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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Cunningham v. Shields [2002] ScotCS 342 (16 January 2002)
URL: http://www.bailii.org/scot/cases/ScotCS/2002/342.html
Cite as: 2002 SCLR 334, [2002] ScotCS 342
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JISCBAILII_CASE_FAMILY SCOTLAND
Cunningham v. Shields [2002] ScotCS 342 (16 January 2002)|
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord Marnoch Lord Dawson Lady Cosgrove
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XA165/01 OPINION OF THE COURT delivered by LORD MARNOCH in APPEAL From the Sheriff Principal at North Strathclyde in the cause MRS. CLAIRE CUNNINGHAM or SHIELDS Pursuer and Respondent; against NICHOLAS SHIELDS Defender and Appellant: _______ |
Act: Mrs. J. Scott; Balfour & Manson (Hunter & Roberts, Glasgow) (Pursuer and Respondent)
Alt: Miss Wylie; Digby Brown (Franchi Finnieston, Glasgow) (Defender and Appellant)
16 January 2002
[1] This is an appeal in a case in which each party sought a residence order in respect of their son but which was "triggered" by the wife's desire to further her career by taking a promoted post in Australia for a period of up to three years. Having regard to section 2(3) of the Children (Scotland) Act 1995 this meant that the wife - the pursuer in the action - had to seek a "specific issue order" allowing her to take the child to Australia, all in terms of section 11(2)(e) of the Act. The parties had separated in November 1999 and, prior to the raising of the action, the de facto position was that the child lived with his mother but generous overnight contact was given to the father both during the school week and at weekends. The child in question - David - was born on 16 April 1992 and the Sheriff's findings were generally to the effect that the de facto arrangements had worked well and that at the time of the proof the child was happy and settled. [2] Nonetheless, having heard evidence over a period of months, the Sheriff decided to grant a residence order in favour of the wife and also the specific issue order which she sought. An appeal was then taken to the Sheriff Principal which was unsuccessful, and an appeal from the Sheriff Principal has now been taken to this court. [3] We should note, for the record, that at the outset of the hearing before us counsel for the appellant moved us to remit the matter back to the Sheriff in the light of what were alleged to be certain changes in the circumstances of the parties. That motion was refused in hoc statu and, instead, the court proceeded to hear the appeal on one of the grounds tabled insofar as it, also, could have resulted in some form of remit to the Sheriff. That ground was in the following terms:"5. The learned Sheriff failed to consider giving the child an opportunity to indicate if he wished to express his views and in any event failed to consider the child's own interest in a matter concerning his future all in terms of section 11(7)(b) of the Children (Scotland) Act 1995, and article 8 of the European Convention on Human Rights and articles 9 and 12 of the United Nations Conventions on the Rights of the Child; the learned Sheriff Principal erred in his conclusion that such failure by the Sheriff was not a fundamental error."
"It is a remarkable feature of the Sheriff's note...(and in my view a defect in it) that no mention whatsoever is there made of what consideration if any was given by him to the possibility of ascertaining David's views."
The Sheriff Principal also commented that he, himself, would have had to be "actively dissuaded" from seeking these views. However, he then went on to refuse the appeal on this ground on the view that before he could hold the Sheriff to have clearly erred in this respect he, the Sheriff Principal,
"would have to be satisfied that no Sheriff acting reasonably in the circumstances prevailing at the proof could have refrained from seeking the views of an 8 year old child on the question whether he should go away to Australia for 3 years."
"Article 12
(1) States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
(2) For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law."
The United Kingdom became a signatory to the United Nations Convention on 16 December 1991 and it was not in dispute that the Convention could be used as an aid to construction of the domestic legislation which later sought to implement it and which, for present purposes, is to be found in section 11(7)(b) of the Children (Scotland) Act 1995. The relevant provisions are as follows:
"11(7) ...in considering whether or not to make an order...and what order to make, the court -
(b) taking account of the child's age and maturity, shall so far as
practicable -
(i) give him an opportunity to indicate whether he wishes to
express his views;
(ii) if he does so wish, give him an opportunity to express them;
and
(iii) have regard to such views as he may express."
It will be seen at once that this piece of legislation conflates in a rather unsatisfactory manner the provisions of Article 12 of the United Nations Convention.
[7] The history of the litigation, again only so far as relevant for present purposes, is that the action was raised in November 1999 when the child was 71/2 years old. At that time intimation to the child by way of Form F9 in terms of OCR 33.7(1)(h) was dispensed with as "inappropriate" in accordance with OCR 33.7(7). The only reason given in the Initial Writ was that "In view of the age of said child, no purpose would be served by ordering intimation...upon him." Shortly thereafter, on 2 December 1999, a notice of intention to defend was lodged on behalf of the defender and this, again, sought dispensation of intimation on account of "the child's age". However, there appears to have been no further interlocutor dispensing with intimation issued at that stage. It should, perhaps, also be noted that a child welfare hearing was set down for 12 May 2000 but no question of ascertaining the views of the child was raised then or later. On 11 August 2000 a motion by the defender for, inter alia, the appointment of a curator ad litem was refused but history does not relate what reasons, if any, were advanced to the Sheriff for or against such an appointment nor what considerations weighed with the Sheriff in refusing it. As the Sheriff Principal points out, one possible explanation may have been the proximity of the proof diet assigned for 30 August and 1 September 2000. The proof, however, was not concluded at that diet and a further four days were required the following January with a hearing on evidence taking place on 2 February 2001. Judgment was eventually issued by the Sheriff on 18 May 2001 by which time, of course, the child in question had progressed from 71/2 years of age to past 9 years of age. [8] Against the foregoing background Miss Wylie, for the appellant, advanced two main submissions. First, she submitted that in light of Article 12 of the United Nations Convention the proper interpretation of section 11(7)(b) of the Children (Scotland) Act 1995 was that the child's age and maturity should only be taken into account for purposes of assessing what weight should be attached to a child's views and that, as regards giving a child the initial "opportunity" to express his views, the only test was one of practicability. If she was wrong about that, her second submission was to the effect that, on any view of the legislation, at the time of making the relevant order the Sheriff was obliged to exercise a discretion as to whether, and, if so, how, an opportunity should be given to the child to express his views assuming, of course, that such an opportunity had not earlier been given to him. As to this last matter she further submitted - in our view correctly - that the Sheriff Principal fell into error in adopting the approach which he did in that the child had an absolute right to an exercise of the discretion in question, and it was insufficient to say that some Sheriff or Sheriffs might, hypothetically, have exercised that discretion in a manner unhelpful to the child. [9] In reply, Mrs. Scott's primary submission, for the respondent, was to the effect that the principal method whereby the court complied with the requirements of section 11(7)(b) of the 1995 Act was by way of intimation in terms of OCR 33.7(1)(h) and Form F9. Accordingly, where intimation was dispensed with as "inappropriate" under sub-paragraph (7) of the same Rule, it was unnecessary for the Sheriff again to consider the matter unless it "came up" in some way at a later stage or, as Mrs. Scott eventually conceded, unless there had been a material change of circumstances in the interim. Mrs. Scott further accepted that a material change of circumstances could occur as a result of the passage of time and that the increasing maturity of the child might constitute just such a change. As a "fall-back" position Mrs. Scott referred us to various passages in the evidence - in particular, perhaps, at pp. 336-337 of the Appendix - where, according to the pursuer, the child had reacted favourably to the idea of moving to Australia. In our opinion, however, the existence of that evidence cannot take the place of a proper enquiry into the matter of the child's own views, and we are all the more firmly of that view bearing in mind that no reference whatever is made by the Sheriff to the evidence in question. [10] On any view of the submissions made to us in this case it seems to us that by the close of the evidence or, even later, by the time of his decision, the Sheriff did fall into error by failing to ascertain whether David wished to be heard on the matter of whether or not he should go to Australia. By that stage, as we have pointed out, the child was around 9 years of age and the question at issue was a clearly focused one. Even if Mrs. Scott were correct in the approach which she urged on us, we consider that the lapse of time between intimation being dispensed with and the decision being taken was such as, at least in this case, to amount to a material change in circumstances. In this connection, it is, we think, clear from the opening wording of section 11(7) of the 1995 Act that the court must discharge its duty under sub-paragraph (b) at the time the relevant order is made; and it is also, we think, clear that the court must, if necessary, discharge that duty ex proprio motu. We note, moreover, that this was also the Sheriff Principal's view of the statutory provisions in question. [11] What we have said so far is enough for a decision in this case. We would add, however, that we are inclined to the view that Miss Wylie was correct in her primary submission and that, so far as affording a child the opportunity to make known his views, the only proper and relevant test is one of practicability. Of course how a child should be given such an opportunity will depend on the circumstances of each case and, in particular, on his or her age. At one extreme, intimation in terms of Form F9 may be appropriate whereas, at the other extreme, a much less formal method will be appropriate. Seeing a child in chambers is, of course, always open to the court but, in the case of a very young child, we do not discount the possibility that his or her views, or the lack of them, could properly be made known to the court through the agency of, for example, a private individual who is well known to the child or perhaps by a child psychologist. But, if, by one method or another, it is "practicable" to give a child the opportunity of expressing his views, then, in our view, the only safe course is to employ that method. What weight is thereafter given to such views as may be expressed is, of course, an entirely different matter. It follows that we do not agree with Mrs. Scott's contention that the formal process of intimation in terms of Form F9 should necessarily be seen as the principal mode of compliance with section 11(7)(b). In particular, where younger children are involved or where there is a risk of upsetting the child, other methods may well be preferable. We emphasise that the duty on the court to comply with the provisions of section 11(7)(b) is one which continues until the relevant order is made and the fact that formal intimation may have been dispensed with as "inappropriate" in no way relieves the court of complying with that continuing duty. [12] It only remains to add, for the sake of completeness, that, in advance of issuing the present Opinion, the court was able to intimate to parties its decision on the ground of appeal in question. That having been done, a Report regarding the views of the child (which another Division of this court had earlier ordered should be obtained and held in retentis) was, of consent of parties, opened up. The conclusion of that Report was that the child did not wish to go to Australia. In that situation, while Mrs. Scott sought, on behalf of her client, to preserve the residence order in her favour, it was agreed that the appeal should otherwise be allowed. Since, however, it was apparent that neither the Sheriff nor the Sheriff Principal would have granted the residence order in the pursuer's favour independently of the specific issue order this court allowed the appeal without reservation and recalled the interlocutors of the Sheriff and Sheriff Principal in their entirety. Because the appellant and his representatives had, themselves, taken no steps to have the child's views ascertained by the Sheriff it was decided that each party should bear their own expenses of the whole action, both here and in the courts below.