Scottish Sheriff Court Decisions

 

 

 

 

NOTE

 

by

 

SHERIFF JANYS M SCOTT QC

 

in the cause

 

KW

PURSUER

 

against

 

SC

DEFENDER

 

and

 

CITY OF EDINBURGH COUNCIL

 

PARTY MINUTER

 

 

Act: pursuer, party

Alt: for defender, Millard

for minuter, Walker

 

 

Haddington, 13 June 2013

 

The sheriff, having resumed consideration of the cause, finds the following facts admitted or proved:

 

1. The pursuer is the father of S, born in 2012. The defender is S's mother. The pursuer and the defender are not married to one another. The pursuer is not registered as father on S's birth certificate. He has no parental responsibilities and parental rights in respect of S. He has never met S. S is accommodated by the party minuter as a result of a supervision requirement made by the children's hearing. It is a condition of the supervision requirement that S lives with foster carers.

 

2. In early 2011 the pursuer and the defender were living in adjacent accommodation. They commenced a relationship and the pursuer moved in to the defender's home. The defender has two children by a prior relationship. They are T who was born on in 2004 and C born in 2009. The pursuer lived in family with the defender and her two children from about April to December 2011. During this period of cohabitation T and C referred to the pursuer as "dad" and S was conceived.

 

3. In May 2011 T came to the attention of the party minuter's social work department in connection with an allegation of sexual abuse by a former partner of the defender. Social worker FM visited the family on a number of occasions. FM is a social worker with children and families and has previous experience as a mental health officer and as a project worker with persons with mental illness. When she visited the family the pursuer consistently exerted control over the defender and her children. He did not allow the defender to speak for herself. He spoke over her. He obstructed discussion and decisions about T and C. He exhibited unusual pressure of speech and presented as if he was suffering from a mental health problem.

 

4. On 25 May 2011 FM collected T and the defender for the purpose of a police interview in connection with the allegation of sexual abuse. When she arrived the pursuer was with T and said he had been counselling her about the allegations. He appeared unaware that it was inappropriate to discuss the allegations with T prior to her police interview. The pursuer spoke continually, talking over everyone else present.

 

5. On 26 May 2011 the deputy headteacher at T's school reported to FM that the pursuer had attended at school with the defender and had presented as "on edge" and unstable. Staff at the school regarded the defender as immature and vulnerable.

 

6. On 13 July 2011 FM attempted to telephone the defender to ask for information about the family. The pursuer took the telephone, refused to give information, refused to pass the telephone to the defender and terminated the call. When FM attempted to call back her call was answered by an answer phone.

 

7. While the pursuer was a member of the defender's household both of her children presented as unhappy. T appeared strained, had scratch marks and was reported to be misbehaving at school. The pursuer was disparaging of T. He called her "abnormal" in her hearing and installed a lock on the kitchen door to prevent her going into the kitchen at night and "stealing" food. When she met with FM T drew the pursuer with an angry face and spoke of him and the defender fighting and crying. T was reluctant to return home to the pursuer and the defender.

 

8. On 2 August 2011 when FM visited the family were in bed. C was crying in his room. The pursuer was very talkative. He appeared to be oblivious of C's audible distress. FM became concerned about C and eventually asked that C be let out of the bedroom. C emerged very distressed, with puffy eyes, indicative that he had been crying for a long time.

 

9. In October 2011 T went to live with the defender's mother. T was removed from her primary school and enrolled at a school in the place where the defender's mother resided. In November 2011 T returned to the family home, and was then enrolled at a third primary school. She was not re-enrolled at her original school as the pursuer considered that she had been bullied there.

 

10. The pursuer and defender separated in December 2011. The defender was angry with the pursuer. She wanted him to have nothing to do with the child she was carrying. FM explained that the pursuer would have parental responsibilities and parental rights if he was registered as the child's father. The defender chose not to put the pursuer's name on S's birth certificate.

 

11. In July 2012 S was made the subject of a child protection order. Thereafter the children's hearing made a supervision requirement. The party minuter has considered S at a permanence panel, to which the pursuer was invited but which he did not attend. There is as yet no decision as to whether S should be placed permanently with carers other than his parents, but it is likely that the party minuter will seek a permanence order under section 80 of the Adoption and Children (Scotland) Act 2007.

 

12. The pursuer seeks parental responsibilities and parental rights in respect of S. He wishes to be treated as S's father generally, and in particular for the purposes of attendance at and participation in children's hearings in relation to S.

 

Finds in fact and law that:-

It is not in the best interests of the child S, that parental responsibilities and parental rights be conferred on the pursuer at this time.

 

Therefore refuses the pursuer's motion for interim parental rights and responsibilities, and sists the cause until further order of court.

 

 

NOTE:

Procedure

[1] On 24 May 2013 there was a child welfare hearing at which evidence was heard by agreement, to allow the court to decide whether to grant interim parental responsibilities and parental rights to the pursuer. Having heard evidence I gave my decision orally on that date, but was asked to prepare a note setting out the terms of my findings and decision.

 

[2] The pursuer had been represented by a solicitor, but his solicitor had withdrawn from acting. The pursuer was content to proceed with the hearing, representing himself. The defender's solicitor would have had no objection to a continuation, but was content to proceed. The party minuter wished to proceed and agreed to meet the fees of the shorthand writer, who was present in court, having been booked to attend by the pursuer's agent. In the circumstances I ordained the party minuter to meet the fees of the shorthand writer and proceeded with the hearing.

 

Evidence

[3] There were only two witnesses. By agreement the party minuter led evidence first, and called Miss FM. I had no difficulty in accepting FM's evidence as credible and reliable. She was plainly an experienced and competent professional social worker. She was able to refer to excerpts from the case notes to refresh her memory. Her observations were detailed and convincing. Where her evidence differed from that of the pursuer I had no hesitation in preferring FM.

 

[4] The pursuer gave evidence on his own account. He largely denied the account given by FM. He blamed the defender and her mother for what he characterised as "character assassination". I made allowances for the fact that the pursuer was representing himself, and that a courtroom was bound to be an unfamiliar environment, but his presentation did much to confirm the impression given by the evidence of FM. He spoke quickly and not always coherently. He was however clear that he wanted to build up a relationship with his son.

 

[5] The defender led no evidence. I did reject as unreliable evidence that emanated from the defender and was repeated by FM. In particular I have made no findings based on statements by the defender to FM that the pursuer tied C to his bed and removed door handles from the children's bedroom to prevent them leaving the room. I did not make any findings based on hearsay of the defender to the effect that the pursuer had behaved in an abusive way towards her. I have also rejected evidence based on an anonymous allegation made to FM about the family.

 

The issue

[6] The issue for this child welfare hearing was whether the pursuer should have parental responsibilities and parental rights for S on an interim basis, bearing in mind that there is very limited scope for the exercise of parental responsibilities and parental rights at present, as S is subject to a supervision requirement made by the children's hearing, and is placed with foster carers as a condition of that requirement. It would be inappropriate for the court to make orders relating to residence and contact at this time as those are matters currently under the control of the children's hearing.

 

[7] It is unnecessary for the court to make orders relating to parental responsibilities and parental rights solely to allow the pursuer to be treated as a "relevant person" for the purpose of participation in the children's hearing. As a result of the decision of the Supreme Court in Principal Reporter v K [2010] UKSC 56 the pursuer must be treated as a relevant person if he appears to have established family life with the child with which the hearing may interfere. It is not, of course, necessary for him to have lived with S in order to demonstrate a claim to family life (see eg Keegan v Ireland (1994) 18 EHRR 342). In this case the pursuer was living in family with S's mother and S's two half siblings, prior to S's birth. He has attempted to maintain an interest in S by raising these proceedings. He has a claim to respect for family life with his son pursuant to article 8 of the European Convention on Human Rights. Prima facie he has a claim to be treated as a relevant person. He has the status of relevant person as a matter of law, provided he has an article 8 right to respect for his family life with the child. It should be noted this is a matter of right, not merit. As such it differs from the issue for the court under the Children (Scotland) Act 1995, section 11, which requires a decision based on the welfare of the child.

 

[8] No order is required for the pursuer to be involved in any application for a permanence order in respect of S. As S's father, albeit with no parental responsibilities or parental rights he would receive intimation of any proceedings in which authority to adopt is sought, pursuant to rule 33(1)(c)(ii) of the Sheriff Court Adoption Rules 2009. If no authority to adopt were requested he would still be a person claiming an interest and as such should receive intimation under rule 33(1)(b)(ii) and be allowed to make representations pursuant to section 86 of the Adoption and Children (Scotland) Act 2007. If parental responsibilities or parental rights were conferred upon him his consent to adoption would be required or would have to be dispensed with and this would clearly put him in a stronger position, but it is not necessary that he have parental responsibilities or parental rights in order to be involved. Were a permanence order granted, then any order made in these proceedings would be automatically revoked as a result of the Adoption and Children (Scotland) Act 2007, section 88.

 

[9] The decision at this child welfare hearing is whether or not to confer on the pursuer parental responsibilities or parental rights in respect of S, having regard to S's welfare as the paramount consideration, in terms of the Children (Scotland) Act 1995, section 11(7)(a). S is too young to have any view on the matter for the purposes of section 11(7)(b), so the decision turns on welfare. The question is whether it would serve S's welfare to confer on the pursuer the responsibility to safeguard and promote his health development and welfare; the responsibility to provide direction and guidance to S; and the responsibility to act as S's legal representative, all in terms of section 1(1) of the 1995 Act. Parental rights may be conferred to enable a parent to fulfil parental responsibilities (section 2(1)), and so an award of parental rights would follow any award of parental responsibilities. While conferring responsibilities and rights in relation to contact could be considered in theory, in practice this could have little effect as contact is controlled by the children's hearing. There was no motion before the court for direct contact, and realistically such a motion could not have been granted at this stage, given the involvement of the children's hearing.

 

Decision

[10] Based on the findings I have made the pursuer in this case had a negative effect on the welfare of the defender's two children. His involvement made it difficult to offer assistance to the defender or to the children. He tended to dominate discussion and to suffocate the contribution of any other party. He displayed a lack of insight into what was required to safeguard and promote the health, development and welfare of a child, or what should be offered to a child by way of direction and guidance. His judgment on issues relating to children was deficient. His presence in the family of T and C contributed to their unhappiness.

 

[11] I do not criticise the pursuer for the enrolment of T at a third primary school in the space of a few weeks, in so far as he appears to have thought this school better for a reason that appeared to him to be rational. I do criticise him for a failure to weigh the advantages of returning to a school with which she was familiar and where she was well known as against being presented with yet another new situation. He did not appear able to address matters from any perspective save his own.

 

[12] I accept that the pursuer has a genuine desire to form a relationship with S, but in the circumstances I was unable to find that the exercise of parental responsibilities by the pursuer would be for S's benefit. Entrusting the pursuer with the responsibility to safeguard and promote S's health development and welfare would be counter-productive as he would not be able to fulfil that responsibility. He lacks the capacity to offer sound direction and guidance. He could not be trusted with the exercise of legal representation.

At this time he will only be offered the opportunity to exercise contact with S if the children's hearing consider such contact would serve S's welfare and there is little point in an order of the court relating to contact. In any event the pursuer has never met S. Considerable care would be required to introduce him to S at this stage and on the evidence I heard the pursuer would not be capable of exhibiting the qualities of sensitivity and restraint necessary for a successful introduction.

 

[13] Having found that it is not in S's interests that the pursuer exercise parental responsibilities, I cannot confer on him any parental rights, as rights under section 2 of the Children (Scotland) Act 1995 exist to allow a parent to fulfil responsibilities.

 

[14] This action appears to have been instigated, at least in part, to allow the pursuer access to the children's hearing. Had I been able to find that it would serve the welfare of S to confer parental responsibilities or parental rights on the pursuer, this would have formed a basis for him be treated as a "relevant person". In principle an order limited to involvement in the children's hearing could have been considered, but applying the criteria in section 11 of the Children (Scotland) Act 1995, I was unable to make even a limited form of order. However, as explained above, involvement in decision-making at the children's hearing is a matter of right for persons with article 8 rights. The refusal to make an order under section 11 of the 1995 Act does not preclude the pursuer's claim based on article 8.

 

[15] Having reached a decision that an interim order for parental responsibilities and rights should be refused, I sisted the action to await developments. It is likely that an application will be made for a permanence order in respect of S. The pursuer will be able to make representations about S in that action. Any order that might be made in this action will be academic if a permanence order is granted.