S v S
| Jurisdiction | Scotland |
| Judgment Date | 16 January 2002 |
| Date | 16 January 2002 |
| Docket Number | No 23 |
| Court | Court of Session (Inner House - Extra Division) |
EXTRA DIVISION
Parent and ChildResidence orderCourt dispensing with intimation on child when action raisedWhether sheriff erred in failing to give child an opportunity to express views at time of making the orderChildren (Scotland) Act 1995 (cap 36) sec 11 (7)(b)1
Article 12 of the United Nations Convention on Human Rights provides: (1) that states shall assure to the child who is capable of forming his own views the right to express these in all matters affecting the child, the views being given due weight in accordance with the age and maturity of the child; and (2) that the child shall be provided the opportunity to be heard in judicial proceedings either directly or through a representative or an appropriate body in a manner consistent with the procedural rules of national law. Article 12 is implemented in Scotland by sec 11(7)(b) of the Children (Scotland) Act 1995.
Rule 33.7(1)(h) of the Ordinary Cause Rules 1993 provides for intimation to a child on Form F9. Rule 33.7(7) provides that the sheriff may dispense with such intimation where it is inappropriate.
The appellant was the father and the respondent the mother of the child D. The parties separated in 1999. The child, who was born in 1992, lived with the mother but the father had generous overnight contact. The mother wished to further her career by taking a promoted post in Australia for three years. The mother sought a residence order and specific issue order in the sheriff court to allow her to take the child to Australia. The action was raised in November 1999 when the child was seven and a half years old and at that time the court dispensed with intimation by way of Form F9. The sheriff granted the orders sought by the mother in May 2001 by which time the child was nine. The father appealed to the sheriff principal who refused his appeal. The father appealed to the Court of Session.
The father argued: (1) that the child's age and maturity should only be taken into account in assessing what weight should be given to a child's views and, with regard to whether the child should be given an opportunity to express views, the only test was one of practicability; and (2) in any event the sheriff was obliged to exercise a discretion as to whether and how the child should be given such an opportunity. The mother argued that the principal method by which the court complied with sec 11(7)(b) was by way of intimation on Form F9 and if such intimation were dispensed with it was...
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Appeal By Lrk V Ag
...duty upon the court: he was bound to ascertain the child’s views unless as a matter of practicability it was impossible to do so. (S v S 2002 SC 246; Woods v Pryce 2019 SLT (Sh Ct) 115; M v C, Sheriff Appeal Court, unreported 25 August 2020) [8] We agree with these submissions. The fact tha......
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T.c. V. L.m.
...present case were drawn to my attention. That decision of an Extra Division of the Court of Session is also reported sub nomine S v S in 2002 SC 246 and was dated 16 January 2002. I think it fair to say that the outcome of the present appeal turns very substantially on the application of th......
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L.c. V. K.m.
...in terms of section 11(7)(b), to have regard to such views as each child may express. This is a continuing duty upon the Court (S v S, 2002 SC 246). 65. In addition to the cases referred to above, Counsel referred to H v H, 2010 SLT 395; White v White, 2001 SC 689; Stewart v Stewart, unrepo......
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M v C
...CSIH 14 Extra Division Sheriff Appeal Court No 19 M and C Cases referred to: LRK v AG [2021] SAC (Civ) 1; 2021 SLT (Sh Ct) 107 S v S 2002 SC 246; 2002 SLT 579; 2002 SCLR 334; 2002 Fam LR 37 Woods v Pryce [2019] SAC (Civ) 18; 2019 SLT (Sh Ct) 115; 2019 Fam LR 58 Textbooks etc referred to: Sh......