Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2013] CSOH 27
P865/10 P783/10	OPINION OF LORD BRAILSFORD in the Petitions of (1) NJ and (2) EH Petitioners; against THE LORD ADVOCATE and OTHERS Respondents: for Judicial Review ________________

(1) Petitioner: Pirie; Drummond Miller LLP

Respondent: Ross; Scottish Government Legal Directorate

Interested Party: Poole; Renfrewshire Council; Lindsays

(2) Petitioner: Pirie; Drummond Miller LLP

Respondent: Ross; Scottish Government Legal Directorate

Interested Party: Springham; Glasgow City Council

19 February 2013

[1] These are two petitions for judicial review. Each petition arises following decisions by local authorities to seek Child Protection Orders ("CPOs") under section 57 of the Children (Scotland) Act 1995 ("the 1995 Act") immediately following the birth of children. In each petition the petitioners are the mothers of the child over whom a CPO was sought. In each petition the Lord Advocate is named as the respondent. The relevant local authorities, Renfrewshire Council in the petition at the instance of NJ and the City of Glasgow Council in the petition at the instance of EH have entered appearance and lodged answers. In each petition two decisions are challenged. First, a decision (the "first decision") by a sheriff in which he directed his clerk not to accept caveats which each petitioner had sought to lodge in the relevant sheriff court prior to anticipated application by the relevant local authority for a CPO. Second, decisions subsequently taken in each petition to make CPOs ("the second decision").

In each petition the petitioner seeks:

(a) declarator that the procedure under which the CPO was made in respect of the child was incompatible with the petitioner's rights under article 8 of the European Convention on Human Rights ("ECHR");

(b) declarator that the procedure under which the CPO was made in respect of the child was incompatible with the petitioner's rights under article 6 ECHR;

(c) declarator that (i) the first decision was unlawful in terms of section 6(1) of the Human Rights Act 1998 ("the HRA") because it was incompatible with the petitioner's rights under articles 6 and 8 ECHR, or, alternatively (ii) the second decision was unlawful in terms of section 6(1) of the HRA because it was incompatible with the petitioner's rights under article 6 and 8 ECHR.

[2] It is initially necessary to outline the factual background to these matters. Both petitioners were pregnant and due to give birth in the second half of July 2010. In the case of both petitioners, the relevant local authority had serious concerns that following birth, the child of each petitioner was likely to be impaired seriously in health or development due to lack of paternal care. These concerns were based upon information in the possession of each local authority relating to the social circumstances of each petitioner. In the case of NJ these concerns may be summarised as follows: NJ was 18 years old at the time of her anticipated delivery. She had a previous child on 10 March 2009. That child had returned home two days after birth in the care of NJ and her partner. One week later, due to lack of parental care, that child required to be taken into hospital and was thereafter removed to foster carers. Grounds of referral to the Children's Hearing were established at Paisley Sheriff Court on 6 August 2009. The child became the subject of a supervision order and continued to reside with foster carers. Prior to the birth of the second child, NJ and her partner were given the opportunity to work with the organisation "Family Matters" in relation to the needs of a new baby. They did not engage with this support and also failed to engage with the health visitor attached to their local GP surgery. A case conference involving the petitioner, the child's father, the petitioner's mother, social workers, a midwife, a health visitor and the police was held on 2 July 2010. The care of the child after birth was fully discussed at that meeting. At the conclusion of the meeting NJ was informed that the authority would seek either voluntarily, or by CPO, to take the child into care at birth.

[3] In the case of EH, the concern of the local authority may be summarised as follows. EH suffered from moderate learning disabilities, had worked as a prostitute, had been involved in using illegal drugs and had a history of homelessness. She gave birth to a child in 2004 who was, with her consent, removed into the care of her mother at birth. A parenting capacity assessment of EH was undertaken by the relevant social work department who at that time noted that she showed no real bond with the child, had no idea of the of the child's needs and needed constant supervision over parental care issues. The assessment concluded that she did not have the capacity to care for a child. EH gave birth to a second child in 2009. Midwives at the hospital where the child was born expressed serious concerns about EH's ability to care for the child. Six days after birth the child was placed on the Child Protection Register. The local authority considered that EH could never meet the needs of a child left in her care and that the risks to such a child would be overwhelming. In April 2010, some eleven months after the second child's birth, a Children's Hearing placed the child under a supervision requirement with a condition that the child reside with EH's mother. During her third pregnancy, with which the current proceedings are concerned, EH had been assaulted by the father of the child, a man with a history of violence and drug addiction. A "Pre-Birth Case Conference" was held by the relevant local authority social work child protection personnel on 21 June 2010. The meeting was attended by EH, the child's father, social workers, the police, a housing support worker, a community midwife and a clinical psychologist. The decision at the conclusion of that meeting was that a CPO would be sought following the birth of the child.

[4] As a result of these concerns in each case, officers of the local authority advised the petitioners at child protection case discussion meetings that it was their intention to apply to the sheriff for a CPO to authorise the removal of the child into their care after its birth. In the case of NJ the said decision was made on 2 July 2010 following which officers of Glasgow City Council prepared an application for a CPO to be used following the birth of NJ's child. In the case of EH, she was told by officers of Renfrewshire Council at a late stage in her pregnancy that it was their intention to apply for a CPO in respect of her child following its birth.

[5] Each petitioner thereafter sought to lodge caveats at their local sheriff courts. The intention of this action was to attempt to ensure that each petitioner would be given an opportunity to be legally represented and to make submissions before the granting of a CPO in respect of their newborn infants. In EH's case, an attempt was made to lodge a caveat on 15 July 2010. The sheriff heard submissions from her agents on that date and thereafter directed his clerk not to accept the caveat. EH subsequently gave birth to a son on 17 July 2010. In the case of NJ, she gave birth to a son on 19 July 2010. Attempts were made to lodge a caveat on her behalf on 20 July 2010. The sheriff heard submissions on that date from agents on behalf of NJ and thereafter directed his clerk not to accept the caveat tendered.

[6] In the case of EH, on 17 July 2010, the sheriff, on an ex parte motion at a hearing of which EH was given no notice and at which she was not represented, made a CPO in respect of her son. The CPO was implemented and her son removed from her care. In the case of NJ, on 20 July 2010, the sheriff, on an ex parte motion at a hearing of which NJ was given no notice and at which she was not represented, made a CPO in respect of her son. That CPO was implemented and NJ's son was removed from her care.

[7] In the foregoing circumstances these two petitions give rise to two separate questions. First, whether the caveats which each petitioner sought to lodge prior to the application being made by the local authority for a CPO should have been be honoured and that each petitioner should therefore have been entitled to the right to be represented and make submissions at the application for a CPO. Second, whether in the circumstances of each case it was appropriate to make a CPO.

[8] There was no dispute as to the relevant statutory background. In relation to CPOs the relevant legislation is to be found in Chapter 3 of Part 2 of the 1995 Act. Sections 57 relates to Child Protection Orders as follows:

"(1) Where the sheriff, on an application by any person, is satisfied that - (a) there are reasonable grounds to believe that a child -

(i) is being so treated (or neglected) that he is suffering significant harm: or

(ii) will suffer such harm if he is not removed to and kept in a place of safety, or if he does not remain in the place where is then being accommodated (whether or not he is resident there); and

(b) an order under this section is necessary to protect that child from such harm (or such further harm) he may make an order under this section ( to be known as a 'Child Protection Order')."

Section 57(4) provides:

"A Child Protection Order may, subject to such terms and conditions as the sheriff considers appropriate, do any one or more of the following -

(a) require any person in a position to do so to produce the child to the applicant;

(b) authorise the removal of the child by the applicant to a place of safety, and the keeping of the child at that place;

(c) authorise the prevention of the removal of the child from any place where he is being accommodated;

(d) provide that the location of any place of safety in which the child is being kept should not be disclosed to any person or class of person specified in the order."

[9] In terms of section 58(1)(a) of the 1995 Act, when he makes a CPO, the sheriff must consider whether it is necessary to make a direction to the applicant as to the child's contact with his parents. He must give a direction if he considers it necessary and the direction may include the prohibition or the attachment of conditions to contact. In terms of section 3(4) of the 1995 Act, a parent's parental rights may be exercised only subject to the provisions of a CPO.

[10] In relation to caveats, in the sheriff court the Act of Sederunt (Sheriff Court Caveat Rules) 2006 provides:

"(1) A person may lodge a caveat against only -

(a) an interim interdict sought against the person in an ordinary cause before the person has lodged a notice of intention to defend;

(b) an interim order sought against the person in an ordinary cause before the expiry of the period within which the period within which the person could lodge a notice of intention to defend;

(c) an interim order sought against a person in a summary application before service of the initial writ;

(d) an order for intimation, service and advertisement of a petition to wind up, or appoint and administrator to, a company in which he has an interest;

(e) an order for intimation, service and advertisement of a petition for his sequestration; and

(f) the disposal of a commissary application."

[11] Against the foregoing background the petitioner in each case contended that they had been denied Convention Rights to which they were entitled under articles 6 and 8 of the ECHR. Article 6(1) of the ECHR provides:

"In the determination of his civil rights and obligations ... everybody is entitled to a fair ... hearing."

Article 8 of the ECHR provides:

"1. Everyone has the right to respect for his ... family life, his home and his correspondence.

2. There shall be no inference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

[12] In relation to the first decision in each petition, the refusal of the sheriff to allow caveats to be received for each petitioner, it was pointed out by senior counsel for the petitioners that there have been two conflicting Scottish decisions on whether a parent may lodge a caveat in respect of an anticipated application for a CPO in relation to a child: C, Petitioner 2002 Fam. LR 42 and K and F, Applicants 2002 SLT (Sh Ct) 38. It was submitted that neither decisions were of assistance by virtue of inadequate discussion of the ECHR and failure in each case to have regard and take account of Convention jurisprudence.

[13] In relation to article 8 it was submitted on behalf of each petitioner that the natural connection between a mother and child at birth amounts to family life for the purposes of the article. Any court order that sought to regulate or restrict the mutual enjoyment of the company of mother and child constituted an interference with family life for the purposes of article 8.2. The second decisions in each petition amounted to interference with the petitioners' exercise of their rights to respect for their family life. It was further submitted that an interference was not "necessary in a democratic society" for the purposes of article 8.2 ECHR if the person whose rights are in issue had not been sufficiently involved in the decision making process to a degree sufficient to provide him or her with the requisite protection of his or her interests. It was not necessary in a democratic society for the purposes of article 8.2 of the ECHR if the decision making process was not fair or did not afford due respect to the interests safeguarded by article 8 of the ECHR. It was not necessary in a democratic society for the purposes of article 8.2 of the ECHR if the person whose rights were in issue had not been given the opportunity to put forward in a fair and adequate manner the matter that militated in favour of his or her ability to provide his or her child with proper care and protection.

[14] These broad principles, which were not the subject of serious challenge by the respondents, required on the argument of the petitioners, to be qualified in cases in which public authorities take children into care in emergencies. Reference was made to the decisions in K and T v Finland (2003) 36 EHRR 18 and Haase v Germany [2004] 2 FLR 39. On the basis of these authorities it was submitted that in emergency cases, taking a child into care without allowing the parent to be heard is a violation of article 8 of the ECHR if it was possible to hear the parent first without depriving that proposed action of its effectiveness. This issue has been considered in X Council v B [2004] EWHC 2015 Fam where Munby J. was considering emergency protection orders made under section 44 of the Children Act 1989. In the context of emergency protection orders Munby J. (at paragraphs 52 and 53) stated that: "The local authority must make out a compelling case for applying without first giving the parents notice" and, further, that:

"An ex parte application will normally be appropriate only if the case is genuinely one of emergency or other great urgency - and even then it should normally be possible to give some kind of albeit informal notice - or if there are compelling reasons to believe that the child's welfare will be comprised if the parents are alerted in advance of what is going on."

[15] Having regard to the foregoing jurisprudence, it was submitted that the procedures by which the CPOs were made in the present petitions, the second decision in each case, were incompatible with the petitioners' rights under article 8 of the ECHR because the respondents in each petition had not discharged the onus on them to establish that it was not possible for the petitioners to be heard without compromising the effectiveness of their applications for CPOs. In NJ's case the child was in the safety of the hospital being cared for by members of staff when the CPO was made. NJ was participating in the care of the child and the medical staff involved expressed no concerns about her performance. The child was in the additional safety of a secure cot and hospital staff would have called the police if NJ had attempted to remove the child from the hospital. NJ had legal representation and her agent was willing and able to make submissions on her behalf before the granting of a CPO. It would appear that her agent was in fact in the court building on the day the CPO was granted and therefore could have participated in the hearing without occasioning any delay thereto.

[16] In the case of EH that petitioner was physically incapacitated as a result of surgery following the birth of her child when the application for the CPO was made. Her child was in hospital under the care and supervision of the medical and nursing staff. EH had legal representation and that agent was able to make submissions on her behalf at the time the CPO was granted.

[17] In relation to article 6 ECHR it was submitted that the parental right of contact with a child under section 2 of the 1995 Act is a "civil right" for the purposes of article 6 ECHR. It followed that the parental right of residence under section 2 of the 1995 Act is a "civil right" for the purposes of article 6. The making of the CPOs in each petition determined the petitioners' civil rights during the time that the CPOs were in force because these orders firstly interfered with the petitioners' rights in respect for their private life and secondly prevented the petitioners from exercising their parental rights. Article 6(1) ECHR was said to imply a right of access to the tribunal that determined the civil rights in issue. It was recognised by the petitioners that such right of access was not absolute. It was recognised that there would be no breach of article 6 ECHR if a restriction imposed by the tribunal respected the essence of the right, pursued a legitimate aim and was based on a reasonable relationship of proportionality between the means employed and the aims sought to be achieved. In the circumstances of each of the petitions, the essence of the petitioners' rights of access to the court was said to be impaired when the sheriffs made their second decisions, that is the decision to grant the CPOs on an ex parte basis with no formal notice to either petitioner and without allowing them the possibility of making submissions. These acts were unfair and amounted to a denial of the petitioners' rights under article 6.

[18] Further it was submitted that the procedures by which the sheriffs made the CPOs was incompatible with the petitioners' rights under article 6 and/or article 8 ECHR. This arose because the sheriffs failed to give the petitioners the opportunity to make representations before they made the decisions to grant CPOs in each case. Had the sheriffs not made the decisions to refuse to allow the caveats to be received, then the petitioners would have had the opportunity to make representations before the granting of CPOs. Reliance was made to Micallef v Malta [2010] 50 EHRR 37 at paragraphs 78-85.

[19] In response to these arguments, each of the respondents first argued as a preliminary point that there was a general principle that the supervisory jurisdiction of the Court of Session could not be invoked where an applicant had an appropriate remedy which had not been used. Reference was made to rule 58.3(2) of the Rules of the Court of Session. In both petitions, each of the decisions challenged could have been challenged by appeal under section 27 of the Sheriff Courts (Scotland) Act 1907. A decision equivalent to the first decision in the present petitions was appealed to the sheriff principal in K and F, applicants 2002 SLT (Sh Ct) 38. No such appeal had been attempted in the present case. In relation to the second decision, in terms of section 60(7) of the 1995 Act, a person having parental rights over a child may make an application to the sheriff to vary or set aside a CPO made under section 57. That remedy was exercised by NJ. The outcome of that challenge was that the sheriff confirmed the CPO. In EH's case an application was made under section 60(7) but dismissed when the petitioner did not attend court.

[20] The second preliminary issue was raised by each respondent was that the court will only exercise its jurisdiction in decisions which raise live practical questions. When decisions raise questions which are hypothetical, premature or which have been superseded by events they will not be entertained unless some other useful purpose will be served: McNaughton v McNaughton's Trustees 1953 SC 387 per the Lord Justice‑Clerk (Thomson) at 392. In the present case the remedies sought by each petitioner are focused upon the refusal to accept a caveat against the making of a CPO and the subsequent making of a CPO. In each case the CPO has long since terminated and been superseded by further procedure.

[21] It was recognised by the respondents that the principle they advanced, that the court would not entertain hypothetical questions or exercise its jurisdiction in relation to decisions which have been superseded by events, was subject to the proviso that in exceptional circumstances it might be appropriate for the court to exercise its discretion. It was submitted that in each of the present petitions there were no exceptional circumstances making it appropriate for the court to exercise its discretion. It was submitted that issues of Convention compatibility turn on their particular facts. A decision on the merits in these petitions would not determine the result of future cases concerning CPOs. It was further pointed out that in any event, section 57 of the 1995 Act will be repealed when Part 5 of the Children's Hearings (Scotland) Act 2011 comes into force. It followed that these were not cases where the petitioners have been deprived of the opportunity to raise their substantive grounds of complaint against the CPOs. There is no good reason for the court to exercise its discretion to hear cases which raise no live issue and which have no practical consequences for the petitioners. It was therefore submitted that the court should decline to hear these petitions. It was further pointed out that there was nothing in the Human Rights Act which removed the longstanding discretion of the Scottish courts to decline to hear cases in which no live issue was raised. There was no clear and consistent line of Strasbourg authority which stated that national courts were required to decide all cases which were brought before them raising human rights issues, even if academic, or barred by any other procedural rule.

[22] In relation to the substantive issues raised by these petitions, it was submitted that the lawfulness of both the first and second decisions in each petition require to be determined on the basis of material before and information available to the sheriffs at the time of each decision. In each case, applying that criteria, the sheriffs were entitled to reach the decisions which they did. In relation to article 8 of the ECHR it was accepted that the second decision in each case engaged the petitioners' article 8 rights. The right to respect for family life, it was submitted, would not violate article 8 if such interference is justified under article 8(2). There was no dispute that the interference with article 8 rights was in accordance with the law and that it pursued a legitimate aim. Accordingly, the issue between the parties was whether the interference with article 8 rights was necessary in a democratic society, in other words, whether it was proportionate.

[23] Assessment of proportionality was said to require the justification for interference with article 8 rights to be considered in relation to the extent of such interference. In considering whether a measure was necessary in a democratic society, the European Court of Human Rights had recognised that article 8 had both a substantive and a procedural aspect. In each of these petitions, the petitioner was relying on the procedural aspect which required that the decision making process was fair and afforded due respect to the interests safeguarded by article 8. The correct approach was said to be stated in P, C and S v UK [2002] 35 EHRR 31 at paragraph 132 as follows:

"What has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interest. If they have not, there will have been a failure to respect their family life and the interference resulting from the decision will not be capable of being regarded as "necessary" within the meaning of article 8."

The submission on behalf of the respondents was that the reference to the decision making process "seen as a whole" indicated that the procedural aspects of article 8 did not require parents to be heard prior to making orders relating to their children in all cases. Reference was made to K and T v Finland [2003] 36 EHRR 18 at paragraph 166. It was said that this principle had been applied by the European Court of Human Rights on a number of occasions where orders similar to CPOs were made without first hearing parents without infringing Convention rights: TTP v United Kingdom [2002] 34 EHRR 2 at paragraphs 74-76, 79: Covezzi and Morselli v Italy [2004] 38 EHRR 28 at paragraphs 107-113 and P, C and S v United Kingdom (supra). The courts had further recognised that the authorities have a margin of discretion in determining whether the measure is necessary and whether it requires to be applied for ex parte; K and T v Finland (supra) at paragraphs 154-155, K v Principal Reporter [2011] 1 WLR 18 at paragraph 43 and Langley v Liverpool City Council [2006] 1 WLR 375 at paragraphs 58-60. Following the approach in all these cases in assessing proportionality, a court will require to balance all rights and give particular importance to the interests of the child. It has to be borne in mind that a parent is not entitled under article 8 to have measures taken that would harm the child's health and development (Haase v Germany [2005] EHRR 19 at paragraphs 89-93). These questions must be considered on the basis of information before the sheriff at the time of making the decisions.

[24] Applying these principles in each of the present cases it was submitted that there were relevant and sufficient reasons justifying the short term and limited interference with the petitioners' article 8 rights constituted by the CPOs.

[25] In relation to article 6, the respondents' submission was that the article was not engaged. This was because it was said that neither the first decision nor the second decision amounted to a determination of the petitioners' civil rights. In relation to the first decision, refusing to allow a caveat to be lodged, this was not a determination of any "civil right or obligation", within the meaning or article 6. The ability to lodge a caveat was not a civil right recognised under Scots law. The decision to refuse the caveat had no substantial influence on the determination of the petitioners' civil rights. In relation to the Second Division decision, granting a CPO did not determine the petitioners' civil rights or obligations. The initial CPO was in the nature of a temporary short term measure. Whether interim measures determined civil rights and obligation depends upon whether certain conditions were satisfied. Article 6 will apply if the interim measure can be considered as effectively determining the civil right in question, notwithstanding the length of time it is in force. Given the very short period for which they were in force, the CPOs did not effectively determine the petitioners' right in relation to their children. It was further submitted that in any event the application for and grant of a CPO is the type of exceptional case in which not all of the procedural safeguards of article 6 need be applied. In each of these cases the need to make a rapid decision regarding the child's welfare justified the sheriff in determining the application on an ex parte basis.

[26] In determining these petitions, consideration first requires to be given to the two preliminary arguments which were raised by the respondents. It is, in my view, unfortunate that these preliminary arguments were not dealt with prior to the first hearing. No blame is attached to any of the parties involved in the debate to this circumstance, it occurs as a result of the present structure of the applicable rules of court. It would, at least in my opinion, be desirable if preliminary arguments such as those raised in the present petitions were dealt with before the substantive issues raised in petitions were addressed. I understand that consideration is being given to amendment of the applicable rules to address perceived lacuna.

[27] In the present petitions I considered that both the preliminary points had merit and would have given me grounds for substantial concern as to whether the petition should have been allowed to proceed had they been discussed prior to any hearing of the substantial aspects of the petitions. Much of the force of the points in favour of these two preliminary points is however, in my view, lost when they fall to be considered at the same time as the substantial aspects of the petition. Preliminary points such as these are designed to avoid unnecessary litigation and the consequent expense when the matters at issue are capable of being determined by another route or are no longer of live interest. These points loose much of their force when considered at the stage they were in these proceedings. Having regard to that consideration, I do not consider that these preliminary points should be upheld in the present petitions.

[28] Turning to the substantive issues in these petitions it is, in my opinion, necessary to initially determine the factual situation faced by the decision maker at the time the decision complained of was made. In each petition the decision maker was a sheriff and each made two distinct decisions, first whether to permit the petitioners to lodge a caveat, second, whether to grant the CPOs. I have already narrated what I understand to have been the factual background regarding each petitioner at the time these decisions were made (paragraphs 15 and 16). I should make it clear that my understanding of the relevant factual situation in each petition is, to some extent, a matter of deduction on my part. Certain information relating to the factual situation at the relevant time was contained in the pleadings and represented as non-controversial or not in dispute by parties at the hearing before me. Further information was presented by counsel at the hearing. I did not however have any affidavits from persons who had first hand knowledge of these events nor did I hear any evidence on these matters. Parties did not seek to lodge a joint minute or other agreed document listing factual material accepted by all parties. Whilst that state of affairs is probably normal in judicial review procedure, hindsight does I think, suggest that in cases such as these where decisions taken in emergency on urgent situations are being reviewed some agreed form of facts would assist the court tasked with undertaking that review. In the absence of such agreement I have proceeded on the basis of what, as best as I could determine, was generally accepted as the prevailing factual situation as appreciated by the sheriffs at the time they reached their decisions.

[29] Proceeding on that basis, I have formed the view that on analysis of the facts the first factor is that each petitioner was aware prior to delivery that it was the intention of the local authority to seek a CPO following the birth of their child, they having been informed of this at case conferences which they both attended. Each petitioner was therefore in a position to seek legal advice as to their position and rights in respect of the local authority's proposed course of action before any legal steps were taken in relation to the making of CPOs. That each petitioner availed themselves of this opportunity is evidenced by the fact that each sought to lodge caveats with the specific intention of allowing representations to be made on their behalf when applications for CPOs were made. More importantly, it is reasonable to infer that by the stage when each petitioner sought to lodge caveats, which was prior, albeit in the case of NJ only by a period of hours, to CPOs being sought each petitioner had determined to oppose these applications and to seek to advance argument in support of that position.

[30] The next consideration relates to the factual situation when CPOs were sought. In both cases both petitioner and child remained in hospital at the time the applications were made. Both petitioners could have exercised their legal right to leave hospital taking their new born child with them. There were however practical considerations in both cases which significantly reduced that possibility. In the case of NJ, the child had been placed in a secure cot. It could not be removed therefrom without the assistance of hospital staff. Any attempt by the petitioner to remove the child without approval would have resulted in the police being called. In the case of EH, the petitioner was physically incapacitated as result of surgery.

[31] The situation therefore appears to be, in respect of both petitions, that at the time applications for CPOs were made each petitioner wished to be heard, and presumably oppose, the making of orders. Both petitioners had instructed legal agents who were briefed and in a position to present their clients position to a court. The child in each case remained in hospital where they were secure and cared for. In each case the petitioner could have sought to remove the child from hospital and there was no legal impediment to such a course of action. There were however, in each case, practical impediments which rendered that course unlikely.

[32] Against that analysis of the factual situation, I consider initially the first decision that is refusal by the sheriff to allow a caveat to be lodged. In relation to that, it should firstly be noted that the current rule in relation to caveats in the sheriff court does not expressly convey, or permit the lodging of caveats relating to CPOs. That consideration did not figure prominently in debate. The primary issue for determination is whether article 6 of the ECHR is engaged in respect of caveats. If it is not, then the petitioners' challenge fails. A caveat is simply a device, a notice placed in the records of the court and designed to ensure that no steps of certain kinds, for example, the seeking of interim orders, are taken without informing the caveator and availing him of the opportunity to be heard. A caveat does not check or determine a legal right or obligation, it does no more than alert the caveator of a hearing at which such rights on obligations pertaining to him may be effected in some way. The petitioner's contention that failure to be informed of a hearing that may affect a person's rights is itself an interference with what right such as to engage article 6 of the ECHR is, in my view, incorrect. I accept that the inability of a person to participate in a hearing which affects his rights could engage article 6, but that would be an argument relevant to a challenge to that hearing, not an argument against any earlier step such as the lodging of a caveat. I accordingly consider that article 6 is not engaged and that the challenge to the test decisions fail. The second decision relates to the granting of CPOs in each petition. There was no dispute that the connection between a mother and child created at birth amounts to family life protected by the provisions of article 8 of the ECHR. The broad principles of the nature of the rights created by that provision were not in dispute. Further, it was, not disputed that in emergency situations it would not amount to a violation of a parent's rights under article 8 to take a child into care without hearing the parent, providing postponement of a hearing to enable the parent to be heard would not result in a proposed course of action being deprived of effect. In my view the considerations which must apply before the extreme step of depriving the parent the right to be heard are correctly characterised by Mumby J. (X Council v B (supra) at paras. 52 & 53) as being where there exists "... a compelling case for applying without first giving the parent's notice" and where there exists an "...emergency or other great urgency..." The sort of situation which might give rise to these considerations are where intimation to the parents might itself create a risk to the child or where any delay in seeking an order might endanger the child's health or wellbeing. The question which therefore arises is whether the situation which pertained in the present petitions at the time the applications for CPOs were made could properly be regarded as meeting those criteria. It seems to me that the answer to that question is necessarily fact specific. In the present case, each petitioner had already been informed prior to the birth of their child of the local authority's intention to seek a CPO. There can therefore plainly have been no question of risk involved in telling them of, or permitting representation at a hearing. The sole remaining ground is therefore urgency or emergency. In the context of these petitions I am not satisfied that the degree of urgency amounted to an emergency.

[33] The children were secure in hospital. Whilst in both cases there was no legal impediment to the children being removed from hospital, as a matter of law that possibility was not likely to occur. The local authority had known for a period that they intended to seek CPOs and therefore, as a matter of reasonable inference were in possession of all material necessary to make the application and further prepare for the consequent hearing. The position therefore appears to be that both parties were prepared and ready for a hearing. There was no immediate risk or threat to the children. A hearing could in any event have been dealt with and arranged expeditiously by the sheriff court if required. In the circumstances I am satisfied that a failure to involve the petitioners in the process infringed their rights under article 8 ECHR.

[34] I will appoint a by order to allow parties to address the court on the precise terms of the interlocutor. I will reserve the questions of expenses.