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Cite as: 2001 GWD 15-567, 2001 SCLR 647, [2001] ScotSC 12

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T v. A and DUNDEE CITY COUNCIL [2001] ScotSC 12 (1st May, 2001)

SHERIFFDOM OF TAYSIDE CENTRAL AND FIFE
A1091/97

JUDGMENT OF SHERIFF PRINCIPAL

R A DUNLOP QC

in the cause

Pursuer and Appellant

against

and

DUNDEE CITY COUNCIL

Defenders and Respondents

__________________

Act: Bovey QC, instructed by Caird Vaughan, Solicitors, Dundee

Alt: Smillie, Solicitor, Dundee City Council

DUNDEE, 1 May 2001. The Sheriff Principal, having resumed consideration of the cause, Allows the appeal and Recalls the Sheriff's interlocutors of 7^th and 27^th October 1999 complained of; before answer Allows parties a proof of their respective averments and Remits to the Sheriff Clerk at Dundee to fix a diet thereof and thereafter to the Sheriff to proceed as accords; Reserves meantime the question of expenses.

NOTE:

1. Background to the appeal

The pursuer and appellant is the father and the first defender the mother of three children, M, L and W. They are not and have never been married to each other. They no longer live together. On 15 June 1993 all three children were made the subject of a supervision requirement, naming the pursuer's home as their place of residence. Thereafter the children resided with the pursuer. In terms of the supervision requirement the children were to have only supervised contact with their mother, the first defender. On 22 September 1994 a place of safety order (as it then was) was made in respect of all three children and since that time they have been in residential placements with the Social Work Department of the second defenders. The pursuer and appellant currently has limited contact with each child, in the case of L and M four times per year and in the case of W once a month. During the period since the imposition of the supervision requirement, children's hearings in respect of each of the three children have been held from time to time and the pursuer has attended such hearings.

The right of a person to attend the proceedings of the children's hearing is principally linked to his or her status as a "relevant person" - see the provisions of s.45(8) of the Children (Scotland) Act 1995 (hereinafter referred to as "the 1995 Act"). In terms of s.93(2) of the 1995 Act "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."

Since the pursuer and the first defender were not married, and in the absence of agreement between them, the pursuer has no parental responsibilities or rights in relation to the children (s.3(1)(b) of the 1995 Act). During the time that the pursuer had the children living with him however he was a "relevant person" within the meaning of section 93(2)(c) of the 1995 Act and as such entitled to appear at and to appeal against certain decisions of the children's hearing. On two separate occasions, in October 1997 and August 1999, the pursuer appealed to the Sheriff against decisions of the children's hearing. The Authority Reporter opposed both appeals as incompetent on the basis that, after the children had been taken into residential care, the pursuer was no longer a "relevant person" within the meaning of section 93 of the 1995 Act. On both occasions the Sheriff sustained that ground of opposition. Neither of these decisions was appealed further and, although the pursuer has been permitted to attend all children's hearings subsequently at the discretion of the Chairman, both the pursuer and the children's hearing have proceeded on the basis that he has had no right to do so. Furthermore, since the pursuer is an unmarried father without parental responsibilities and rights, in the event that the second defenders decide to proceed to place the children for adoption, it would not be necessary to obtain the pursuer's agreement, although it would be necessary for such proceedings to be intimated to him and he might make representations that adoption would not be in the best interests of the children.

In light of the definition of "relevant person" in section 93(2)(b) of the 1995 Act, and apparently with the intention of qualifying himself to appear as of right at the children's hearing, the pursuer raised the present action seeking parental responsibilities and rights. That action came before the Sheriff for debate of the second defenders' preliminary plea that the pursuer's averments being irrelevant the action should be dismissed. Although there is some confusion in the Sheriff's note about the precise terms of the pursuer's craves at that time, parties were agreed that the first and only substantive crave was in these terms:-

"To make orders in terms of section 11(2)(b)(i) and (ii) of the Children (Scotland) Act 1995 in respect of M, L, and W, granting to the pursuer the right and responsibility defined in section 1(1)(d) and section 2(1)(d) viz to act as the children's legal representative and to grant such an order ad interim."

Having made avizandum the Sheriff pronounced an interlocutor on 7 October 1999 in which he sustained the second plea-in-law for the second defenders and dismissed the action as irrelevant. It is against that interlocutor that the present appeal is now directed.

The Sheriff's decision founds heavily if not exclusively on the decision of Sheriff (now Sheriff Principal) Kerr QC in Greenhorn v Hamilton and Others (unreported Glasgow Sheriff Court 2 March 1999). Although Sheriff Kerr took the view that the craves in the action before him were ineptly framed, parties were agreed that in substance and effect they were the same as those under consideration in this appeal. Sheriff Kerr identified the central question before him as being whether the unmarried father can or should be granted an order such as to bring him within the category of a "relevant person" as defined in Section 93(2)(b) on the basis of the particular craves before him. He construed those craves as seeking declarator of the pursuer's status as a person entitled to parental rights or subject to parental responsibilities. He concluded that the Court could not competently or appropriately be called upon to make pronouncements in such general terms when regard was had to the provisions of Section 11(7) of the Act. At page 7 of his judgment he expressed his opinion thus:-

"In my view the Court can properly bring the provisions of sub-section 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. I consider that the orders which a Court is empowered to make under Section 11(1) are intended to be orders dealing with such particular matters."

In this case the Sheriff has then adopted as the basis of his decision Sheriff Kerr's opinion at page 8 of his judgment as follows:-

"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 focused 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. I note in passing that prior to the inception of the 1995 Act it was held in L v H 1996 SLT 612 incompetent to seek a right of guardianship in order to acquire, for the benefit of the parent, the right to attend a Children's Hearing. 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."

2. Procedure at the appeal

The first defender was not represented at the appeal and it is not clear whether she has any continuing interest in these proceedings. The appeal was heard over three days. Regrettably the parties' estimate of the time required for the appeal was inaccurate and these three days were separated by varying periods of time. At the commencement of the hearing on the second day, Counsel for the pursuer moved to amend the Record in terms of the Minute of Amendment (No 32 of Process). His stated intention in doing so was to enable his argument to be reflected more clearly in the craves of the Initial Writ and he accepted that, if the amendment was allowed, the competency of these craves and the relevancy of the averments in support of them would be a legitimate matter for discussion in the appeal. Although the case of Greenhorn raised concerns about the competency and relevancy of the proposed amendments, the argument in the appeal was at an early stage and I did not consider that I could reach a decision on that matter without in effect deciding the issue in the appeal. It was against that background that I granted the motion and reserved the question of expenses occasioned by the amendment. Although this amendment may be thought to have changed materially the form of the pleadings, the central issue between the parties was the same and neither party submitted that the case should go back to the Sheriff at that stage.

3. The Amended Record

As a result of the amendment, there are now two substantive craves, which are in these terms:-

"1. To make orders in terms of section 11(2)(b)(i) and (ii) of the Children (Scotland) Act 1995 imposing parental responsibilities on the pursuer and granting him parental rights in respect of M, L and W;

2. Failing an order in terms of the first crave hereof, to grant to the pursuer

the right and responsibility of defined in section 1(1)(d) and section 2(1)(d) viz to act as the children's legal representative or, failing such an order,

imposing on the pursuer in respect of the said children the parental responsibility set out in section 1(1)(a) of the said Act."

The Articles of Condescendence narrate the historical background of the children's care, the fact that the pursuer is the natural father of each child and that for a period the children were in his care. He also avers that he has persistently tried to get them back into his care and control and that he believes it is in their best interests that they should live with him. He avers that the first defender does not wish the children to reside with her and has already consented to the adoption of at least some of them. In Article 7 of Condescendence, he avers that he is concerned about the welfare of the children and makes somewhat scanty averments that are capable of being construed as calling into question the present arrangements for their care.

What appears then to be a crucial part of his averments is to be found in the amended Article 8 of Condescendence as follows:-

"The Pursuer is the natural father of the children. His views as to their welfare are held in good faith. They are not, on the face of them, at odds with the children's health, development or welfare. They are not to be discounted without enquiry. The proper forum for deciding where the children are to live and whom they are to see is at present the children's hearings. For the Pursuer to be able to contribute effectively to the decision-making process he needs to be entitled to attend at the children's hearing as a relevant person. When he has been permitted to attend such hearings he has not been permitted to contribute. He is not allowed to appeal. In the foregoing circumstances, it is in the best interests of the children that the Pursuer be a "relevant person" in respect of them. He accordingly seeks the parental rights et separatim responsibilities craved."

As is clear from these averments the pursuer does not seek any order for residence or contact within these proceedings. As Counsel for the pursuer described it in the course of his submissions, all that is being sought is an order vesting the pursuer with parental responsibilities and rights, so as to give him an entitlement to appear at the children's hearings. According to Counsel, another way of looking at the matter was that the orders sought were effectively to put the pursuer in the same position as he would have been had he been married to the children's mother. He thus seeks to raise the important issue of whether it is a sufficient basis for an action seeking parental responsibilities and rights that the pursuer will thereby be entitled to appear at the children's hearings. Counsel for the pursuer embarked upon an extensive examination of the jurisprudence of the European Court of Human Rights in support of the proposition that such averments did constitute a sufficient and relevant basis for the action and it is appropriate that I should first summarise the tenor of those submissions. Whether it is appropriate however to view the issue in the apparently stark way that it has been presented by Counsel is a question to which I will return later.

4. Submissions for the pursuer

Counsel relied on the provisions of Articles 6 and 8 of the European Convention on Human Rights. Article 6 provides inter alia:

"In the determination of his civil rights and obligations .... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ..."

Article 8 provides:

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

There shall be no interference 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 well-being 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."

Counsel submitted that the children were part of the pursuer's family even though he was not married to their mother (Keegan v Ireland (1994) 18 EHRR 343 para.44). In an area such as contact between a parent and his children it was essential that the rights of parents were protected in accordance with Article 6 of the Convention (W v United Kingdom 1987 Series A Vol.121 para.79). Article 6 applied to children's hearings, although it was recognised that care proceedings did not involve the determination of the civil rights of an unmarried father of a child if he had not first applied to the Court for responsibilities and rights (McMichael v United Kingdom (1995) 20 EHRR 205 para.77). In McMichael there was a complaint of discrimination contrary to Article 14 directed at the applicant's status as a natural father under Scots law. The Court's conclusion regarding that complaint was expressed in these terms:

"As the Commission remarked, "it is axiomatic that the nature of the relationships of natural fathers with their children will inevitably vary, from ignorance and indifference at one end of the spectrum to a close stable relationship indistinguishable from the conventional matrimonial-based family unit at the other" (paragraph 126 of the report). As explained by the Government, the aim of the relevant legislation, which was enacted in 1986, is to provide a mechanism for identifying "meritorious" fathers who might be accorded parental rights, thereby protecting the interests of the child and the mother. In the Court's view, this aim is legitimate and the conditions imposed on natural fathers for obtaining recognition of their parental role respect the principle of proportionality......" (para.98)

In light of this conclusion Counsel submitted that the Sheriff had an important role as the "gatekeeper" for access to the children's hearing and it was clear that in conducting that role he should consider any application for entry through the gate on its merits. Measures which totally and permanently deprive a parent of his family life with a child would only be justified in exceptional circumstances and where there is an overriding requirement pertaining to the child's best interests (Johansen v Norway (1997) 23 EHRR 33 para.78). Whether such justification exists must involve an examination of the merits of an application for parental responsibilities and rights. An exclusion of a hearing on the merits is a disproportionate restriction of the pursuer's right of access to a court in terms of Article 6 (Osman v United Kingdom (1998) 28 EHRR 245 paras.147-154). The Sheriff had failed to construe the acquisition of parental rights as a necessary element of a fair hearing in the determination of the pursuer's civil rights in the children's hearing. The fact that an unmarried father needs parental responsibilities and rights to appear before the children's hearing is in itself a reason for granting parental rights.

Insofar as the Sheriff had relied on the case of Greenhorn v Hamilton, that decision was in error and ignored the express terms of s.11(2)(b) of the 1995 Act. That section is apt to give unmarried fathers what a married father would have in any event. In applying the provisions of s.11(7) in this context the essential question was whether it is in the best interests of the children that the natural father should be put in the same position as a married father. In Greenhorn the Sheriff had referred to L v H 1996 SLT 612, but that case was of limited value as it was dealing with an application to be appointed a guardian.

Reference was also made to Sanderson v McManus 1997 SC (HL) 55, Golder v United Kingdom (1975) 1 EHRR 524 and P v P 2000 SLT 781. After I had reserved judgement the decision of the Inner House of the Court of Session in White v White 2001 SLT 485 was issued. As this appeared to have some relevance to the issues in the appeal, I gave parties the opportunity to make submissions on that case and also the case of O v O 1995 SLT 238, which had come to my attention. Counsel for the pursuer indicated that he did not wish to make further submissions.

Submissions for second defenders

In relation to the pursuer's reliance on the European Convention of Human Rights, the solicitor for the second defenders submitted that, if the pursuer had any rights to family life justiciable under the Convention, it was the children's hearing's intervention which constituted the interference with those rights and it was that intervention which the pursuer should challenge. He submitted that it was not a sufficient basis for an application for parental rights that the pursuer will thereby become a relevant person for the purposes of the children's hearing system.

In its unamended form the pursuer had made no averments relevant to an application to be the children's legal representative. The essence of acting as a child's legal representative was to represent the child in entering into transactions for which the child himself lacked capacity. On no view could the role of relevant person before the children's hearing be described as that of legal representative. Insofar as the pursuer founded on "the taking of any step in civil proceedings", the proceedings of a children's hearing were sui generis and could not readily be characterised as civil proceedings.

He submitted that the position had been altered by the amendment. He did not challenge the competency of the amended craves and to this extent did not adopt the approach of Sheriff Kerr in Greenhorn. He did however pray in aid the decision of Sheriff Principal Bowen QC at an earlier stage in the same case (unreported 27 February 1998), which made it clear that it must be shown that it is in the children's best interests that the pursuer should have imposed or be given each responsibility and right sought in the application. Although a right to appear before the children's hearing might follow as a consequence of a successful application for parental responsibilities and rights it was not an end in itself which justified the making of such orders.

In relation to White v White and O v O, he contended that these were both cases in which applications were made for contact by fathers who already possessed parental responsibilities and rights in respect of their children and, as nobody had argued that they should be deprived of those rights, it would not be surprising that less should be expected of such fathers by way of written pleadings. O v O expressly left open the possibility of an action such as this being dismissed on a point of law and questions of relevancy raised such a point. He maintained his submission that there were no relevant averments upon which the Court could properly make an order under section 11. To the extent that O v O envisaged some kind of enquiry into the facts, there had already been extensive enquiry into the facts by way of reports obtained by the court from the Social Work Department and others.

6. Decision

Although the primary focus of Counsel's submission was the European cases to which I have referred, in my view the proper starting point for a consideration of the issues raised in this appeal must be the terms of the Children (Scotland) Act 1995.

Section 1of the Children (Scotland) Act 1995 provides inter alia:-

"1.-(1) Subject to section 3(1)(b) and (3) of this Act, a parent has in relation to his child the responsibility -

to safeguard and promote the child's health, development and welfare;

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

direction;

guidance,

to the child;

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

to act as the child's legal representative,

but only in so far as compliance with this section is practicable and in the interests of the child.

........

(3) The responsibilities mentioned in paragraphs (a) to (d) of subsection (1) above are in this Act referred to as "parental responsibilities" ......"

Section 2 provides inter alia:-

"2.-(1) Subject to section 3(1)(b) and (3) of this Act, a parent, in order to enable him to fulfil his parental responsibilities in relation to his child, has the right -

to have the child living with him or otherwise to regulate the child's residence;

to control, direct or guide, in a manner appropriate to the stage of development of the child, the child's upbringing;

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

to act as the child's legal representative.

.........

(4) The rights mentioned in paragraphs (a) to (d) of subsection 1 above are in this Act referred to as "parental rights" ........"

Section 11 provides inter alia -

"11.-(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 -

parental responsibilities;

parental rights;

guardianship; or

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 -

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

an order -

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

giving that person such rights;

(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 -

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

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

give him an opportunity to indicate whether he wishes to express his views;

if he does so wish, give him an opportunity to express them; and

have regard to such views as he may express."

The structure of Section 11(2) suggests that an order under Section 11(2)(b) alone is competent and, as I have already indicated, neither party sought to challenge that proposition. In light of the provisions of sections 1(3) and 2(4), the reference to parental responsibilities and rights in both paragraphs (a) and (b) of Section 11(2) cannot be other than a reference back to what is contained in Sections 1(1) and 2(1). According to its terms therefore, section 11(2)(b) envisages an order of court imposing those responsibilities and giving those rights. Sections 1(1) and 2(1) identify responsibilities and rights which are imposed automatically on the mother and, if married to her, the father of children. One can readily understand how an order under Section 11(2)(a) could relate to those responsibilities and rights and I do not see why there should be any difficulty with the notion that the Court can competently impose or give such responsibilities or rights to those who do not have them, notwithstanding the general terms in which they are expressed in sections 1 and 2. In the context of the present case that would have the effect of putting the pursuer in precisely the same position that he would have been had he been married to the first defender and it seems to me that s.11(2)(b) is a legitimate means of securing that end. Whether it is appropriate to do so is of course an entirely different question.

Both parties in this appeal have interpreted Sheriff Kerr's comments in Greenhorn v Hamilton as running counter to this approach, particularly in his use of the expression "a specific order of practical effect in the immediate life of the child." If by this expression Sheriff Kerr was intending to emphasise the need for it to be established that the making of an order had to be in the best interests of the children then one could not dissent from that proposition. If on the other hand this expression were intended to exclude the making of an order by reference simply to what is contained in Sections 1 and 2 then I would respectfully disagree.

Before Sheriff Kerr's decision in Greenhorn there had already been an appeal to the Sheriff Principal. At that stage the crave under consideration sought declarator of entitlement to parental rights in relation to the children in terms of section 11(1) of the 1995 Act. There was also a crave for contact. Sheriff Principal Bowen QC identified the central question as being whether it was appropriate for the court to grant a bald declarator in general terms. He referred to the fact that the court is empowered to make an order "giving ... such rights" and then made the following observations (at page 4):

"Although the provisions are somewhat convoluted, it seems to me to be reasonably clear that there is inherent in the provisions of sections 2 and 11 of the 1995 Act a distinction between the power to hold "rights" - a term which Dr Norrie in his useful annotations to the Act has astutely described as "inept" - and the rights which a court can grant. In the latter category the rights have to be specific for necessary practical reasons. In the present case it is reasonably clear that what the pursuer wishes is to obtain a locus to make representations regarding the children at the Children's Hearing, and to obtain a contact order. The effect of granting crave two, on the face of it, is to grant him the whole range of parental "rights" including that of residence. That could not have been intended, and indeed it could not be done without the court examining whether in relation to each right paramount considerations relating to the welfare of the child required the making of the order."

It is not entirely clear to me what the learned Sheriff Principal meant by the phrase "That could not have been intended ..." Counsel for the pursuer seemed to think that the conclusion of this judgment was adverse to the propositions being advanced by him, but I am not sure that that is correct. In the context of the judgement as a whole, it seems to me that the phrase in question refers to the intention of the pleader rather than the intention of the legislature. The Sheriff Principal had already referred to the power of the court to make an order giving parental rights, clearly a reference to section 11(2)(b), and the acceptance of such a power would appear to be consistent with an acceptance of a crave the effect of which was to give the pursuer "the whole range of parental "rights" including that of residence". It seems more likely therefore that Sheriff Principal Bowen was accepting the competency of a crave in the terms indicated, but has nevertheless deleted it since it was clear that that was not what the pleader intended nor what the pursuer truly sought. My conclusion in this regard may sit rather uneasily with the reference to "the rights which a court can grant" as having to be "specific for necessary practical purposes", but in my view this can be read in its proper context as relating to the requirement that any order has to be in the best interests of the child. Accordingly I agree with the solicitor for the second defenders that Sheriff Principal Bowen's judgment in Greenhorn is not to be seen as supporting the view that the craves in this appeal are incompetent.

In White v White (para.10 page 488I/K) the Lord President pointed to the distinction between the possession of responsibilities and rights and the arrangements made for discharging those responsibilities and exercising the corresponding right. In the same part of his Opinion he draws attention to the provisions of Section 1(1) that compliance with the responsibilities imposed thereunder is required only insofar as it is practicable and in the interests of the child. In the same way Section 2(2) makes it clear that the exercise of a parental right may be controlled by order of the Court and that is confirmed by for example Section 11(2)(c), (d) and (e). Accordingly it is plain in my view that a person may possess all the parental responsibilities and rights set out in Sections 1 and 2 and yet meantime be unable to discharge or exercise some or all of them. That view is reinforced by the terms of Section 11(11) which envisages at least the possibility that an order may impinge upon the exercise of someone's parental responsibilities and rights without them being formally deprived of such responsibilities and rights. In P v P the competency of making an order regarding parental responsibilities and rights even though such an order could not have immediate practical effect was affirmed.

If then there exists a distinction between the possession of the responsibilities and rights set out in sections 1 and 2 and the ability meantime to discharge or exercise them, I can see no reason in principle why a court could not impose those same responsibilities and rights by order in terms of Section 11(2)(b) notwithstanding the parent could not immediately discharge or exercise them. There may well be reasons in the interests of a child why such responsibilities and rights should be granted even though they cannot have immediate practical effect and an example of one such reason was given in P v P (at page 789H/I). Accordingly I am satisfied that the parties were well founded in their acceptance of the competency of the craves in this action and that notwithstanding the apparent view of Sheriff Kerr to the contrary. To the extent that the Sheriff has adopted the approach of Sheriff Kerr in this respect in my view he was in error.

Once it is accepted that an order in the terms sought can competently be made, the central issue becomes whether in all the circumstances of the case it is appropriate that such an order should be made, having regard to the principles set out in Section 11(7). The solicitor for the second defenders maintained his opposition to the appeal on the basis that the pursuer had made no averments of any circumstances that were relevant to a consideration of that issue.

In my opinion, it will be a very rare case in which the Court will be able to reach a conclusion regarding the welfare of a child on the basis of the relevancy of pleadings. In O v O, the First Division put the matter this way:

"It is not normally appropriate, where the welfare of children is involved, to dispose of an application for an order relating to parental rights solely on the pleadings. Once the point is in issue the court ought not to dispose of the matter, except on a point of law only, without conducting some kind of inquiry into the facts." (page 240I)

In my view this expression of opinion is clear support for Counsel's proposition advanced under reference to Osman v The United Kingdom and it is surprising that he should have chosen to found his argument in this respect on the European jurisprudence to the exclusion of domestic authority, which seems to me to be clearly relevant.

In White v White the Court drew attention to the provisions of Section 11(3)(a) and (b) which entitled the Court to make orders under Section 11 ex proprio motu without any application. In that case it was accepted that, where the Court was considering whether to make an order which no one had sought, the Court had simply to consider all the relevant material and decide what was conducive to the child's welfare. At page 491G et seq. the Lord President said:-

"In my view, exactly the same applies to a case where a party seeks an order. The Court must consider all the relevant material and decide what would be conducive to the child's welfare. That is the paramount consideration. In carrying out that exercise the Court should have regard to the general principle that it is conducive to a child's welfare to maintain personal relations and direct contact with his absent parent. But the decision will depend on the facts of the particular case and, if there is nothing in the relevant material on which the Court, applying that general principle, could properly take the view that it would be in the interests of the child for the order to be granted, then the application must fail. That might be so, for instance, if a father had abandoned his wife when the child was born and, years later, suddenly sought a contact order. A fortiori the application will fail if the relevant material shows that it would definitely be contrary to the child's welfare for the order to be granted. In practice, as Lord Oliver of Aylmerton remarked in In re K D 1988 AC 806 at page 827D, the Court will indeed be able to determine the matter on the available material. If, having considered the material, the Court is minded to make an order because it would be conducive to the welfare of the child, it has then to consider whether it would be better for the child to make the order than not to make any order at all. This second limb of the test is designed to give effect to Parliament's view that, wherever possible, matters should be regulated by the parties without the intervention of the Court."

Part of the material that the Court is entitled to take into account is the terms of any report prepared by the local authority or a reporter and it is noteworthy that in this case there have been a number of such reports. Furthermore section 11(7)(b) requires the court to have regard to any views expressed by the child. All of this suggests to me that the Court is to have regard to all the circumstances and not simply those narrated within the pleadings.

I do not consider that, in relation to this conclusion, there is any substance in the argument advanced by the solicitor for the second defenders that the cases of White v White and O v O can be distinguished on the grounds that in each case the father already had parental responsibilities and rights and I find no support for such a distinction in the opinions of the Court. In relation to his submission that there had already been extensive enquiry into the facts by way of reports, that is certainly true and it was not disputed that it would have been open to the Sheriff to consider whether he had sufficient material before him to reach a decision on all the issues in the case at a Child Welfare Hearing (McCulloch v Riach 1999 SCLR 159). However the Sheriff has not followed that approach. He has very deliberately concentrated on the relevancy of the pursuer's pleadings and has dismissed the action by sustaining the second defenders' plea to the relevancy of those pleadings. In those circumstances I do not consider that I can properly entertain this submission. In any event neither party made any examination of the factual picture disclosed in these reports.

At an earlier stage of this note I referred to the fact that the approach of Counsel for the pursuer seemed to involve the single issue of whether it is a sufficient basis for the action that, if successful, the pursuer will thereby be entitled to appear at the children's hearing. In Greenhorn Sheriff Kerr expressed the opinion that the intention of Parliament under the 1995 Act was:

"... 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". 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 wellbeing of the pursuer himself)."

In my opinion this approach is well founded and I gratefully adopt Sheriff Kerr's expression of it. It accords with what I conceive to be the effect of McMichael v United Kingdom. The European Court of Human Rights endorsed the approach of the Government in requiring unmarried fathers to apply for parental responsibilities and rights as a legitimate mechanism for identifying "meritorious" fathers. Whether the father is "meritorious" is to be measured by reference to whether he is a person who should be granted parental responsibilities and rights and that in turn is dependent upon a consideration of whether that would accord with the welfare of the child. This in my view is the correct approach and accords with the opinion of Sheriff Principal Bowen in Greenhorn to which I have already referred. Such an approach also accords with that of the Sheriff at first instance in the case of P v P (reported sub nom. MP v CP 1999 SCLR 679). In that case the Sheriff held that he had no power to make a specific issue order to enable a party to appear at the children's hearing when he was not otherwise entitled. The Sheriff's reasons for that conclusion (page 691F et seq.) are in my opinion sound. Although the Sheriff was overturned on appeal, there is nothing in the decision of the Inner House that would suggest that the Sheriff was wrong in this particular respect.

In Sanderson v McManus one finds support for the view that whether the pursuer should be given parental rights is related to the question of whether he has something to offer the children which would be to the benefit of their welfare (Lord Hope of Craighead p.64D). The excerpt from McMichael to which I have already referred equates the description "meritorious" with a recognition that the father has a "parental role" to play. The pursuer's past involvement with the children, his continuing interest and his averment that he still has something to offer the children as their father are all averments relevant to that question. The fact that he is already exercising contact with the children, albeit to a very limited extent, is in itself a relevant consideration. Set against that of course is the view of the second defenders that the pursuer has nothing to offer the children in the future and that his conduct is in fact detrimental to the welfare of the children. In light of the approach in O v O, in my opinion these competing accounts warrant enquiry and it is appropriate that there should be a full consideration of the merits of the pursuer's application.

This conclusion depends on somewhat wider considerations than those suggested by Counsel's submission. His submission that the fact that an unmarried father needs parental responsibilities and rights to appear before the children's hearing is in itself a reason for granting parental rights is not in my opinion well founded. Although I agree with Sheriff Kerr, and thus with the submission of the solicitor for the second defenders, that the court should not grant an order under section 11 "simply because (the pursuer) will thereby acquire "relevant person" status", that is not to say that the court should ignore that consequence when looking to the whole circumstances and what is in the best interests of the children. As a factor it will most obviously arise for consideration in an application for parental responsibilities and rights of an unmarried father in circumstances where at least some of such rights would be effectively suspended during the currency of a supervision requirement.

As I have already indicated, it does not seem to me that there is any objection to the granting of an order in terms of section 11(2)(b) on the grounds that the pursuer cannot immediately discharge or exercise the responsibilities and rights thereby granted, if that is a course of action conducive to the welfare of the children. In P v P (page 788K) the court expressed the view that it would be inappropriate to grant an order which would, at the time of its making, be inconsistent with a condition attached to a subsisting supervision requirement unless the circumstances were exceptional and justified by the principles of s.11(7). The particular context of that statement of opinion was the suggestion that the court could make an order for contact in terms different from the contact arrangements specified in a supervision requirement. In my view an order in the terms of the present craves would not necessarily be inconsistent with the supervision requirement, since they can be viewed as doing no more than putting the pursuer in the position he would have been in had he been married to the children's mother. Each case will depend on its own circumstances and I do not consider that there is anything in P v P which runs counter to the approach that in my view can be followed in this case. If the pursuer does seem to have something to offer the children, the court might be more ready to grant an order in terms of s.11(2)(b), notwithstanding it could have no immediate or direct practical effect, in the knowledge that a consequence of the order will be to give the pursuer access to the children's hearing where the decisions having practical effect are presently being made. What it is important to emphasise however is that the court must above all be satisfied that the pursuer does have something to offer the children which will be of benefit to their welfare. On the other hand, if, upon an examination of the whole circumstances, the court was to conclude that the pursuer had nothing to offer the children in the future and that such responsibilities and rights were unlikely ever to be discharged or exercised it is difficult to see how such an order could be made consistently with the requirements of section 11(7).

The resolution of these issues however is a matter for enquiry and it is only after such enquiry that it will be apparent what should be the order to make, if any, having regard to the principles that I have sought to set out in this note. I have reservations about the appropriateness of an order such as that sought as crave 2b), since the court is unlikely to impose a responsibility on a parent without giving him the right by means of which he can fulfil that responsibility. As I am allowing a proof before answer however I consider that such an issue can reasonably be left until the facts have been ascertained.

In these circumstances I am satisfied that the Sheriff's interlocutor should be recalled. In doing so I should say that the Sheriff was not assisted by the narrow scope of the issue argued before him. The pleadings are now in an altogether different form and it is clear that I have had the benefit of a much more extended discussion of the issues than that enjoyed by the Sheriff. In its current form I do not consider that this action can be dismissed on grounds of relevancy. I shall accordingly allow parties a proof before answer. In view of the passage of time the allocation of a diet of proof should be given priority. In my opinion it would also be desirable to have a further Child Welfare Hearing, not least because some of the children are now of an age when their views may wish to be heard. I am satisfied however that that is a matter that can be left to the sheriff to decide. The interlocutor of 27^th October 1999 dealt with the expenses consequential upon the dismissal of the action and as I have recalled that dismissal it is appropriate that I should also recall that interlocutor.

Parties were agreed that I should reserve the question of expenses.