Scottish Sheriff Court Decisions

[29] I was then referred to the case of White -v- White 2001 SC689; 2001 SLT 485 and in particular the Opinion of Lord President Rodger at paragraph [25] where he said: -

"the structure of our law complies with the requirements of Article 8 since it respects family life and contains provisions enshrined in legislation for balancing the competing interests of the various members of the family."

[30] Mrs Dorman did concede that contrary to the way in which the Initial Writ was pled that any contact obtained by the Pursuer would need to be supervised by members of the Social Work Department.

[31] I was next referred to a Scottish Executive publication entitled "Voice of the Child" under the Children (Scotland) Act 1995; Volume 1 - Mapping Paper. Paragraph 2.1.4 of this publication states:-

"Parental responsibilities and rights include the responsibility to safeguard and promote the child's health, development and welfare, and the right to control, direct or guide the child's upbringing. Decisions involved in the exercise of such responsibilities and rights could include choice of school, medical treatment and examination, relocation of the family home, or emigration. Parents may go to court if agreement cannot be reached about these matters, but Section 1(3) means that the child may, even where there are not proceedings in court, take the matter to court."

[32] Mrs Dorman went on to quote from paragraph 2.1.5 of the Mapping Paper: -

"Section 11 gives examples of orders that the Court may make in relation to parental responsibilities and rights ........:.. The Court is not restricted to the orders listed in Section 11, and is empowered to make such order "as it thinks fit" within the broad scope of parental responsibilities and rights, guardianship and the administration of children's property. A child could initiate or be represented in proceedings where any such orders were sought."

[33] Mrs Dorman further referred me to paragraph 2.1.6 which states:-

"In order to facilitate the exercise of these rights, Schedule 4 of the Children (Scotland) Act 1995 added s.2(4A) to the Age of Legal Capacity (Scotland) Act 1991 to provide that a person under the age of 16 years shall have the legal capacity to instruct a solicitor in any civil matter where that person has a general understanding of what it means to do so. Without prejudice to the generality of that subsection, a person 12 years of age and more is presumed to be of sufficient age and mentality to have such an understanding."

Paragraph 2.1.7 of the Mapping Paper goes on to give examples of actions a child might want to raise.

[34] In conclusion Mrs Dorman said that the Pursuer had a legitimate interest in securing contact with her siblings. This contact would inevitably have to be supervised by an adult or adults and the Social Work Department were willing to do this as seeing it to be in the Pursuer's best interests. The local authority could not however seek a contact order on its own hence the need for the Pursuer to raise the action herself. The law allowed persons of the Pursuer's age to raise actions and this was an action which was clearly in the best interests of the Pursuer and her siblings. In addition in terms of Article 6 of ECHR the Pursuer was entitled to right of access to a court and a fair hearing within a reasonable time by an independent and impartial tribunal established by law.

[35] Mr Mundy reiterated that the standing point in this context was Section 11 of the Act. White v White (supra) was authority for the proposition that Section 11 of the Act was compatible with the European Convention on Human Rights. It was not necessary to look beyond that and clearly the "Voice of the Child" Mapping Paper had no authority; it was merely an expression of what the law might be now or in the future. Latterly what Mrs Dorman appeared to be arguing for was a specific issue order under Section 11(2)(e) of the Act. Such orders were however governed by 11(1)(a) and (d) of the Act and therefore involved parental responsibilities or rights.

[37] In that appeal that was decided less than a month after JRD -v- WH Sheriff Principal Macphail stated at paragraph [4] "there is no reason why my question of competency should not be judicially determined and the ordinary course of procedure. To deny the pursuer the opportunity to raise his action and deal in due course with such issues of competing as may arise would be, in my opinion to deny him without sufficient justifications his right of access to justice."

[38] It seems to me therefore that in JRD -v- WH the sheriff's refusal to grant a warrant for citation in the action was premature. Mr Mundy fairly conceded it had been proper to grant a warrant for citation in this case albeit that the Defenders had taken steps to challenge the competency of the proceedings at the earliest possible stage. I can well understand how on the facts of that case the court reached its view since the pursuer was 15 1/2 years old and the sister he sought to have contact with was now 14. She had been living with her adoptive parents for at least the previous 10 years. Indeed the pursuer did not appear to have seen his sister since the age of 5.

[39] As a result of the sheriff refusing to grant a warrant for citation in that action there had only been a hearing at which representations were made by the pursuer's solicitor. By contrast in the present case the defenders had counsel appearing on their behalf and the Pursuer's solicitor quoted from a full range of authorities including the UN Convention on the Rights of the Child, ECHR and related jurisprudence.

[40] As the pursuer in JRD -v- WH will shortly reach 16 years of age and a fresh action could be raised in that case which could proceed to a determination on its merits. By contrast in the present case the merits seem far stronger. The Pursuer and her siblings lived together as a family from 1997 in the case of her half-brother and from 1999 in regard to he half-sister until December 2002 when difficulties arose which led to the Pursuer leaving the family home and ultimately being received into foster care.

[41] The children are therefore a half-brother and half-sister to the Pursuer and had lived together as part of a family unit for 7 years in the case of the Pursuer's brother and for 3 years in the case of her younger sister until the end of 2002.

[42] Mr Mundy's explanation and interpretation of the provisions of the Children (Scotland) Act 1995 and section 11 in particular could not be faulted and indeed follow and amplify what is said in JRD -v- WH.

[43] However matters do not rest simply on a restrictive interpretation of statute alone. In the present case I was referred to the relevant convention and associated jurisprudence which it was suggested had to be considered along with the 1995 Act if the rights of the child were to receive proper consideration.

[44] T Petitioner 1997 SLT 724 is of course authority that the presumption to be applied when interpreting legislation found to be ambiguous is that Parliament is presumed to have legislated in conformity with the convention, not in conflict with it; (Lord President Hope at p.734, Lord McCluskey in White -v- White at paragraph [8] of his Opinion went on to state:-

"That same general approach has to be taken when construing and applying legislation dealing with the subject matter of the UN Convention, which the United Kingdom ratified in December 1991."

[45] In addition most of the rights in ECHR were incorporated into our domestic law when the Human Rights Act 1998 came into force in October 2000.

[46] In determining whether family life actually exists in a particular case the European Court of Human Rights in considering Article 8 of the Convention will look to see whether there are close personal ties. Thus in the case of X, Y and Z -v- UK [1997] 24 EHRR 143 the European Court of Human Rights said: -

"When deciding whether a relationship can be said to amount to family life, there are a number of factors which will be relevant, including whether the couple have lived together, the length of their relationship, and whether they have demonstrated their commitment to each other by having lived together."

[47] These same principles can be applied in the contact of siblings who have lived together in a family unit for a number of years. The European Court of Human Rights in Johansen -v- Norway (1997) 23 ECHRR 33 stated:-

"In cases where the child's welfare is at risk by reunification a fair balance must be struck between the interests of the child remaining in public care and those of the parents in being reunited with them. In carrying out the exercise, the court will attach particular importance to the best interests of the children which may override those of the parent."

[48] In the present case while the Children's Panel took the view that it was in the best interests of the Pursuer that she should be placed in foster care and was to have no contact with her stepfather and mother it was averred that conversely social workers involved in the Pursuer's case considered it to be in her best interests to have contact with her siblings. Clearly however standing the terms of the Pursuer's supervision order she would not be regarded as being a suitable baby-sitter for her siblings (Children & Young Persons (Scotland) Act 1973 S.12) and would require adult supervision.

[49] In the opinion of Lord President Rodger in White -v- White (supra) at paragraph [21] he states:-

"Section 11(7)(a) of the 1995 Act has to be read in the context of subsection (3)(a) and (b) of the same section. These paragraphs show that the court may make an order in terms of subsection (1) both where someone makes an application for such an order (paragraph (a)) and where no such application has been made but the court considers that it should make such an order (paragraph (b)). In other words such orders can be made by the court ex proprio motu without any application.......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. That would be the paramount consideration."

[50]It follows from that passage therefore that in the context of these proceedings it would be possible for the court to ex proprio motu make an order under Section 11 imposing on the Defenders the parental responsibility to ensure the Pursuer has contact with her siblings. Mrs Dorman had suggested that an order might be made at common law but no authority was given to that proposition and accordingly I consider that that route can be discounted.

[51] However since White -v- White (supra) was decided in March 2001 there have been further important decisions in relation to the application of ECHR law and jurisprudence on domestic law including exciting statutory provisions. The Human Rights Act 1998 section 7 requires primary legislation to be read and given effect in a way that in compatible with the Convention Rights, so far as it is possible to do so; A -v- The Scottish Ministers 15 October 2001 JCPC.

[52] In R -v- Lambert [2000] 3 WLR 206 Lord Hope of Craighead made a number of general observations about the use of Section 3 of the Human Rights Act 1998 at para 79-81 and the so-called "reading down" of legislation to ensure compatibility with ECHR. It would equally seem possible for the Court to consider making a contact order in the present case in favour of the Pursuer but including in any such order that there would have to be an element of adult supervision by persons over 16 for example by the Pursuer's foster parents or social workers

[53] I note from a perusal of W v W (unreported Dumbarton Sheriff Court 25 April 2001) that the case involved an application by a 10 year old boy to have contact with his 12 year old brother. The boys apparently hadn't seen one another since the parents separated when the children were aged 2 and 4 respectively. The pursuer wished to see his brother on a weekly basis failing which to have telephone or letter contact.

[54] After hearing parties on the competency of the proceedings the sheriff repelled the defender's plea to the competency and remitted the cause to a later date to determine and regulate further procedure. The sheriff accepted the passage in Wilkinson and Norrie referred to above at paragraph [16] and considered that the orders sought were in keeping with "the whole ethos of the Act". I have no further information on what actually transpired in these proceedings but the craves for letter or telephone contact would not involve considerations of parental responsibility to anything like the degree where an adult has care for, physical contact with or is ""baby-sitting" for children. To the types of contact sought in W v W one could now add being able to communicate by text message or e mail and the like.

[55] While I was supplied with Chapter 2 of Volume 1 of the "Voice of the Child" Mapping Paper, I note from the Executive Summary of that document that it was prepared by Professor Kathleen Marshall, E Kay M Tisdall and Alison Cleland. Under the auspices of the Scottish Executive a detailed analysis of the Act was undertaken from the child's perspective. The exercise was part of a feasibility study to evaluate how decision-making in children's lives takes account of their own views. In carrying out this exercise reference was made to Part I of the Act and "the implications for compliance with UNCRC". It is a useful document to consider what best practice might be in cases involving children.

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[56] For the reasons I have given I have repelled the Defenders' first plea-in-law. I am of the view that it would be possible for the court to make an order either in favour of the Pursuer or by placing parental responsibilities on the Defenders to enable supervised contact to take place between the Pursuer and her siblings. Since the Defenders conducted the debate on an entirely legalistic basis and the defences which have been so far submitted are almost entirely skeletal, it seems appropriate that the next step in procedure should be for this case to call in court as soon as possible in order that further procedure may be determined. It may be necessary to fix an Options Hearing if the Defenders wish to oppose the action on its merits or it may be that in light of the Social Work Report which is in the proceedings parties may wish to explore whether a negotiated solution can be achieved. Any questions of expenses can also be considered at the next hearing of the case.