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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> MK Or P v CP & Anor [2000] ScotCS 50 (29 February 2000) URL: http://www.bailii.org/scot/cases/ScotCS/2000/50.html Cite as: 2000 SCLR 477, [2000] ScotCS 50

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This is an action in which the pursuer, who is the grandmother of a young child, craved the sheriff at Glasgow to grant amongst other things parental responsibilities and parental rights in terms of section 11(2)(b) of the Children (Scotland) Act 1995 and a residence order in relation to the child in terms of section 11(2)(b) of the Act. The mother of the child did not lodge defences and has taken no part in these proceedings. The natural father of the child, the second defender, but who is not and has not been married to the mother, did lodge defences. In his turn he craved amongst other things an order awarding him parental rights and responsibilities in terms of section 11(2)(b) of the Act and a contact order in terms of section 11(2)(d) of the Act.

On 21 August 1997 the child was made subject to a supervision requirement in terms of section 70 of the Act. On 18 February 1998 the supervision requirement was varied to the extent that a condition was attached to it which named the pursuer's home as the child's residence and provided that the child must reside with the pursuer at that address. Thus prior to the raising of the action there was already a supervision requirement with a condition relating to the residence of the child in existence. That supervision requirement with that condition remains in place at present. Furthermore as observed by the sheriff in his Note, it is not in dispute that the child has resided with the pursuer in terms of the residence requirement attached to the supervision requirement since 18 February 1998 or that the second defender has not had contact with the child since that time.

Before the sheriff both the pursuer and the second defender maintained by way of preliminary pleas in their pleadings that the specific orders sought by the other were incompetent. As appears from the sheriff's Note each party argued that the existence of the supervision requirement served to make the other's craves for an order incompetent. For the pursuer particular reference was made to the decision in A v. G & Strathclyde Regional Council 1997 SCLR 186 in support of her submissions. Having heard argument, the sheriff dismissed all the craves of both the pursuer and the second defender, and dismissed the action. In particular ex proprio motu he dismissed the pursuer's first crave as incompetent in respect that the child to whom the order relates "is presently the subject of a supervision requirement made by the children's hearing".

The pursuer has appealed to this court and the second defender has taken advantage of the appeal to submit that the sheriff was in error in dismissing the craves stated for the second defender including that for a contact order. Before us the Scottish Children's Reporter has also appeared by counsel to assist the court though no appearance was made before the sheriff.

At the outset of the hearing it became clear that both the pursuer and the second defender were in agreement that notwithstanding the arguments presented before the sheriff for each party, the sheriff was in error in dismissing the action and in particular concluding that the pursuer's crave for a residence order was incompetent and that the second defender's crave for a contact order was incompetent. This position was also supported by counsel for the Reporter. At the same time it was contended in passing that the decision of the sheriff principal in A v. G & Strathclyde Regional Council was not well founded. Parties were therefore at one in inviting this court to recall the sheriff's interlocutor in so far as it dismissed the action and in seeking a remit back to the sheriff to proceed as accords. It was conceded for the pursuer that her preliminary plea directed to the competency of the second defender's craves should be repelled and it was conceded for the second defender that his preliminary plea directed to the competency of the action should be repelled.

Before considering the submissions of parties it is convenient to consider the provisions of the 1995 Act so far as they bear upon the issues to which the submissions were directed. Part 1 of the Act is concerned with parental responsibilities and rights. Parental responsibilities as prescribed in section 1 are the responsibilities which "a parent has in relation to his child". In terms of section 15 parent means a child's genetic father or mother. In terms of section 2 a parent, in order to enable him to fulfil his parental responsibilities in relation to his child, has certain prescribed rights. Parental rights are therefore to be seen as secondary to, that is to say subordinated to, parental responsibilities. Parental responsibilities and parental rights as so prescribed supersede any analogous duties imposed on a parent at common law or any analogous rights enjoyed by a parent at common law (sections 1(3) and 2(5)). It is a parental responsibility, if the child is not living with the parent, to maintain personal relations and direct contact with the child on a regular basis (section 1(1)(c)). It is a parental right to have a child living with him or otherwise to regulate the child's residence and, if the child is not living with him, to maintain personal relations and direct contact with the child on a regular basis (section 2 (1)(a) and (c)). In terms of section 3(1) a child's mother has parental responsibilities and parental responsibilities in relation to the child whether or not she is or has been married to the child's father. On the other hand, without prejudice to particular arrangements that may be made in the matter and to any agreement between him and the child's mother, the child's father has similar responsibilities and rights only if married to the child's mother at the time of the child's conception or subsequently. In the present case no such agreement subsists between the first and second defender. However section 3(1) is without prejudice to any order made under section 11 of the Act. Section 3(4) additionally provides that the fact that a person has parental responsibilities or parental rights in relation to a child shall not entitle that person to act in any way which would be incompatible with any court order relating to the child or with any supervision requirement made under section 70.

We now turn to the provisions of section 11 of the Act. It is clear from the scheme set out in this section that it empowers a court in relevant circumstances in proceedings before it to grant orders of the kind craved by each of the pursuer and the second defender in this action, and in particular a residence order (subsection 2(c)) or a contact order (subsection 2(d)). In terms of subsection 3(a)(i), although neither the pursuer nor the second defender have and have never had parental responsibilities or parental rights in relation to the child, they are nonetheless entitled by claiming an interest, to seek such orders. In the case of a residence order, subsection (12) provides that where a residence order is made which requires that a child live with a person who immediately before the order is made does not have in relation to the child all the parental responsibilities mentioned in section 1(1)(a), (b) and (d) and the parental rights mentioned in section 2(1)(b) and (d), that person shall, subject to the provisions of the order or of any other order made under subsection (1), have those responsibilities and rights. We observe that the right mentioned in paragraph 1(a) of section 2(1) is not included. Thus where there is a supervision requirement, the supervision requirement itself with the condition for the child's residence is of course sufficient warrant to permit the child to live with that person. At the same time exclusion of this right maintains the power of the children's hearing itself to regulate the child's residence while the supervision requirement is in place. Subsection (7) sets out the matters to which the court shall have regard and is to take into account in considering whether or not to make an order and what order to make. In particular the court is to regard the welfare of the child as its paramount consideration and shall not make an order unless it considers that it would be better for the child that the order be made than that none should be made at all.

It is plain therefore that subject to the wide discretion given to the court by subsection (7) in determining whether or not to make an order, there is nothing in the scheme of section 11 which prohibits either the pursuer or the second defender in applying to the court for the orders they seek. Each claim interest. The pursuer does so as the child's grandmother with whom the child is residing in consequence of the condition attached to the supervision requirement. The second defender does so as the natural father. Why therefore should their respective applications be said to be incompetent?

The ground upon which it was submitted before the sheriff that each application was incompetent, was said to arise from the statutory provisions relating to a supervision requirement. Section 70 enables a children's hearing, when satisfied that compulsory measures of supervision are necessary in respect of the child, to make a supervision requirement. That supervision requirement may require the child to reside at any place specified in the requirement (subsection (3)(a)). A condition of that nature has been added to the supervision requirement made in this case. In addition the children's hearing may further impose conditions which amongst other things regulate the contact with the child of any specified person (subsection (5)(b)). In the existing supervision requirement no such condition has been imposed. In terms of section 71 the local authority is bound to give effect to the supervision requirement. The duties imposed upon the local authority in relation to a child who is subject to a supervision requirement and thus one whom they are looking after, are set out in section 17. They include a duty to take such steps to promote, on a regular basis, personal relations and direct contact between the child and any person with parental responsibilities in relation to the child as appear to them to be both practicable and appropriate (subsection (1)(c)). As was pointed out in the course of argument, this duty does not presently extend to the second defender since albeit that he is a parent, he does not have parental responsibilities in respect of the child and so is not a parent within the contemplation of section 17. Notwithstanding this, it would appear that in terms of subsection (3) the local authority are obliged before making any decision with respect to the child, and so far as is reasonably practicable, to ascertain the views amongst others of the second defender as a parent of the child. On the other hand, unless the chairman of the children's hearing agrees, the second defender has at present no right to receive intimation of a hearing nor has he a locus at any hearing which is considering the continuance, variation or discharge, as may be, of the supervision requirement since he does not otherwise fall within the definition of relevant person for the purposes of section 45(8) in terms of section 93(2)(b) (L v. H 1996 SLT 612).

We have considerable sympathy for the sheriff who heard arguments from both parties advanced on a basis which is now accepted to have been incorrect. The sheriff also had to take into account the decision of the sheriff principal in A. v. G. and Strathclyde Regional Council which was founded on in the debate before him but which, as we shall explain, was not applicable and was based on reasoning which we consider questionable. Before the sheriff each party based its submissions upon the ground of competency. Thus it was argued for the pursuer that since the concepts of custody and access had been superseded by Part 1 of the 1995 Act, the position now was that in a family action, where a child was subject to a supervision requirement, a sheriff could competently make a residence order but not a contact order, since the latter order would not be operable during the currency of the supervision requirement. It appears to have been conceded for the pursuer in the course of the debate that so far as the second defender's crave for a residence order was concerned, it was competent on the basis that if granted, it would be inhibited during the currency of the supervision requirement with its condition of residence. As recorded by the sheriff, this concession proceeded on the basis of reasoning that if the pursuer was entitled to seek a residence order, then the second defender must be in the same position. For the second defender it was submitted that where the children's hearing had determined the child's residence and had made a supervision requirement with a residential condition, then having regard to the terms of section 3(4) of the Act it was not competent for the sheriff to make a residence order in terms of section 11. It also appears that this submission extended to an argument that having regard to the three "overarching" principles set out in section 11(7) of the Act, it could not be said that it would be better for the child to make another order because the only order which would rule was the supervision requirement made by the children's hearing which had suitably protected the child at this stage. On this basis, it was argued that the pursuer's action was premature. In any event it was pointed out that since the pursuer was the person named in the residence condition attached to the supervision requirement, she had become subject to the responsibility set out in the provisions of section 5(1) of the Act and that having regard to the responsibility so imposed upon her, the making of a residence order was pointless when a supervision requirement with a residential condition was in force. Finally it was said that the pursuer had failed relevantly and sufficiently to aver any need for a residence order. In relation to the contact order sought for the second defender, it was submitted that there was nothing in the Act which prohibited the court from making an order directing that the child have contact with the second defender notwithstanding the existence of the supervision requirement with a condition that the child reside with the pursuer.

The nub of the sheriff's decision appears from a short passage in which he first recognised that the provisions in regard to parental responsibilities and parental rights set out in sections 1 and 2 of the 1995 Act had plainly superseded the prior concepts of custody and access. Then, under reference to the decisions in Aitken v. Aitken 1978 SC 297, Dewar v. Strathclyde Regional Council 1984 SC 114 and A v. G and Strathclyde Regional Council, he said this:

In this passage we consider that the sheriff misunderstood the substance of the decisions in the three cases to which he refers, having correctly recognised the changes in emphasis effected by Part 1 of the 1995 Act with regard to parental responsibilities and parental rights. We note at this stage that the sheriff appears to have proceeded upon the basis that in the action before him each of the parties have a locus to present their applications in terms of section 11(3)(a) and that he had jurisdiction to entertain the applications. However in reaching his decision the sheriff took no account of any matters raised by way of averment in the pleadings other than the existence of a supervision requirement with a residential condition, which would relate to any exercise of the discretion given to him in terms of section 11(7) as to whether or not to make the orders sought. Thus he did not purport to base his decision upon an exercise of discretion in terms of section 11(7) after having determined what were the facts and circumstances relevant to such an exercise.

Before considering the particular applications being pursued by the pursuer and the second defender, it is necessary to look to the scope of the Act. In our opinion Parts I and II of the Act do not operate as separate and distinct schemes. They are in important respects inter-related. Thus it is clear that the primary purpose which underlies both Parts, and is either explicit or at least implied throughout, is to ensure the welfare of the child. Thus, for instance, the parental responsibilities in section 1 are defined in terms directed to the needs of the child, while parental rights in section 2 are expressed solely in terms that enable the parent to fulfil those responsibilities. Again the requirement in section 11(7) is that amongst other things the court shall regard the welfare of the child as its paramount consideration, and this requirement and its two fellows, referred to conveniently as "the three overarching principles", find an exact echo in the provisions of section 16(1) at the outset of Part II, which itself is headed "Promotion of children's welfare by local authorities and by children's hearings etc." The interrelationship and interplay of the two Parts, one with the other, is demonstrated, for instance, by the provisions of sections 3(4) and also by those of section 5(1) which would come into play where a supervision requirement was in existence and where the care and control of the child lay with a person who did not have any parental responsibilities or parental rights.

It is also important to have in mind that the provisions of Part II relate to the person of the child. Thus the conditions which can be attached to a supervision requirement in terms of section 70(3) of the Act must require something of the child. A children's hearing has no power to impose any conditions on any other person, such as a relevant person in terms of the Act. While the local authority is bound to give effect to the supervision requirement in terms of section 71, it has no parental responsibilities or rights in relation to a child unless it specifically obtains them as, for instance, in terms of section 86 of the Act. In giving effect to the supervision requirement, the local authority have the duties set out in section 17 and in particular subsection(1). Those duties include taking such steps to promote, on a regular basis, personal relations and direct contact between the child and any person with parental responsibilities in relation to the child as appear to them, having regard to their duty to safeguard and promote his welfare, both practicable and appropriate. It is also their duty to provide advice and assistance with a view to preparing the child for when he is no longer looked after by them, which time would arise when the supervision requirement was discharged (subsections (2) and (6)(b)). Any action in regard to the administration of a child's property during the currency of a supervision order would be taken by reference to section 11 and section 14 in Part I. Furthermore section 73 of the Act provides that no child should continue to be subject to the requirement for any period longer than is necessary in the interests of promoting or safeguarding the child's welfare.

Against this statutory background it is convenient to consider the parties' submissions on the particular orders sought in terms of section 11(2)(c) separately.

No question arises as to the interest of the pursuer to apply for a such an order. As counsel for the pursuer pointed out, section 2(3) contemplates that parental rights may be given to "two or more persons", that is to include someone who is not a parent (see also section 11(2)(b) and (3)(a)(i)). It is an order which would, so far as it required the child to live with the pursuer, be consistent with the condition presently attached to the supervision requirement by which the child is required to live with her. If the order were granted it, then as set out in section 11(12) it would import that the pursuer would have all the parental responsibilities and the parental rights specified in that subsection while the order remained in force but only insofar as they did not entitle the pursuer to act in any way which would be incompatible with the supervision requirement. Such incompatibility would arise in relation to the parental right under section 2(1)(a) "otherwise to regulate the child's residence" but not with the principal part of that right, namely to have the child live with her. In the event of the supervision requirement being varied by the making of a different residential condition, then the provisions of section 3(4) would come into play to prevent the pursuer from acting in any way that was incompatible with the supervision requirement as varied. Without in any way indicating a view in the matter, we were informed that the local authority were well disposed to the application with a view to seeking in due course a termination of the supervision requirement.

The question arises whether there is anything in the Act itself or in the cases to which the sheriff referred, which is repugnant to the grant of such an order upon a proper consideration of all the relevant facts and circumstances in accordance with the provisions of section 11(7), one of which would be the existence of the present supervision requirement and its related residence condition.

We can find nothing in the provisions of the Act which is antagonistic to the order sought by the pursuer. There is nothing in the provisions of Part II of the Act which specifically ousts or limits the jurisdiction of the sheriff in an action such as the present to consider whether or not to make such an order.

Nor when consideration is given to what was said or decided in the case of Aitken, is anything to be found which supports such a conclusion. That case concerned an issue whether a court order granting one parent interim custody of two of three children made it incompetent for a children's hearing subsequently to make a supervision requirement charging the director of the social work department with supervision of the children subject to a condition that all three children reside with the other parent. Thus at the time of the making of the interim order there was no obstacle to the making of the order. In such a situation the possession of such a legal right of custody, as Lord President Emslie pointed out at p. 301, entitled and required the parent to whom the right was granted to determine where the children should live and, in particular, either to have them residing with him, or to make arrangements for them to reside with and be cared for by someone of his choosing. He went on to point out that that did not mean that the exercise of that right might not be inhibited temporarily by other lawful orders which made it impossible for the parent with the right of custody to care for the child in his own accommodation or to arrange for the care of the child by persons of his own choosing. Subsequently he said this:

In this passage the Lord President clearly envisages the grant of a right of custody by way of an order of court even during the currency of another lawful order which would affect full exercise of the right, just as would a supervision requirement which is intended to be of as limited a duration as possible. In Dewar at p.105 Lord Justice Clerk Wheatley noted that there was a difference between the case which the court was considering in Aitken and that before his court where the order sought would have had to be made during the currency of the supervision requirement. He said that that fact did not prevent the principles enunciated in Aitken from applying and that "the same considerations would apply where the order was reversed", that is, they applied to the situation which the court in Dewar was considering. Our attention was also drawn to F v. F 1991 SLT 357 at 363, where in the context of prospective adoption with a supervision requirement with a condition of residence still in force, Lord President Hope expressed the opinion that it would seldom be appropriate for an order for custody to be pronounced in favour of persons who could not in practice exercise those rights for the time being, but did not suggest it was incompetent to do so.

Accordingly we do not consider that the sheriff was entitled to deduce from Aitken justification for holding that the pursuer's application was incompetent and in particular to dismiss the action and thus refuse to make the order sought without further enquiry into the circumstances. He was bound to consider whether the making of the order sought was appropriate or not in the whole circumstances which he held to be relevant, and looking to the provisions of section 11(7) in particular, whether to make the order sought or not.

Again no question arises as to the second defender's interest to seek this order. The children's hearing imposed no requirement upon the child that there be no contact between the child and the second defender. So far as known, the local authority do not consider that such contact would be inimical to the welfare of the child since they have not sought to bring this issue to the notice of the children's hearing as they would be bound to do if they considered that such contact would not be in the child's best interests. On the other hand the duty to promote contact in terms of section 17 does not extend to the second defender while he remains without parental obligations and parental rights. Although the second defender does not have parental responsibilities and parental rights by virtue of section 3 of the Act, he is not thereby debarred from seeking such an order under section 11(2)(b) in terms of section 11 (3)(a).

In determining the issue of competency in relation to this application, the sheriff was persuaded in particular by what was said in the case of Dewar. But when regard is had to the facts in that case and the narrow issue for resolution which the court there identified, it is clear that the present differs in material respects from the circumstances of that case. Thus at p.104 the Lord Justice Clerk said this:

We note from the above passage that the pursuer was grounding his action on a common law claim for access. However the case was presented, the pursuer in Dewar was really seeking to innovate on the position produced by the managers' decision and to do so by relying on the common law claim. But the effect of the 1995 Act has been to supersede such a claim. In so far as access is to be equated to contact, any order for contact requires to be sought within the statutory provisions of the 1995 Act applying to contact between a child and another, whether that person be a parent or not. Furthermore, as is plain from what was said in the passage quoted, there was no denial of access to the pursuer. Rather it had already been regulated by decision of those charged with supervision of the child. It is not therefore surprising that in the end of the day the court determined that a court decree for access which could only operate after the supervision requirement was terminated, would be wholly inappropriate in so far as it was directed against the local authority. As the Lord Justice Clerk observed at p.106:

Later at p. 107 the Lord Justice Clerk disposes of the claim as follows:

In A v. G and Strathclyde Regional Council the Sheriff Principal appears to have decided the issue on the basis that the statutory scheme in relation to children's hearings and the determination of a supervision requirement was designed to be a self-contained system from which involvement of the court in a civil process "designed to initiate variation of a supervisory requirement" was "not only incompetent but quite unnecessary". In suggesting that in some way involvement in a civil process was in general incompetent, the sheriff principal went further than was justified by the earlier cases or any reasoning in them, and his decision could be regarded as in conflict with the reasoning in Aitken. In any event, in neither case was the court concerned to consider the provisions of the 1995 Act nor the changes consequent thereon so far as they might affect the circumstances or manner in which a claim for contact might be pursued.

We find no difficulty with the proposition that where a supervision requirement incorporates a requirement upon a child preventing or limiting contact between the child and another person, any order applied for from the court which sought in effect to vary or discharge that additional requirement, would be inappropriate and in that respect could be said to be incompetent. But that is not said to be the position here. We can find nothing in the provisions of the 1995 Act nor in the cases cited which justifies the conclusion that without any further inquiry, the sheriff was correct in holding that the second defender's application for a contact order was incompetent.

We are fortified in this conclusion by statements to be found in Wilkinson and Norrie on Parent and Child (2^nd ed). At para. 8.37 the authors point out that contact is the modern manifestation of, but is by no means equivalent to, the common law right of access and that it is as much an obligation on the part of a parent as it is his right, where that parent has parental responsibilities and parental rights. Later at para. 8.39 they express the view that common law access could be understood only in terms of its relation to common law custody, it being no more than a burden or restriction on the custodian's right of control over the child which came into existence through court order as a qualification to custody. By contrast, it is said that this cannot be said of contact which is a right which exists independently of either a court order under section 11(2)(d) or the right of residence recognised by section 2(1)(a). Again at para. 9.12 the authors point out that a contact order is not "directed against" the party with the right of residence (as an access order was in relation to the custodian) but is rather an order regulating the contact arrangements between the child and a person with whom the child is not living. The authors continue as follows:

We would generally agree with that statement subject only to this qualification, that we would regard it as inappropriate, unless the circumstances were exceptional and justified the court in doing so on a proper application of "the three overarching principles", to grant such an order which would at the time of its making be inconsistent with a condition attached to a subsisting supervision requirement.

Of course where any action concerns a child who is subject to a supervision requirement, the action would require to be intimated to the local authority as well as to any other person having parental responsibilities and parental rights or care and control of the child. The local authority would be entitled to intervene just as the Reporter has done in the present case. So far as the present case is concerned, where the application for the contact order is made in the course of an action raised by another person who seeks a residence order, it can not be said to be incompetent to seek to secure arrangements for contact with the child by way of a contact order additional to the grant of a residence order while recognising that the residence order would give the person named in the residence order the advantage of parental responsibilities and parental rights, while a contact order would not if the person named did not already have such responsibilities and rights - see Wilkinson and Norrie para. 9.10. In the end of the day, however, it will be for the court, exercising its discretion in terms of section 11(7) of the Act and with knowledge of the existence and terms of the supervision requirement, to determine in the light of the whole circumstances, including any other orders which it may decide to make or not, whether such a contact order should be made or not. Thus at this stage we do no more than note that the making of such an order may hinge upon the sheriff's decision with regard to the orders sought by the pursuer, not least because something may depend upon the attitude of the local authority to an early discharge of the current supervision order.

It follows from what we have already set out above that we disagree with the sheriff in his determination that for the same reasons that lead him to dismiss the claims for a residence order and a contact order, he should dismiss the applications by each party for parental responsibilities and parental rights on the view that they involve "immediate implementation and are orders which are physically operable at the instant of time at which they are granted". Accordingly we consider that he was wrong to dismiss the craves directed to such applications. We note that he appears to have found support for his view by reference to the terms of section 3(4) of the Act as relating to persons such as a child's mother or a child's father who is or was at the relevant time married to the child's mother. But when regard is had to those terms they are entirely general and import no restriction as to the persons who have such parental responsibilities or parental rights nor as to the manner by which they became vested in them, as, for instance, by virtue of section 3(1), by agreement in terms of section 4 or by court order under section 11. Nor do those terms indicate a restriction upon when such parental responsibilities or parental rights have to have been acquired by or given to the person, as, for instance, that they must have been acquired before the supervision requirement was made. They do no more than provide that the exercise of any of those responsibilities or rights, whenever or however they be acquired or given, is superseded or inhibited during the currency of any court order relating to the child or of any supervision requirement to the extent that their exercise would be incompatible with the order or requirement. On a proper reading section 11(2)(b) enables the court to make an order imposing parental responsibilities on and giving parental rights to any person, though in doing so the order must be explicit as to which responsibilities and rights are being conferred. The court is not prevented from making such an order merely because a supervision requirement is in existence, as was pointed out in Dewar under reference to the common law right to custody. The issue of whether or not it would be appropriate to make the order would then fall to be determined by reference to section 11(7). We would add that only that such a construction of the Act and the relevant provisions seems to us to accord fully with the stated purpose of a statute in looking to the welfare of the child as the paramount consideration. In a commentary on the report of the sheriff's decision in this case, sub nom. P v. P in 1999 SCLR, Sheriff Kelbie postulates a situation in which it would be in the best interests of the child that a section 11(2)(b) order should be granted during the currency of a supervision requirement in order to enable that requirement to be discharged. We consider that he is correct in saying that in such circumstances it would be open to a court to make such an order albeit that before the supervision requirement was discharged, the provisions of section 3(4) would remain to inhibit the exercise of the responsibilities and rights granted by the order. We would only add that of course since the court in terms of section 11(2) is empowered to make any order under section 11(1) as it thinks fit, its discretion is not fettered in determining the form of the order and its effect.

In the course of the debate concern was expressed that there would be no way short of a proof or extended hearing in dealing with applications which could not be reasonably justified, whether on the ground that the applicant had no real interest to maintain the claim made or on the ground that ex facie of the application there was no merit in it and it could never be appropriate to make an order. It was suggested to us that it would always open to a sheriff to make use of the provisions of the Ordinary Cause Rules and in particular the provisions of rule 33.22A for child welfare hearings for securing rapid disposal of unmeritorious applications. This would appear to be the case. It is certainly essential that any procedures involving the welfare of a child should be undertaken with the intention that all issues arising be determined as expeditiously as possible.

Reference was made by counsel for the second defender to the European Convention on Human Rights in regard to the rights of a natural father. We find it unnecessary to say more than to note, just as was done in L v. H, that the 1995 Act does permit the father of a child born out of wedlock, as the second defender is, to make an application for parental responsibilities and parental rights in terms of section 11. This course remains open to the second defender in the light of our decision that at this stage, without any enquiry into the circumstances, it cannot be said that the orders sought by him are inappropriate, let alone incompetent.

In the end of the day parties were at one in moving the court to recall the sheriff's interlocutor, repel the second, third and fifth pleas-in-law for the pursuer and the first and fifth pleas-in-law for the second defender and thereafter to remit back to the sheriff to proceed as accords. We shall accede to the motion and make an order accordingly.