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OUTER HOUSE, COURT OF SESSION
[2006] CSOH 172
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P1292/06
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OPINION OF LADY
PATON
in the petition of
THE PRINCIPAL
REPORTER, SCOTTISH CHILDREN'S REPORTER ADMINISTRATION
Petitioner;
for
Suspension and
suspension ad interim of a Specific
Issue Order in terms of section 11(2)(e) dated 8 June 2006 purportedly made by the
sheriff in terms of section 11 of the Children (Scotland)
Act 1995
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Petitioner: Di Rollo, Q.C.; Biggart Baillie
9 November 2006
"Relevant person" with a right of attendance at a
children's hearing
[1] A
children's hearing placed two children, namely KS (born 9 April 2000) and SM (born 9 August 2001), under a
supervision requirement in terms of section 70 of the Children (Scotland)
Act 1995. Initially, it was a condition
of supervision that the children lived with their maternal grandmother, Mrs
GM. That condition was later changed to
residence with foster carers in terms of section 73(9)(e)
of the 1995 Act. Glasgow City Council
made the necessary foster care arrangements.
[2] A
review of the children's arrangements by a children's hearing was scheduled for
11 July 2006. Prior to that hearing, the children's
maternal grandmother raised an action in Glasgow Sheriff Court in terms of
section 11 of the Children (Scotland) Act 1995, seeking residence orders,
parental rights and responsibilities, and interdict against the children being
removed from the Sheriffdom of Glasgow and Strathkelvin. The Initial Writ was served upon the
children's mother, father, and Glasgow City Council, but not upon the Principal
Reporter to the children's hearing system in Scotland
(the present petitioner) as he was not a party to the action in terms of
section 11 of the 1995 Act.
[3] The
maternal grandmother's action came before a sheriff on 8 June 2006. The children's parents attended in
person. The children's mother had legal
representation. The City Council were
also legally represented. The solicitor
for the maternal grandmother moved to amend the Initial Writ by inserting a
fourth crave in the following terms:
"To grant a
specific issue order in terms of s. 11(2)(e) of the Children (Scotland)
Act 1995 stating that the pursuer shall be considered a 'relevant person' with
a right of attendance at any children's hearing in respect of the said children
as outlined in section 45 of the Children (Scotland) Act 1995."
The motion was unopposed. The sheriff allowed the amendment, and
granted inter alia a specific issue order in the terms requested. That order prima facie gave the maternal grandmother a statutory right to
attend any children's hearing concerning KS and SM in terms of
section 45(8) of the 1995 Act.
[4] The
specific issue order came to the attention of the Principal Reporter to the
children's hearing system in Scotland. As noted above, he had not received
intimation of, nor been represented at, the sheriff court hearing on 8 June 2006. He had been unable to present any arguments
at that hearing. Specifically, he had
been unable to address the sheriff on the question whether the maternal
grandmother was truly a "relevant person" within section 93(2)(b) of the
Children (Scotland) Act, and whether she had a statutory right to attend any
children's hearing relating to KS and SM in terms of section 45(8). As the Reporter has a duty to intimate any
proposed children's hearing to a relevant person qualifying in terms of
section 93(2)(b) of the 1995 Act, the specific
issue order granted by the sheriff on 8 June 2006 obliged the Reporter to
intimate the hearing fixed for 11 July 2006 to the maternal grandmother as
a person with a statutory right to attend the hearing.
[5] The
Reporter's contention is that, on a proper construction of section 93(2)(b), the maternal grandmother does not qualify as a
"relevant person". In the circumstances,
the Reporter raised the present petition in the Court of Session, seeking
suspension and interim suspension of
the specific issue order. The averments is paragraphs 4, 5 and 6 of the petition are
in the following terms:
"4. The interlocutor
pronounced by the sheriff is as follows
GLASGOW 08 June 2006
The sheriff, on
pursuer's motion, there being no objection thereto, allows the Initial Writ to
be amended at the bar by adding a new crave four, 'To grant a specific issue
order in terms of section 11(2)(e) of the Children (Scotland) Act 1995
stating that the pursuer shall be considered a "relevant person" with a right
of attendance at any children's hearing in respect of the said children as
outlined in section 45 of the Children (Scotland) Act 1995'; having heard
the agent for the pursuer, there being no objection: Grants an order in terms of crave 4 of
the Initial Writ; grants a specific issue order in terms of
section 11(2)(e) of the Children (Scotland) Act 1995, Finds that the
pursuer shall be considered a 'relevant person' with a right of attendance at
any children's hearing in respect of the children KS (born 9 April 2000)
and SM (born 9 August 2001) as outlined in section 45 of the Children
(Scotland) Act 1995; the third named defenders having given an
undertaking not to remove the said children from Scotland before 15 July
2006, and, on joint motion, sists the cause.
A copy of the interlocutor is produced
and referred to for its whole terms which are held as incorporated.
5. The interlocutor (to the extent in italics)
is incompetent. The sheriff does not
have power under section 11 to pronounce an order declaring that a person
is a 'relevant person' under the Children (Scotland)
Act 1995. Under section 93 of the
1995 Act a 'relevant person' is either a parent enjoying parental
responsibilities or parental rights under Part 1 or any person in whom
parental responsibilities or rights are vested by, under or by virtue of the
Act or any person who appears to be a person who ordinarily has charge, or
control over, the child. [The maternal
grandmother] does not fall into any of these categories. The said order does not indicate whether a
parental responsibility is being imposed or a right given or both. In any event, the scheme of the 1995 Act is
such that the imposition of a parental responsibility and the giving of a right
are intended to be an essential prerequisite to qualifying as a 'relevant
person' and thus to entitlement to participate at the children's hearing. Participation at a hearing is not a parental
responsibility or right in itself. The
making of such an incompetent order prevents the petitioner from properly
exercising his functions under the Children (Scotland)
Act 1995 and the Children's Hearings (Scotland)
Rules 1996. Only a 'relevant person'
within the meaning of section 93 of the 1995 Act is entitled to intimation
of a children's hearing and only such a person has a right to attend (subject
to rules 11, 12 and 13 of the Children's Hearings (Scotland) Rules
1996). The said interlocutor does not
vest parental responsibilities or rights in [the maternal grandmother] under or
by virtue of the 1995 Act. She is thus
not a 'relevant person' within the meaning of section 93(2)(b) of the 1995 Act.
6. A children's hearing in respect of the
two children is fixed for 11 July
2006. The petitioner
requires to intimate the hearing to 'relevant
persons'. The petitioner does not wish
to disobey an ex facie valid decree
of the sheriff, but considers the specific issue order to be incompetent. The children's hearing is unable to perform
its functions until the matter is clarified.
The petitioner is under necessity of applying to this court for suspension
of the order and suspension ad interim. The petitioner will bring proceedings for
reduction if necessary..."
[6] The
petition was intimated to the children's parents, and to the City Council. The petition was not formally intimated to
the maternal grandmother.
[7] Mr Di Rollo on behalf of the
Reporter sought interim suspension of
the specific issue order dated 8 June
2006, and intimation and service on a shortened period of
notice. He submitted that, on proper
construction of section 93(2)(b), the maternal
grandmother did not qualify as a "relevant person". She was not a parent. She had no vested rights. She was not ordinarily in charge or control
of the children, as they were in the care of foster parents. She had no statutory right to receive intimation
of the children's hearings, nor any statutory right to attend the hearings.
[8] Mr
Di Rollo stated that the maternal grandmother had been advised by her solicitor
of the proper construction of the legislation, and was understood to have
accepted the situation. The City
Council's caveat had been honoured, and the Council had intimated by letter
dated 21 June 2006
(from The City of Edinburgh Council on their behalf) that they did not wish to
oppose the suspension order sought by the Reporter. In the circumstances, counsel invited the
court to grant the suspension order sought.
Opinion
[9] Section 93(2)(b) of the
Children (Scotland)
Act 1995 provides inter alia:
"... 'relevant person' in relation to a child means -
(a) any
parent enjoying parental responsibilities or parental rights under Part 1 of this
Act;
(b) any
person in whom parental responsibilities or rights are vested by, under or by
virtue of this Act; and
(c) any
person who appears to be a person who ordinarily (and other than by reason only
of his employment) has charge of, or control over, the child."
[10] Standing the quite specific terms of section 93(2)(b), I agree with the Reporter and with counsel acting for
the Reporter that the maternal grandmother does not qualify in terms of section 93(2)(b). I also agree that participation at a
children's hearing is not in itself a parental right or responsibility which
can properly be conferred by a court in terms of section 11 of the 1995
Act. Accordingly the Reporter is in my
view entitled to the order he seeks.
Decision
[11] I granted an interlocutor in the
following terms:
"The Lord
Ordinary, having considered the petition, and having heard counsel for the
petitioner, the caveat having been honoured, appoints the petition to be
intimated on the walls in common form; grants warrant for service of the
petition as craved, together with a copy of this interlocutor upon the parties
named and designed in the schedule annexed thereto and on the Sheriff Clerk,
Glasgow Sheriff Court, and allows them and any other party claiming an interest
to lodge Answers thereto, if so advised, within a shortened period of
7 days after such intimation and service; suspends ad interim in terms of section 11(2)(e) of the Children
(Scotland) Act 1995 the specific issue order contained in the interlocutor of
the sheriff at Glasgow dated 8 June 2006 finding that the maternal
grandmother residing at Glasgow shall be considered a 'relevant person' with a
right of attendance at any children's hearing in respect of the children KS
born 9 April 2000 and SM born 9 August 2001."
[12] For completeness, I now order intimation and service of the
petition, the interlocutor of the Court of Session referred to above, and a
copy of this opinion, to be effected upon the maternal grandmother.
