Principal Reporter v K
| Jurisdiction | Scotland |
| Judge | LORD HOPE,LADY HALE |
| Judgment Date | 15 December 2010 |
| Neutral Citation | [2010] UKSC 56 |
| Court | Supreme Court (Scotland) |
| Docket Number | No 5 |
| Date | 15 December 2010 |
[2010] UKSC 56
Lord Hope, Deputy President
Lord Rodger
Lady Hale
Lord Kerr
Sir John Dyson, SCJ
and others (Scotland)
Appellant
Janys M Scott QC
Alison Stirling
(Instructed by Drummond Miller WS)
First Respondent
Morag Wise QC
Lynda Brabender
(Instructed by Biggart Baillie LLP)
Second Respondent
Rosemary Guinnane
David Sheldon
(Instructed by Aitken Nairn WS)
First Minuter
David Johnston QC
Roddy Dunlop QC
(Instructed by The Scottish Government Legal Directorate)
Second Minuter
Marie Helen Clark
(Instructed by HBM Sayers)
LORD HOPE AND LADY HALE
This is a case about the rights of unmarried fathers to take part in children's hearings under Part II of the Children (Scotland) Act 1995. It raises two distinct issues. The first concerns the kind of order made in the sheriff court which would be competent to give a father the right to take part in the children's hearing. The second concerns the compatibility of the present scheme with the rights of the father (and indeed the child) under the European Convention on Human Rights. As the reader will discern, Lord Hope has taken the primary responsibility for dealing with the first issue in paras 2-31, and Lady Hale has taken primary responsibility for the second in paras 32-69. But this is a judgment of the court with which all members agree.
The facts
The appellant K is an unmarried father. He is the father of a child, L, who was born on 6 May 2002. The child's mother is JR, with whom K formed a relationship in about April 2000. They cohabited, together with K's daughter and JR's son from previous relationships, and then with their own child L. They registered her birth together on 14 May 2002. Their relationship broke down in either 2003 or 2004, although there were short periods of separation before then. K continued to have contact with L after the separation. She had a medical condition which necessitated overnight stays in hospital, and he continued to be involved with her hospital appointments until at least September 2003. One might have hoped that it would have been possible for K to maintain contact with her thereafter without recourse to the court. But this proved not to be so. In about May 2004 he raised proceedings in the sheriff court at Glasgow under section 11 of the Children (Scotland) Act 1995 ("the 1995 Act") seeking full parental responsibilities and parental rights in relation to L and a contact order. The sheriff made an interim contact order on 11 May 2004. Residential contact took place every weekend in terms of that order until December 2005.
JR then alleged that L had been sexually abused by K, and L's contact with K was stopped. The allegation was investigated by the police, who concluded that there was insufficient evidence to support it. But it continued to cast a shadow over K's attempts to resume contact. K returned to the sheriff court on 21 March 2006 when he asked the sheriff to ordain JR to appear to explain her failure to obtemper the interim contact order. The sheriff declined to do so, and on 5 May 2006 he suspended interim contact and ordered a report from a local solicitor. By then steps had been taken by the local authority's social work services department to refer L's case to the Principal Reporter under chapter 3 of Part II of the 1995 Act, on the ground that she was in need of compulsory measures of supervision. The referral was made on 9 March 2006. It was stated that the department were concerned both about L's welfare, given the level of conflict which had arisen between her parents which might have caused significant trauma to L, and about the fact that JR had made serious allegations about her ex-partner K and continued to do so without appearing to be willing to address these issues by engaging with social work services.
On 28 June 2006 a children's hearing was held, which was attended by L and JR. K had been notified and was in the building, but he was not allowed to attend the hearing or to participate in the discussion. This was because he was not regarded as a "relevant person" within the meaning of section 93(2)(b) of the 1995 Act: see also section 45(8) as to the right of a relevant person to attend all stages of the hearing. It was also noted that there was high level of conflict between him and JR. No decisions were taken and the panel continued the hearing to a later date. A further children's hearing was held on 20 July 2006. K was again notified, but he did not attend. It can be assumed that he would not have been allowed to attend or participate in this discussion, for the reasons that were given on 28 June 2006. The grounds for referral were read out to JR by the chairman, as required by section 65(4) of the 1995 Act. They included an allegation in terms of section 52(2)(d) of the 1995 Act that L was a child in respect of whom an offence of the kind mentioned in Schedule 1(2) to the Criminal Procedure (Scotland) Act 1995 had been committed by a person who had parental responsibilities in relation to her. This was because JR had stated to a general practitioner at Shettleston Health Centre that L had told her that K had "stuck his finger" in her and that L had had a vaginal discharge.
JR accepted the majority of the statements of facts but denied the grounds for the referral. Because she did not accept the grounds and also because L was too young to understand them, the Principal Reporter was directed to apply to the sheriff for a finding as to whether the grounds for referral were established: see section 65(7) and (9) of the 1995 Act. The matter came before the sheriff on 11 August 2006. The hearing was attended by a solicitor for the Principal Reporter and a solicitor for the curator ad litem to L. K was not entitled to be there as he was not a "relevant person" within the meaning of section 93(2)(b), and he did not attend. The sheriff was told that the grounds of referral and the facts contained therein, which had been amended following objections by JR, had been accepted by the relevant parties. So he deemed them to be established under section 68(8) and remitted the case as amended to the children's hearing for consideration and determination under section 68(10) of the 1995 Act.
Section 93(2)(b) of the 1995 Act, as amended, provides that, unless the context otherwise requires, the expression "relevant person" in relation to a child means:
"(a) any parent enjoying parental responsibilities or parental rights under Part I of this Act;
(b) any person in whom parental responsibilities or rights are vested by, under or by virtue of this Act; and
(ba) any person in whom parental responsibilities or parental rights are vested by, under or by virtue of a permanence order (as defined in section 80(2) of the Adoption and Children (Scotland) Act 2007 (asp 4); and
(c) any person who appears to be a person who ordinarily (and other than by reason only of his employment) has charge of, or control over, the child."
This brief narrative is sufficient to identify the issue that lies at the heart of the appeal which has brought the matter before the Supreme Court. Decisions of a children's hearing or a sheriff under Part II of the 1995 Act are not appealable to this court. Section 51(1) provides that a child or a relevant person may appeal to the sheriff against a decision of a children's hearing, and section 51(11) provides that an appeal shall lie by way of stated case either on a point of law or in respect of any irregularity in the conduct of the case from any decision of the sheriff to the sheriff principal or to the Court of Session and, with the leave of the sheriff principal, from any decision of the sheriff principal to the Court of Session. It also provides that the decision of the Court of Session in the matter shall be final. But the issue has come before this court by a different route, to which the provisions about appeals under section 40(1) of the Court of Session Act 1988 apply.
These proceedings
On 4 October 2006 a children's hearing took place which K was permitted to attend, but not as a relevant person. He told the hearing that he wished to continue to have contact with L, which he had been permitted to do by the sheriff on 18 August 2006 at a contact centre each Saturday. The sheriff had also appointed a curator ad litem to L on 18 August 2006 and assigned 27 October 2006 as a child welfare hearing so that he could give more detailed consideration to the case. At a resumed hearing on 19 October 2006, which K also attended, the children's hearing felt that it was appropriate to leave contact where it was in terms of the court's order. But it decided to place L on a supervision requirement. On 27 October 2006 the sheriff conducted the child welfare hearing for which the diet had been assigned on 18 August 2006. The hearing was attended by K and JR and their solicitors and by the curator ad litem – but not, of course, by the Principal Reporter. Having heard submissions from all parties, the sheriff (Sheriff Totten) pronounced the following interlocutor:
"The sheriff, having heard the curator ad litem and agents for both parties, grants pursuers motion, no 7/2, in part, conjoined by the curator ad litem despite defenders opposition, and in terms thereof; grants the pursuer parental rights and responsibilities to the extent that he becomes a relevant person in the children's referral relating to the child [L], born 6 May 2002; continues interim contact previously granted; assigns 9 January 2007 at 11 am as a child welfare hearing to monitor contact."
This interlocutor survived unchallenged by the Principal Reporter until March 2009. K was permitted to attend a series of children's hearings and to participate in the discussion on the assumption that he was a relevant person in...
To continue reading
Request your trial
-
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
...... [22] The Children's Hearings (Scotland) Rules 1996 ("the 1996 Rules") make further provision for procedural rights in favour of relevant persons. Where the principal Reporter arranges a business meeting preparatory to the constitution of a Children's Hearing, due notice is to be given in writing to any relevant person that the meeting has been arranged and of the date on which it is to be held, together with notice of the matters referred to the business ......
-
Jdm+fbm For Adoption Order Under Section 29 Of The Adoption And Children (scotland) Act 2007
...he or she is capable of discharging and exercising, and where section 31(4) and (5) will therefore not apply. In Principal Reporter v K [2010] UKSC 56, 2011 SC (UKSC) 91, for example, a parent was granted parental rights and responsibilities only to the extent of becoming a relevant person ......
-
Petition Of N J And E H V. The Lord Advocate And Others For Judicial Review
...is necessary and whether it requires to be applied for ex parte; K and T v Finland (supra) at paragraphs 154-155, K v Principal Reporter [2011] 1 WLR 18 at paragraph 43 and Langley v Liverpool City Council [2006] 1 WLR 375 at paragraphs 58-60. Following the approach in all these cases in as......
-
Philip Allan Main Against Scottish Ministers
...legitimate interests. Thus the notification requirements were disproportionate to the aims of the 2003 Act (Principal Reporter v K 2011 SC (UKSC) 91 at para 41; R (B) v Crown Court at Stafford [2007] 1 WLR 1524 at para 23; R (Gudanaviciene) v Director of Legal Aid Casework [2014] EWCA Civ 1......
-
Children's Hearings and Deemed Relevant Persons: T v Locality Reporter
...hearings system is one which has attracted much litigation1 1 The issue has 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 (Sco......