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Scottish Sheriff Court Decisions |
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You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> E v E [2004] ScotSC 53 (12 August 2004) URL: http://www.bailii.org/scot/cases/ScotSC/2004/53.html Cite as: [2004] ScotSC 53 |
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SHERIFFDOM OF TAYSIDE CENTRAL AND FIFE AT DUNDEE
A320/04
JUDGMENT
i.c.
E
PURSUER
against
MR and MRS E
DEFENDERS
Act: Mrs J Dorman, Solicitor, Messrs RSB Macdonald, Solicitors, Dundee
Alt: Mundy, Advocate instructed by D McKinnon, Solicitor of Messrs Finlay Macrae, Solicitors, Dundee
DUNDEE 12TH AUGUST 2004
The Sheriff having resumed consideration of the cause REPELS the first plea-in-law for the Defenders; REMITS the cause to the Procedural Roll of 2004 at 10 am at Dundee Sheriff Court, Civil Annex, Court House Square, Dundee in order to determine and regulate further procedure.
NOTE
Introduction
[1] This is an action raised by Miss E aged 14 years seeking contact with her siblings aged 4 and 12 years old.
[2] A plea to the competency of the proceedings was taken by the Defenders, Miss E's parents on the grounds that it was not competent for the court to make an award of contact in favour of a pursuer under sixteen years of age.
[3] After a Notice of Intention to Defend and skeleton defences were lodged which included the plea to competency, it was agreed by parties that an early hearing on the competency of the case should be fixed and a Child Welfare Hearing and Options Hearing which had been fixed were both discharged.
[4] A debate took place before me on 28 April 2004 when both parties made very full submissions after which avizandum was made. Part of the delay in preparing the judgement was due to parties referring to an unreported case (W -v- W Dumbarton Sheriff Court 25 April 2001) without providing a copy of it. Eventually after a number of attempts I have been able to peruse a copy of the pleadings and the sheriff's judgment in that case.
DEFENDER'S SUBMISSIONS
[5] Mr Mundy began by stating that what the Pursuer appeared to be seeking, though it was not so expressed in the Initial Writ, was an order under Section 11 of the Children (Scotland) Act 1995 (hereinafter referred to as "the Act") albeit what was sought purported to be an order to allow the Pursuer to have "direct contact".
[6] Before an order under Section 11 of the Act could be granted it had to meet one of the criteria under subsection (I). The only relevant criteria in the present proceedings were in relation to parental responsibilities under Section 11(1)(a) or parental rights under Section 11(1)(b).
[7] Under Section 11(2)(b)(ii) of the Act the Court can only make an order imposing parental responsibilities on a person provided such a person "is at least sixteen years of age".
[8] Section 11(2)(d) of the Act allows the Court to make an order
"regulating the arrangements for maintaining personal relations and direct contact between a child under [the age of 16] and a person with whom the child is not ..........living (any such order being known as a 'contact order')";
Mr Mundy noted that the wording of the Act avoided reference to parents at this point since it had been appreciated that contact orders might be required by grandparents, uncles and aunts etc. Similar considerations applied in relation to Section 3 of the Act which makes provisions in relation to parental responsibilities and rights.
[9] Mr Mundy then directed me to Section 11(3)(a)(i) of the Act where an application for a contact order may be made by a person who "not having.......................parental responsibilities or parental rights in relation to the child, claims an interest"; Reference was also made to the case of F -v- F 1991 SLT 357 which of course dealt with an action raised by grandparents. However Mr Mundy stressed that application made under Section 11(3) are governed by "the relevant circumstances mentioned in subsection (1) above" namely the criteria referred to at paragraph [6] above.
[10] Mr Mundy further stated that any such contact order made under Section 11 of the Act would in terms of subsection (2)(b) confer a parental right in relation to the child. Thus any application made for contact had to be considered in terms of section 1(1)(c) of the Act which implied there were parental responsibilities in relation to the child and in terms of Section 2(1)(c) of the Act implied parental rights.
[11] Mr Mundy put it another way a contact order under the Act conferred a parental responsibility and parental right in relation to a child in terms of Section 11(2) which had of course to be read in conjunction with section 11(1).
[12] In effect therefore Mr Mundy explained what the court was being asked to consider was an application under Section 11(2)(d) of the Act which states:-
"An order regulating the arrangements for maintaining personal relations and direct contact between a child under that age and a person with whom the child is not, or will be, living (any such order being known as a "contact order");"
[13] However Mr Mundy stated that before any such order could be made in terms of Section 11(2)(b) the person seeking such an order with its concurrent responsibilities and rights had to be "at least sixteen years of age or be a parent of the child".
[14] Mr Mundy referred me to the case of JRD -v- Mr Y Mrs WH 2004 SLT (Sh. Ct.) 73 where Sheriff Principal Bowen Q C upheld the sheriff's decision to refuse to grant a warrant for citation in an action raised by a 15-year-old boy who was seeking a contact order in terms of Section 11(2)(d) of the Act to see his 14-year-old sister.
[15] In that case it was argued that a section 11(2)(d) application under the Act for an order to regulate "the arrangements for maintaining personal relations and direct contact" fell to be viewed distinctly from an order imposing parental responsibilities and granting parental rights under Section 11(2)(b) and could therefore "stand alone".
[16] Mr Mundy referred me to paragraph [4] of Sheriff Principal Bowen's judgement wherein he quotes a passage from the 2nd Edition of "Wilkinson & Norrie" on "Parent & Child" at paragraph 9(ii) that refers to Section 11(2)(d) of the Act and states: -
"The careful wording of this paragraph is designed to emphasise that the order will not confer any "right" to contact but will, rather, regulate the arrangements for contact between a child and any person with whom the child is not living. As previously explained, contact is both a legal and a factual concept, and both concepts can be regulated by an order under this provision. The order may regulate how a person whose responsibility and right of contact, recognised by Sections 1 and 2 and activated by the fact that he or she is not living with the child, is to fulfil that legal responsibility. But, in addition, the terms of the paragraph are wide enough to allow that court to regulate contact as a concept of fact as between a child and a person without any such responsibility or right. This might include a child's sibling, friend, relative, ex-foster carer or any other person whose continued relationship with the child serves his or her welfare."
Sheriff Principal Bowen went on to say:-
"In a footnote the authors comment that "it is open to the court, for example, to regulate the contact arrangements between the child and a younger sibling under Section 11(2)(d) without giving the sibling the "parental responsibility of contact".
[17] Mr Mundy pointed out that Sheriff Principal Bowen had rejected the view that Section 11(2)(d) represented a distinct stand alone order separate from and unconnected to the parental right referred to; JRD -v- WH (supra) at paragraph (7).
[18] Mr Mundy invited me to follow the decision in JRD -v- WH. He had no problem about a sibling of 16 years or over seeking a contact order under the Act. However it was his view that the way the Act was worded a contact order implied certain parental responsibilities and parental rights which could only be assumed if the person applying for the order was at least 16 years of age.
PURSUER'S SUBMISSIONS
[19] Mrs Dorman began her submissions by stating that her starting point was not Section 11 of the Act but rather the United Nations Convention on the Rights of the Child and the European Convention on Human Rights. Indeed the crave of the writ was framed in terms "to make an order in favour of the Pursuer that she be allowed to have direct contact with her siblings" and made no reference to Section 11 of the Act. Reference was made to the following provision of the U.N. Convention:-
[20] Article 2 "States parties should take all appropriate measures to ensure that the child is protected against all forms of discrimination.......". Article 3 "In all actions concerning children .........the best interests of the child shall be a primary consideration."
[21] Article 5 "States parties shall respect the responsibilities, rights and duties of parent or, where applicable, the members of the extended family or Community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the revolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognised in the present convention."
[22] Article 8 1. "States parties undertake to respect the rights of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.
2. Where a child is illegally deprived of some or all of the elements of his or her identity, states Parties shall provide appropriate assistance and protection, with a view to speedily re-establishing his or her identity."
[23] Article 9 paragraph 4
"States Parties shall, upon request, provide.........the child.......with the essential information concerning the whereabouts of the absent members of the family unless the provision of the information would be detrimental to the well-being of the child."
[24] Mrs Dorman noted in passing that Article 10 of the Convention refers to the principal of family reunification and Article 20 Paragraph 1 states:-
"A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State."
[25] Mrs Dorman explained that past problems between the Pursuer and her parents had resulted in her being placed under the supervision of the Children's Panel and placed with foster carers. The terms of the supervision requirement directed that the Pursuer shall have no contact with her parents, the Defenders. The Children's Panel could not, however, in relation to the Pursuer make a supervision condition directing that she should have contact with her siblings even if it was in her best interests.
[26] Similarly Mrs Dorman said that while it would be competent for the Pursuer's foster carer to make an application for a contact order under Section 11 of the Act on behalf of the Pursuer there were problems of cost and legal aid eligibility which prevented this approach being adopted. It was averred that the Pursuer's Social Workers considered it was in the Pursuer's best interests to have contact with her younger sister and brother. However the local authority are not permitted to make an application for contact themselves (Section 11(5) of the Act).
[27] The Social Work Department it was averred had offered to facilitate meetings between the Pursuer and her siblings at which the Defenders would not need to be present. However the Defenders, it was said, had not wished to co-operate with these approaches and the Social Work Department were not in a position to apply for a contact order under the Act, this needed to be done by a natural person.
[28] Mrs Dorman also referred to Article 8 of the European Convention on Human Rights which covers "Respect to Privacy and Family Life", which is in the following terms:-
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
[29] I was then referred to the case of White -v- White 2001 SC689; 2001 SLT 485 and in particular the Opinion of Lord President Rodger at paragraph [25] where he said: -
"the structure of our law complies with the requirements of Article 8 since it respects family life and contains provisions enshrined in legislation for balancing the competing interests of the various members of the family."
[30] Mrs Dorman did concede that contrary to the way in which the Initial Writ was pled that any contact obtained by the Pursuer would need to be supervised by members of the Social Work Department.
[31] I was next referred to a Scottish Executive publication entitled "Voice of the Child" under the Children (Scotland) Act 1995; Volume 1 - Mapping Paper. Paragraph 2.1.4 of this publication states:-
"Parental responsibilities and rights include the responsibility to safeguard and promote the child's health, development and welfare, and the right to control, direct or guide the child's upbringing. Decisions involved in the exercise of such responsibilities and rights could include choice of school, medical treatment and examination, relocation of the family home, or emigration. Parents may go to court if agreement cannot be reached about these matters, but Section 1(3) means that the child may, even where there are not proceedings in court, take the matter to court."
[32] Mrs Dorman went on to quote from paragraph 2.1.5 of the Mapping Paper: -
"Section 11 gives examples of orders that the Court may make in relation to parental responsibilities and rights ........:.. The Court is not restricted to the orders listed in Section 11, and is empowered to make such order "as it thinks fit" within the broad scope of parental responsibilities and rights, guardianship and the administration of children's property. A child could initiate or be represented in proceedings where any such orders were sought."
[33] Mrs Dorman further referred me to paragraph 2.1.6 which states:-
"In order to facilitate the exercise of these rights, Schedule 4 of the Children (Scotland) Act 1995 added s.2(4A) to the Age of Legal Capacity (Scotland) Act 1991 to provide that a person under the age of 16 years shall have the legal capacity to instruct a solicitor in any civil matter where that person has a general understanding of what it means to do so. Without prejudice to the generality of that subsection, a person 12 years of age and more is presumed to be of sufficient age and mentality to have such an understanding."
Paragraph 2.1.7 of the Mapping Paper goes on to give examples of actions a child might want to raise.
[34] In conclusion Mrs Dorman said that the Pursuer had a legitimate interest in securing contact with her siblings. This contact would inevitably have to be supervised by an adult or adults and the Social Work Department were willing to do this as seeing it to be in the Pursuer's best interests. The local authority could not however seek a contact order on its own hence the need for the Pursuer to raise the action herself. The law allowed persons of the Pursuer's age to raise actions and this was an action which was clearly in the best interests of the Pursuer and her siblings. In addition in terms of Article 6 of ECHR the Pursuer was entitled to right of access to a court and a fair hearing within a reasonable time by an independent and impartial tribunal established by law.
DEFENDER'S RESPONSE TO THE PURSUER'S SUBMISSIONS
[35] Mr Mundy reiterated that the standing point in this context was Section 11 of the Act. White v White (supra) was authority for the proposition that Section 11 of the Act was compatible with the European Convention on Human Rights. It was not necessary to look beyond that and clearly the "Voice of the Child" Mapping Paper had no authority; it was merely an expression of what the law might be now or in the future. Latterly what Mrs Dorman appeared to be arguing for was a specific issue order under Section 11(2)(e) of the Act. Such orders were however governed by 11(1)(a) and (d) of the Act and therefore involved parental responsibilities or rights.
DECISION
[36] Clearly the decision in JRD -v- Mr & Mrs WH (supra) was very much in point and the reasons given by the sheriff and sheriff principal are highly persuasive. I did however raise with Mr Mundy the decision of Sheriff Principal Macphail QC in Fitzpatrick -v- The Advocate General for Scotland for and on behalf of The Commissioners of Inland Revenue 2004 SLT (Sh Ct) 93.
[37] In that appeal that was decided less than a month after JRD -v- WH Sheriff Principal Macphail stated at paragraph [4] "there is no reason why my question of competency should not be judicially determined and the ordinary course of procedure. To deny the pursuer the opportunity to raise his action and deal in due course with such issues of competing as may arise would be, in my opinion to deny him without sufficient justifications his right of access to justice."
[38] It seems to me therefore that in JRD -v- WH the sheriff's refusal to grant a warrant for citation in the action was premature. Mr Mundy fairly conceded it had been proper to grant a warrant for citation in this case albeit that the Defenders had taken steps to challenge the competency of the proceedings at the earliest possible stage. I can well understand how on the facts of that case the court reached its view since the pursuer was 15 1/2 years old and the sister he sought to have contact with was now 14. She had been living with her adoptive parents for at least the previous 10 years. Indeed the pursuer did not appear to have seen his sister since the age of 5.
[39] As a result of the sheriff refusing to grant a warrant for citation in that action there had only been a hearing at which representations were made by the pursuer's solicitor. By contrast in the present case the defenders had counsel appearing on their behalf and the Pursuer's solicitor quoted from a full range of authorities including the UN Convention on the Rights of the Child, ECHR and related jurisprudence.
[40] As the pursuer in JRD -v- WH will shortly reach 16 years of age and a fresh action could be raised in that case which could proceed to a determination on its merits. By contrast in the present case the merits seem far stronger. The Pursuer and her siblings lived together as a family from 1997 in the case of her half-brother and from 1999 in regard to he half-sister until December 2002 when difficulties arose which led to the Pursuer leaving the family home and ultimately being received into foster care.
[41] The children are therefore a half-brother and half-sister to the Pursuer and had lived together as part of a family unit for 7 years in the case of the Pursuer's brother and for 3 years in the case of her younger sister until the end of 2002.
[42] Mr Mundy's explanation and interpretation of the provisions of the Children (Scotland) Act 1995 and section 11 in particular could not be faulted and indeed follow and amplify what is said in JRD -v- WH.
[43] However matters do not rest simply on a restrictive interpretation of statute alone. In the present case I was referred to the relevant convention and associated jurisprudence which it was suggested had to be considered along with the 1995 Act if the rights of the child were to receive proper consideration.
[44] T Petitioner 1997 SLT 724 is of course authority that the presumption to be applied when interpreting legislation found to be ambiguous is that Parliament is presumed to have legislated in conformity with the convention, not in conflict with it; (Lord President Hope at p.734, Lord McCluskey in White -v- White at paragraph [8] of his Opinion went on to state:-
"That same general approach has to be taken when construing and applying legislation dealing with the subject matter of the UN Convention, which the United Kingdom ratified in December 1991."
[45] In addition most of the rights in ECHR were incorporated into our domestic law when the Human Rights Act 1998 came into force in October 2000.
[46] In determining whether family life actually exists in a particular case the European Court of Human Rights in considering Article 8 of the Convention will look to see whether there are close personal ties. Thus in the case of X, Y and Z -v- UK [1997] 24 EHRR 143 the European Court of Human Rights said: -
"When deciding whether a relationship can be said to amount to family life, there are a number of factors which will be relevant, including whether the couple have lived together, the length of their relationship, and whether they have demonstrated their commitment to each other by having lived together."
[47] These same principles can be applied in the contact of siblings who have lived together in a family unit for a number of years. The European Court of Human Rights in Johansen -v- Norway (1997) 23 ECHRR 33 stated:-
"In cases where the child's welfare is at risk by reunification a fair balance must be struck between the interests of the child remaining in public care and those of the parents in being reunited with them. In carrying out the exercise, the court will attach particular importance to the best interests of the children which may override those of the parent."
[48] In the present case while the Children's Panel took the view that it was in the best interests of the Pursuer that she should be placed in foster care and was to have no contact with her stepfather and mother it was averred that conversely social workers involved in the Pursuer's case considered it to be in her best interests to have contact with her siblings. Clearly however standing the terms of the Pursuer's supervision order she would not be regarded as being a suitable baby-sitter for her siblings (Children & Young Persons (Scotland) Act 1973 S.12) and would require adult supervision.
[49] In the opinion of Lord President Rodger in White -v- White (supra) at paragraph [21] he states:-
"Section 11(7)(a) of the 1995 Act has to be read in the context of subsection (3)(a) and (b) of the same section. These paragraphs show that the court may make an order in terms of subsection (1) both where someone makes an application for such an order (paragraph (a)) and where no such application has been made but the court considers that it should make such an order (paragraph (b)). In other words such orders can be made by the court ex proprio motu without any application.......where the court was considering whether to make an order which no one had sought, the court had simply to consider all the relevant material and decide what was conducive to the child's welfare. That would be the paramount consideration."
[50]It follows from that passage therefore that in the context of these proceedings it would be possible for the court to ex proprio motu make an order under Section 11 imposing on the Defenders the parental responsibility to ensure the Pursuer has contact with her siblings. Mrs Dorman had suggested that an order might be made at common law but no authority was given to that proposition and accordingly I consider that that route can be discounted.
[51] However since White -v- White (supra) was decided in March 2001 there have been further important decisions in relation to the application of ECHR law and jurisprudence on domestic law including exciting statutory provisions. The Human Rights Act 1998 section 7 requires primary legislation to be read and given effect in a way that in compatible with the Convention Rights, so far as it is possible to do so; A -v- The Scottish Ministers 15 October 2001 JCPC.
[52] In R -v- Lambert [2000] 3 WLR 206 Lord Hope of Craighead made a number of general observations about the use of Section 3 of the Human Rights Act 1998 at para 79-81 and the so-called "reading down" of legislation to ensure compatibility with ECHR. It would equally seem possible for the Court to consider making a contact order in the present case in favour of the Pursuer but including in any such order that there would have to be an element of adult supervision by persons over 16 for example by the Pursuer's foster parents or social workers
[53] I note from a perusal of W v W (unreported Dumbarton Sheriff Court 25 April 2001) that the case involved an application by a 10 year old boy to have contact with his 12 year old brother. The boys apparently hadn't seen one another since the parents separated when the children were aged 2 and 4 respectively. The pursuer wished to see his brother on a weekly basis failing which to have telephone or letter contact.
[54] After hearing parties on the competency of the proceedings the sheriff repelled the defender's plea to the competency and remitted the cause to a later date to determine and regulate further procedure. The sheriff accepted the passage in Wilkinson and Norrie referred to above at paragraph [16] and considered that the orders sought were in keeping with "the whole ethos of the Act". I have no further information on what actually transpired in these proceedings but the craves for letter or telephone contact would not involve considerations of parental responsibility to anything like the degree where an adult has care for, physical contact with or is ""baby-sitting" for children. To the types of contact sought in W v W one could now add being able to communicate by text message or e mail and the like.
[55] While I was supplied with Chapter 2 of Volume 1 of the "Voice of the Child" Mapping Paper, I note from the Executive Summary of that document that it was prepared by Professor Kathleen Marshall, E Kay M Tisdall and Alison Cleland. Under the auspices of the Scottish Executive a detailed analysis of the Act was undertaken from the child's perspective. The exercise was part of a feasibility study to evaluate how decision-making in children's lives takes account of their own views. In carrying out this exercise reference was made to Part I of the Act and "the implications for compliance with UNCRC". It is a useful document to consider what best practice might be in cases involving children.
.
[56] For the reasons I have given I have repelled the Defenders' first plea-in-law. I am of the view that it would be possible for the court to make an order either in favour of the Pursuer or by placing parental responsibilities on the Defenders to enable supervised contact to take place between the Pursuer and her siblings. Since the Defenders conducted the debate on an entirely legalistic basis and the defences which have been so far submitted are almost entirely skeletal, it seems appropriate that the next step in procedure should be for this case to call in court as soon as possible in order that further procedure may be determined. It may be necessary to fix an Options Hearing if the Defenders wish to oppose the action on its merits or it may be that in light of the Social Work Report which is in the proceedings parties may wish to explore whether a negotiated solution can be achieved. Any questions of expenses can also be considered at the next hearing of the case.
