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URL: http://www.bailii.org/scot/cases/ScotCS/2003/202.html
Cite as: 2003 SCLR 742, [2003] ScotCS 202
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Glasgow City Council v. DH & Anor [2003] ScotCS 202 (17 July 2003)
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FIRST DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord President Lady Cosgrove Lord Cameron of Lochbroom
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XA61/03 XA62/03 OPINION OF THE COURT delivered by THE LORD PRESIDENT in APPEAL From the Sheriffdom of Glasgow and Strathkelvin at Glasgow in the cause GLASGOW CITY COUNCIL Applicants and Appellants; against D.H. Named Person and First Respondent; and T.H. Relevant Person and Second Respondent: _______ |
Act: J.M. Scott; Edward Bain (Applicants and Appellants)
Alt: Loudon; D. Williamson & Co., Glasgow (for D.H.): Jack; Blacklock Thorley (for T.H.): M.M. Hughes; H.B.M. Sayers (for curator ad litem)
17 July 2003
[1] These appeals are concerned with the procedure for an exclusion order which is governed by sections 76-80 of the Children (Scotland) Act 1995. These introduced a new remedy for the protection of children which differed from previous measures, in respect that the exclusion order could be applied for only at the instance of a local authority, and that it excluded a named person from the child's family home rather than requiring the child to be removed from the home. [2] Under section 76(2) the sheriff requires to be satisfied that certain conditions are met. These relate to the harm resulting from the conduct of the named person, the necessity for the protection of the child, the child's welfare being better safeguarded by the making of the order than the removal of the child from the family home, and the specification of a person capable of taking responsibility for the provision of appropriate care for the child and any other member of the family who requires such care and is, or will be, residing in the family home. Subsection (4) of section 76 empowers the sheriff to grant an interim order where he is satisfied in regard to these conditions, without the named person having been afforded an opportunity of being heard by, or represented before, the sheriff, and without the sheriff having considered any views expressed by any person on whom notice of the application requires to be served. Such an interim order is to have effect as an exclusion order pending a hearing by the sheriff under subsection (5) held within a period specified by rules made under the Act. Subsection (5), which falls to be read along with subsection (4), provides:"The sheriff shall conduct a hearing under this subsection within such period as may be specified in rules made by virtue of section 91(3)(e) of this Act, and, if satisfied at that hearing as mentioned in subsection (1) above, he may, before finally determining the application, confirm or vary the interim order, or any term or condition on which it was granted, or may recall such order".
"an interim order granted under subsection (4) above and such an order confirmed or varied under subsection (5) above and an interim order granted under subsection (6) above; except that in subsection (3) above and in section 79 of this Act, it does not include an interim order granted under subsection (4) above".
Subsection (3) of section 79 provides that the sheriff may, on the application of the local authority, the named person, an appropriate person or the spouse or partner of the named person, if that spouse or partner is not excluded from the family home and is not an appropriate person, vary or recall an exclusion order and any warrant, interdict, order or direction ancillary to the order granted or made under section 77 of the Act.
[6] It appears that concerns about the behaviour of the first respondent towards his daughters arose while he was serving in the army in Germany. He left the army in 2001 and the family moved to Edinburgh. The girls were referred to the children's hearing and the grounds of referral were held to be established following proof before a sheriff in Edinburgh on 19 December 2001. In November 2001 an exclusion order under section 76 had been obtained in Edinburgh Sheriff Court. However, that was not finally determined before the family moved to Glasgow. [7] On 5 February 2002 the appellants lodged an application in Glasgow Sheriff Court for an order excluding the first respondent from the family home in Glasgow. On that date the sheriff, in the light of the reports which had been provided, made an interim exclusion order, evidently in terms of section 76(4), and granted two interim interdicts, attaching a power of arrest. The sheriff assigned 7 February 2002 for the hearing of the application. On that date another sheriff confirmed the interim order in terms of section 76(5), and pronounced certain interim interdicts while confirming the attachment of a power of arrest. The sheriff appointed a curator ad litem to the two children, and appointed the curator to investigate and report to the court. The application was continued until 22 February 2002. [8] On that date a third sheriff (Raeburn) continued consideration of the application until 6 March 2002. The sheriff also purported to continue confirmation of the interim orders which had been granted on 7 February 2002. On 6 March 2002 Sheriff Raeburn assigned 10 June 2002 as a diet for a full evidential hearing. The diet of full hearing was subsequently discharged on a number of occasions, and was latterly fixed on 3 September 2002 for 26 November 2002. On 3 September the sheriff ex proprio motu appointed the carrying out of an assessment of the family. [9] On 26 November 2002 Sheriff Raeburn was informed that the applicant's Social Work Department had not yet completed its assessment. One of the reasons for this was said to have been lack of co-operation from the second respondent and the children. The sheriff took the view that, having regard to the delay which had occurred and the fact that section 79(1) provided that an exclusion order should cease to have effect after six months, and the fact that the children indicated concern as to the length of time which the proceedings were taking and that they were anxious to have decisions made, while desiring to resume family life, it would be an unreasonable exercise of her discretion to allow further procedure. She decided that the application should be refused. [10] The immediate sequel to this decision was that the appellants applied to another sheriff, who granted a further interim exclusion order under section 76(4), along with ancillary orders as before. In this instance the application was supported by a risk assessment of the first respondent by Pollok Social Work Office. [11] On 28 November 2002 this new application came before another sheriff (Holligan) for a hearing under section 76(5) at which the appellants and the two respondents were represented. The solicitor for the appellants invited the sheriff to confirm the interim order and to appoint a curator ad litem to the children and to assign a diet of proof. This was opposed by the solicitors who represented the two respondents, who invited the sheriff to dismiss the application on the grounds of res judicata and also on its merits. The sheriff refused the application. In his Note he states:"In my view, it is not open to the Council to recommence what is in effect exactly the same proceeding on the very day of the refusal of the remedy sought in the second set of proceedings, insisting upon yet a further interim order".
He goes on to state that he did not find it necessary to express any concluded view as to whether res judicata was the correct formulation. His view was, however, that the "third set of proceedings" amounted to an abuse of process, adding that this expression was not intended to convey anything sinister. Rather, it applied in the technical sense of the court controlling the use of its own procedure. We should, perhaps, add that in referring to the second and third set of proceedings, the sheriff treated the original proceedings in Edinburgh as the first of three.
[12] The appellants appealed both refusals to the sheriff principal, who refused them as incompetent. It is against his decisions that the present appeals come before this court. The questions for this court are as follows:1. Were the appeals to the sheriff principal competent?
2. If so, should he have held that the decision of Sheriff Raeburn on 26 November 2002, and that of Sheriff Holligan on 28 November 2002 or either of them was not well-founded?
The competence of the appeals to the sheriff principal
[13] For the appellants Mrs. Scott submitted that, in the first place, it was clear that in granting orders under section 76 a sheriff was performing a judicial function. Secondly, she drew a parallel between the provisions of sections 76-80 and the provisions for an exclusion order under the Matrimonial Homes (Family Protection) (Scotland) Act 1991, section 4, which was subject to appeal. She cited Roberton v. Roberton 1999 S.L.T. 38 as a recent example. Thirdly, in respect of the absence of any explicit procedure for appeal, the position in regard to section 76 orders was generally similar to that relating to applications to the sheriff under section 86 for orders transferring parental rights and responsibilities. In Central Regional Council v. B. 1985 S.L.T. 413 it was held, in regard to the previous provisions in the Social Work (Scotland) Act 1968, that, in the absence of any specific provision forbidding or restricting appeals, the presumption was that the ordinary rules applied in respect of a summary application. Since those rules allowed appeals, the plea to the competency of an appeal from the sheriff in that case was repelled. Mrs. Scott also relied on the fact that in section 92 of the 1995 Act, which is concerned with legal aid in respect of certain proceedings, it is provided by subsection (9) that legal aid should be available in connection with any appeal from a decision of the sheriff on an application for an exclusion order or for the variation or recall of such an order to any of the persons mentioned in certain provisions of that section. [14] Miss Loudon for the first respondent and Mr. Jack for the second submitted that the appeal was excluded by necessary implication. They founded on the lack of any explicit right of appeal such as was provided for in section 51 of the 1995 Act in respect of decisions of children's hearings and of the sheriff. They pointed out that, unlike section 86, the duration of an exclusion order was time-limited. Furthermore there was a power to vary or recall, which was not dependent, they submitted, on the existence of a change of circumstances. Section 76 to 80 produced a significantly new jurisdiction where the emphasis was on emergency measures for the protection of children. [15] We are fully satisfied that the appeals to the sheriff were competent. The authorities on which the decision in Central Regional Council v. B was based are equally applicable to the present case. In Magistrates of Portobello v. Magistrates of Edinburgh (1882) 10 R. 130 Lord Justice Clerk Moncrieff observed at page 137 that"where a well-known and recognised jurisdiction is invoked by the Legislature for the purpose of carrying out a series of provisions which are important for the public without any specific form of process being prescribed, the presumption is that the ordinary forms of that Court are to be observed in carrying out the provisions, and, indeed, generally that the court has been adopted and chosen and selected because it is seen to be advisable that the ordinary rules of such Court and the forms of its procedure shall be applied to give effect to the provisions of the legislative Act".
In Arcari v. Dunbartonshire County Council 1948 S.C. 62 Lord President Cooper adopted as the guiding principle this statement of Lord Trayner in Harper v. Inspector of Rutherglen (1903) 6 F. 23 at page 25:
"Every judgment of an inferior Court is subject to review, unless such review is excluded expressly or by necessary implication".
Each of the appeals was concerned with a final judgment on a summary application. Under sections 27 and 28 of the Sheriff Courts (Scotland) Act 1907 an appeal to the sheriff principal against the final judgment of a sheriff is competent and does not require leave.
[16] The sheriff principal appears to have been of the view that the absence of any specified appeal procedure or statutory grounds of appeal led to a number of practical difficulties. This was based on the view that the sheriff was exercising a discretion, from which it followed that the power of an appellate court to interfere was restricted. If, on the other hand, the scope for appeal was wider, it was difficult to see how the appellate court could deal with such issues without having some form of record of the evidence. He observed that the absence of any record was of itself indicative of the absence of any right of appeal, under reference to Allan & Sons Bill Posting Limited v. Edinburgh Magistrates 1909 S.C. 70, per Lord Low at pages 75-76 However, as Mrs. Scott pointed out, it is important to note that that case was not concerned with proceedings originating before the sheriff but with the sheriff's power to interfere with a local authority's licensing decision. Furthermore, as she submitted, there is nothing to prevent a record of the proceedings being provided, as is done in appeals relating to the assumption of parental responsibilities. Whether or not the decision of a sheriff is correctly to be regarded as concerned with the exercise by a discretion, this does not appear to us to call in question the existence of a right of appeal. [17] The sheriff principal, like counsel for the respondents, relied on the fact that the legislative provisions plainly envisaged questions relating to exclusion orders should be resolved without delay. In passing, we do not think that the sheriff was quite accurate referring to not only subsection (4) but also subsections (5) and (6) of section 76 as providing a procedure for "emergency" protection. However, the fact remains that it was plainly envisaged that exclusion orders should be temporary in effect. While we readily accept the correctness of that observation, which clearly points to the desirability of any appeal being taken to the sheriff principal rather than to the Court of Session, it does not in our view trench on the fundamental matter of a right of appeal. The sheriff principal also commented on the absence of any statutory provisions for the disposal of cases following appeal. However, we do not consider that this is a point of substance. We should add that we do not consider that any reliance can be placed on the existence of a power to vary or recall an exclusion order. It is plainly implied that it is not intended that a sheriff should be able to review his or her own decisions or, for that matter, the decision of another sheriff, but that he or she may be invited to take a different view in the light of a change of circumstances, including the information available to the court. It has to be borne in mind that in the exercise of the jurisdiction under section 76 the sheriff requires to have in mind not only the conditions set out in subsection (2) as providing the basis for an exclusion order but also the overarching question of the welfare of the child under section 16 of the 1995 Act, as applied by subsection (4)(b)(i). [18] The sheriff principal was aware of the terms of section 92(9) of the 1995 Act. It appears that he took the view that content could be given to that provision by appeal being regarded as competent to the Court of Session. In making that observation it appears that he relied on the fact that the Court of Session, unlike the Sheriff Court, exercises a general supervisory power over decisions of inferior courts and tribunals and administrative bodies. However, that introduces a confusion between the availability of a right of appeal and the exercise of judicial review which is of no relevance for present purposes. The provision of section 92(9) provide a strong positive indication that it was contemplated that the normal rights of appeal would exist in connection with any decision of a sheriff on an application for an exclusion order. As we have already remarked, having regard to the time-limits which affect the life of such orders, it is plainly appropriate that such an appeal should be taken to the sheriff principal rather than to the Court of Session.The decision of Sheriff Raeburn
[19] The discussion in this court came to be very much concerned with a point which is mentioned by the sheriff in the course of her Note, namely the question whether the interim exclusion order which was confirmed on 7 February 2002 had ceased to be operative and, if so, with what consequences. [20] Having regard to the width of the definition of "exclusion order" in section 76(12) it is plain that the time-limit of six months which is laid down under section 79(1) of the 1995 Act is applicable to an order which is confirmed under section 76(5). Mrs. Hughes, who appeared on behalf of the curator ad litem, argued that where, as in the present case, the parties had been proceeding with a view to the sheriff making a final determination, the time-limit should be regarded as running from such time as that final determination was made. She referred in this connection to the terms of subsection (7) of section 76. We do not consider that this interpretation is consistent with the intention which is expressed in section 76. It is important to bear in mind that an interim order which is made under subsection (4) has immediate effect as an exclusion order. In our view it would not be consistent with the legislative intention for such an order to remain in force for more than six months prior to the application reaching the stage of a final determination. In our view, therefore, the order which was confirmed on 7 February 2002 fell six months after 5 February 2002, the date on which it was made. [21] If, during its currency, that interim order was replaced by a finally determined exclusion order, it might have been correct to take the view that the latter, being a separate order, carried its own six month time-limit. This would, of course, involve that the first respondent would have been subject to exclusion for anything up to a total of 12 months. That appears to us to follow from the terms of section 76. However, that did not happen. It was not open to the sheriff to re-confirm the interim order as she purported to do on 22 February 2002 since, in our view, section 76(5) contemplates one act of confirmation, which signifies that the court is satisfied that the interim order should be so endorsed. The subsection implies that before doing so the named person has been afforded an opportunity of being heard by or represented before the sheriff and that the sheriff has considered any views expressed by any person on whom notice of the application requires to be served. In our view, it follows from the intention which is expressed in sections 76 and 79 that in the event of the interim order falling prior to final determination of the application, the application itself lapses. For the application to remain live appears to run contrary to the intention of the legislation. [22] In these circumstances we are satisfied that Sheriff Raeburn took the correct decision, but not for the reasons which she gave in her Note. If the position had been that the interim order was still live, it would have been her duty to proceed to consider the evidence with a view to deciding whether or not to make a final determination in favour of an exclusion order.The decision of Sheriff Holligan
[23] Mrs. Scott criticised his decision on a number of grounds. First, he had not appreciated that the application before him was based on new material. There was no doubt that that application was competent, although it fell to the appellants to explain to the sheriff how it came to be made. Secondly, he should not have refused the application without reaching a decision on the merits. Thirdly, he was wrong to regard this application as constituting an abuse of process. He had an overriding duty to consider the welfare of the children. [24] We have some sympathy with the attitude of Sheriff Holligan to the application. However, we consider that in a number of respects it was misconceived. First, we consider that he was wrong to treat what purported to be procedural objections as overriding his duty to deal with the application on its merits. We have no doubt that it is correct that such applications should be dealt with expeditiously. However, the appellants were faced with the fact that Sheriff Raeburn had refused the application which was before her without disposing of the merits. We should add, in parenthesis, that the same position would have obtained if she had refused or, more correctly, dismissed that application on the ground that it had fallen. It was, in our view, not justified for Sheriff Holligan to treat the application which was before him as involving some form of abuse of process. He evidently attached importance to"the principle that the party dissatisfied with the decision of a judicial officer will, in normal circumstances, have a right of appeal against that decision to an appellate body. The remedy is not to recommence the same litigation before another judge of equal competence"
and he observed:
"A dissatisfied party should not be able to re-litigate the same matter when there has been a judicial decision upon its merits".
These points do not appear to be relevant to the situation which was before him, standing that Sheriff Raeburn had refused the previous application, ostensibly in the exercise of her discretion and without hearing the application on its merits. Furthermore, it has to be borne in mind that an application for a remedy such as an exclusion order differs very significantly from ordinary civil litigation in respect that such an order is not concerned with achieving a permanent determination of rights and duties but with securing the protection of vulnerable persons in the light of information and advice which may change from time to time. Furthermore, the existence of time-limits for such orders, including at an interim stage, may make it difficult, if not impossible, for the same application to be kept in being until its final determination. Hence the need for a fresh application, which may or may not include additional supporting material.
[25] For these reasons we consider that Sheriff Holligan was wrong to regard the application before him as constituting an abuse of process. [26] In these circumstances we will allow the appellants' appeals, recall the interlocutors of the sheriff principal, remit to him to allow the appeal against the interlocutor of Sheriff Holligan and remit the application before him to proceed as accords.