Scottish Court of Session Decisions

[1] The parties to this action are husband and wife but are separated. There is one child of the marriage who is now just over 2 years of age. The pursuer lodged an application in the Sheriff Court in Dundee seeking orders under section 11 of the Children (Scotland) Act 1995 for contact with the child. A child welfare hearing was held on 14 September 2000 and was continued to enable further information to be obtained from the immigration authorities in regard to the pursuer's entitlement to remain in the United Kingdom. A continued hearing took place on 24 October 2000 at which the sheriff made an order for interim contact and further continued the hearing to a later date to monitor contact. The defender thereafter lodged a motion for leave to appeal to the sheriff principal. That motion was heard on 10 November 2000 by the same sheriff who had granted the contact order of 24 October. The defender's agent made a preliminary motion that the sheriff should decline jurisdiction, founding on Article 6 of the European Convention of Human Rights. The sheriff continued consideration of the motion to 24 November 2000 and on that date refused both the motion for leave to appeal to the sheriff principal and the motion that he should decline jurisdiction. On 4 December 2000 the defender marked an appeal to the Court of Session. Notwithstanding the marking of that appeal, some further procedure seems to have taken place in the Sheriff Court because, on 12 December 2000, the sheriff inter alia appointed a curator ad litem to the child.

[2] The sheriff's reasons for his decision to refuse the motions for leave to appeal and for him to decline jurisdiction appear in a note written by him dated 13 February 2001. When the notice of appeal was first submitted to this court, a question was raised as to the competency of proceeding with the appeal in view of the fact that it was neither a final judgment nor a case in which leave to appeal had been granted nor an interlocutor which could be appealed without leave. The case was therefore placed before a Lord Ordinary who directed that it should be allowed to proceed, on the ground that it might be considered to raise a question as to whether the sheriff could competently hear the motion which he had refused. There was no argument before this court as to the question of competency and, in the circumstances, and also in view of the possible general importance of the point raised, we did not think it necessary to raise any such question for ourselves. The fact that the argument was allowed to proceed should not, however, be taken as an indication that similar cases will necessarily be considered on the same basis.

[3] In his note, the sheriff explains firstly the reasons for granting the contact order which he had made. Before granting the order, the sheriff considered submissions by parties and affidavits which had been placed before him. It is not necessary to review the material before the sheriff: it is enough to say that the sheriff thought that it was in the best interests of the child that there should be contact between him and his father. He states that "the contents of the affidavits satisfied me that he (the father) was a man who could form and maintain positive relationships with young children and that for him to have such relationship with the son would be in the child's interests." The decision, therefore, was typical of the decisions on applications for interim contact orders which sheriffs are required to make day and daily.

[4] The sheriff goes on to explain why he refused the motions for leave to appeal and for declinature. As regards refusal of leave to appeal, it is sufficient to say that the sheriff had regard to the criteria of expedition, economy and the interests of the parties in the disposal of the litigation as a whole and that he considered that the submissions which were made to him in support of the application for leave, which were that he had not applied the provisions of section 11(7) of the Children Act 1995 and that he had granted the order without having before him information which, at the first hearing he had regarded as a prerequisite, were unfounded. With regard to the latter point, it might be mentioned that the sheriff had indeed looked for information about the pursuer's standing but, it having emerged that it was unlikely that such information would be available within a reasonable time, took the view that he should deal with the question of contact ad interim. Again it is not our function in this appeal to review the sheriff's reasons, but it can be said, once again, that these are typical of the sort of considerations which have to be taken into account day and daily in applications for leave to appeal.

[5] The sheriff gives two reasons for refusing the motion that he should decline jurisdiction. The reason which he places first arises from the terms of section 27 of the Sheriff Courts (Scotland) Act 1907 and the associated Rule of Court 31.2. So far as material, section 27 provides that an appeal to the sheriff (sheriff principal) shall be competent against all final judgments of the sheriff substitute (sheriff) and also against interlocutors against which the sheriff substitute either ex proprio motu or on the motion of any party grants leave to appeal. The sheriff took that section as meaning that the legislation required that the sheriff who considered the question of granting leave to appeal should be the same sheriff as had given the decision which the party sought to appeal against. He also rejected an argument that there was a need to read that provision in the light of section 3 of the Human Rights Act 1998. The second reason for refusing the motion was that, applying the test of what would appear to an informed observer, there was no reason to believe that the impartiality of the court was impugned by having to consider whether to grant leave to appeal against a decision made by that court at first instance and, therefore, that there was no ground to think that there was any breach of Article 6. In the appeal before us, the submissions concentrated on the second reason and we propose to deal with that point first. The position is, of course, that if no ground exists for asserting that there is any breach of Article 6, the question of interpretation of section 27 of the 1907 Act does not arise.

[6] In presenting the appeal, Mr. Shead accepted that there was no ground for suggesting that there was any actual bias or lack of impartiality on the part of the sheriff. The ground put forward was that there was a lack of the necessary appearance of independence and impartiality. There was no substantial difference between Scots common law and the tests applicable under the Convention. He referred to Miller v. Dickson 2001 SCCR 741 and Hoekstra No. 2 2000 J.C. 391. Article 6.1 of the Convention, however, was not to be subsumed under some general principle of overall fairness. It set out a substantive right which a party was entitled to have respected. The question was whether a reasonably well informed observer on the public benches would have legitimate doubt as to the impartiality of the tribunal. The sheriff had reached a decision on an important matter and was being asked to hold that he should grant leave to appeal, which carried the implication that his decision was wrong. If a legitimate doubt existed, the question of how to address it was a practical question. It was the case that there were many situations in which leave to appeal was required from the judge or tribunal which had made an initial decision but there might be various ways in which the practical effects of that practice, which admittedly had existed for a long time, could be dealt with. The situation was not the same if the party had the opportunity, if leave were refused, to apply to a higher tribunal to consider whether leave should be granted. It was true that under the Convention it was not necessary that rights of appeal should exist but if rights of appeal did exist they were entitled to the protection of Article 6. The application for leave was part of the process and therefore itself subject to Article 6 so that the requirement of sufficient objective guarantees of impartiality applied. As regards the interpretation of the Sheriff Court Act, there was nothing in the Act which expressly excluded a reference to another sheriff, and even if the Act might be taken, on its face, as having that implication nevertheless in the light of section 3 of the Human Rights Act 1998 it should be read compatibly with the Convention, as was possible. Reference was made to Brown v. Stott 2001 J.C. 328 (the Lord Justice General at 332-4) and Monnell and Morris v. United Kingdom [1987] 10 E.H.R.R. 205.

[7] In reply, Mr. Ardrey adopted the sheriff's reasoning in relation to the construction of the 1907 Act and also referred to Macphail, Sheriff Court Practice 2nd edition 18.47, Dobie, Sheriff Court Practice page 225 and Dove Wilson on Sheriff Court Practice. As regards the Convention question, there was no direct authority except perhaps a reference in Bulut v. Austria [1995] 24 E.H.R.R. at paragraph 41. The framework for the consideration of the requirement of an impartial tribunal was set out in Hauschildt v. Denmark [1989] 12 EHRR 266 and it should be noted that the judgment in that case referred to ascertainable facts and objective reasons for doubting impartiality. The only suggestion brought against the sheriff's impartiality was what might be called the argument from human nature, but all judges were aware that their decisions would be likely to be scrutinised and would proceed on that basis in making them. The sheriff was protected by his independence and the informed observer would be aware of that and therefore not apprehensive that he might be affected by fear of any effect his decision might have on his own position. The sheriff's oath, his training and the judicial and legal ethos should also be taken into account. There was also the question of materiality. The issue in this case concerned the interests of a child and the observer would have to be apprehensive that the sheriff might put his own interests before those of such a child. If a sheriff made a habit of refusing leave to appeal that might give grounds for scrutinising his decisions on the basis of an inferred breach of the subjective test. In any event the grant or refusal of leave was not simply based on the issue which the sheriff had decided. Questions of the efficiency and cost of the litigation process were also involved. As appeared from in the Privy Council decision in Brown v. Stott 2001 SLT 59, there was a question of balancing public interest in such cases.

[8] Mr. Shead also referred us to the Commission decision in Porter v. The United Kingdom (1987) 54 D.R. 207 and pointed out that in Stott v. Brown the question of balancing interests did not enter into the consideration of the substantive right under Article 6.

[9] The nature of the test to be applied under Article 6 of the Convention has now been set out in a number of Scottish decisions but it is worth repeating what was said in, for example, Hauschildt v. Denmark supra. The court said at paragraph 46:

[10] At paragraph 48, the court said:

[11] This is not a criminal case, but in a case concerned with the interests of children and the rights and obligations of parents it is clearly equally important that the judicial process should enjoy the confidence of the parties. That being so, if there were a real objective basis for doubting the impartiality of the tribunal dealing with the issue, any balancing exercise which endeavoured to take into account in some way some other public interest would require to be undertaken with the greatest of care. For that reason, we doubt whether the argument that, in a case like this, there is a balancing exercise to be carried out as regards other public interests is of much weight. It is hard to see that it can rationally be stated that some public interest can be cited to justify denying the benefit of an impartial tribunal either to an accused person or to a party to a dispute of such critical importance as the welfare of a child. The Privy Council in Brown v. Stott was concerned with a different issue; although it was one which affected the fairness of the proceedings, it was not concerned with the impartiality of the tribunal itself. As a result, it would be necessary to be very cautious before accepting the observations in that case as being of direct assistance in the present case. Fortunately, it does not seem to us to be necessary to embark on that line of argument.

[12] In approaching the central question it has to be borne in mind that the Convention does not prescribe any particular form of judicial organisation and in particular does not require that there should be a right of appeal in all circumstances. In Porter v. United Kingdom, supra, the Commission said:

That expression of opinion seems to be in accordance with what is said also in Delcourt v. Belgium (1970) 1 EHRR 355 (at para. 25).

[13] In one sense, of course, the fact that an appeal is not available may serve only to throw into greater light and prominence the importance of having an impartial tribunal at first instance. The fact remains, however, that it is quite acceptable in terms of the Convention that a judge may have to make a decision against which there is no appeal. In such a situation, the judge may be expected to treat the issue with appropriate care since he knows that his decision is final. Equally, where an appeal is only competent with leave of the judge, the judge may be expected to be aware of that fact, and therefore to treat the issue appropriately when he considers the substantive point. Indeed the judge may well have in mind the question whether the case is one in which he might consider granting leave to appeal at the time of considering the substantive point. In our view, it is artificial to approach the application of the Convention, or of the "independent observer" test as if the application for leave to appeal were in some way a separate and independent proceeding. The proper view seems to us to be that, in such a situation as this, the questions committed to the judge at first instance, namely the substantive issue and the issue of permission to appeal, are so intimately linked that there can be no breach of Article 6 in having the same judge decide both questions. That would be obvious if, as sometimes happens, the judge were asked to consider whether to grant leave to appeal at the same tine as he considers the substantive issue. The fact that leave to appeal is often asked for at a later hearing does not, in our view, make a significant difference.

[14] That, in our view, is a sufficient reason to reject this appeal. It may, however, be added that, in our view, in a case like this the "independent observer" should be taken to be aware of the nature of the decision taken by the judge, the stage which the proceedings have reached and the purposes of the requirement that leave be obtained for an appeal. A decision to grant a contact order is an interim decision. It can be reviewed if circumstances change; and there is a right of appeal against the final decision, when that is made. One of the main purposes of the requirement of leave is to secure as speedy a final resolution of the dispute as is possible, in the interests of both parties and of the child. Bearing these considerations in mind, we do not think that an independent observer could conclude that there was, in the circumstances of this case, any breach of Article 6.

[15] It may be added that, particularly in a case like this, the judge who heard the substantive issue is best placed to decide whether to grant leave to appeal. The considerations which have to be taken into account in deciding whether to grant leave are, of course, wider than those relevant to the substantive issue. As we have observed, the decision to grant a contact order is an interim decision and it is important that the main proceedings should not be delayed: and there are other matters of the same kind to be taken into account, as well as the likely merits or demerits of the arguments on the substantive issue. Another judge would nevertheless require to make himself familiar with all the substantive arguments in order to decide whether to grant leave. That might give rise, in effect, to a complete rehearing of the question. While, as we have said, we do not approach this question as one of balancing some other public interest against some perceived lack of impartiality in the tribunal considering whether to grant leave, it does have to be borne in mind that a hearing before another judge could only delay the final decision as to the child's future.

[16] For these reasons, in our opinion, the sheriff was correct in rejecting the motion that he should decline jurisdiction and this appeal must fail.

[17] As regards the argument under section 27, all we find it necessary to say is that while it is obviously assumed that the sheriff who heard the main argument should normally decide the question of leave to appeal, we would be reluctant to read the section as excluding the possibility that a different sheriff might deal with the question of leave, if, for example, the first sheriff was, for one reason or another, not available to deal with it within a reasonable time.