Scottish Sheriff Court Decisions

JAMES ANDREW GREENHORN (AP) v. JOANNE BUSBY HAMILTON and GLASGOW CITY COUNCIL and MARGARET BUSBY (AP) [1999] ScotSC 2 (2nd March, 1999)

The sheriff having resumed consideration of the cause Sustains the fifth plea-in-law for the first party minuter and the first plea-in-law for the second party minuter each to the extent of finding the pursuer's second and third craves to be incompetent; accordingly Dismisses the said craves and Dismisses the remainder of the action so far as founded thereon; Finds no expenses due to or by any party to the action.

NOTE:-

In this action the pursuer seeks to obtain certain orders under the Children (Scotland) Act 1995 in respect of two children. He is not the father of the elder child but has been declared to be the father of the younger child (although never married to her mother) in terms of the first crave of the writ which was granted without opposition on 18 December 1997. The mother of the children (the defender) has never entered the process. The local authority and the defender's mother have done so, styling themselves at the outset as "party minuter" or "minuter": various other designations have been applied to them on various documents in process but I refer to them in this note and in the foregoing interlocutor as "first party minuter" and "second party minuter" respectively.

The action has had so far a somewhat convoluted procedural history whose disentanglement from a perusal of the process is an exercise requiring some application. Essentially however the action was commenced by an initial writ containing three substantive craves and a series of ancillary craves for intimation on various other parties. The three substantive craves sought (1) a declarator of paternity, (2) a declarator entitlement to "parental rights in relation to (two children) in terms of Section 11(1) of the Children (Scotland) Act 1995" (not further specified) and (3) a contact order in terms of Section 11(2)(d) of the Act. On 18 December 1997 a sheriff granted the first two of these craves but on 27 February 1998 the sheriff principal varied that interlocutor by deleting therefrom the declarator of entitlement to parental rights which had been granted in terms of the second crave. The sheriff principal did so on the view that it is not competent for the court to grant what he described as "a bald declarator in general terms" of entitlement to parental rights not related to the ground of a specific order granting a particular such right or rights (such as a residence or contact order in precise terms). The sheriff on 18 December 1997 had granted crave 2 but had made no order (not even an interim order) in terms of crave 3. Following upon these procedures a motion was enrolled on behalf of one of the party minuters for dismissal of the third crave (the crave for a contact order) which came before another sheriff on 31 March 1998 and was granted. From the interlocutor of that date it can be seen that the third crave was dismissed "in respect that said crave is incompetent" and that the motion was opposed but there is no record within the process of what arguments were presented to that sheriff on either side of the motion and that interlocutor was not appealed. Instead the pursuer elected to amend the craves of his writ by inserting a new second crave and a new third crave in place of those previously tabled. This was achieved by a minute of amendment (No 19 of process) which was allowed by interlocutor of 29 July 1998. These amended craves then came before me for debate on 18 and 23 September 1998, it being maintained for both party minuters that the new second and third craves were both incompetent and that the action so far as founded thereon should now be dismissed leaving only the already granted declarator of paternity (in terms of the first crave) extant.

Before me at debate it was maintained for the pursuer that he was entitled to seek and obtain decree in terms of these new craves, even although he no longer now sought to obtain a contact order in precise or specific terms from the court, in order to invest himself with the status of "relevant person" (as defined in Section 93(2)(b) of the 1995 Act) for the purposes of Chapter 2 of Part II of the Act so as to give him the right (in terms of Section 45(8)(a) of the Act) to attend the children's hearing(s) dealing with the cases of the two children named in the craves with a view to his seeking to persuade the children's hearing to allow him to have contact with the said children. This was necessary, it was said, because the two children were currently subject to supervision orders which meant that it was incompetent for him to seek a contact order from the court for the time being and the only means open to him of seeing them was therefore to persuade the children's hearing to allow him contact with them: at present he had no right to attend any children's hearing and, unless granted the necessary status by court orders pronounced in terms of the second and third craves, would be reliant on the goodwill of the chairman of the children's hearing whom he would have to persuade each time to allow him to attend and be heard, which that person would be under no obligation to permit. If the second and third craves were now dismissed by me as incompetent the pursuer would be left in a cleft stick, having then neither the right to attend the children's hearing(s) nor any right of recourse to the courts for a contact order: in other words he would then be deprived of all prospect of even seeking to be authorised to see the children, which would be a substantial infringement of his human rights.

The precise terms of the amended or substituted second and third craves are important although not even yet absolutely clear. I allowed some amendment at the bar on 18 September 1998 in order to rectify an incorrect reference to a section of the 1995 Act in the second line of the second crave and, after making allowance for obvious misprints, I take the present terms of the two craves to be as follows:-

It will be observed that even now I have placed square brackets around "(a) or" in the third crave: this is because a perusal of the actual minute of amendment No 19 of process, in terms whereof amendment was allowed by interlocutor of 29 July 1998, reveals that the actual wording should perhaps be "in terms of Section 2(1)(c) or such parts thereof", some confusion being engendered by the appearance there of an unusual hieroglyphic in the shape of a copyright sign. The terms of Section 2(1)(a) of the Act are not a clear mirror-image of the terms of Section 1(1)(a) of the 1995 Act, even if the rights and responsibilities are intended to be a reflection of one another in some degree. However that may be, the debate before me proceeded on the footing that crave 3 contained reference to "Section 2(1)(a) or (c) or such parts thereof".

At first sight the terms of these craves as currently framed appear self-contradictory: it is difficult to see how a "specific issue order" under Section 11(2)(e) can properly impose or confer responsibilities or rights which are not made specific in the terms craved but remain entirely general in scope despite the references to Section 1(1)(a) or (c) and Section 2(1)(a) or (c). Those paragraphs (a) and (c) of those subsections, whether taken in whole or in part, are couched in general terms and no attempt is made in the craves as framed to render the rights or responsibilities spoken of more specific. Fuller examination of the craves and of the issues canvassed at the debate before me did not to my mind resolve this apparent contradiction.

Prior to the commencement of the 1995 Act an unmarried father had no right to attend any children's hearing relating to his child and had no means of acquiring any such right. This was because Section 41 of the Social Work (Scotland) Act 1968 conferred such rights only on a "parent" who was defined as the mother or married father only (a relic presumably of the view that the bastard child had no father). In addition it appeared to have been decided (in cases such as Dewar v Strathclyde Regional Council 1984 SC 102 and related decisions) that it was not competent so long as a supervision requirement under Section 44 of the 1968 Act was in force in relation to a child for the child's natural parent to make application to the court for an order for access to the child. The 1995 Act altered the first of these disabling situations by conferring in terms of Section 45(8) the right to attend at (and indeed to call under Section 73(6) for a review by) a children's hearing on a more widely defined category described as the "relevant person", defined in Section 93(2)(b) as including obviously the mother and married father and also now an unmarried father (or indeed other persons) if he had parental rights or responsibilities conferred on him by court order or if he had the child living with him for the time being. Whether or not the effect of the 1995 Act has been also to supersede the judicial decisions reached under the régime of the 1968 Act (declaring an application for an access order incompetent during the currency of a supervision requirement) was a secondary question raised before me in debate which in light of my opinion on the central question in the present case I do not find it necessary to answer although I have certain views upon it (see below). I received the impression that an argument to the effect that these earlier judicial decisions remained in full force and effect even under the new régime of the 1995 Act had found favour with the sheriff who on 31 March 1998 had dismissed the original third crave seeking a contact order.

With regard to the rights of an unmarried father to attend at or call for a children's hearing relative to his child, it was urged upon me at debate that the 1995 Act had deliberately created a "child-oriented" climate much more "friendly" to unmarried fathers than had previously existed and that consequently the court should not allow procedural difficulties to stand in the way of allowing an unmarried father the opportunity of full participation in decisions affecting his child. In this connection I was referred to inter alia an article by Professor Joe Thomson published in 1996 SLT (News) 115; a commentary by Alison Cleland on the case of Russell v W reported in Greens Family Law Reports, Issue 2 of 1998 at p 25; a textbook entitled "Parental Rights and Responsibilities" (1995) by George Jamieson at pp 2, 3, and 4; and the opinion of the court in Girvan v Girvan 1988 SLT 866 at 871D. I had little difficulty in accepting the first part of the proposition urged upon me summarised immediately above but I was much more wary of the idea that procedural niceties or technicalities of pleading should for that reason (the general change in climate) be overlooked or swept aside in order to remove unwanted obstacles from the unmarried father's path to full participation. The central question at this stage in the present case is whether the unmarried father can or should be granted a court order such as to bring him within the category of "relevant person" as defined in Section 93(2)(b) on the basis of the particular craves 2 and 3 set forth in his writ in its current state. In my opinion that central question falls to be answered in the negative for a number of reasons set forth in the succeeding paragraphs.

In the first place, in so far as the present craves appear each to seek the making of a "specific issue order" in terms of Section 11(2)(e) of the 1995 Act they are in my view ineptly framed in seeking such orders in respect of matters with which the statute cannot on a proper construction have intended such orders to deal. The wording of Section 11(2)(e) appears to me to envisage such an order to be one regulating a specific question arising in connection with, ie within the context of or intrinsic to or as a matter of greater detail within, a parental right or responsibility conferred or imposed upon a person or exercised by him or her. That wording does not seem to me to envisage such an order being implied to determine the very existence in an individual of such rights and responsibilities in general terms for some extrinsic purpose, such as establishing a right to attend children's hearings. An example (but only an example) of the type of question which might well be regulated by a specific issue order would be, perhaps, the identity of the school to be attended by a child for the coming academic session if such a matter were in dispute for particular reasons in the case of the particular child. I do not think that, by contrast, a specific issue order would be an appropriate vehicle for determining the much broader question (if in dispute) of which one of two parents was to be the one charged with the responsibility or enjoying the right to determine for the time being the general course of the child's education or upbringing. I therefore regard both craves as currently framed as inept, as seeking a remedy which the statute does not confer and as for that reason not competent. I would not however, although it would be technically correct to do so, consider that by itself to be a satisfactory reason for dismissing the two craves and the remainder of the action were it not for the more fundamental reasons mentioned below which point to the same result.

In the second place, if the references to specific issue orders in terms of Section 11(2)(e) are left out of account, the second and third craves are then best viewed as craves seeking declarators of the pursuer's status as a person entitled to parental rights or subject to parental responsibilities in terms of paragraph (a) or paragraph (c) of subsection 1 of each section (Sections 2 and 1 of the Act). A question then arises as to whether they should properly be viewed as seeking "bare declarators" (discussed by Sheriff Macphail in his "Sheriff Court Practice" (2nd Ed) at Section 20.04/05) and as incompetent for that reason, there being no consequent executorial craves tabled in the present writ, but I am willing to accept for present purposes that they should be taken to have potentially some practical effect, albeit outwith the immediate context of the present action, namely the conferring on the pursuer of an entitlement to attend at or call for children's hearings. They remain however craves seeking declarators couched in very general terms and I do not consider that the court can competently or appropriately be called upon to make pronouncements in such general terms as are here sought when regard is had to the provisions of Section 11(7) of the Act. The requirements of subsection (7) are mandatory for the reaching of a proper determination under subsection (1) and cannot in my view be properly or effectively applied to consideration of an application in such general terms as are presented here. I fail to see, for instance, how the court can properly consider that it would be better for the child to declare in general terms that the pursuer is a person who has the right and responsibility to maintain personal relations and direct contact with the child on a regular basis than not to make such a declaration. In my view the court can properly bring the provisions of subsection (7) to bear on a live question before it only in the context of an application seeking an order in precise and specific terms whose making is going to have immediate practical effects in the life of the child. In so saying I think I am in agreement with the approach to the matter indicated by Sheriff Principal Bowen in the present case in the note appended to his interlocutor of 27 February 1998 (at pp 3 and 4 of that note) and by his predecessor Sheriff Principal Macleod in A v G 1996 SLT (Sh Ct) 123. I have to say that when the references to "specific issue orders" are stripped away I do not regard the present second and third craves, despite the new references to Section 1(1)(a) or (c) and Section 2(1)(a) or (c), as being materially different in content from the previous second crave whose declaratory order was before the Sheriff Principal for consideration on 27 February 1998. For this more substantive reason therefore I regard the present two craves as incompetent and would dismiss them and the remainder of the action.

More widely however and in the third place, it appears to me not to have been the intention of Parliament in passing the 1995 Act to allow unmarried fathers to acquire "relevant person" status by means of a general declarator obtained from the courts so as to compel a children's hearing to allow them to be heard or allow them to requisition reviews of supervision requirements. Even if the régime prevailing under the 1968 Act and the judicial decisions reached under it to regulate the relationship between the courts and the children's hearing system has undergone some modification by virtue of the passing of the 1995 Act (see below), it remained in my view the intention of Parliament under the new Act to permit an unmarried father or other person to compel acceptance of his attendance at a children's hearing only if he had the child under his charge and control or if he were able to persuade a court that he should otherwise be granted an order conferring or imposing particular parental rights or responsibilities upon him. By the emphasised "otherwise" above I mean that the court must first be persuaded, applying the criteria and provisions of Section 11(7), that good reason exists for the conferring or imposing on the unmarried father (or other person) of a particular parental right or responsibility by court order before he can attain the status of "relevant person" and not the other way round. By their ingenious presentation of the present application with its present craves the pursuer's legal advisers have in my opinion sought to invert the priorities envisaged by the Act, suggesting in effect that the pursuer should be granted orders in terms of the second and third craves simply because he will thereby acquire "relevant person" status and so be entitled to attend children's hearings, which will somehow (for reasons which so far as I can see are not averred beyond the level of bald statement in the present pleadings) of itself be conducive to the paramount welfare of the two children concerned (as distinct from the well-being of the pursuer himself). I do not think that Parliament intended an unmarried father to obtain the same status as a mother or married father before a children's hearing by simply applying to the court for some general declarator of parental right or responsibility to be granted for the asking or after a proof whereat some general scrutiny is performed by the court unallied to any focussed question of whether it is properly conducive to the child's welfare for the unmarried father to be granted a specific order of practical effect in the immediate life of the child. For this fundamental reason in addition to the other two I consider the pursuer's application as currently presented in terms of the second and third craves to be incompetent and will accordingly dismiss it.

There was discussion during the debate before me of the continued applicability after the passing of the 1995 Act of the judicial decisions pronounced under the 1968 Act which had laid down certain rules governing the inter-relationship between the courts and the children's hearing system in situations where there was in force a supervision requirement relating to the child or children. This arose because it was maintained for both party minuters that the second and third craves were in any event rendered incompetent by the references within each of them to paragraph (c) of subsection (1), which meant that an order was still being sought relative to contact despite the existence of a supervision requirement which had been declared not competent by the decision in Dewar v Strathclyde Regional Council 1984 SC 102. I do not think it necessary for me to decide here on the correctness of this submission since I have decided that craves 2 and 3 are in any event incompetent for the broader reasons explained above, but I am inclined to think that under the now prevailing régime of the 1995 Act those earlier decisions are less strictly applicable than they were before its commencement and that we may now have reached a situation in which an application to a court for a contact order can be entertained despite a supervision requirement being extant so long as the terms of the contact order sought are not incompatible with any terms of the supervision requirement relating to the matter of contact for the time being in force. The provisions of Section 3(4) of the 1995 Act, to which I was referred, seem to me to sit well with such an interpretation. As stated however I do not attempt to decide the matter here but leave it for decision in a case where the point is raised more sharply. I was referred to a decision of Sheriff Matthews at Glasgow Sheriff Court in this connection, namely Russell v W reported in Greens 1998 Fam LR 25, wherein he held inter alia (after proof) that an application under Section 77(3)(f) of the 1995 Act was incompetent in face of an extant supervision requirement prohibiting contact between the person to be named in an exclusion order and the relevant children, but I do not think the view expressed above is at odds with that decision.

As to expenses, the pursuer and second party minuter each have the benefit of Legal Aid, the first party minuter is the local authority and the defender has never entered the process. The pursuer alone suggested that expenses should be reserved until the end of the action; the party minuters were content that no finding of expenses should be made. Since this is in my view the end of the action it seems to me appropriate in the circumstances that no expenses should be found due to or by any party.

For ease of reference I append here a list of the authorities in the form of judicial decisions to which reference was made by parties during the debate before me:-

(In this case an appeal has been marked to the Court of Session)