Scottish Court of Session Decisions

The applicants and appellants are Glasgow City Council. In terms of section 86 of the Children (Scotland) Act 1995, they applied to the sheriff at Glasgow for a parental responsibilities order in relation to each of two children. Both of these children, M H or M and C H or M, born respectively on 20 February 1987 and 21 October 1991, are children of the first respondent, T H or M. By an interlocutor dated 13 December 1996, the sheriff at Perth declared that the second respondent F M was the father of the child C, and also granted the second respondent the parental right of custody in respect of both of the said children. On 14 May 1997, the respondents married.

Separate applications were made in respect of each child, but the two applications name the present respondents as the relevant persons, and state identical grounds for making the application. In each case reference is made to section 86(2)(b)(ii) and (iii). Put shortly, the applicants' position is that in relation to each child, each of the respondents is a relevant person for the purposes of section 86, and not having agreed that the order be made (in terms of section 86(2)(a)) is a person who is withholding such agreement unreasonably, and has persistently failed, without reasonable cause, to fulfil parental responsibilities to safeguard and promote the child's health, development and welfare. The two applications have been dealt with together.

On 2 December 1998, having heard preliminary submissions for the parties, the sheriff issued an interlocutor in the following terms:

The first respondent no longer seeks to maintain her objections to the relevancy of the application in relation to herself, and the sheriff's interlocutor in so far as repelling those objections will accordingly stand. It is moreover not now disputed that prior to 13 December 1996, the second respondent was not a relevant person in terms of section 86 of the 1995 Act. The sheriff's finding to that effect will therefore also stand. What is sought by the applicants and appellants is that the interlocutor should be recalled in so far as it restricts proof in the case of the second respondent to his relationship and contact with the children since 13 December 1996. The second respondent's contention is that the sheriff's interlocutor in that respect should stand. At the hearing of the appeal, no submissions were advanced on behalf of the first respondent.

Before turning to the issue between the parties in relation to the restriction of proof, we would note that separate proofs in relation to the two applications are not apparently envisaged; but that in any event, proof in relation to each child will necessarily involve consideration of the issues as to withholding agreement unreasonably, and persistently failing to fulfil parental responsibilities, in relation to both respondents. As the restriction of proof is a restriction of proof in the case of the second respondent only, there will be unrestricted proof in the case of the first respondent. It was submitted on behalf of the applicants, and not disputed by either respondent, that this unrestricted proof, as to whether the first respondent is withholding agreement unreasonably, and as to whether she has persistently failed, without reasonable cause, to fulfil the parental responsibilities in question, might well entail enquiry into the second respondent's relationship and contact with the children at dates prior to 13 December 1996. While such matters might in principle appear equally or more relevant to the case relating to the second respondent himself, as the interlocutor stands it will be necessary for the sheriff hearing proof to exclude these matters from consideration in that connection, although giving them consideration in relation to the first respondent.

One other matter should be mentioned, before we turn to the question of restriction of proof. The parties are agreed, not only that prior to 13 December 1996 the respondent was not a relevant person in terms of section 86, but also that since that date he has been, and continues to be, such a relevant person. When the matter was before the sheriff, there appears to have been a contention to the effect that the second respondent was either a relevant person prior to that date, or at least could at such earlier dates have failed in some sense to fulfil parental responsibilities (which ex hypothesi were not incumbent upon him). On behalf of the applicants, counsel expressly departed from any such contention. Any evidence as to the second respondent's relationship and contact with the children at dates before 13 December 1996 would be led and relied upon not in order to show any such failure at these prior dates, but as having a bearing upon the question of whether the second respondent, since he became a relevant person on 13 December 1996, has persistently failed, without reasonable cause, to fulfil the parental responsibilities in question, or is withholding agreement unreasonably. It appears that the possible relevance of events prior to 13 December 1996 to these later issues was not fully considered before the sheriff. The focus appears to have been upon the issues which are not now insisted upon.

The submissions advanced on behalf of the appellants were simple. Evidence as to the second respondent's relationship and contact with the children prior to 13 December 1996 could in principle be relevant to the sheriff's consideration of the issues which arose under both head (ii) and head (iii) of section 86(2)(b). While the issue under head (iii) of course related to the period when parental responsibilities were incumbent upon the second respondent as a relevant person, and would no doubt be resolved largely by a consideration of the facts alleged to constitute failure, evidence of the second respondent's relationship and contact with the children at earlier dates could well be important, as putting the later events in context and demonstrating the background to them. Equally, and perhaps more obviously, in considering whether the second respondent was now withholding agreement unreasonably, in terms of head (ii), the court would have to consider all the circumstances, including the crucial question of the child's welfare, and also the second respondent's view of the child's welfare. Counsel drew attention to the provisions of the Child Care and Maintenance Rules 1997, and in particular Rule 2.40(2), setting out the duties of the curator ad litem, including the paramount duty to have regard to the welfare of the child, and the specific duty, at head (d), to ascertain whether a parental responsibilities order would safeguard and promote the welfare of the child. Reference was also made to section 16(1) of the 1995 Act, which provides that where, under or by virtue of Part II of the Act, a court determines any matter with respect to a child, the welfare of that child throughout his childhood is to be its paramount consideration. Section 86 is within Part II, and it was submitted that it was clear that these broad and paramount requirements in relation to the child's welfare would have to be considered for the purposes of heads (ii) and (iii) of section 86(2)(b). In any consideration of whether agreement was being withheld unreasonably, the test which a court should apply could be found in cases concerning adoption. We were referred in particular to A.B. & C.B. v. X's curator ad litem 1963 S.C. 124, and in particular the opinions of the Lord President at page 135 and Lord Sorn at page 138; In re W. (An Infant) 1971 A.C. 682; and P. v. Lothian Regional Council 1989 S.C. 200. The court must consider objectively whether a reasonable parent would withhold agreement in the whole circumstances. The whole circumstances would include past circumstances. There was no proper basis for introducing a cut-off point, beyond which one could not look at past circumstances. There was no proper basis for the cut-off point which the sheriff had chosen, and the relevance of past circumstances was not dependent upon whether the second respondent had yet become a relevant person.

Counsel for the second respondent did not dispute the contention that the appropriate test was to be found in the cases cited. Nor did he dispute that the test was whether, objectively, a reasonable parent would withhold consent in the whole circumstances. Where he differed from counsel for the appellant was in relation to the expression "the whole circumstances". In considering what were "the whole circumstances", one must restrict consideration to such circumstances as were relevant to the specific decision not to give agreement, on this specific occasion. Analysis in accordance with the known tests should therefore be an analysis of the current position, in both legal and factual terms. Adopting that approach, it was submitted that looking at section 86(2)(b) in its entirety, the restriction adopted by the sheriff was an appropriate one. The presence within section 86(2)(b) of heads (iii) and (iv) showed that in relation to head (ii), one need not enquire into matters covered by these subsequent heads. Otherwise, they could be seen as otiose, and a local authority would be free always to found upon head (ii), and thus to open up, without notice and without regard to date, specific matters which were plainly intended to be dealt with not in that way, but under the later heads. For the purposes of head (ii), it was legitimate for the court to restrict its consideration to what might be called "current" circumstances (in a manner which would correspond with the duty on the curator ad litem, under Rule 2.40(2)(e) of the 1997 Rules) - and the restriction imposed by the sheriff, going back to the date when the second respondent became a relevant person, gave a reasonable latitude to the word "current". That was so in relation to any background material required in relation to head (iii) of section 86(2)(b); and in relation to head (ii), it would be a question of fact and degree what was relevant to the specific decision on this specific occasion, but the sheriff (although perhaps for different reasons) had adopted a reasonable boundary for enquiry.

We are not persuaded by these contentions advanced on behalf of the second respondent, and are satisfied that there is no proper basis for restricting enquiry in terms of the sheriff's interlocutor. We were not asked, by either party, to consider the actual material from before 13 December 1996 which might be adduced in evidence. Speaking very generally, one would no doubt expect the issues raised by section 86(2)(b)(iii) to turn primarily upon the actual alleged failures, and possible causes for those failures close to them in time. But one cannot say, as a matter of principle, that material from a period before parental responsibilities came into play could not be relevant to questions of failure or cause or reasonableness. Nor indeed was any such principle suggested, on behalf of the second respondent. Similarly, in relation to head (ii), we see no basis in principle upon which a consideration of the whole circumstances could be limited in terms of time, rather than in terms of relevancy. The presence of heads (iii) and (iv) does not appear to us to exclude from consideration in terms of head (ii) matters relevant to that head, even if relevant also to head (iii) or head (iv). Again, no principle was suggested according to which a cut-off date would apply automatically, or could be selected at the sheriff's discretion.

Specific issues of relevancy or notice may of course arise at any proof. But the restriction imposed ab ante by the interlocutor is inappropriate. The sheriff's interlocutor to the extent that it restricts proof is recalled.