Beagley v Beagley
| Jurisdiction | England & Wales |
| Judgment Date | 08 December 1983 |
| Date | 08 December 1983 |
| Docket Number | No. 4. |
| Court | House of Lords |
HL
Lords Diplock, Fraser of Tullybelton, Keith of Kinkel, Brandon of Oakbrook, Templeman.
Minor and pupil—Custody and access—Parental rights assumed by local authority—Conclusion by mother for custody of children in action of divorce—Whether mother retained title to sue for custody—Social Work (Scotland) Act 1968 (cap. 49), secs. 161, 182.
Husband and wife—Divorce—Duties of court—Matrimonial Proceedings (Children) Act 1958 (cap. 40), sec. 83.
A wife raised an action of divorce against her husband in which she concluded inter alia for custody of the two children of the marriage and of two of her own children who had been accepted into family by the defender. A local authority was sisted as party minuters to the action. The minuters averred that they had taken the children into their compulsory care and
had subsequently passed a resolution in terms of sec. 16 of the Social Work (Scotland) Act 1968 vesting in themselves the parental rights in respect of the children. They pleaded that the Court of Session had no jurisdiction in respect of the children and that, in any event, the pursuer was not entitled in that action to a proof of her averments on custody. The Lord Ordinary repelled these pleas and allowed the pursuer a proof before answer of her averments on custody. The minuters reclaimed and the Second Division repelled their plea on jurisdiction but sustained that on the pursuer's lack of title. The pursuer appealed to the House of Lords.Held (aff. judgment of the Second Division,diss. Lord Keith of Kinkel) (1) that sec. 16 (3) of the 1968 Act provided that the appellant was divested of all her rights as a parent in respect of the children and the natural meaning of these words was that they included the right to apply for custody of the children.
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(2) That the 1968 Act entrusted the care of neglected children to the local authority and if a parent such as the appellant were entitled to apply to the courts for their custody there would be a risk of conflict between the courts and the authority.
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(3) That in contrast to another person with an interest, the appellant had been divested of her rights in respect of the children for reasons which the local authority accepted and she could still apply to the sheriff in terms of sec. 18 of the 1968 Act to determine the order or to be given the care of the children.
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(4) That the duty of the courts in terms of sec. 8 of the Matrimonial
Proceedings (Children) Act 1958 not to grant decree of divorce unless satisfied as to the arrangements for the care of the children would be discharged by the court accepting the decision of the local authority in terms of the 1968 Act.
Observed per Lord Fraser of Tullybelton (1) that no question arose as to the undoubted jurisdiction of the Court of Session over the children and (2) that it might be open to a parent such as the appellant to apply to the court for an order relating to one of the children in respect of a matter outside the scope of the resolution, such as perhaps the child's property.
(In the Court of Session, 11th May 1982, and 28th January 1983.)
Mrs. Nina Hunter Sinclair or Beagley raised an action of divorce against William Gilfillan Beagley. She concluded inter alia for custody of Jonathan Burgess Beagley, Jean Angela Rintoul Beagley, the children of the marriage, and of Amanda Jane Gilfillan Beagley and Janet Jennifer Gilfillan Beagley, the children of the pursuer accepted into the family by the defender.
Central Regional Council lodged a minute in which they craved to be sisted as parties to the action. They averred inter alia:"On 7th April 1981 the minuters in exercise of powers conferred on them by section 16 of the Social Work (Scotland) Act 1968 as substituted by section 74 of the Children Act 1975 passed a resolution to the effect that the parties' rights in respect of said children vested in the minuters. Thereafter the pursuer timeously served a counter notice and the minuters timeously made a summary application all in accordance with the provisions of section 16 as substituted. In these circumstances said children are not children of the marriage and the Court of
Session has no jurisdiction in respect of said children in the present action."The minuters pleaded inter alia: "(1) There being no jurisdiction in respect of said children in the present action the pursuer's second plea-in-law should be repelled. (2) Esto the Court of Session has jurisdiction in respect of said children in the present action (which is denied) all rights and powers of the parties in respect of said children having vested in the minuters by virtue of section 16 of the Social Work (Scotland) Act 1968, the pursuer is not entitled in the present action to a proof in respect of her conclusions for custody and proof in the action should accordingly be restricted to the pursuer's averments relating to the first, third and fourth conclusions of the pursuer."
The case was heard in procedure roll on 11th May 1982 before the Lord Ordinary (Hunter). On 1st June 1982 the Lord Ordinary repelled the first and second pleas-in-law on behalf of the minuters.
LORD HUNTER.—The short point discussed between the pursuer and the minuters in procedure roll was whether or not, as a result of a resolution said to have been made by the minuters on 7th April 1981 that there should vest in them the relevant parental rights and powers with respect to the four children mentioned on record, the pursuer had been deprived of a title to include in the present action a conclusion for custody of the children and the Court of Session of its jurisdiction to deal with such a conclusion. The defender did not take part in the procedure roll discussion, presumably because he has no interest in the outcome. It appears that a variety of statutory powers have, over a number of years, been exercised in relation to the four children mentioned on record. On or about 11th July 1977 three of the children were taken into care by the minuters under section 15 of the Social Work (Scotland) Act 1968. On 7th October 1977 these three children were placed in the care of the minuters on a place of safety order, and subsequently on 15th November 1977 were made the subject of residential supervision orders by the Children's Hearing. The fourth child was born after the foregoing events, and on or about 31st May 1978 a home supervision order was made in relation to her. Thereafter, on 8th December 1978 the minuters took the fourth child into care under section 15 of the Act of 1968, and on 31st January 1979 a residential supervision order was imposed in respect of her. All four children have been placed by the minuters in the care of foster parents. Finally, according to the minuters' averments, the minuters on 7th April 1981 in exercise of the powers conferred on them by section 16 of the Act of 1968 (as substituted by section 74 of the Children Act 1975) passed the resolution to which reference has been made in the opening sentence of this opinion. Although the averments relating to this resolution have not been formally admitted by the pursuer, the discussion in procedure roll proceeded upon the assumption that such a resolution had in fact been made. It is common ground that the pursuer served a timeous counter-notice under section 16 (7) of the Act of 1968, and that the minuters made a timeous summary application to the sheriff in accordance with section 16 (8) thereof. I was informed, as indeed is averred by the pursuer, that the proceedings in the summary application had been sisted to await the outcome of the present proceedings.
It was not argued that any of the statutory or other steps taken prior to the passing by the minuters of the resolution on 7th April 1981 had the effect either of depriving the pursuer of her title to sue for custody of the four children or of ousting the jurisdiction of the Court of Session to deal with a conclusion for their custody. In the light of Aitken v. AitkenSC 1978 S.C. 297 and the earlier Outer House decisions in Browne v. Browne 1969 S.L.T. (Notes) 15 and W. v. Glasgow Corporation 1974 S.L.T. (Notes) 5, to which I was referred, such arguments would, in my opinion, have been confronted with formidable difficulties. However, in both the Outer House cases referred to it was pointed out that the particular statutory provisions which had been operated in these cases had not resulted in the local authority being vested with the parental rights and powers of the person or persons who would otherwise have enjoyed them. Moreover inMcGuire v. McGuire 1969 S.L.T. (Notes) 36, another Outer House decision, it was held that by operation of provisions of the Children Act 1948 and particularly sections 2, 3 and 4 thereof, which were, with some drafting and other differences, similar to provisions contained in section 16 of the Act of 1968 (as substituted by section 74 of the Children Act 1975), a claim by its father for access to a child affected by a parental rights resolution could not competently be entertained in an action of divorce at his instance in the Court of Session. I also note that McGuire v. McGuire was followed at a previous stage of the present case by another Lord Ordinary when recalling an award of interim access to two of the children mentioned on record, which award had earlier been made by a different Lord Ordinary. Despite the differences between the earlier legislation and the statutory provisions introduced into the Act of 1968 by the Act of 1975 I do not consider that the present case can be distinguished from McGuire v. McGuire. Indeed ifMcGuire v. McGuire was correctly decided on the issue of competency I am of opinion that the present case is, if anything,a fortiori. Nor in my opinion is it a distinguishing feature that McGuire v. McGuire was concerned only with access, whereas the present case is concerned with custody. I have, however, on consideration, come to have...
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