The Principal Reporter+the Lord Advocate+lrk's Curator Ad Litem For Suspension Of Interlocutor Of The Sheriff At Glasgow Dated 27th October 2006 V. Jpk+jr
| Jurisdiction | Scotland |
| Judge | Lord Carloway,Lady Paton,Lord President |
| Judgment Date | 21 January 2010 |
| Neutral Citation | [2010] CSIH 5 |
| Docket Number | P391/09 |
| Date | 21 January 2010 |
| Court | Court of Session |
| Published date | 21 January 2010 |
| FIRST DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord President Lady Paton Lord Carloway | [2010] CSIH 5 P391/09 OPINION OF THE COURT delivered by LORD CARLOWAY in the Petition of THE PRINCIPAL REPORTER Petitioner and Respondent; against (FIRST) JPK and (SECOND) JR First Respondent and Reclaimer and Second Respondent; and (FIRST) THE LORD ADVOCATE and (SECOND) LRK'S CURATOR AD LITEM Minuters: for Suspension of an Interlocutor of the Sheriff at Glasgow dated 27 October 2006 _______ |
Petitioner and Respondent: Di Rollo QC, Brabender; Biggart Baillie LLP
First Respondent and Reclaimer (father): JM Scott QC, AN Stirling; Drummond Miller LLP (for Al Gordon, Glasgow)
Second Respondent (mother): Guinnane; Aitken Nairn (for Livingston Brown, Glasgow)First Minuter: DEL Johnston QC, Dunlop; Scottish Government Legal Directorate
Second Minuter : Cheyne; HBM Sayers, Glasgow
21 January 2010
1. Legislative Framework
[1] The Children (Scotland) Act 1995 (c 36) is divided into four parts. This litigation involves 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. Part I commences with general provisions about parental responsibilities and rights; phraseology designed to promote a move away from the common law concepts of rights to the tutory and custody of children and of access to them. Thus, sub-section 1(1) provides that "a parent" has the responsibility:
"(a) to safeguard and promote the child's health, development and welfare;
(b) to provide...(i) direction; [and] (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) to (d) (ss 1(3)) and the child has the right to sue in respect of them (ss 1(3)).
[2] Sub-section 2(1) retains the idea of "parental rights" by providing that a parent, in order to enable him to fulfil his parental responsibilities, has the right:
"(a) to have the child living with him or otherwise to regulate the child's residence;
(b) to control, direct or guide...the child's upbringing;
(c) if the child is not living with him, to maintain personal relations and direct contact with the child on a regular basis; and
(d) to act as the child's legal representative".
The matters referred to in (a) to (d) are the defined parental rights and a parent is entitled to sue in respect of them (ss 2(4)). Where two or more persons have a parental right, each may exercise that right without the consent of the other, in the absence of a decree or deed regulating that exercise (ss 2(2)).
[3] Section 1 refers to a "parent" having responsibilities and this word is defined as meaning "genetic parent" (ss 15(1)). But section 3 then specifies who is to have parental responsibilities and rights. A mother has such responsibilities and rights (ss 3(1)(a)) but, in terms of the section as originally enacted, a father only had such responsibilities and rights if married to the mother at the time of the child's conception or subsequently (ss 3(1)(b)). This limited category of fathers was expanded to include any father registered as such on the child's birth certificate (ss 3(1)(b)(ii)), but only when the child is born after 4 May 2006 (Family Law (Scotland) Act 2006 (asp 2) s 23). However, a mother with parental rights and a father without them can agree that the father should have such rights (ss 4(1)).
[4] The Act expressly provides (ss 3(4)) that:
"The fact that a person has parental responsibilities or parental rights... shall not entitle that person to act in any way which would be incompatible with any court order..., or with any supervision requirement under section 70...".
[5] A court has the power to make such orders "as it thinks fit" in relation to parental responsibilities and rights (ss 11(1)-(2)). It can make orders depriving a person of some or all of his parental responsibilities and rights or imposing such responsibilities and rights on a person (ss 11(2)(a)-(b)). In particular, it can regulate a child's place of residence by pronouncing a "residence order" and it can make arrangements for contact between a child and others by granting a "contact order". It can determine any particular conflict by way of a "specific issue order". In making any of these orders, the court must have regard to the welfare of the child as the paramount consideration (ss 11(7)). Furthermore, it should not make an order unless it considers that it would be "better" for the child to do so and, where practicable, it can only pronounce an order after ascertaining the child's views. These considerations are commonly referred to as the "three overarching principles" of welfare, minimum intervention and consultation.
[6] Part II of the Act provides (s 16) for the same three considerations to be taken into account when a Children's Hearing or a court is determining whether, in terms of section 52, a child requires compulsory measures of supervision. A local Reporter will refer any child, whom he thinks is in need of these measures, to a Children's Hearing (ss 65(1)). When this is done, the child has a right, and is under an obligation, to attend the Hearing (ss 45(1)). The Act provides (ss 45(8)) that "a person who is a relevant person" also has that right and is under that obligation. It is the duty of the chairman of the Hearing to explain the proceedings to the child and any relevant person (ss 65(4)). The child and the relevant person may accept the grounds for referral (ss 65(5)), thus avoiding the need for a proof before the Sheriff (ss 65(7)). The child and any relevant person have the right to be represented at any such proof (ss 68(4)) They also have a right of appeal to the Sheriff against a decision taken by the Hearing (ss 51(1)).
[7] It is of importance, therefore, to ascertain just who a "relevant person" is, since it is only this person who, apart from the child, has a general right to participate in proceedings either before the Children's Hearing or the Sheriff. The definition section (ss 93(2)(b)) stipulates that a relevant person is:
"(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
(c) any person who appears to be a person who ordinarily...has charge of, or control over, the child".
This is supplemented by a provision (ss 103(1)) whereby any reference:
"to a person having, or to there being vested in him, parental responsibilities or parental rights shall, unless the context otherwise requires, be construed as a reference to his having, or to there being so vested, any of those rights or as the case may be responsibilities".
But where a Sheriff is determining whether to transfer parental responsibilities and rights to a local authority under section 86, a relevant person is defined simply as either "a parent of the child or a person who for the time being has parental rights" (ss 86(4)).
[8] The Children's Hearings (Scotland) Rules 1996 (SI 1996 No 3261 (S 251)) add to the limited category of fathers requiring notification of proceedings, and being allowed to attend, by including those who live with the mother (Rules 5(3)(b) and 12). As well as expanding upon the methods of intimation and explanation referred to in the primary legislation, the Rules make provision (Rule 13) for the chairman to allow certain persons to attend a Children's Hearing, namely:
"(a) the chairman and members of the Children's Panel Advisory Committee...
(b) any members or possible members of children's panels...for the purpose of their training...
(c) any student engaged in formal education or training in social work or any person engaged in research relating to children...
(d) any other person whose presence at the hearing may in the opinion of the chairman be justified by special circumstances".
The Child Care and Maintenance Rules 1997 (SI 1997 No 291) impose certain procedural requirements on a Sheriff hearing a referral to hear any relevant person (Rule 3.47(4)).
2. Facts
[9] The respondents are respectively the father and mother of the child LRK, who was born on 6 May 2002. They both appear on the child's birth certificate as parents. The respondents commenced their relationship in about April 2000; the father having a daughter from another relationship, aged 3, at that time. They lived together. The mother gave birth to a son from another relationship on 25 January 2001. LRK encountered medical problems in Summer 2002 and these lasted for over a year. The father attended hospital with the child on a number of occasions over this period and at times stayed overnight with her. The respondents separated in either February 2003 or 2004, depending on whose averments are accepted.
[10] In about May 2004, the father raised an action in the Sheriff Court at Glasgow craving:
"1. ...an order imposing upon the [father] full parental responsibilities and rights to the child...and to impose such responsibility (sic) and award such rights ad interim in terms of Section 11.2b (sic) of the Children (Scotland) Act 1995.
2. ...a contact order in respect of [the child] whereby she is to be with the [father] every weekend from Friday at 6.00 pm until Sunday 6.00 pm or at other times as the Court may deem appropriate and to grant such an order ad interim".
An interim residential contact order was made by the Sheriff, on the unopposed motion of the father, on 11 May 2004. The cause was then sisted "for continued contact". Contact took place until Christmas 2005, when it was stopped by the mother. The mother took the child to her general medical practitioner alleging...
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