SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES AND GALLOWAY

B180/11 AND B181/11

JUDGMENT OF SHERIFF PRINCIPAL B A LOCKHART

in the cause

DUMFRIES & GALLOWAY COUNCIL

Appellants

against

PD AND ID

Respondents

DUMFRIES: 16 September 2011

The Sheriff Principal, having considered the adjusted written submissions lodged on behalf of the appellants on 25 August 2011 and on behalf of the respondents on 30 August 2011, allows the appeal and recalls the Sheriff's interlocutors of 2 June 2011 to the extent of deleting the following words at the end of the interlocutor, namely "thereafter having heard parties on the applicant's motion to award expenses of the preparation for and the hearing of this application, finds the respondents liable to the applicant in the expenses of the application as taxed; allows an account thereof to be given in and remit same to the Auditor of Court to tax and to report"; quoad ultra adheres to the Sheriff's interlocutors of 2 June 2011; finds no expenses due to or by either party in respect of the original applications and these appeals.

NOTE:

1. In this case applications were made for a child protection orders in terms of section 57(1) of the Children (Scotland) Act 1995 in respect of the children DRD and CCD. However, on 26 May 2011 the Sheriff made child protection orders in terms of section 57(2) of the 1995 Act. The orders were in the following terms:

"The Sheriff having heard Mr Watt on the application makes a child protection order in terms of section 57(2) of the Children (Scotland) Act 1995, a copy of which is appended hereto, in respect of the child CCD ... and the Sheriff having heard Mr Watt on the application makes a child protection order in terms of section 57(2) of the Children (Scotland) Act 1995, a copy of which is appended hereto, in respect of the child DRD ..."

2. The present respondents then lodged applications in terms of section 60(7) of the Children (Scotland) Act 1995 to set aside these child protection orders. In terms of the interlocutors, the child protection orders bore to have been granted in terms of section 57(2) of the Act. The applications averred that the orders ought not to have been granted in the first place and also that the children's hearing had had before it insufficient evidence to permit it to continue the order. The Sheriff reports that, on 2 June 2011, when considering the applications to set aside the child protection orders, in the course of the discussion it became apparent that the material which was available to the local authority was directed to the test for the granting of the child protection orders in terms of section 57(1) of the Act, but that the basis of the applications was that the different test in terms of section 57(2), being the basis on which the order bore to have been granted, was not satisfied. In effect, what the local authority were inviting the Sheriff to do was to confirm an order made in terms of section 57(2) on the basis of material which satisfied the test applicable to section 57(1). The Sheriff records that there were obvious difficulties with that and, after consideration, the solicitor for the now appellants informed him that he conceded that the orders fell to be recalled.

3. The Sheriff then records in paragraph 3 of his note:

"The solicitor for the parents moved for the expenses of the applications for recall. She explained to me that her clients did not have the benefit of legal aid. Some days previously, she had drawn the attention of the solicitor for the local authority to the fact that the orders borne to have been made in terms of section 57(2) but he had not regarded that as significant. As a result the applicants had been put to the necessity of meeting the cost of preparation for and conduct of the hearing which had ended with the concession that the orders had to be recalled. The solicitor for the local authority submitted that a motion for expenses is a matter for judicial discretion. I asked him whether he could cite any authority to suggest that the usual rule, that expenses follow success, did not apply. He cited no authority. It appeared to me that the ground upon which the concession had been made was known to the local authority several days in advance of the hearing, that the significance of that ground should have been appreciated earlier and the expenses ought, accordingly, to be awarded to the parents."

4. The Sheriff accordingly made an award of expenses in favour of the respondents. The note of appeal lodged on behalf of the appellants is in the following terms:

"The point of law upon which the appeal is to proceed is: Rule 3.19 of the Act of Sederunt (Childcare and Maintenance Rules) 1997 provides that: "No expenses shall be awarded in any proceedings to which this chapter applies". The chapter, being chapter 3, refers to the Children (Scotland) Act 1995. Part IV of chapter 3 details the rules governing the making of a Child Protection Order and any applications to set aside or to vary said Order.

It is submitted therefore that the Sheriff erred in law in awarding expenses in favour of PD and ID in respect of their application to vary or set aside the child protection order which was held at Dumfries Sheriff Court on Thursday 2 June 2011. Accordingly this decision is incompetent."

5. Parties both lodged written submissions and then were given an opportunity to adjust these submissions. Parties were agreed that I should deal with this appeal without an oral hearing on the basis of these adjusted written submissions. They are both attached to this note and are held to be incorporated herein brevitalis causa.

6. In my opinion it is not necessary to comment in detail on the various written submissions. The point in my opinion is a straightforward one. In terms of Rule 3.19 of the Act of Sederunt (Childcare and Maintenance Rules) 1997 no expenses shall be awarded in any proceedings to which this chapter applies. Clearly the applications in terms of section 60(7) of the Children (Scotland) Act 1995 fall within chapter 3. Part IV of chapter 3 details the rules governing the making of a child protection order and any applications to set aside or to vary said order. The Sheriff accordingly has no power to make any award of expenses in such proceedings. It is apparent from the written submissions that neither solicitor before the Sheriff on 2 June 2011 was aware of Rule 3.19. The Sheriff in paragraph 1 of his note stated:

"At the time I was considering the motion for expenses, I was unaware of that rule. When I invited the solicitor for the respondents to answer the motion for expenses, and asked whether there was any authority on the point, he did not cite that rule. In those circumstances I overlooked the rule. Upon more informed consideration, it appears to me that the rule is applicable and that the orders which I made were, indeed, incompetent."

I agree with the Sheriff's view. I have considered carefully the detailed submissions lodged on behalf of both parties. In my opinion no grounds exist to allow me to hold that what on the face of it is an incompetent order should in fact be considered a competent one.

7. It is proper that I record that, in their adjusted written submissions, the respondents lay weight on the following factors (a) the Council failed to spot the error in the interlocutors prior to sheriff officers being instructed to implement the child protection orders (b) the local authority chose not to concede that the appeal should be granted until 3.20 pm on the afternoon of 2 June, the case having taken most of the day to argue and substantial preparations having taken place and (c) the local authority did not address Sheriff Brown on the rule of court on which they now rely. All that is undoubtedly the case, but these factors do not allow a Sheriff to make an award of expenses where there is a specific rule of court which prevents a Sheriff from making such an award. In the normal course, the award of expenses is a discretionary matter. However, in cases to which Rule 3.19 applies that discretion has been removed. There is no discretion available to the Sheriff who has no power to make an award of expenses in a case of this nature.

8. The appeal is accordingly allowed to the extent of deleting the award of expenses from the Sheriff's interlocutors of 2 June 2011. I have found no expenses due to or by either party in respect of both the original applications and this appeal.

SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES AND GALLOWAY AT DUMFRIES

Court ref: B180/11

: B181/11

Adjusted Written submissions

In Causa

Dumfries and Galloway Council, having their

principal office at English Street, Dumfries

APPELLANTS

against

PD and ID

RESPONDENTS

The Appellants respectfully crave the Court to allow the appeal and hold that that the Sheriff erred in law in awarding expenses in favour of the Respondents in respect of their Application to vary or recall a Child Protection Order under Section 60 of the Children (Scotland) Act 1995.

The Parties are designed in the instance. This Court has jurisdiction.

On 26^th May 2011 the Appellants made Form 47 application's to Dumfries Sheriff Court for Child Protection Orders in respect of DRD and in respect of CCD in terms of S57(1) of the Children (Scotland) Act 1995. Copies of the Form 47 Applications are produced herewith and are referred to for their terms which are taken as being repeated herein brevitatis causa. On said date the Orders were granted whereupon the Sheriff made a 2 Child Protection Orders in terms of S57 of the aforementioned Act by issuing a Form 49 setting out the terms of the Order together with an interlocutor made erroneously in terms of S57 (2). Copies of the Orders and interlocutors are produced herewith and are referred to for their terms which are taken as being repeated herein brevitatis causa. Form 49 is a statutory form with a set format and within this there is no provision to allow the Sheriff to specify whether the Order is made in terms of S57 (1) or S57 (2). A copy of the style Form 49, as downloaded from the Scottish Courts Website is produced herewith and is referred to for its terms which are taken as being repeated herein brevitatis causa. The Orders were then executed and served upon the Respondents, the children and the Principal Reporter by Sheriff Officer. Copies of the Sheriff Officer's certificates of Service are produced herewith.

The Respondents thereafter lodged an appeal in terms of Section 60 of the aforementioned Act on 31 May 2011 and a hearing was fixed for 2^nd June 2011. Prior to the hearing the Respondent's solicitor Mrs Colledge contacted by telephone, the Appellants' solicitor Mr Watt to inform him that there was an error in the Court interlocutors. At which time Mr Watt explained to Mrs Colledge that the Applications had been made in terms of S57 (1) and that he considered it simply to be a typographical error. It is submitted that Mrs Colledge would have noted from the Form 47 Applications, of which she had copies, that the applications were made in terms of S57 (1). This would have been apparent by both the narration of the grounds stated in Part two of the aforementioned Forms and by the fact that there were no averments made in the Applications seeking to found upon S57 (2). It is the Appellant's submission that Mrs Colledge was made fully aware of the terms of the Applications and accordingly was not prejudiced in preparing for the appeal. The original Applications being clearly in terms of S57 (1), the agent for the Appellants made submissions to the Sheriff in terms of S57 (1), and the Orders were granted in said terms. At no stage during the hearing on 26 May 2011 did the Sheriff indicate that the Applications should have been made in terms of S57 (2) nor were the Orders granted in said terms. There is no doubt that the Orders were granted in terms of S57 (1). It is accepted by the Appellants that they failed to spot the error in the interlocutor prior to the Orders being executed.

In deciding to oppose the appeal the Appellants had regard to Rule 3.31 (2) of the Act of Sederunt (Child Care and maintenance Rules) 1997 No 291 which states that "where an order is granted it shall be in Form 49 and it shall contain any directions made under Section 58 of the Act." On this basis they took the view that as the Application for the Order was clearly in terms of S57(1) and that the Form 49 stated that the application had been made in terms of S57 the error in the Sheriff's interlocutor was not fatal to the Order. Indeed the Applicant's sought an informal opinion from Counsel who has significant experience in family law who advised that this error should not be fatal to the Order. After investigation it would appear that the practice of issuing an interlocutor along with a Form 49 when granting a Child Protection Order is one which is unique to Dumfries Sheriff Court. It is a practice that was started at the request of a local Sheriff Officer. The Appellants formed the view that the interlocutor was surplus to the statutory requirements of the making of a Child Protection Order Application. It was on this basis that the Appellants decided to continue to oppose the appeal. The appeal proceeded, during the course of which the Sheriff indicated that he was of the view that the error in the interlocutor was fundamental and that the Appellants would have to demonstrate that the requirements of S57(2) were met if they did not want the appeal to succeed. In light of the Sheriff's comments the Applicants considered that such a submission could not be competently made and accordingly had no other option but to accede to the appeal before making further Applications for Child Protection Orders in respect of the two children in terms of S57 (1) which were granted. At no point did the Applicants concede that the original Orders were made in terms of S57 (2).

On the basis of the above the Respondent's solicitor then made a motion for expenses which the Sheriff granted. It is the Appellants' submission that the Sheriff erred in law in awarding expenses as Rule 3.19 of the Act of Sederunt (Childcare and maintenance Rules) 1997 states that "no expenses shall be awarded in any proceedings to which this chapter applies. The Chapter referred to being Chapter 3 of the Children (Scotland) Act 1995 and in particular part 4 of the aforesaid chapter which regulates the procedure surrounding Child Protection Order Applications.

The Sheriff states in his Note on the case that he accepts that "the orders which I made, were indeed incompetent". Whilst the Sheriff points out that the Appellants did not draw his attention to the existence of the Rule it is submitted that this should be within judicial knowledge.

Sheriff MacPhail states in his book, Sheriff Court Practice Volume 1 at paragraph 18.117 that "appeals solely on questions of expenses are severely discouraged, and are not entertained unless there has been an obvious miscarriage of justice ... or a question of principle is involved."

It is the Appellants' respectful submission that there is indeed a question of principle at stake and it is not competent for the Sheriff to depart from the aforementioned Rule preventing the award of expenses. In terms of the Children (Scotland) Act 1995, the Appellants have various powers and duties in relation to their statutory functions, including those specified in relation to the Social Work (Scotland) Act 1968 and in particular under Part 1 of that Act. The Appellants in making the application for the said Child Protection Orders were acting in terms of their statutory functions in good faith. It is the Appellants' submission that when exercising statutory functions when the welfare of the child is the paramount consideration the Local Authority should be able to do so without concern that if unsuccessful expenses will be awarded against it.

8. In the submissions on behalf of the Respondent Mrs Colledge makes reference to the case of Aird v School Board of Tarbet 1907, S.C. 22. It is the Appellants' respectful submission that this case is not in point. In Aird the question for the Court to decide was whether or not a statutory provision gave a direction that one party was entitled to the expenses of an action. There were no arguments put forward that the original decision of the Lord Ordinary was incompetent simply that the provisions contained within S 1(b) of the Public Authorities Act 1893 entitled one party to their expenses. This in my submission, can be clearly distinguished from the present case as the Sheriff's decision to award expenses was incompetent in terms of Rule 3.19, there is no discretionary element to the decision.

In the circumstances it is submitted that the Appellants appeal should be allowed and that the decision of the Sheriff should be overturned.

IN RESPECT WHEREOF

Solicitor for the Appellants

Municipal Chambers

Buccleuch Street

Dumfries

DG1 2DD