EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Kingarth Lord Clarke Lord Mackay of Drumadoon	[2010] CSIH 45 XA160/08& XA86/09 OPINION OF THE COURT delivered by LORD KINGARTH in appeal by ELIZABETH KNOX, Authority Reporter Appellant; against S Respondent: and THE RIGHT HONOURABLE ELISH ANGIOLINI, Q.C., Lord Advocate Minuter: And in appeal by L Appellant; against NORMA RITCHIE, Authority Reporter Respondent And THE RIGHT HONOURABLE ELISH ANGIOLINI, Q.C., Lord Advocate, Minuter: _______

Act (for S & L): Hajducki Q.C. et Louden; Thorley Stephenson SSC

Alt (for Authority Reporters): Wise Q.C. et Brabender; Biggart Baillie LLP

(for Minuter): Johnston Q.C. et Dunlop; Scottish Government Legal Directorate

26 May 2010

Introduction

[1] These two appeals, brought by way of stated case, give rise to the same question -whether on a proper construction of the Children (Scotland) Act 1995 ("the 1995 Act") an unmarried father with a contact order in his favour in respect of his child is a "relevant person" in terms of section 93(2)(b), with consequent important procedural rights in respect of a Children's Hearing held in relation to that child.

Factual background in the case of S

[2] S is the unmarried father of a male child TQ who was born on 22 May 2007. He has been acknowledged as such by the child's mother, and the child bears his surname. He has, however, never lived with TQ's mother and is not named on the child's birth certificate. Nevertheless he had contact with the child on three occasions, in May and June 2007, the last such occasion being on 26 June 2007.

[3] On 21 February 2008 S was granted a contact order in Edinburgh Sheriff Court in the course of an action in which he applied for (1) declarator of paternity, (2) an award of parental rights and responsibilities in terms of section 11(2)(b) of the 1995 Act and (3) a contact order under section 11(2)(d) of the said Act. The action was brought at his instance against the mother of the child. By the time of the hearing before the sheriff contact was no longer opposed by her. The relevant interlocutor was in the following terms:

"The sheriff, on parties' joint motion, makes a contact order ad interim in favour of the pursuer entitling him to contact with the child [TQ] each week for a period of one hour, at Lothian Mediation Contact Centre, dates and times to be determined by the contact centre; thereafter continues today's Child Welfare Hearing until 17 April 2008 at 2pm within the Sheriff Courthouse, 27 Chambers Street, Edinburgh".

[4] TQ had been subject to grounds of referral by the Children's Hearing in January 2008 on the basis of an alleged lack of parental care by his mother and the said grounds were held established by the sheriff on 8 February 2008. It is S's position that he was not aware of this having happened.

[5] On 19 March 2008, prior to any contact being exercised in accordance with the sheriff's interlocutor, a Children's Hearing in Edinburgh, in knowledge of the Sheriff Court contact order, made a supervision requirement in terms of section 70 of the 1995 Act, and in particular resolved that S should have no contact with TQ. S was not notified of, nor invited to attend, the hearing. Nor was he provided with any papers in relation thereto, and the hearing proceeded in his absence on the basis that he was not a "relevant person" within the meaning of section 93(2) of the Act.

[6] On hearing of that decision S applied to the Sheriff Court in terms of section 11(1)(a) of the 1995 Act for an interim award of parental rights and responsibilities "to safeguard and to promote the child's health, development and welfare", but said application was, on 7 April 2008, refused by the sheriff who, in the knowledge of the decision by the Children's Hearing, indicated that he could not be satisfied that the granting of the motion could be justified having regard to the terms of section 11(7) of the Act.

[7] S appealed in terms of section 51(1) of the 1995 Act against the decision of the Children's Hearing of 19 March 2008, and in particular the decision to refuse him the status of a "relevant person". The sheriff allowed the appeal. He held that, applying the ordinary canons of statutory construction, S was a relevant person within the meaning of section 93(2)(b)(a) of the 1995 Act (in particular being a "parent enjoying parental responsibilities or parental rights under Part 1 of this Act"). The sheriff further held that if he was wrong about that, a Convention compliant reading of the Act would require S to be treated as such a "relevant person". The Reporter now appeals to this court by way of Stated Case.

[8] The questions of law for the opinion of the court are as follows:

"(1) Did I err in law by rejecting the appellant's argument that the respondent had no right of appeal to me and by refusing to dismiss that appeal as incompetent?

(2) Did I err in law by holding that the granting of an interim contact order under section 11(2)(d) of the 1995 Act of itself resulted in the respondent 'enjoying parental responsibilities and parental rights' under Part I of the Act?

(3) Did I err in law in holding that the respondent was a 'relevant person' in terms of section 93(2)(b) of the 1995 Act?".

Factual background in the case of L

[9] L is the unmarried father of MF who was born on 9 February 1999. He is named as such on the birth certificate and is admitted to be the father by the child's

mother. Regular contact between L and MF took place prior to 12 April 2002, when, at Edinburgh Sheriff Court, L was granted a contact order in terms of section 11(2)(d) of the 1995 Act. Said order was pronounced when the sheriff interponed authority to a Joint Minute settling an action by L against MF's mother. In that action L sought a residence order, which failing, contact. The terms of the interlocutor were as follows:

"The sheriff, on joint motion, discharges today's Continued Options Hearing, allows joint minute to be received at the Bar of court and to form No.12 of process, interpones authority of court thereto and in terms thereof finds the pursuer entitled to contact with the child (MF) every second weekend from 12pm on Saturday until 12pm on Sunday; quoad ultra dismisses the remaining craves of the Initial Writ and finds no expenses due to or by either party".

[10] From that date onwards L exercised said contact with MF on a regular basis for a period of more than 6 years, until contact ceased at the instance of the mother in May 2008.

[11] On 9 October 2008 the Children's Panel, following a referral under section 65, made a supervision order in terms of section 70 of the 1995 Act, a condition of which was that L should have no contact with MF. Said decision was based upon certain grounds having been established or admitted. L was informed prior to the said hearing that it was to take place and he was invited to attend, but he was told by the Reporter that he was not to be given "relevant person" status. Accordingly he was not supplied with papers, including the grounds of referral and relevant reports in connection therewith. He was only allowed to attend parts of the said hearing at the discretion of the Chairman in terms of rule 13(d) of the Children's Hearing (Scotland) Rules 1996, and was excluded therefrom when the grounds of referral were read out and discussed, and was not asked to respond to, dispute or challenge any of the said grounds. He has not been given reasons for the decision that there should be no contact between him and MF.

[12] L appealed to the Sheriff Court at Perth against the decision of the Children's Hearing of 9 October 2008, and in particular challenged the decision of the Hearing

not to afford him relevant person status. The sheriff refused the appeal. He held that L was not a relevant person within the meaning of section 93(2)(b) of the 1995 Act, and that such an interpretation was not incompatible with L's Article 6 and 8 rights under the Convention. L now appeals against that decision to this court.

[13] The questions posed by the sheriff for the opinion of the court are:

"(1) Did I err in law in dismissing the appeal by the appellant as incompetent on the ground that the appellant did not meet the test of who has the right to appeal to the sheriff under section 51 of the Children (Scotland) Act 1995?

(2) Did I err in law in not holding that the granting of a contact order under section 11(2)(d) of the Children (Scotland) Act 1995 of itself resulted in the appellant enjoying parental responsibilities or parental rights in terms of the said Act of 1995 for the purpose of section 93(2)(b) of that Act?

(3) Accordingly, did I err in law in not finding the appellant to be a 'relevant person' in terms of section 93(2)(b) of the Children (Scotland) Act 1995?".

Legislative Framework

[14] The 1995 Act is divided into four parts. These appeals concern the inter-relationship of Part I, which concerns the private rights of persons, including parents and children, with Part II, which provides for local authority intervention in the care of children, including the determination of matters by Children's Hearings.

[15] Part I commences with general provisions about parental responsibilities and rights; phraseology, it has been said, designed to promote a move away from the common law concepts of tutory and custody of, and access to, children. Thus, section 1(1) provides that "a parent" has, in relation to his child, the responsibility:

"(a) to safeguard and promote the child's health, development and welfare;

(b) to provide, in a manner appropriate to the stage of development of the child -

(i) direction;

(ii) guidance,

to the child;

(c) if the child is not living with the parent, to maintain personal relations and direct contact with the child on a regular basis; and

(d) to act as the child's legal representative....."

"Parental responsibilities" are defined as the matters referred to in sub-sections (a) to (d) and the child has the right to sue in respect of them (section 1(3)).

[16] Section 2(1) provides that a parent, "in order to enable him to fulfil his parental responsibilities", has the right:

"(a) to have the child living with him or otherwise to regulate the child's residence;

(b) to control, direct or guide....the child's upbringing;

(c) if the child is not living with him, to maintain personal relations and direct contact with the child on a regular basis; and

(d) to act as the child's legal representative".

The rights referred to in (a) to (d) are the defined parental rights and a parent is entitled to sue in respect of them (section 2(4)). Where two or more persons have a parental right, each may exercise that right without the consent of the other, in the absence of a decree or deed regulating that exercise (section 2(2)).

[17] Section 1 refers to a "parent" having responsibilities, and this word is defined as meaning "generic parent" (section 15(1)). But section 3 specifies who is to have parental responsibilities and rights. A mother has such responsibilities and rights (section 3(1)(a)) but, in terms of the section as originally enacted, a father only had such responsibilities and rights if married to the mother at the time of the child's conception or subsequently (section 3(1)(b)). This limited category of fathers was expanded to include any father registered as such on the child's birth certificate (section 3(1)(b)(ii)), but only when the child was born after 4 May 2006 (Family Law (Scotland) Act 2006 (section 23)). However, a mother with parental rights and a father without them can agree that the father should have such rights (section 4(1)).

[18] The Act expressly provides (section 3(4)) that:

"The fact that a person has parental responsibilities or parental rights...shall not entitle that person to act in any way which would be incompatible with any court order..., or with any supervision requirement made under section 70....".

[19] A court has the power to make such orders "as it thinks fit" in relation inter alia to parental responsibilities and rights (section 11). In particular, the section, so far as relevant, provides:

"11. Court orders relating to parental responsibilities etc.

(1) In the relevant circumstances in proceedings in the Court of Session or sheriff court, whether those proceedings are or are not independent of any other action, an order may be made under this subsection in relation to -

(a) parental responsibilities;

(b) parental rights;

(c) guardianship; or

(d) subject to section 14(1) and (2) of this Act, the administration of a child's property.

(2) The court may make such order under subsection (1) above as it thinks fit; and without prejudice to the generality of that subsection may in particular so make any of the following orders -

(a) an order depriving a person of some or all of his parental responsibilities or parental rights in relation to a child;

(b) an order -

(i) imposing upon a person (provided he is at least sixteen years of age or is a parent of the child) such responsibilities; and

(ii) giving that person such rights;

(c) an order regulating the arrangements as to -

(i) with whom; or

(ii) if with different persons alternately or periodically, with whom during what periods,

a child under the age of sixteen years is to live (any such order being known as a 'residence order');

(d) an order regulating the arrangements for maintaining personal relations and direct contact between a child under that age and a person with whom the child is not, or will not be, living (any such order being known as a 'contact order');

(e) an order regulating any specific question which has arisen, or may arise, in connection with any of the matters mentioned in paragraphs (a) to (d) of subsection (1) of this section (any such order being known as a 'specific issue order');

(f) an interdict prohibiting the taking of any step of a kind specified in the interdict in the full filment of parental responsibilities or the exercise of parental rights relating to a child or in the administration of a child's property;

(g) an order appointing a judicial factor to manage a child's property or remitting the matter to the Accountant of Court to report on suitable arrangements for the future management of the property; or

(h) an order appointing or removing a person as guardian of the child.

(3) The relevant circumstances mentioned in subsection (1) above are -

(a) that application for an order under that subsection is made by a person who -

(i) not having, and never having had, parental responsibilities or parental rights in relation to the child, claims an interest;

(ii) has parental responsibilities or parental rights in relation to the child;

(aa) that application for a contact order is made with the leave of the court by a person whose parental responsibilities or parental rights in relation to the child were extinguished on the making of an adoption order;

(ab) that application for an order under subsection (1) above (other than a contact order) is made by a person who has had, but for a reason other than is mentioned in subsection (4) below, no longer has, parental responsibilities or parental rights in relation to the child;

(b) that although no application for an order under subsection (1) has been made, the court (even if it declines to make any other order) considers it should make such an order.

(4) The reasons referred to in subsection (3)(ab) above are that the parental responsibilities or parental rights have been -

(a) extinguished on the making of an adoption order;

......

(5) In subsection (3)(a) and (ab) above 'person' includes (without prejudice to the generality of that subsection) the child concerned; but it does not include a local authority.

......

(7) Subject to subsection (8) below, in considering whether or not to make an order under subsection (1) above and what order to make, the court -

(a) shall regard the welfare of the child concerned as its paramount consideration and shall not make any such order unless it considers that it would be better for the child that the order be made than that none should be made at all; and

(b) taking account of the child's age and maturity, shall so far as practicable -

(i) give him a 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.

......

(11) An order under subsection (1) above shall have the effect of depriving a person of a parental responsibility or parental right only in so far as the order expressly so provides and only to the extent necessary to give effect to the order; but in making any such order as is mentioned in paragraph (a) or (b) of subsection (2) above the court may revoke any agreement which, in relation to the child concerned, has effect by virtue of section 4(2) or 4A(2) of this Act.

(12) Where the court makes a residence order which requires that a child live with a person who, immediately before the order is made does not have in relation to the child all the parental responsibilities mentioned in paragraphs (a), (b) and (d) of section 1(1), and the parental rights mentioned in paragraphs (b) and (d) of section 2(1), of this Act (those which he does not so have being in this subsection referred to as the 'relevant responsibilities and rights') that person shall, subject to the provisions of the order or of any other order made under subsection (1) above, have the relevant responsibilities and rights while the residence order remains in force.

(13) Any reference in this section to an order includes a reference to an interim order or to an order varying or discharging an order"

[20] Part II of the Act provides (section 16) for the same three considerations as are referred to in section 11(7), commonly referred to as the "three overarching principles" of welfare, minimum intervention and consultation, to be taken into account when a Children's Hearing or a court is determining whether, in terms of section 52, a child requires compulsory measures of supervision. A local Reporter will refer any child whom he thinks is in need of these measures to a Children's Hearing (section 65(1)). Prior to the hearing a "business meeting" may be arranged before which the Reporter must give notice to the child and any relevant person of the arrangements, of the matters to be discussed and of their rights to make their views known (section 64(1)). The child has a right, and is under an obligation, to attend the hearing (section 45(1)). The Act provides, section 45(8), that a person who is a relevant person also has that right and is under that obligation (subject to the right of the hearing to exclude that person from any part or parts of the hearing in the interests of the child, provided the substance of what has taken place is later explained - section 46). It is the duty of the Chairman of the Hearing to explain the grounds for referral to the child and any relevant person (section 65(4)). The child and any relevant person have a right of appeal to the sheriff against a decision taken by the Hearing (section 51(1)).

[21] The interpretation section for Part II of the Act (section 93) provides (in subsection (2)(b)) that, for the purposes of Chapters 2 and 3 of that Part,

"'relevant person' in relation to a child means -

(a) any parent enjoying parental responsibilities or parental rights under Part I 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".

This is supplemented by section 103(1) whereby any reference "to a person having, or to there being vested in them, parental responsibilities or parental rights shall, unless the context otherwise requires, be construed as a reference to his having, or there being so vested, any of those rights or as the case may be responsibilities".

[22] The Children's Hearings (Scotland) Rules 1996 ("the 1996 Rules") make further provision for procedural rights in favour of relevant persons. Where the principal Reporter arranges a business meeting preparatory to the constitution of a Children's Hearing, due notice is to be given in writing to any relevant person that the meeting has been arranged and of the date on which it is to be held, together with notice of the matters referred to the business meeting for determination, a copy of any documents or information relevant to these matters and a copy of the grounds of referral in the case of a child. When such notice is given relevant persons are to be informed of their entitlement to make their views on the matters to be considered by the business meeting known to the principal Reporter (Rule 4(3) and (4)). The principal Reporter is required to give notice in writing to a relevant person in relation to a child whose case is to be considered at a Children's Hearing of the right and obligation to attend at all stages of the hearing and of the date, time and place of the Hearing, (unless it would be unreasonable to require the attendance of the relevant person or his attendance would be unnecessary for proper consideration of the case) (Rule 7(1) and (2)). Where the principal Reporter arranges a Children's Hearing under section 65(1) of the Act he is required, not less than 7 days before the date of

the Hearing, to give a copy of the statement of the grounds of referral to each relevant person whose whereabouts are known (rule 18). Where the principal Reporter arranges any Children's Hearing he is required to make available to each relevant person all documents made available to the Chairman and members of the Hearing (rule 5(3)). A relevant person may be represented at the Hearing (rule 11). In proceeding with the case the Children's Hearing require to discuss it with any relevant person attending and to endeavour to obtain their views. The Chairman is required to inform any relevant person of the substance of any reports and documents which appear to him to be material (rule 20(3) and (4)). Before the conclusion of the hearing at which a decision is made, the Chairman is required to inform the relevant person of the decision and the reasons for it, and of his right to appeal to the sheriff and as soon as practicable thereafter the principal Reporter is required to send to any relevant person notice of the decision and a copy of the statement of reasons for it (rules 20(5) and 21(1)).

[23] Certain rights are afforded also to persons who do not qualify as relevant persons. Any father of a child whose case is to be considered at a Children's Hearing and who is living with the mother of the child is entitled to attend all stages of the Children's Hearing, and to have material documents made available to him (rules 5(3)(b) and rule 12)). In addition, rule 13 (under and by reference to section 43(1) of the Act) makes provision for the Chairman of the Children's Hearing to allow certain persons to attend, including:

"(d) any other person whose presence at the hearing may in the opinion of the Chairman be justified by special circumstances".

Submissions on behalf of the Authority Reporters

[24] In the first place, applying the ordinary canons of statutory construction, unmarried fathers with contact orders under section 11(2)(d) could not be said to be either parents enjoying parental responsibilities or parental rights under Part I of the Act, or persons in whom parental responsibilities or rights were vested under or by virtue of the Act. In accordance with section 2 of the Act, parental rights, properly so called, existed only to enable parental responsibilities in relation to a child to be fulfilled. A clear distinction was drawn in section 11 between, on the one hand, orders imposing upon a person parental responsibilities or giving a person parental rights (section 2(b)) and, on the other hand, orders simply regulating the arrangements with whom a child was to live (residence orders under section 11(2)(c)), and orders simply regulating the arrangements for maintaining personal relations and direct contact (contact orders under section 11(2)(d)). It was clear, further, that certain persons who could apply for a contact order could not apply for an order imposing or granting parental responsibilities and rights. Persons, other than parents, under 16 years of age could not so apply (section 11(2)(b)(i)), nor could any person whose parental responsibilities or rights in relation to the child were extinguished on the making of an adoption order, although such a person could, after 28 September 2009 following certain amendments made to section 11 by the Adoption and Children (Scotland) Act 2007, apply for a contact order. It would make no sense if such persons, having obtained a contact order, could claim to have parental rights and responsibilities. That residence orders and contact orders did not themselves grant parental rights or responsibilities was clear from section 11(12), which expressly provided that a person in favour of whom a residence order was made would have certain relevant parental responsibilities and rights. No similar provision was made in respect of persons in whose favour a contact order was made.

[25] It was clearly and authoritatively decided by the Inner House in P v P 2000 SLT 781, in particular at page 789, that a person in whose favour a contact order was made did not have the advantage of parental rights and responsibilities. The Sheriff Principal (Taylor) reached a similar conclusion in Children's Reporter v D 2008 SLT (Sh.Ct.) 21. Support for the Reporter's approach to construction could be found also in Wilkinson & Norrie: Parent and Child, 2^nd Ed., (in particular at paras.9-10 to 9-13). Insofar as the Sheriff Principal (Bowen QC) in D v H 2004 SLT (Sh.Ct.) 73 held that a contact order was "in the nature of a parental rights order", P v P was not before the court. There was no contradictor.

[26] It could nevertheless readily be said that residence and contact orders were orders "in relation to" parental responsibilities and parental rights - being orders which related to the same subject matter as those responsibilities and rights, and being orders liable to affect anyone who had, or who might obtain, parental responsibilities and rights. The difference apparently drawn in the relevant section between "enjoying" rights and being "vested" in them was perhaps uncertain, but nobody could be said to enjoy rights if they did not have them, either by operation of law or by order of the court. The real distinction between paras (a) and (b) of section 93(2)(b) was that the former related to "any parent", (who could acquire parental rights and responsibilities in a number of different ways), the latter to "any person" (whose ability to acquire such rights etc was more restricted).

[27] In the second place, it could not be said that such a construction was incompatible with the Article 6 or Article 8 Convention rights of unmarried fathers,

and, in particular, of S and L.

[28] As to Article 8 the existence or non-existence of "family life", even for unmarried fathers, was essentially a question of fact, depending upon the real existence in practice of close personal ties. Reference was made to Lebbink v Netherlands, (2005) 40 EHRR 18 (para.36) and Nylund v Finland ECHR December 1999, Application 27110/95. On the facts of the present case, while the Reporters would not seek to dispute that L had a family relationship with his child sufficient to engage Article 8, that could not be said in respect of S. In circumstances where an unmarried father had the remedy of obtaining a parental rights and responsibilities order under section 11(2)(b), as a result of which he would obtain the procedural safeguards afforded to a relevant person, the provisions of the 1995 Act could not be said to be incompatible with his Article 8 rights. This was the subject of clear decision in The Principal Reporter v K 2010 SLT 308 (in particular paragraphs [73]-[76]). Indeed, as was recognised in that case, such a father could apply for a contact order even where such an order would conflict with the terms of a supervision requirement (para.63). Although an application for a parental rights order could be refused, any consequential interference with Article 8 rights (in their procedural aspect) could be said to be legitimate and proportionate. On any such application such a father would require to satisfy the court that the grant of parental rights and responsibilities was consistent with the overarching principles. To afford relevant person status only to persons who could satisfy these principles was entirely consistent with the child protection aims of Children's Hearings and the intention of the legislation to keep the number of persons present at any Children's Hearing to a minimum (section 43(2)). Any interference could be said to have an objective and reasonable justification, and be within the margin of appreciation of national authorities. Reference was made to B v United Kingdom [2000] 1 FLR 1, K and T v Finland (2001) 31 EHRR 18 and McMichael v United Kingdom (1995) 20 EHRR 205, at para.98.

[29] Further, the scheme of the 1995 Act could not be said to be incompatible with the Article 6 rights of unmarried fathers. Before a decision taken by a Children's Hearing could be said to determine a father's civil rights he would first have to be a person with parental responsibilities and rights. Reference was made to The Principal Reporter v K (in particular para [78]) and McMichael v United Kingdom (in particular para.77). A contact order could not be said to create or vest a right. It simply regulated the arrangements for maintaining personal relations and direct contact between the child and another person. In any event a decision of a Children's Hearing to prevent contact could not be said to be a determination of any right of the father. The Children's Hearing could not give or take away any right of contact awarded by a court. The exercise of any such right would simply be suspended as long as the supervision requirement remained.

[30] If, contrary to the above, the provisions of the 1995 Act could be said to be incompatible with the Convention rights of unmarried fathers in the position of S and L, and there was a need to read it in a way which was Convention compliant (section 3(1) of the Human Rights Act 1998), this could be done in accordance with the primary suggestion made on behalf of the Lord Advocate, namely by reading section 93(2)(b)(a) as follows:

"Any parent enjoying parental responsibilities or parental rights or contact in terms of a contact order under Part I of this Act"

By contrast, simply to construe "any parent enjoying parental responsibilities etc" as including a parent with a contact order would be to depart substantially from a fundamental feature of the Act, which distinguished parental rights and responsibilities from any rights under contact orders (and would have wider consequences than those relating to procedural rights at Children's Hearings). It thus could not be justified (in Re S (Care Order: Implementation of Care Plan (2002) 2 AC 291, at para.40). In particular such an interpretation would treat as a person with parental responsibilities and rights, for all purposes of the relevant legislation, even someone who had been refused an order for parental rights and responsibilities, and would give, for example, the ability to consent or withhold consent to the making of an adoption order. There would, however, be no need for the court to make any declaration of incompatibility.

Submissions on behalf of the fathers, S and L

[31] On a proper construction of the 1995 Act, even applying the ordinary canons of construction, a contact order in favour of a natural father could be said to be an order conferring a parental right (and responsibility), such that the father was a relevant person within section 93(2)(b)(a) or (b). Whereas section 3 excluded unmarried fathers from having parental rights and responsibilities, except those referred to in section 3(1)(b), that section was "without prejudice to any order made under section 11" (section 3(3)). Contact orders of the kind made in the present case in terms of section 11(2)(d) must, in terms of section 11(1), have been orders "in relation to parental responsibilities and parental rights". Although section 11(12) gave certain parental rights and responsibilities to a person in whose favour a residence order was made, it was notable that the parental right under section 2(1)(a) ("to have the child living with him or otherwise to regulate the child's residence") was not conferred. This, it could be assumed, was on the basis that such a right was already conferred. The language of the Act relating to contact orders (section 11(2)(d)) mirrored the language of the parental right referred to under section 2(1)(c). There was no need expressly to confer the latter by a provision such as section 11(12). The observations to the contrary in P v P were obiter.

[32] If the natural fathers S and L did not qualify as relevant persons this would be incompatible with their Convention rights under Article 6 and Article 8.

[33] As regards the question of whether S could be said to have had a family life with the relevant child, the fact that he had previously had contact over two months showed his interest. When that contact was stopped he raised the relevant action. It was to be presumed that the contact order was granted having regard to the welfare of the child. As was said in Nylund v Finland

"Further the court considers that Article 8 cannot be interpreted as only protecting 'family life' which has already been established but, where the circumstances warrant it, must extend to the potential relationship which may develop between the natural father and a child born out of wedlock. The relevant factors in this regard include the nature of the relationship between the natural parents and a demonstrable interest in and commitment by the natural father to the child before and after the birth".

L's family life with his child could not be disputed. What was at issue in these appeals was the lack of procedures to secure that the fathers could effectively participate in the Children's Hearings. This could be said to involve an interference with their rights under Article 8, in its procedural aspect. As was emphasised in W v United Kingdom (1987) 10 EHRR 29, the court was entitled to ask whether any process likely to interfere with Article 8 rights to family life was fair and afforded due respect to the interests protected by Article 8. To say that an application could be made for parental rights and responsibilities was no answer. Looking at the matter in advance of any Children's Hearing, it was often the case that an unmarried father would seek, in the first instance, to establish a degree of family contact by seeking a contact order and only thereafter, if the relationship suitably developed, to seek parental responsibilities and rights. Reference was made to Treasure v McGrath 2006 Fam. L.R. 100. Looked at ex post facto, the chances of an unmarried father obtaining parental rights and responsibilities in the face of a supervision requirement which prevented contact were almost nil. Neither he, nor the court, would have information as to the reasons for the Children's Hearing decision. In the present case, S had, in the first instance, refrained from seeking parental rights and responsibilities, and, after learning of the Children's Hearing, had sought only the parental responsibility to safeguard and promote the child's health, development and welfare (and the correlative right). It was considered inappropriate to apply for the parental right described in section 2(1)(c).

[34] It could not be disputed that the contact orders made in the present two appeals conferred rights on the fathers - even if lesser rights than parental rights and responsibilities. The language of the interlocutors made that plain. The rights were enforceable in the ordinary way through the court process. On any reasonable view these were civil rights. Insofar as the decisions of the Children's Hearings (which had the effect of suspending the exercise of those rights) had a clear and decisive impact upon the exercise of those rights Article 6(1) applied. Reference was made to R (Wright and others) v Secretary of State for Health and another [2009] 1 AC 739 at para.21. It was to be noted that it was agreed in K v Authority Reporter 2009 SLT 1019 that a decision of a Children's Hearing in relation to how much contact a child should have with his mother (which would have the effect of suspending her parental rights and responsibilities in that respect) would involve a determination of her civil rights. In relation to the right to a fair hearing under Article 6(1), which was

not qualified, any reference to the possibility, such as it was, of obtaining parental rights and responsibilities was irrelevant. The question of the effect of a contact order granted by a competent court was not considered or addressed in The Principal Reporter v K or in McMichael v United Kingdom, which could therefore be distinguished.

[35] If it was not possible to construe the Act in a way compatible with the Convention rights of the fathers a declaration of incompatibility was sought. It was accepted, nevertheless, that section 93(2)(b)(a) of the 1995 Act could be interpreted by the addition of the words suggested on behalf of the Lord Advocate. Having regard to section 11(13), any reference to a contact order would include an interim order.

Submissions on behalf of the Lord Advocate

[36] Senior counsel's primary position was to resist any suggestion that a declaration of incompatibility should be pronounced. He nevertheless supported the position of the Reporters as to the proper interpretation of the 1995 Act, and endorsed their submission that it was not incompatible with the Article 6 or Article 8 rights of the unmarried fathers.

[37] In relation to Article 8 it could be stressed in addition that insofar as a father applied for a parental rights and responsibilities order, the court would be obliged by section 6 of the Human Rights Act 1998 to make such an order where respect for his Article 8 rights required that such an order should be granted. Although such an application could be refused having regard to the welfare of the child, any consequential interference with Article 8 rights could be regarded as a legitimate and proportionate interference.

[38] As to Article 6, it was clear that the existence of a de facto relationship between an unmarried father and child was, of itself, and in the absence of any order of the sheriff granting rights to or imposing responsibilities on the unmarried father, not sufficient to hold that a Children's Hearing was determining the "civil rights" of the father. (McMichael v United Kingdom, The Principal Reporter v K). Further, as a matter of language, an order made under section 11(2)(d) did not grant rights; it regulated arrangements. The Principal Reporter v K and McMichael v United Kingdom could be regarded as deciding that Article 6 could only be engaged in relation to a Children's Hearing if parental rights and responsibilities were first imposed or granted. In any event the decisions of the Children's Hearings could not be said to be determinations of any civil rights held by the fathers. Decisions of a temporary or interim nature could not be regarded as determinations. Reference was made to R (Wright and others) v Secretary of State for Health and another. A supervision requirement required to be reviewed at least annually.

[39] If, contrary to the above, there was thought to be any incompatibility with Convention rights, it would be consistent with the court's interpretative obligation under section 3 of the Human Rights Act 1998 to read section 93(2)(b)(a) as "any parent enjoying parental responsibilities or parental rights or contact in terms of a contact order under Part I of this Act". This would require the implication of the words emphasised. Although there were other possibilities, each had serious disadvantages. On no view was there a need to pronounce a declaration of incompatibility.

Discussion

[40] Leaving aside for the moment the court's duty under section 3 of the Human Rights Act, we ask ourselves first whether, applying traditional canons of statutory construction, section 93(2)(b)(a) and/or (b) fall to be read as including unmarried fathers such as S and L who have contact orders in their favour. Parties were content to approach the question of construction in this way, and it is convenient to follow that course, although ultimately there is a single question the answer to which requires due regard to be paid to the court's duty under section 3.

[41] Asking ourselves, at this stage, the preliminary question described above, we consider that, for a number of reasons, the answer to it would be in the negative.

[42] As a matter of language a clear distinction is drawn between, on the one hand, orders depriving a person of some or all of his parental responsibilities or parental rights and orders imposing or giving such responsibilities or rights (section 11(2)(a) and (b)), and, on the other, orders "regulating the arrangements" as to residence and contact (section 11(2)(c) and (d)). Further, it is plain that certain persons who cannot apply for an order imposing or granting parental responsibilities and rights can apply for residence or contact orders. A 15 year old sibling, for example, is one such person (as in D v H). Another, since 28 September 2009, is a person whose parental responsibilities or parental rights in relation to the child were extinguished on the making an adoption order. There could be no justification for treating any such person who successfully obtained a contact order in his favour as a person either enjoying or being vested in parental rights and responsibilities. In addition it is significant that where a court makes a residence order in favour of a person who does not, immediately before the order, have certain responsibilities and rights in relation to the child, express provision is made for that person to have certain of these rights (section 11(12)). No similar provision is made in respect of a person in whose favour a contact order is made. (It may also be noted that even a person in whose favour a residence order is granted is not granted the parental right described in section 2(1)(a), i.e. to have the child living with him or otherwise to regulate the child's residence (emphasis added)).

[43] There are, on the face of it, good reasons for making a distinction between persons who have a bare contact order, and those with parental rights and responsibilities. It is plain from section 2 that parental rights exist to enable a person to fulfil parental responsibilities in relation to the child; responsibilities in respect of which the child or any person acting on his behalf has title to sue (section 1(3)). Although of course a residence or contact order can be made in favour of a person already having parental responsibilities and rights (in particular to regulate in specific detail the way in which those rights are to be exercised), it is plain that persons without such rights may also apply for residence orders or contact orders. It can readily be envisaged that an unmarried father, for example, might wish, in the first instance, to have an order allowing him specific periodical contact to enable him to build up a relationship with the child before he seeks to obtain parental responsibilities (and parental rights) - such a father perhaps readily understanding that a court may not be prepared to grant parental responsibilities and rights until such contact has, over a period, been established. This, it appears, is what often happens in practice. In Treasure v McGrath, for example, the sheriff said (para [57]):

"I think that it is too early for the pursuer to be given parental responsibilities and rights. I do not say that he will never be able to have them or some of them. I recognise that the pursuer is deeply committed to his daughter. At present, however, there is no strong attachment between them. Until the relationship is restored between father and daughter, through starting to build contact between them from the beginning again, I do not see how the pursuer can have parental responsibilities and rights".

In the present case S, although concluding for parental rights and responsibilities, made no application to obtain any of them prior to the relevant Children's Hearing. Thereafter, so we are informed, he restricted his application to the responsibility (and correlative right) in relation to the safeguarding and promotion of the child's health, development and welfare, accepting that a motion for any other parental responsibilities and rights would have been inappropriate. Senior counsel, on his behalf, expressly commended the practice exemplified in the approach of the sheriff in Treasure v McGrath.

[44] Authoritative support for the distinction between the benefit of a contact order, on the one hand, and parental rights and responsibilities, on the other, is to be found in P v P. In that case it was determined by an Extra Division that it would not have been incompetent for the sheriff to make a residence order or a contact order while a supervision requirement existed. In the course of the opinion of the court, delivered by Lord Cameron of Lochbroom, it was said, at page 789:

"So far as the present case is concerned, where the application for the contact order is made in the course of an action raised by another person who seeks a residence order, it cannot be said to be incompetent to seek to secure arrangements for contact with the child by way of a contact order additional to the grant of a residence order while recognising that the residence order would give the person named in the residence order the advantage of parental responsibilities and parental rights, while a contact order would not if the person named did not already have such responsibilities and rights - see Wilkinson & Norrie, para.9.10".

Although these observations were, strictly speaking, obiter, they may be thought to carry considerable weight. In addition, although P v P was not referred to him, the Sheriff Principal (Taylor) in Children's Reporter v D reached the same conclusion. He said in particular (para [6]):

"I agree with the reporter's solicitor's submission that an order made under section 11(2)(d) only regulates the contact which a child should have with a person in whose favour an order has been made under that statutory provision. It does not impose parental rights nor responsibilities in terms of section 11(2)(b). I respectfully agree with what is said by Professor Norrie at pages 15 to 16 of his textbook... 'It is important, however, to note that only an order under section 11(2)(b) will "vest parental responsibilities and parental rights" and so bring the person in whose favour the order is made within the definition of "relevant person". An order made under section 11(2)(d) merely regulating contact between the child and a person who does not otherwise have any parental responsibilities or parental rights (e.g. a sibling or a grandparent) does not in itself vest parental responsibilities and parental rights and so does not make the person a "relevant person".

Although in D v H the Sheriff Principal (Bowen QC) held that it was not competent for a 15 year old sibling to seek a contact order because it was "in the nature of an application seeking a parental rights order", there was no contradictor and he was not referred to P v P.

[45] Against this approach two main factors were stressed by the unmarried fathers. The first was that the provisions of section 3(1)(b) (restricting parental responsibilities and rights to certain fathers) were expressed to be without prejudice to any order made under section 11 of this Act (emphasis added). Further it was emphasised that a contact order under section 11(2)(d) would, by virtue of section 11(1), necessarily fall to be regarded as an order "in relation to parental responsibilities and parental rights". We are not persuaded that the first of these points carries any significant weight. As to the second, we are inclined to agree with senior counsel for the Reporters that residence orders and contact orders, and indeed specific issue orders under section 11(2)(e), could properly be described as orders "in relation to" parental responsibilities and rights insofar as they relate to matters encompassed in such responsibilities and rights and are likely to affect the exercise of such responsibilities and rights by anyone who has, or who might obtain, them.

[46] In the case of S the sheriff accepted that a contact order under section 11(2)(d) would not "vest" parental responsibilities or parental rights in the person in whose favour the order was made. He concluded, however, that such a person, if a father, could be said to be enjoying parental rights and responsibilities. In particular he said:

"I agree with the opinion of Sheriff Principal Taylor in Children's Reporter v D (supra) at para.6 that an order under section 11(2)(d) is only regulatory and that it does not 'vest' parental responsibilities or parental rights in a person in whose favour the order is made. In my view, 'vesting' can only flow from an order explicitly conferring such a responsibility or right; on this point I am against the Appellant. But I think that the degree of regulation permitted by a contact order does (and can only) relate to the exercise of the responsibility and right".

In the course of his oral and written submissions to this court, senior counsel for the unmarried fathers did not obviously seek to support that distinction. We are inclined to agree with senior counsel for the Reporters that a person could only be said to be enjoying a right if he had that right by operation of law, or by an order of court, and that the real distinction between the relevant persons described in section 93(2)(b)(a) and (b) is not so much between the words "enjoying" and "vest" as between "any parent" and "any person", the distinction perhaps being drawn because the ways in which a person other than a parent may become vested in parental rights and responsibilities are more limited. In particular such a person may not acquire such rights under section 3, or section 4 (by agreement) or section 4A (an agreement between the mother of the child and a second female parent).

[47] The question therefore comes to be whether a construction of the 1995 Act having the effect that an unmarried father with a contact order in his favour is not a "relevant person" could be said to be incompatible with this Article 6 and/or Article 8 rights.

[48] We concentrate first on Article 6.

[49] The primary question which arises is whether, when a Children's Hearing makes a supervision requirement providing for no contact between a child and his father (notwithstanding a contact order in his favour), it can be said to involve a determination of the father's civil rights within the meaning of that Article. It has, of course, already been decided that a Children's Hearing is a tribunal which can be said to determine the civil rights of the child involved (S v Miller 2001 SLT 531).

[50] In our opinion it is plain, first of all, that an unmarried father in whose favour a contact order is made by a court of competent jurisdiction does thereby acquire a civil right. Although a contact order is described as an order for "regulating the arrangements for maintaining personal relations and direct contact...", the way in which a court effects such regulation (and this only if satisfied in relation to the three overarching principles - section 11(7)) is to grant an order "entitling" a person to contact at such and such a time or times. That was precisely the language of the

relevant contact orders in the present cases. Once granted the orders were plainly enforceable against any party seeking to prevent their exercise. They may be lesser rights than parental rights and responsibilities, but they are nevertheless rights, and important ones at that. In particular, for an unmarried father the obtaining of a contact order is invariably an important step on the way to establishing family life. It is not surprising that the Sheriff Principal in Children's Reporter v D, immediately after the passage already quoted, said "The right of contact which is exercised by the respondent is derived not from the supervision requirement made under section 70 of the Act but the contact order...". Moreover it is a civil right in the determination of which an unmarried father would plainly be entitled to a fair hearing. If the sheriff refused to grant such a right when applied for, or purported to take it away once granted, without even hearing the unmarried father, it is inconceivable that an argument could be advanced that this was compatible with Article 6. It would, we think, be somewhat of a surprise for L to be told that he could not be said to have had a right to the weekend contact which he exercised for a period of over 6 years in accordance with the relevant court order. We would only add that although in the argument advanced on behalf of the Reporters (adopted on behalf of the Lord Advocate) it was maintained that orders under section 11(2)(d) could not properly be said to create rights, no specific point was taken as regards the fact that the order in the case of S was expressly made "ad interim".

[51] The question comes to be whether insofar as a Children's Hearing makes an order which has the effect of preventing or limiting the exercise of contact under a contact order it could be said to involve a determination of that civil right. It is, of course, true that a Children's Hearing would have no power to create or to take away the right afforded by a contact order. As was accepted on all sides the effect of a supervision requirement that a child should have no contact with a father in right of such a contact order would instead be to suspend the father's ability to exercise that right of contact (see e.g. P v P). It is also true that any supervision requirement would require to be reviewed from time to time. Nevertheless any decision by a Children's Hearing to prevent or limit contact which could otherwise be exercised under a contact order, would materially interfere with the exercise of that right and could thus readily be said, in our view, to amount to a determination of it. It is well established that Article 6 covers proceedings the result of which is decisive for private rights and obligations (Le Compte, Van Leuven and De Meyere v Belgium (1982) 4 EHRR 1, para.44 and Ringeisen v Austria (1971) 1 EHRR 455 at para.94). That, however, does not mean (as was accepted before us) that only proceedings which create or take away rights can be regarded as decisive for them. Equally, at the other end of the scale, a mere tenuous or remote connection between the outcome of proceedings and the civil right in question is not enough (see e.g. Fayed v United Kingdom (1994) 18 EHRR 393). As it is put in Reed and Murdoch, A Guide to Human Rights in Scotland, "the proceedings should result in a clear consequence for a civil right" (p273). Even if the effect of the decision in question is temporary, a direct and material interference with the exercise of a relevant civil right would, it seems, ordinarily, be enough. In Le Compte, Van Leuven and De Meyere v Belgium, a decision taken in disciplinary proceedings by virtue of which the rights of medical practitioners to practice were suspended for 6 weeks was said to constitute a direct and material interference with the right to medical practice, and thus involved a determination of civil rights. At para.49 it was said, inter alia:

"The fact that the suspension was temporary did not prevent its impairing that right...; in the 'contestations' (disputes) contemplated by Article 6....the actual existence of a 'civil' right may, of course, be at stake but so may the scope of such a right or the manner in which the beneficiary may avail himself thereof".

Further, as was recently emphasised in the House of Lords in R (Wright and others) v Secretary of State for Health and another [2009] 1 AC 739, (at para.21), whereas Article 6 does not ordinarily apply to proceedings in which provisional measures are taken, "Some interim measures have such a clear and decisive impact upon the exercise of the civil right that Article 6(1) does apply" (Baroness Hale of Richmond). It was thus held that since the provisional listing of a care worker on a list of people considered unsuitable to work with vulnerable adults could result in irreparable damage to the person's employment or prospects of employment, it amounted to a determination of a civil right within Article 6(1). It was not suggested in the present case that the decision of the Children's Hearings could be said to have been provisional or interim, and it could readily be said that loss of contact over any significant period could do real and possibly irreparable damage to a father's prospects of establishing or maintaining contact, and thus family life, with his child in accordance with a contact order in his favour. In these circumstances, in our view, the Article 6 rights of an unmarried father with a contact order would be engaged in any Children's Hearing which could reach a decision which would have the effect of suspending or materially restricting the exercise of the rights afforded by that order. We consider it to be consistent with this conclusion that the Lord Advocate, on behalf of the Scottish Ministers, and ultimately the court, accepted in K v Authority Reporter that a Children's Hearing which decided a question of the extent of contact which should be allowed between a child (required to reside with foster carers) and a mother, which would have the effect of suspending the exercise of her parental rights and responsibilities to that extent, would be a hearing involving the determination of her civil rights.

[52] It has to be recognised that in The Principal Reporter v K it was said at para [78],

"The terms of s.93(2)(b) cannot be seen as amounting to an infringement of art 6. Even looked at in a theoretical manner, they simply regulate, in part, who is to be allowed to participate in a children's hearing and to appeal decisions from it. A children's hearing decision may be seen as interfering with a person's right to respect for his family life, although that interference would be compatible with a person's Convention rights since it would be in accordance with the law and be necessary in a democratic society for the protection of health and morals and the rights of others; that is to say for the welfare of the child. However, as was accepted in McMichael v United Kingdom (supra at p236, para.77), before a children's hearing decision could be perceived as determining the father's 'civil rights', he would first have to be a person with parental responsibilities and rights. In this father's case, he would have to have had these rights vested in him. Since that has not, as yet, been competently done, he cannot validly complain that his art 6 rights have been infringed in the children's hearing proceedings. The existence of these rights has yet to be competently determined by the court".

[53] In McMichael v UK the Commission said at para.110:

"The Commission recalls that the second applicant was the only party before the hearings, though the first applicant played an active role as her representative. He had not instituted proceedings to obtain an order for parental rights which would have given him the status of party in the proceedings. Further the appeals from the hearings to the Sheriff were by the second applicant alone. In these circumstances, even assuming that the first applicant as the natural father enjoyed any 'civil' rights under domestic law in respect of the child, the Commission finds that these proceedings cannot be said to have involved the determination of any of those rights. Consequently Article 6 is not applicable to his complaint".

This reasoning was adopted by the Court. It was noted at para.77 inter alia that the applicant "as the natural father of a child born out of wedlock did not automatically have paternal rights in relation to the child such as the rights of tutory custody and access. Nor did he make an application for an order for parental rights, as he could have done...", and "Even to the extent that the first applicant could claim 'civil rights' under Scots law in respect of the child A, the care proceedings in question did not involve a determination of any of those rights, since he had not taken the requisite prior step of seeking to obtain legal recognition of his status as a father".

[54] It appears, however, that no argument was advanced by the fathers in either of these cases in relation to the matter which is at the heart of these appeals (namely the effect of an unmarried father obtaining an enforceable court order for contact), and the matter was thus not, and did not require to be, addressed in the reasoning of the courts. Indeed McMichael v UK was decided against the background of the state of the law, including the common law, prior to the passage of the 1995 Act. Although the father in The Principal Reporter v K historically had had contact orders in his favour, he no longer had such an order at the time of the Children's Hearing, or his appeal therefrom, which gave rise to the issue which required to be resolved by the court. It thus seems clear that these decisions can properly be regarded as determining no more than that the Article 6 rights of a natural father who has no rights granted by a court in respect of his child (in contrast to a father who has obtained "legal recognition of his status as father" - such as a father with a parental rights order) would not be engaged in a Children's Hearing. In these circumstances, in our opinion, these decisions can be distinguished.

[55] If we are right so far, it cannot, we think, be disputed (and nor was it seriously challenged before us) that if unmarried fathers in the position of S and L were not afforded "relevant person" status in respect of any relevant Children's Hearing, they would not be afforded sufficient rights to enable them effectively to participate and thus to have a fair hearing in accordance with Article 6. They would, in particular, not have the rights afforded to relevant persons in the Act and in the 1996 Rules as set out at paras [20] and [22] above. Although the Chairman of a Children's Hearing has a discretion to allow attendance under rule 13(d), and this was allowed in L's case, it seems plain that that would not be enough. As was said by the court in The Principal Reporter v K (at para [77]) "In that context, the Court does not regard the discretionary powers of the Chairman at such a Hearing to allow certain persons, whose presence may be justified, to attend a Hearing under Rule 13(d) as of assistance. That provision envisages permission only to attend for the purposes of observation, without a right to be heard. Although it is clear that this provision has been used to permit unmarried fathers to participate at Hearings ...... it cannot be seen as sufficient to ensure compliance with Convention rights". In our opinion it cannot be said that insofar as the relevant Children's Hearings involved a determination of the civil rights of S and L either of them was afforded a fair hearing in accordance with Article 6.

[56] At times in argument it appeared to be submitted that it was an answer to the Article 6 claims of S and L that they could, either before or after the relevant Children's Hearings, have obtained an order for parental rights and responsibilities from the court. We can readily see that such argument has a place in respect of Article 8 where interference may be justified, but we do not see that it has a part to play in respect of Article 6 where, if the right to a fair hearing arises, it is unqualified. Moreover it appears to us to be no answer to say to someone, otherwise entitled to a fair hearing in respect of the determination of the rights which he has, that he could obtain other rights - particularly other rights which he may not want and may not be able to obtain. Further, as to the position after a Children's Hearings has made a supervision requirement preventing contact with an unmarried father, the right then to obtain parental rights and responsibilities is likely to be entirely illusory. It would be extremely difficult in practice, in the absence of information as to grounds of referral etc, for an unmarried father in the position of L and S to persuade a sheriff to grant such an order, and the sheriff in the case of S, while apparently sympathetic, could not be so persuaded. In the same way, if an unmarried father had no contact order before a supervision requirement of the type in question was made, the chances of him obtaining such a contact order from the court thereafter, so long as the supervision requirement remained, would have to be regarded as negligible. As was said in P v P, at page 788, "We find no difficulty with the proposition that where a supervision requirement incorporates a requirement upon a child preventing or limiting contact between the child and another person, any order applied for from the court which sought in effect to vary or discharge that additional requirement, would be inappropriate and in that respect could be said to be incompetent". Although in The Principal Reporter v K it was said (at para [63]):

"The correct interpretation of P v P (supra) is simply that a contact order may be inappropriate where it conflicts with a supervision requirement. Thus, in the

normal case, a court should not grant such an order. But it is not incompetent to do so and there may be situations where such an order will meet the criteria of the overarching principles. For example, it may be known that a supervision requirement, or a condition of it, will shortly expire and a court may consider it appropriate to regulate matters in anticipation of the expiry date".

This, it may be said, opens only a very small window of opportunity.

[57] Having reached the conclusions we have thus far, we find it unnecessary to reach a decision in respect of the question of the compatibility of the provisions of the 1995 Act with Article 8. There is no doubt, however, that this is a more difficult matter for the unmarried fathers. In the first place, there must be some doubt about whether S could properly be said to have established family life with the child, on the facts as we have earlier described them. Secondly, and perhaps more importantly, it is plainly arguable, insofar as the 1995 Act requires an unmarried father in the position of S and L first to obtain a parental rights and responsibilities order in order to qualify as a relevant person, that while such an application could be refused, having regard, in particular, to the welfare of the child, any consequential interference with Article 8 rights (in their procedural aspect) would fall to be regarded as legitimate and proportionate - all as was argued on behalf of the Reporters and the Lord Advocate. Further, since the basis of any claim would be family life established in fact (as opposed to any legal right of contact) it is more difficult to distinguish The Principal Reporter v K insofar as it was there held that the structure of the 1995 Act was not inconsistent with the Article 8 rights of unmarried fathers.

[58] Insofar as we have found that the Act, construed according to ordinary canons of construction, would be incompatible with the Article 6 rights of unmarried fathers

with contact orders in their favour, the question is whether the provisions of the Act can be construed in such a way as to avoid that incompatibility. We consider that they can. Our duty under section 3(1) of the Human Rights Act 1998 is clear. "So far as it is possible to do so, primary legislation ...must be read and given effect in a way which is compatible with the Convention rights". It is clear that this is a powerful tool, albeit that a meaning may not be adopted which departs substantially from a fundamental feature of an Act (see e.g. Lord Nicholls of Birkenhead in In Re S (Care Order: Implementation of Care Plan) [2002] 2 AC 291, 313). In Ghaidan v Godin­-Mendoza [2004] 2 AC 557, Lord Nicholls further said (at para.32):

"From this the conclusion which seems inescapable is that the mere fact the language under consideration is inconsistent with a Convention-compliant meaning does not of itself make a Convention-compliant interpretation under Section 3 impossible. Section 3 enables language to be interpreted restrictively or expansively. But section 3 goes further than this. It is also apt to require a court to read in words which change the meaning of the enacted legislation, so as to make it Convention-compliant. In other words, the intention of Parliament in enacting Section 3 was that, to an extent bounded only by what is 'possible', a court can modify the meaning, and hence the effect, of primary and secondary legislation".

At para.44 Lord Steyn commented that:

"It is necessary to state what section 3(1), and in particular the word 'possible', does not mean. First, section 3(1) applies even if there is no ambiguity in the language in the sense of it being capable of bearing two possible meanings. The word 'possible' in section 3(1) is used in a different and much stronger sense. Secondly, section 3(1) imposes a stronger and more radical obligation than to adopt a purposive interpretation in the light of the ECHR ... Parliament specifically rejected the legislative model of requiring a reasonable interpretation".

Lord Rodger of Earlsferry stated that:

"119. ...where the court finds it possible to read a provision in a way which is compatible with Convention rights, such a reading may involve a considerable departure from the actual words.

...

121. ...it is possible for the courts to supply by implication words that are appropriate to ensure that legislation is read in a way that is compatible with Convention rights. When the court spells out the words that are to be implied, it may look as if it is 'amending' the legislation, but that is not the case. If the court implies words that are consistent with the scheme of the legislation but necessary to make it compatible with Convention rights, it is simply performing the duty which Parliament has imposed on it and on others. It is reading the legislation in a way that draws out the full implications of its terms and of the Convention rights. And, by its very nature, an implication will go with the grain of the legislation".

[59] It is only as a last resort that a court should find that the statutory provision in question is incompatible with Convention rights. In Ghaidan v Godin-Mendoza Lord Steyn said that:

"46 Parliament had before it the mischief and objective sought to be addressed, viz, the need 'to bring rights home'. The linch-pin of the legislative scheme to achieve this purpose was section 3(1). Rights could only be effectively brought home if section 3(1) was the prime remedial measure, and section 4 a measure of last resort [...] It was envisaged that the duty of the court would be to strive to find (if possible) a meaning which would best accord with Convention rights. This is the remedial scheme which Parliament adopted.

......

50 ...What is necessary, however, is to emphasis that interpretation under Section 3(1) is the prime remedial remedy and that resort to Section 4 must always be an exceptional course. In practical effect there is a strong rebuttable presumption in favour of an interpretation consistent with Convention rights".

[60] In the present appeals parties helpfully agreed that, if there was incompatibility, the Act could be read and given effect to in a way compatible with the Convention rights, and in particular with Article 6. They were equally agreed that the appropriate way in which that could be done, and this in a way which could not be said to depart substantially from a fundamental feature of the Act, would be to read section 93(2)(b)(a) as follows:

"Any parent enjoying parental responsibilities or parental rights or contact in terms of a contact order under Part 1 of this Act" (emphasis added).

This would require the implication of the words emphasised. On further consideration we think that to be clear, and to cover the facts of cases such as S and L (where there was in fact no contact for a period prior to the Children's Hearings in question), it would be necessary to imply, at the relevant point, "or a right of contact in terms of a contact order", so that the subsection would read: "Any parent enjoying parental responsibilities or parental rights or a right of contact in terms of a contact order under Part I of this Act". That, in our view, is how the provision should be read.

Despite the original position adopted on behalf of the fathers, we see no reason to make any declaration of incompatibility.

Decision

[61] For these reasons, in the case of S, we answer the three questions posed in the negative.

[62] For the same reasons, in the case of L, we answer the three questions posed in the affirmative.