Scottish Sheriff Court Decisions

F641/03

GLASGOW, 23 February 2004.

The Sheriff Principal having resumed consideration of the cause, refuses the appeal and adheres to the sheriff's interlocutor dated 26 August 2003.

[1] This is an appeal against an interlocutor dated 26 August 2003 refusing to grant a warrant for citation. The terms of the interlocutor - which bear to refuse the applicant's motion for a warrant as incompetent - are not, I think, strictly accurate. The sheriff appears to have considered that the action itself was incompetent, and for that reason refuse to grant warrant. That of itself is not a matter consequence, and the appeal is properly before the court following a grant of leave to appeal by the sheriff on 18 September 2003.

[2] The initial writ discloses that the pursuer was born on 13 August 1988, that is he was 15 years of age when the matter was before the sheriff. He seeks, in terms of the first crave "a contact order in terms of Section 11(2)(d) of the Children (Scotland) Act 1995 in respect of the child D-H - born on 15 December 1989 sister of the pursuer under sixteen years of age" during specified hours. The writ goes on to narrate that DH was adopted by the defenders on 10 March 1994. The pursuer avers that he saw his sister regularly until the age of 5. Having spent some time in the care of his grandparents, he has now returned to live with his natural mother. He says that he has fond memories of his sister, considers that they could now develop a "close and loving relationship" and avers that it would in her best interests for a contact order to be granted.

[3] In her Note the sheriff indicated certain matters which caused her concern when the writ was presented for warranting. First, she was not satisfied that the action was competent. It appeared to her that what was being sought was a "parental right" and the sheriff indicated that she required persuasion that such an order could be made in favour of a person under the age of 16. Secondly, the sheriff expressed reservations about the pursuer's title and interest to sue, standing the fact that he was no longer "legally related" to his sister. Thirdly, she expressed concern about the implication of service of the writ on the pursuer' sister. In the light of these concerns the sheriff invited submissions from the pursuer's solicitors at a pre-service hearing. That hearing was intimated to Glasgow City Council for such interest as they have in adoption matters and a hearing took place at which the City Council was represented. In the result the sheriff reached the view that the action was not competent. She held, in effect, that this was an action seeking a "parental right". She noted that the effect of Section 11(2)(b) provides that an order imposing parental rights and responsibilities on a person can be made providing the person is at least 16 years of age. As the pursuer was not of that age it was not open to the court to make such an order in his favour. The sheriff went on to observe that even if she had been of the view that the action was competent she would not have been satisfied that the pursuer had title to sue. He had not seen his sister for over a decade. Whilst the purpose of an order under Section 12(2)(d) was to regulate arrangements for maintaining personal relations and direct contact between a child and another person it appeared that in the present situation there was no relationship to be maintained. Equally, she considered that the pursuer had not demonstrated that he could claim any interest in terms of Section 11(3)(a)(i) of Act.

[4] Before the sheriff, and before me, the solicitor for the pursuer stressed that this was an application under Section 11(2)(d) of the 1995 Act seeking an order "regulating the arrangements for maintaining personal relations and direct contact" which fell to be viewed quite distinctly from an order imposing parental responsibilities and granting parental rights under Section 11(2)(b). She accepted that if what was sought constituted a claim for a "parental right" the action was not competent having regard to the pursuer's age, because it would fall to be regarded as an application within the latter sub-section. The provisions of sub-section (2)(d), however, "stood alone". An order could be made regulating the arrangements for contact without involving the conferment of any parental right. In developing that argument the solicitor pointed out that an application for an order under Section 11 could be made, in terms of sub-section (3) by a person "who - (i) not having, and never having had, parental responsibilities or parental rights in relation to the child, claims an interest". The pursuer had claimed such an interest; he had never had parental responsibilities, unlike his mother. Her responsibilities had been extinguished and her right to claim an interest was specifically prohibited by the provisions of sub-section (4). Section 11(3) gave the pursuer sufficient title to proceed with the action. In support of the argument that sub-section (2)(d) was a "free standing" provision, reference was made to paragraph 9(11) of the 2nd Ed of Wilkinson and Norrie on Parent and Child. With reference to Section 11(2)(d) it is stated that:

In a footnote the authors comment that "it is open to the court, for example, to regulate the contact arrangements between the child and a younger sibling under Section 11(2)(d) without giving the sibling the 'parental responsibility' of contact". This view had been supported in a similar application laid before a sheriff in Dumbarton on 25 April 2001 (W v W, unreported). Warrant for citation had been granted in Glasgow Sheriff Court in a similar action on 10 July 2002.

[5] In my judgment the sheriff was correct to hold that the present action is in the nature of an application seeking a parental rights order. In particular I agree with her when she said in relation to Section 11 that:

The sheriff also drew attention to the fact that Section 11(2)(d), which in effect defines a contact order, reflects the parental right described in Section 2(1)(c) of the Act.

[6] In brief, it appears to me to be quite clear that the power which the court is being asked to exercise is the power conferred by Section 11(2) of the Act which refers back to Section 11(1). That sub-section speaks specifically of orders in relation to parental responsibilities, parental rights, guardianship and administration of property. As a matter of construction of these provisions it is plain that the court is being asked to make an order in relation to parental rights. It may well be that sub-section 11(2)(d) is deliberately phrased to avoid giving the suggestion that contact is in the nature of a "right" in its narrowest sense; the order sought nevertheless remains a "parental rights order". The fact that such an order can be sought by any person claiming an interest by virtue of sub-section 11(3) does not in my view advance matters. When an application is made by a person other than a parent it does not mean that the application ceases to be one for a parental rights order (see the remarks of Lord President Hope in relation to Section 3 of the Law Reform (Parent & Child) (Scotland) Act 1986 in F v F 1991 SLT 357 at 361 IJ).

[7] In these circumstances I uphold the sheriff's rejection of the view that Section 11(2)(d) represents a "distinct stand alone order separate from and unconnected to the parental right referred to". I disagree with the decision in W v W which I consider does not identify the power which the court is invited to exercise in the context of the relevant statutory provisions. As I have indicated it was conceded that if the present action falls to be regarded as constituting a claim for a "parental right" it was not competent by reason of the age of the pursuer. In that situation I consider that the sheriff was correct in refusing to grant a warrant for citation.

[8] That being so it is strictly speaking unnecessary for me to express any view on the sheriff's observation that the pursuer could not claim any interest under Section 11(3) of the Act, and thus had no title to sue, because he had not seen his sister for over a decade. No substantive argument was advanced before me, and particularly in the absence of any contradictory argument it is not a matter on which I express any concluded view. It does, however, appear to me that the question of whether sufficient "interest" has been "claimed" to constitute a "relevant circumstance" to enable the court to make an order under Section 11(1) is one which could only in the rarest of circumstances be determined at the stage of granting warrant for citation.