531] and Principal Reporter v K [2011 SC (UKSC) 91]. [6] At the outset of her submissions counsel for the Lord Advocate helpfully focused the ap......
  • Request a trial to view additional results
1 books & journal articles
  • Children's Hearings and Deemed Relevant Persons: T v Locality Reporter
    • United Kingdom
    • Edinburgh Law Review No. , May 2015
    • 1 May 2015
    ...occupied both the Supreme Court (Principal Reporter v K [2010] UKSC 56, 2011 SC (UKSC) 91) and the Inner House (Authority Reporter v S [2010] CSIH 45, 2010 SC since the term was first introduced by the Children (Scotland) Act 1995 (“the 1995 Act”). A relevant person is someone who has the r......

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