Scottish Court of Session Decisions

Petitioner: Di Rollo, QC; Biggart Baillie, LLP

Respondent: Stirling; Drummond Miller

30 June 2009

[1] This petition called before me in the Vacation Court on 27 March 2009.

[2] The petition is by the Reporter to the Children's Panel seeking suspension and suspension ad interim of an interlocutor of the Sheriff dated 26 October 2006. That interlocutor was pronounced in a case in which the present respondent, MK, seeks an order for full parental rights and responsibilities in relation to LRK, his daughter. MK is not now and never has been married to the child's mother and his name is not on the birth certificate. Therefore, in terms of Section 3(1)(b) of the Children (Scotland) Act 1995, MK does not have parental rights and responsibilities in respect of his daughter.

[3] On 27 October 2006 an interlocutor in the following terms was pronounced:-

"The Sheriff having heard the curator ad litem and agents for both parties grants the pursuer's motion No 7-2 in part conjoined by the curator ad litem despite defender's opposition and in terms thereof grants the pursuer parental rights and responsibilities to the extent that he becomes a relevant person in the Children's Referral relating to the child LRK born 6 May 2002; continues interim contact previously granted; assigns 9 January 2007 as a child welfare hearing to monitor contacts".

[4] Thereafter MK was invited by the petitioner to attend various hearings of the Children's Panel. On 19 January 2009 the Panel took decisions to continue a supervision requirement; maintain non-disclosure of the child's address to MK; and to maintain a condition of MK having no contact with the child, with which MK disagrees and he has purported to appeal. The appeal was continued to 2 April 2009. The Reporter's position now is that the interlocutor pronounced on 27 October 2006 is incompetent. I was advised by counsel that no explanation can be given by the Reporter for the fact that he had previously thought that the interlocutor was competent and had acted on it by inviting MK to attend Children's Hearings. His position now is that the interlocutor is incompetent as MK cannot be made a relevant person if he does not have parental rights and responsibilities. Thus the reporter seeks suspension of the interlocutor because if he is correct that MK has no parental rights or responsibilities he therefore has no locus to attend the Children's Hearing and therefore no locus to appeal. Section 51(1) Children (Scotland) Act 1995 provides that an appeal maybe taken to the Sheriff against the decision of a Children's Hearing by a child or a relevant person as defined by Section 93(2) of the Act. MK is neither.

[5] Ms Stirling who appeared on behalf of MK submitted firstly that the Reporter had no title nor interest to raise the current petition. She submitted that the Reporter had simply an administrative role. It was his duty to arrange Children's Hearings and to put in place the administrative arrangements for inviting those who should attend. That did not mean that he had title and interest to sue in the present case. Ms Stirling then argued that the interlocutor had been implemented and therefore could not be suspended. In support of her argument counsel referred to the case of Bruce v British Motor Trading Corporation Limited 1924 S.C. 908.

[6] Ms Stirling then argued that in any event the interlocutor is not incompetent. She argued that Sections 1 and 2 of the Children (Scotland) Act 1995 set out respectively the responsibilities and rights which are known as parental rights and responsibilities. Ms Stirling drew my attention to Section 1(1a) which refers to the responsibility to safe guard and promote the child's health development and welfare and to Section 1(1d) which refers to acting as the child's legal representatives. I understood her to argue that the respondent had parental rights under those subsections in light of Sheriff Totten's interlocutor.

[7] Mr Di Rollo on the other hand argued that Section 93(2) of the Act defines who is a relevant person thus:

"(a) Any parent enjoying parental responsibilities or parental rights under Part 1 of this Act;

(b) Any person whom parental responsibilities or rights are vested in 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 employment has charge of or control over the child."

Mr Di Rollo argued that MK did not qualify under any of those three definitions.

[8] Mr Di Rollo pointed out that MK had had interim contact with his child but that that was no longer subsisting, a condition of no contact having been put in place by the Children's Hearing at a hearing held before 19 January 2009, that date being the date of the decision against which MK purported to appeal. He argued that none of the parental rights and responsibilities made reference to by Ms Stirling are rights to attend a Children's Hearing. He referred me to the case of Principal Reporter, Petitioner 2006 SLT 1090 in which a grandmother who was found not qualified in terms of Section 93 was denied participation in a Children's Hearing. Lady Paton found that participation in 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.

[9] Ms Stirling invited me to construe the legislation in light of the Human Rights Act 1998 and to find that MK's rights both to family life and to a fair determination of his civil rights were being denied if he was not able to attend. She made reference to the Sheriff Court case of S. v Authority Reporter, Edinburgh 2008 Fam LR 84 in which Sheriff Stoddart found that an unmarried father was a relevant person in terms of the legislation because he was enjoying a parental right and responsibility of contact, an interim order for contact having been pronounced.

[10] I took the view in this case that the interim suspension should be granted. I did not accept the submission that the Reporter had no title or interest. It seemed to me clear that when a child is subject to a supervision requirement the Reporter has title and interest in a petition brought to regulate rights of appeal against Children's Hearing decisions. This is an area of the law regulated by statute and I did not find analogy with other areas of law helpful. MK was not in terms of the legislation a person with parental rights and responsibilities and was not a person with control of the child. He was therefore not a relevant person. It seemed to me that the Sheriff had acted in error in endeavouring to pronounce an interlocutor apparently giving him as a parental right the ability to attend a Children's Hearing. It seemed to me that it was rather the other way around; those who had parental rights and responsibilities were entitled to attend Children's Hearings but those who did not could not obtain that as a free-standing right. I agreed with Lady Paton. I distinguished the case decided by Sheriff Stoddart (S. v Authority Reporter, Edinburgh) on the basis that in that case the unmarried father was exercising the right and responsibility of contact. In this case he was not.

[11] Having made my decision and having given an ex tempore judgment, leave to reclaim was sought. Counsel submitted that this matter was a matter of controversy and that there were conflicting decisions. She submitted that the argument about title to sue would be renewed and that it was clear that the reporter was a third party and therefore not someone who had title to sue. She submitted that the only cases in which a third party has been found to have title and interest to suspend an interlocutor have been special cases, where for example the third party has insured one of the parties, as in Doherty v Norwich Union Fire Insurance Society Ltd 1975 S.L.T. 41, or had been not of age at the date of the action, as in Earl of Craven v Lord Elibank's Trs. 1854 16D. 811; Grieve v Burns 1871 9M 582. She argued that the reporter was personally barred from changing his mind about his position.

[12] She further argued that the question of an unmarried father obtaining parental rights and responsibilities has been the subject of conflicting decisions. She referred to S. v Authority Reporter 2008 Fam LR 84 and Children's Reporter v D. 2008 S.L.T. (Sh.Ct.) 21. Ms Stirling further submitted that there have been a number of cases in which Sheriffs have been asked to grant orders enabling "unmarried fathers" to attend Children's Hearings and that there are conflicting decisions, namely T. v A. 2001 SCLR 647; P. v P. 1999 S.C.L.R. 679 and 2000 S.L.T. 781; Greenhorn v Hamilton unreported 2 March 1999 Glasgow Sheriff Court, Sheriff Kerr.

[13] Counsel then submitted that "unmarried fathers" are unlawfully discriminated against. "Married fathers" are relevant persons. Ms Stirling submitted that difference in treatment based on marital status was unlawful, Family Law (Scotland) Act 2006, Sections 28 and 29, and in Re G. (Adoption: Unmarried Couple) 2008 W.L.R. 76. Further, "unmarried fathers" are discriminated against on the basis of gender, as an unmarried mother is a relevant person.

[14] In relation to her earlier argument about personal bar, Ms Stirling referred me to the case of Cameron v Gibson 2006 S.C. 283. I was not persuaded that the Reporter does not have title and interest.

[15] The Reporter did not appear at the hearing on leave to reclaim.

[16] In light of the apparently conflicting decisions in the Sheriff Court, I granted leave to appeal.