Scottish Sheriff Court Decisions

B354/98

The Sheriff Principal, having heard counsel for the applicant, and there being no opposition, allows the appeal lodged on 24 March 1999 to be withdrawn; having heard counsel for the respondents and counsel for the applicant, finds the applicant liable to the respondents in the expenses of said appeal; allows an account thereof to be given in and remits the same, when lodged, to the Auditor of Court to tax and to report; having heard counsel for the parties on a motion to modify the applicant's liability in respect of said expenses to nil, refuses said motion; on joint motion certifies the cause as suitable for the employment of junior counsel; on the motion of the applicant allows a further note of appeal to be lodged at the bar and allows parties to be heard thereon forthwith; having heard counsel on the respondents' motion for dismissal of the appeal, grants said motion and dismisses the appeal; adheres to the interlocutor of 10 March 1999 complained of; on joint motion finds no expenses due to or by either party in respect of the appeal marked on this date.

This is an appeal which has come to an unsatisfactory but, in my view, inevitable conclusion. As matters turned out, I was able to give my decision at the end of to-day's hearing. However, since this case has highlighted some matters of general public importance, I have thought it right to set out at some length the circumstances and the considerations which led to my decision.

The applicant in the summary application to which the appeal relates is the mother of a child, Z., who was born on 19 August 1994. It appears that Z. is an exceptionally gifted child, and for that reason the applicant, in November 1997, made a placing request to the respondents as education authority for the City of Edinburgh where the applicant and Z. reside. That placing request purported to be made in terms of section 28A of the Education (Scotland) Act 1980 (as inserted by the Education (Scotland) Act 1981), and it asked that Z. should attend T. Primary School with effect from the beginning of the school session commencing in August 1998.

As can be seen from the dates which I have just set out the consequence of the applicant's placing request, had it been granted, would have been that Z. would have entered primary school around the time of his fourth birthday. In fact, however, the request was refused by a special sub-committee of the respondents' education department on the ground that the education provided at primary schools was not suited to Z's age. The refusal further stated that the "Council takes the view that the education normally provided in a primary 1 class is not suited to the age of children not attaining their fifth birthday before the last day of February in the first year of school attendance". In other words, a child may be admitted to primary school at the age of 41 but not at the age of 4. The decision by the education sub-committee was made on 28 July 1998.

Thereafter the applicant appealed against the foregoing decision to an appeal committee in terms of section 28C of the Act, but that appeal was refused on 14 September 1998. The applicant then raised the present proceedings in terms of section 28F of the Act with the summary application being lodged in court on 12 October 1998. Answers were lodged on behalf of the respondents on 2 December 1998, and a hearing on the application and answers took place before the sheriff later that month. Preliminary argument was advanced before the sheriff on the competency of the application, and impliedly on the competency of the original placing request. It seems to have been agreed at that stage that, if the sheriff were to reject the respondents' plea to competency, there would then require to be a proof. It was a matter of agreement then, and it remains so now, that any such proof would be likely to last for around four days.

In the result the sheriff, on 10 March 1999, issued a judgment in which she sustained the respondents' plea to competency and dismissed the application. She also reserved meantime all questions of expenses. Notwithstanding that reservation of expenses, and the fact that as a consequence the sheriff's judgment was not a final one in terms of the Sheriff Courts (Scotland) Act 1907, the solicitors for the applicant marked an appeal to myself on 24 March 1999. I was able to arrange for that appeal to be heard on 22 April 1999, but I made it known to parties that I would wish to be addressed regarding the competency of the appeal. I had two concerns in that regard. The first is that, since the 1980 Act itself does not provide any procedure for an appeal to the sheriff principal, the procedure normally applicable to an ordinary action must be followed, and that involves that a judgment being appealed must be of a kind where there is a competent appeal under section 27 of the 1907 Act. It did not seem to me that the sheriff's judgment in the present case fell under any of the specified kinds of decision mentioned in that section, and accordingly the judgement was appealable only if it satisfied the requirements for a "final judgment" as defined in the Act. As I have already mentioned, it did not seem to me that that definition was satisfied since questions of expenses were unresolved. My second concern arose from the fact that section 28F(9) of the 1980 Act provides that the "judgment of the sheriff on an appeal under this section shall be final". I am aware that it has not always been held that a "finality clause" of this kind necessarily means what it appears to say, but I considered that in the present case I would require to be addressed on the matter.

In the event, when the appeal called before me on 22 April counsel for the respondents advised me that he was prepared to concede that the appeal was not rendered incompetent by reason of the provisions of section 28F(9) of the 1980 Act. However, he did submit that the appeal was incompetent by reason of the fact that it had been taken against a decision which was not a "final judgment" for the purposes of the 1907 Act. Counsel for the applicant, for his part, accepted that the appeal was incompetent on the latter ground. Since both counsel for the respondents and I took the view that the appeal raised issues of general importance. and should not simply be dismissed on a somewhat technical ground, there followed some informal discussions in chambers as to what would be the best way forward. Since the sheriff whose judgment was under appeal was in Edinburgh Sheriff Court on that day, it was decided, with my agreement, that parties would seek to appear before her in the course of the day in order to have the outstanding matter of expenses dealt with. It was also agreed that, if that were done, the case would thereafter call again before me when the original incompetent appeal would be withdrawn, and a new, competent, appeal would be lodged in its place. I was able to assign 30 April 1999 as a diet for that purpose. As it happens, the outstanding matter of expenses was dealt with on the afternoon of 22 April, and on 30 April the various procedural steps necessary to put a competent appeal before me were carried through, and I agreed to hear the appeal immediately. I should add, however, that, at the hearing on 22 April, counsel for the respondents had advised me that, at the continued hearing on 30 April, he would be arguing that the appeal should be dismissed on the ground that, with the passage of time, the present application no longer has any practical utility.

Before coming to that I must make some comment on two matters. The first relates to the subject matter of this application, which I have already briefly described. As I understand it, cases of this sort, seeking an early admission of a child to primary school, have arisen from time to time during the years since 1981 when, as I have noted above, provision for placing requests was inserted into the 1980 Act. The competency of such applications has regularly been challenged by the education authorities concerned and, on appeals to sheriffs, a divergence of opinions has emerged with some sheriffs favouring the competency of such applications and others favouring the opposite view. Those views all turn, as did the decision in the present case, on an interpretation of the relevant provisions in the 1980 Act, and in particular on what is meant by the word "child" in the sections in question. Quite plainly, it is highly unsatisfactory both for parents and for education authorities that the law on this matter should be in such a state of uncertainty; and, although any decision which I might have reached on that matter would only be of limited effect as binding authority, it is, I suppose, possible that I might have been able to shed some light on the matter which might have been accepted as persuasive in other sheriffdoms. I therefore note that the issue of substance raised in the present appeal is one which is of importance not only for the present applicant and her son but also for others who may in future find themselves in a similar situation.

The second matter on which I wish to comment is what I might call the statutory competency of the present appeal. I have noted earlier that section 28F(9) of the 1980 Act provides that the judgment of a sheriff on an appeal under that section is to be final. In the present case, as I have said, counsel for the respondents indicated that he was prepared to concede that that provision did not render the present appeal incompetent. Given that concession, I was prepared, albeit with some hesitation, to proceed to hear the present appeal. I wish to put it on record, however, that I may not be prepared to follow the same course on a future occasion, and I am certainly not to be taken as accepting that section 28F(9) does not mean what it appears to say.

With those comments I pass now to deal with what transpired at the hearing on 30 April once the necessary procedures had been gone through in order to depart from the original appeal and to replace it with a new, and competent, appeal. At that stage counsel for the respondents submitted that the appeal should be dismissed on the basis that, with the passage of time, there is now no live issue to be determined. He noted that what the applicant originally sought to achieve is now no longer capable of achievement. The applicant had sought to have her son admitted to primary school with effect from August 1998, but it is now nearly nine months after that date so that most of the current school session is already past. The present school session will come to an end in early July and, even if the applicant were to be succesful in the present appeal, there would still be the need for around four days of proof before a decision could be made as to whether or not to grant the application. In those circumstances, it was submitted, even if the application were to be succesful at the end of the day, no effect could be given to the decision of the court because by then the current school session would have come to an end. Counsel advised me that Z. will in any event be admitted to T. Primary School in August this year, and that arrangements exist there whereby very able children can be taught particular subjects along with other children who are chronologically older. Counsel also added that the present appeal proceedings, and even more so four days of proof, would involve considerable expense - in the case of the respondents to local authority taxpayers and ratepayers, and in the case of the applicant to the legal aid fund. That, he submitted, could not reasonably be justified in respect of proceedings which are incapable of having any meaningful outcome.

Counsel for the applicant did not, I think, seek to challenge the logic of the submissions advanced by counsel for the respondents. However, he submitted that it would make a mockery of the whole procedure under the 1980 Act if that procedure itself should lead to a situation where an appeal to a sheriff principal would be pointless because by that stage the practical utility of such an appeal had disappeared. He advised me that, although his client, quite rightly and quite understandably, is primarily concerned for the welfare of her own son, she also has concerns for other parents who in future might find themselves in the same position, and be faced with the same problems. In those circumstances counsel urged me to reject the submissions advanced on behalf of the respondents, and to proceed to hear the appeal on its merits.

There is no doubt that a court will not generally entertain proceedings which can, for whatever reason, have no practical result. Consequently, I considered it to be essential to explore as fully as I could the factual elements in the submissions advanced in the present case on behalf of the respondents. I began with the appeal before myself. Plainly the question of the competency of an application such as that made by the present applicant is far from clear and, as I have observed, it has been the subject of a number of conflicting decisions by sheriffs, and indeed at least one sheriff principal, in different parts of Scotland. In that situation it was apparent to me that, if I heard full argument on those matters, I would not be in a position to deliver an extempore judgment at the end of the hearing, and would require to take the matter to avizandum. With the best will in the world, that would probably delay matters by around a week, or perhaps even slightly more. That, therefore, took us to about the end of the first week in May, or the beginning of the following week.

I then considered the fact that, even if I were to decide the matter of competency in favour of the applicant, there would then have to be a proof which, it was estimated, would be likely to last for four days. I therefore asked my clerk to make inquiry to discover the earliest consecutive dates when such a proof could be accommodated in the court diary. Having made that inquiry he advised me that such a proof could not be accommodated before 21 June at the earliest. It might, he said, be possible to find a place for it sooner, but that would involve discharging previously arranged diets of proof in other cases, many of which apparently are adoption cases and other cases involving the welfare of children. Plainly, that would not be an acceptable course to follow. In the result, any proof in this case could not take place until the latter part of June; and, since the sheriff who heard a proof of that length would unquestionably require time in order to produce a written judgment, the probability is that a final decision would not be available until at least the middle of July, which of course is after the conclusion of the current school session. To that I should perhaps just add that the foregoing is, in my estimation, the very best scenario that can be envisaged. In all probability it would actually be later than mid-July before any final decision on this case could be reached.

In the foregoing circumstances it is abundantly clear that, so far as the subject matter of the present application is concerned, nothing is now to be achieved by progressing this case further since, even if the application were to be wholly succesful at the end of the day, it would not be possible for Z. to attend school for even a single day of the current school session. In that situation a full hearing of the appeal followed, possibly, by four days of proof would represent an expensive and time-consuming process which would be incapable of producing any practical result. For those reasons I came to the conclusion that I had no alternative but to sustain the submissions advanced by counsel for the respondents, and to dismiss the appeal.

I reached that decision with considerable regret because I am by no means unsympathetic to the view expressed by counsel for the applicant that there is no point in having appeal procedures if the time scale within which they operate is such as to render them of no practical utility at the end of the day. My regret also stems from the fact that that sort of time scale may make it difficult to secure any, even slightly, authoritative interpretation of the relevant provisions in the 1980 Act. I have set out the chronology of the present proceedings in some detail because, it seems to me, it illustrates clearly the points at which time for advancing the progress of the application was lost.

The first, and most striking, period of time is that between the original submission by the applicant of a placing request to the respondents and the taking of a decision on that by the respondents' education department sub-committee. As I have noted earlier, the placing request was made in November 1997, but the decision refusing that request was not made until 28 July 1998. Plainly, the date of that decision was such that it alone made it impossible for the applicant to secure her placing request in full since the school session in question was about to start only a few weeks later. The 1980 Act itself makes provision, as I have noted earlier, for an appeal procedure, first to an appeal committee, and thereafter to a sheriff. In no way could those procedures possibly have been carried through to completion in time for the placing request to be met in full when the original decision to refuse it was not made until such a late date.

I am unable to comment on the reasons why it took some nine months for the applicant's placing request to be decided by the respondents' education sub-committee, but I think that I am entitled to say this. If there are good and sufficient reasons to account for that period of decision-making, and if such a period is normal in relation to placing requests, then the various provisions in the 1980 Act relative to appeals are unlikely ever to have much practical utility since, even at best, they will be unlikely to be concluded until well beyond the commencement of the school session in question. If, on the other hand, there is no good and sufficient reason for the original decision-making to take nine months, then I consider that the respondents should reconsider their internal procedures in order to speed up that decision-making to a considerable extent.

Once the appeal procedures were actually under way in the present case they moved on, initially at least, at a reasonable speed. The decision of the respondents' own appeal committee was given on 14 September 1998 which was only some two months after the decision of the sub-committee, though of course even by mid-September the school session in question was already well under way. The appeal to the sheriff was then processed with reasonable despatch and, as I have noted, a hearing took place before the sheriff in December. It is perhaps unfortunate that a further three months then elapsed before her decision was issued, but there may be perfectly acceptable reasons to explain that delay. Subsequently, the appeal procedure to myself took place within a relatively short time, notwithstanding that initially that appeal was incompetent and that urgent steps had to be taken to sort out that particular problem. In the result, however, it was the end of April before I could hear the appeal, and of course by then the school session was rapidly nearing its close.

Plainly, in my view, the sequence of events which I have just outlined, and which I suspect is probably not untypical in a case such as this one, is unlikely in practical terms to confer benefit on an applicant who seeks to have a child admitted to school at an early age. Unless the respondents can substantially increase the speed at which placing requests are dealt with in the first instance, that is likely to remain the position. In my view, however, the problem which I have outlined is most likely to be alleviated by some legislative amendment so as to make clear whether or not the provisions of the 1980 Act do, or do not, permit a placing request of the kind in the present case. As I have observed, judicial opinion on whether or not the present provisions permit such a request is divided. That is plainly unsatisfactory; but an authoritative judicial determination is unlikely since it is probable that there is no way in which a matter such as this could ever be pronounced on by the Inner House of the Court of Session. In my view, it would be in everyone's interests to have the matter resolved one way or another, and I suspect that legislative amendment may be the only way of achieving that.