Scottish Sheriff Court Decisions

GREENOCK, 7 MARCH 2005

The Sheriff Principal having resumed consideration of the cause Refuses the appeal and Adheres to the interlocutors of the sheriff dated 12 and 18 February 2004; Finds no expenses to be due to or by either party in respect of the appeal procedure.

BA Kerr

NOTE:

This appeal is taken against a sheriff's decision after proof in a procedure by way of minute of variation and answers whereby he made a residence order in favour of the father of two children (aged eight and six at the time of the proof) and refused a similar order sought by the mother in whose favour he made instead an order for residential contact. The sole ground of appeal insisted in at the hearing of the appeal was that set out in the third and sixth grounds in the note of appeal number 17 of process to the effect that the sheriff had fallen into error by failing to give the elder child the opportunities referred to in section 11(7)(b)(i) and (ii) of the Children (Scotland) Act 1995 and failing, in short, to obtain the up-to-date views of that child.

The position (as I interpreted it) adopted on the appellant's behalf was, in summary, that by reason of the sheriff's omission to afford that child those opportunities a procedural irregularity had been allowed to occur in the present case which had or could have had the effect of leaving out of consideration an important element of information which bore upon the sheriff's decision(s) on the residence orders sought and ought to have been included to form part of his deliberations, namely the views of S on where he wished to reside in which parent's household. Accordingly the sheriff's decision, made without consideration of that element and proceeding on that procedural irregularity, could not stand and would have to be recalled. The sheriff principal should then arrange for those omitted opportunities to be afforded to the child and should himself reassess the case in light of whatever emerged from that exercise, after such further hearings if any as might be necessary, and substitute a decision of his own for that of the sheriff. In answer to the question why obtain the views of one child only and not both (and the suggestion that obtaining the views of one only was hardly a tenable position) the response of the appellant's agent was that her instructions from her client were to the effect that the elder child was the one who from time to time voiced to her a desire to reside with her and the note of appeal had been framed on that basis but the agent herself was of opinion that the exercise in the obtaining of views embarked upon now should involve both children. In addition it was submitted for the appellant that since the supplementary social work report of May 2003 had been held by the sheriff not to incorporate a proper obtaining of the further views of the children (for reasons given at page 9 of the sheriff's note) there had been a lapse of time from October 2002 until February 2004 which constituted a material change of circumstances requiring the sheriff to obtain the further direct views of S or both children at the proof.

The position adopted on the respondent's behalf, put briefly, was that the sheriff had given "anxious consideration" to the question whether to obtain the child's views (as narrated by him at page 7 of his judgement) and had reached a view on that matter which was entirely supportable and a valid exercise of his discretion on such a matter; that the child S had in any event had full opportunity to express his views on the subject, both to his parents and to the social workers who had compiled (in about October 2002) the first of two social work reports obtained by the court in the case; that the sheriff had a very full knowledge of the whole circumstances of the case and the situation of the two children not only from having heard a two-day proof but also from his earlier and frequent dealings with it ever since August 2002 through a series of child welfare hearings; that the information available to the sheriff on the views of the children gleaned not only from the aforesaid social work report but also from the evidence of various witnesses at the proof (not merely that of the parents) was entirely sufficient for him to form a proper view on the matter of residence based on all relevant material including an appreciation of those views; that the sheriff was entitled to take account of the youthful ages of the children in deciding whether to obtain their views; and that the sheriff's findings-in-fact were sound and not challenged and formed a proper basis for the conclusion reached by him. In short, the sheriff had a discretion regarding the interviewing of children which here he had exercised wisely. The period which had elapsed since the obtaining of the children's views by the social workers was not such as to amount to a material change of circumstances requiring those views to be obtained again. In the event of the sheriff principal deciding that further efforts should now be made to obtain those views then there should be a remit back to the same sheriff for him to decide how to obtain any views of the children and then reconsider his decision in light of whatever if anything emerged: this was the only reasonable course to take in respect of such a minor matter (relative to the whole picture of the children's welfare) as was being raised in the present appeal.

There was copious reference to the case of Shields v Shields 2002 SCLR 334 which contained important pronouncements of the Court of Session said for the appellant to be of universal application in relation to section 11 orders of all types (ie not restricted to cases involving specific issue orders); for the respondent various significant points of distinction from the present case were drawn to my attention. That decision of an Extra Division of the Court of Session is also reported sub nomine S v S in 2002 SC 246 and was dated 16 January 2002. I think it fair to say that the outcome of the present appeal turns very substantially on the application of the judicial pronouncements in Shields to the circumstances of the present case. I was referred also to the cases of Casey v Casey 1989 SCLR 761 and Johnson v Johnson 1972 SLT (Notes) 15 and to paragraphs 10.41, 10.42 and 10.45 of Wilkinson & Norrie on Parent and Child (second ed, 1999). In Casey the Lord Ordinary (Lord McCluskey) interviewed at proof in a custody dispute two boys aged twelve and nine on the motion of one party which was not opposed by the other. In Johnson the Lord Ordinary (Lord Stott) interviewed at proof in a custody dispute four children aged between eleven and seven "at the request of counsel". I do not however take from these reported decisions anything more than a recognition that even long before the enactment of section 11 of the 1995 Act certain judges were commendably willing to interview children under the age of twelve whose custody was in dispute and to found their decisions to some extent on an appreciation of the views expressed by those children. The second edition of Parent and Child succeeded the 1995 Act but preceded the decision of the Court of Session in Shields and in the paragraphs to which I was referred it is pointed out inter alia that the 1995 Act explicitly requires the court now as a matter of procedural obligation to give a child an opportunity to express views; that a failure on the court's part so to do will ground an appeal on the basis of procedural irregularity; that the court's obligation to have appropriate regard to the child's views exist independently of its obligation under the Act in relation to the child's welfare although an important factor in determining that welfare is to consider whether the decision consists with the child's views; and that the court must give every child (except perhaps the very youngest) an opportunity to express views whether above or below the age of twelve.

So far as I have been able to ascertain the Shields decision, despite its date, was not brought to the attention of the sheriff in the present case during the proof in the latter part of 2003 and early in 2004. He does not himself mention it in his judgement; there is nothing in the process to indicate that its existence may have been drawn to his attention; and parties before me at the hearing of the appeal did not assert in answer to my question that he had been referred to it. Yet it forms the chief basis of the present appeal. I think it not easy to criticise a sheriff for having failed to conform to the requirements of a decision by a superior court to which he was not referred even if it be directly in point. That however cannot of itself be a reason for declining to overturn or interfere with his decision if he has clearly failed to apply the law as decided by that superior court albeit he may have done so in ignorance of their relevant pronouncements.

In the case of Shields the Court of Session interpreted section 11(7)(b) of the 1995 Act as laying down (in implementation of Article 12 of the 1989 United Nations Convention on the Rights of the Child) a requirement on the court to discharge its duty under that paragraph of the subsection at the time of making any order under section 11 and to do so if necessary ex proprio motu, that duty being a continuing one until the order is made and one of which the court was not relieved by any dispensation with intimation of the proceedings which might have occurred earlier. That, as it appears to me, was the chief point of the decision and it is in consequence incumbent on every sheriff who is contemplating the making of a section 11 order to consider at that stage whether the court's duty under section 11(7)(b) has yet been sufficiently complied with and, if not, to take steps at that stage to see that it is fulfilled. It was also stated in Shields that the child has an absolute right to the exercise by the court of a discretion as to whether and if so how an opportunity should be given to the child to express views, assuming that such an opportunity has not been earlier given. It was conceded that a material change of circumstances requiring the obtaining of the child's views could arise from the mere passage of time as the child matured and it was held that in the circumstances of Shields such a change had in fact occurred. In addition it was said that the evidence of a pursuer (or for that matter of a defender) as to a child's expression of views was no substitute for a proper enquiry into the child's own views. The court were, furthermore, persuaded to the view that practicability is the sole test for affording a child the opportunity to make known his or her views and that if a practicable method exists of doing so then the only safe course is to employ it. This last-mentioned pronouncement is not however one on which I need dwell here since I accept without hesitation (perhaps unlike the sheriff?) that it is appropriate to afford children aged eight and six, as S and C were by the time of the proof, the opportunity to express their views and that there are practicable methods of so doing (including by way of interview by the sheriff in chambers with the sheriff clerk in attendance).

It is important however to understand the context and background against which the Court of Session made the pronouncements in Shields which are summarised above. In that case the child had at no time while the case made its way through the sheriff court been given any opportunity at all to express his view to the court or anyone on its behalf on the matter in issue and was allowed to do so for the first time only when the Court of Session itself ordered the obtaining of a report regarding his views. In the sheriff court intimation of the proceedings to the child had been dispensed with at the time of serving the initial writ and again when the notice of intention to defend was lodged; no consideration appeared to have been given to obtaining his views at any child welfare hearing; a motion to appoint a curator ad litem shortly before the proof was refused; and the sheriff decided not to interview him at the proof. The issue in the case on which the child's views might have been sought was a clearly focussed one, namely whether or not he should go with his mother to Australia for three years, on which it was reasonable to expect he might have a view to express. In effect no consideration, or at best only the most perfunctory attempt at consideration, had been given by any sheriff at any stage to giving the child an opportunity to express a view, including the sheriff who took the proof: at or near the close of the proof the sheriff had announced that he did not intend to interview the child or (on an alternative version of events) one side assented when the matter was briefly raised while the other did not and the sheriff decided not to conduct an interview. In these circumstances it is perhaps not surprising that the Court of Session came to the conclusion that the duty incumbent on the court under section 11(7)(b) had not been fulfilled and that the child had been deprived of the opportunity or right intended to be conferred on him by the 1995 Act and the United Nations Convention.

In the present case by contrast both children have in the first place had an opportunity to express their views and have taken that opportunity, as evidenced by the social work report (number 14 of process) at pages 5 and 6 where we find it recorded that the writer of the report interviewed the child S twice in order inter alia to assess his views and wishes. S appears to have expressed views which have been recorded there with fair clarity albeit the social worker noticed, not unnaturally, an element of divided loyalty. It appears from page 6 that C was at that time at least spoken to and managed to articulate certain views, albeit with greater difficulty and the same unsurprising element of divided loyalty. The exact date of this social work report is unclear but the agent for the respondent had information in her file indicating that she had received a copy of it by 29 October 2002 and clearly it was ordered by the court's interlocutor dated 30 August 2002. Since the report was ordered by the court it follows that the social workers who compiled it were acting as the agents of the court in investigating the circumstances of the children and in obtaining their views. That means in my opinion that the duties required of the court under section 11(7)(b)(i) and (ii) had been obtempered at least once in respect of each child prior to the proof. In the second place the issue in the case on which the views of the children were thus sought and obtained was much more general in scope than that in the case of Shields, namely within whose household did each child wish to live, and the indications were (especially from the supplementary social work report) that any views expressed by them might well be ambivalent. In the third place, far from giving no consideration or only very perfunctory consideration at the proof to the question whether then to give the children an opportunity to express a view and in particular whether to interview them, the sheriff here gave "anxious consideration" to the matter as explained by him at page 7 of his judgement dated 18 February 2004 where he sets out his reasons for deciding not to interview them at that stage. It is true that the sheriff discusses the matter of possibly interviewing S at much greater length than that of obtaining the views of C, but that is hardly surprising when it is seen that the whole emphasis of the motion made by the defender's agent was laid (as it was before me at the hearing of the appeal) on interviewing or obtaining the views of S in accordance with the defender/appellant's instructions to her.

In light of the foregoing I consider there to be material and indeed substantial differences between the situation faced by the court at the stage of proof in the case of Shields and that faced by the sheriff at the same stage in the present case. The context in which the pronouncements of the Court of Session in the Shields opinion were made was therefore different and I do not think them to be strictly applicable to the position in which the sheriff here found himself. Except in the case of children so young as to be incapable of understanding what is going on when they are asked to express a view or too young to articulate a view, I take the position in light of Shields to be that the court is obliged right up to the time of making an order under section 11 to see to it that the child affected has been given an opportunity to express a view at least once to the court, but not necessarily more than once, by some appropriate method. If by the stage of proof in a disputed case concerning the welfare of a child no such opportunity has yet been given then it is up to the sheriff taking the proof to take steps to see that it is afforded by some means, which of course requires him to consider before making a section 11 order at that stage what has been the position thus far in the case and what ought now to be done if necessary ex proprio motu. That was the position in Shields by the stage of proof but the sheriff took no steps and barely considered the matter, which was held by the Court of Session to be a failure to obtemper the requirements of section 11(7)(b). In the present case by the stage of proof such an opportunity had already been afforded and taken and, while the sheriff no doubt had a duty to consider the matter, he was not obliged by section 11(7)(b) to afford a second (or perhaps third if account be taken of the supplementary social work report) such opportunity. The question for the sheriff at the proof here was whether, the requirements of section 11(7)(b) having been obtempered in the case at least once already, the circumstances now required that an additional opportunity be given to either child or both to express a further view. That question the sheriff here duly considered and did so fully and, as he says, anxiously. The answer to that question was in my opinion a matter for the sheriff's discretion, he being no longer obliged to fulfil the court's duty imposed by section 11(7)(b) because that had already been done at least once. His position thus differed from that of the sheriff in Shields where the matter was not yet one for the exercise of a discretion but a matter of obligation incumbent on the sheriff to see that the provisions of section 11(7)(b) were now followed out. In Shields it was held that a lapse of eighteen months between intimation being dispensed with and the decision being taken constituted a material change in circumstances, the child having progressed from the age of seven and a half to the age of nine years. At the earlier age intimation by way of form F9 in terms of OCR 33.7(1)(h) had been dispensed with as inappropriate "in view of the child's age" but the Court of Session clearly thought that eighteen months later his view should be sought. In the present case a period of some sixteen months had elapsed by the close of proof from a start-point at which, by contrast with Shields, the views of the children had actually been sought and obtained. It was therefore again a matter for the present sheriff's discretion in my view to decide whether that lapse of time amounted to a material change of circumstances such as to require an additional opportunity to be given to the children to express their views once more. The whole matter addressed by the sheriff at the close of proof in response to the agent for the defender's motion to interview S was in the circumstances of this case at that stage entirely one for the exercise of his discretion in my opinion and I see no basis on which I should declare that discretion to have been improperly exercised by him or on which I should interfere with it.

There has in my opinion been no error of law on the part of the sheriff, despite his not being referred to the case of Shields which is important and was available to be referred to, nor any impropriety in the exercise of discretion required of him in this case. In particular I do not consider that any procedural irregularity arose at the proof such as would have arisen if by then no opportunity had yet been afforded to the children to express a view and yet the sheriff still did nothing about it. For the foregoing reasons I am unpersuaded by the one ground of appeal advanced to me and the appeal will accordingly be refused. Both parties have the benefit of full legal aid for the appeal and it was agreed that there should be no finding of expenses due to or by either party. For completeness I am willing to say that, had I been persuaded of the appellant's ground of appeal as argued to me, I would then have recalled the sheriff's interlocutor and remitted the cause to the same sheriff with a direction to give both children an opportunity to express further views on the matter in issue and thereafter to reconsider his decision in light of the whole circumstances including any new information which might then have emerged. It would in my view certainly have been necessary to seek the views of both children and not of one alone. I would also have considered it appropriate that on a matter of this nature in a case of this type and in its particular circumstances any further consideration of the decision should be undertaken by the sheriff who already knew so much about it rather than having it re-assessed of new by the sheriff principal or another sheriff.

BAK