SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT ABERDEEN

F578/08

JUDGEMENT   of   SHERIFF PRINCIPAL SIR STEPHEN S T YOUNG Bt QC   in the cause   A   Pursuer and Appellant   against   B   Defender and First Respondent     ABERDEEN CITY COUNCIL   Minuters and Second Respondents

 

 

 

Act: Party

Alt: (1) Party

(2) Mrs M Reid, solicitor, Aberdeen City Council

 

 

 

Aberdeen: 17 December 2009

The sheriff principal, having resumed consideration of the cause, allows the appeal and recalls the interlocutor of the sheriff dated 6 February 2009; finds no expenses due to or by any of the parties in respect of the appeal; quoad ultra remits the cause to the sheriff to proceed as accords.

 

 

 

 

 

Note

 

[1] In this case the pursuer and appellant is the paternal grandfather of a child, D, who was born on 13 October 2007. The defender and first respondent is the child's natural mother. His natural father is C who is the pursuer's son. C and the defender have never been married and he has no parental responsibilities or parental rights in relation to the child. The minuters are Aberdeen City Council into whose care the defender gave the child at his birth. He was initially placed in the care of foster parents, and on 24 July 2008 he was placed with prospective adopters, and he has been in their care since that date. It appears that shortly before 22 January 2009 they presented a petition to the court to adopt the child, and this has the support of the minuters. It appears that the sheriff who is considering this petition has continued it on a number of occasions to await the outcome of this appeal.

 

[2] On 20 August 2008 the pursuer raised the present action against the defender. In terms of crave 1 he seeks an order imposing upon him all parental responsibilities and giving to him all parental rights in respect of the child in terms of sections 1, 2 and 11 of the Children (Scotland) Act 1995 ("the Act"), and in terms of crave 2 he seeks an order under section 11(2)(c) of the Act directing that the child should reside with him. These craves are supported in particular by the averments in article 5 of the condescendence which read as follows:

 

The pursuer is in a stable long-term relationship with his partner ........ The pursuer has ample accommodation for himself and the child. Since the child's birth the pursuer has always shown an interest in the child's health, well-being and development. He has been denied the opportunity of fully participating in said child's life only by virtue of the child being received into care and thereafter by the actions of Aberdeen City Council Social Work Services. The pursuer is mature and responsible. He is capable of providing full-time care to a high standard of said child. He is well placed to provide the child with the love and affection he requires to develop. The pursuer is well-placed also to provide the said child with contact and relations with his wider family. It is accordingly in the said child's best interests the pursuer be awarded parental rights and responsibilities in respect of him. Further it is in said child's best interests that a residence order is made requiring said child to reside with the pursuer.

 

[3] In terms of crave 4 the pursuer sought warrant to intimate the proceedings upon the minuters as the local authority within whose area the child resided. By interlocutor dated 31 October 2008 the sheriff allowed them to be sisted as parties to the action and continued the cause to 21 November 2008 in order to allow their social work department to lodge a report. This was done on 20 November 2008. In the course of the report the author in short advanced what, if accepted, appear to be cogent reasons why the court should not grant a residence order in favour of the pursuer. Defences were also lodged by the minuters on 20 November 2008, and these were to the same effect. Although a notice of intention to defend was lodged by solicitors on behalf of the defender, no defences have been lodged by her.

 

[4] On 21 November 2008 the defender's solicitors withdrew from acting for her and the sheriff fixed a peremptory diet on 9 January 2009 at which she was required to appear or be represented. In the event a fresh peremptory diet was fixed for 6 February 2009 when the defender appeared in person. The pursuer and the minuters were represented by their respective solicitors. The interlocutor of that date records that the sheriff sisted the cause on the motion of the third party (that is, the minuters).

 

[5] On 19 February 2009 a note of appeal against the interlocutor of 6 February 2009 was lodged by the pursuer. For present purposes, paragraphs 1 and 2 of this were the important ones, and they read:

 

1. Agent for the minuter, in support of her motion to sist the cause, advised the sheriff that the current proceedings would interfere with adoption proceedings presently being prepared in respect of the child who is the subject of this action and which are likely to be instituted at Aberdeen Sheriff Court later this year.

2. It is respectfully submitted that the sheriff erred in the exercise of (her) discretion when reaching the decision to sist the cause. The sheriff erred by considering the intention of the local authority to institute adoption proceedings as a relevant factor in relation to the further progress or otherwise of this cause. Whether or not the City Council intend to proceed with an adoption petition it is not relevant to determination of the issues raised in these proceedings. These proceedings require to be determined. The pursuer/appellant is materially prejudiced by the delay in bringing these proceedings to a conclusion. He is presently unable to exercise contact to said child. He is not considered to be a suitable candidate by the local authority as a prospective adoptive parent.

 

[6] In response to the note of appeal the sheriff prepared a note, the material part of which reads as follows:

 

At the hearing I was informed that the minuters intend to proceed with plans to have D adopted. These plans accord with his mother's views as to what is in his best interests, not only with regard to his relationship with her, but also with regard to his relationship with his father and the pursuer. The minuters have made assessment of the pursuer as a carer for the child and are not satisfied that he is a suitable carer.

 

If this action were to proceed now, it would be bound to interfere with the progress of any adoption proceedings. Questions of the pursuers' rights and responsibilities would have to be determined first. It is not in the best interests of the child to have adoption proceedings delayed except for very clear and compelling reasons. The averments in article 5 state that the pursuer is capable of providing full-time care for D; is "well-placed" to provide D with love and affection, and contact with his (presumably D's) wider family. It is averred that it is in the child's best interests that the crave of the writ be granted and the child required to live with the pursuer. Beyond these bland and general statements, there is virtually nothing averred to support the contention that D's best interests would be served by the pursuer having the rights and responsibilities sought.

 

The statutory framework permits the pursuer to make the application under section 11(3)(a)(i) of the Children (Scotland) Act 1995 as a person who "claims an interest". I am not persuaded that the interest claimed is sufficiently close or pressing to justify allowing this action to proceed, thereby hindering the progress of the adoption. The fact that the pursuer comes late in the day to court, the fact that he has not had any contact with the child and that he appears to have little contact with his son, the child's father may be individually of little weight, but, when taken together and considered with the clear and sustained decision of the child's mother, the advice of the adoption services and the assessment of the pursuer as a prospective carer, the whole circumstances persuade me that this action should be sisted pending the outcome of the adoption proceedings.

 

[7] It appears that the pursuer (who had been granted legal aid to raise the action) made an application for legal aid for the purposes of his appeal and that this was refused. He therefore appeared on his own account at the hearing of the appeal, as did the defender. The minuters were represented by their solicitor.

 

[8] Opening the appeal, the defender explained that he wished to have the decision of the sheriff to sist the action reversed so that he could be allowed to proceed with it. He suggested that the sheriff had approached the matter on 6 February 2009 on the basis that the issue what was best for his grandson should be determined in the adoption proceedings. He submitted that the problem with this approach was that there was no guarantee that he would be a party to these proceedings, nor was there any indication when these proceedings would in fact take place. (In saying this the pursuer was evidently unaware of the fact, which became apparent during the submissions for the minuters, that a petition to adopt the child had already been presented to the court). He further submitted that the sheriff's decision to sist the cause had been fundamentally at odds with his right to a fair hearing within a reasonable time under article 6 of the European Convention on Human Rights. He said that he had been advised that the question of a sheriff's right to sist an action raised a point which had not previously been decided, and it was his position that justice had not been done as a result of the sheriff's decision.

 

[9] The pursuer went on to challenge certain statements of fact in the sheriff's note and submitted in effect that, if these had formed part of the reasoning underpinning her decision, then this had been vitiated as a result of her having misunderstood these facts. For present purposes I do not think that it is necessary to identify what these facts were. In conclusion he submitted that the sheriff's decision should be reversed and his action allowed to proceed.

 

[10] The defender explained the difficulties which she had had with the pursuer and his son (the child's father) and the circumstances which had led to her deciding that she should give the child up to the care of the local authority at birth with a view to his being adopted. What she had to say would clearly have been of relevance had the issue in the appeal been whether the orders sought by the pursuer in his craves 1 and 2 should be granted. But I intend no discourtesy to her when I say that her account of events did not assist me in deciding whether or not the sheriff had erred in law in sisting the cause.

 

[11] The minuters' solicitor submitted that the sheriff had been correct to say that the action should be sisted because it would interfere with the progress of the adoption proceedings. She (the sheriff) had indicated that it was not in the best interests of the child to have these proceedings delayed except for very clear and compelling reasons. It was submitted that no such compelling reasons had been put before the sheriff by the solicitor who had represented the pursuer on 6 February 2009, nor had he advanced such reasons in the course of presenting his appeal. The child, who was now 26 months old, had been placed in the care of the local authority at birth. His natural father C had no parental rights or responsibilities in relation to him and had not sought these. He had a long history of drug addiction and in addition had a criminal record for violence. The defender had been forced to flee his domestic violence. The pursuer had never had contact with the child and the social work department disputed the suggestion that he had ever formally sought contact. He may have made some attempts at the time of the child's birth to gain contact but due to the defender's wishes this had not taken place. On 20 May 2008 the local authority had recommended that the child should be placed for adoption and the defender had consented to this. The pursuer had come forward at a later stage and had asked to be assessed as a carer for the child. This assessment had been completed by the local authority and he had been deemed unsuitable. The social work report which had been lodged in process detailed the reasons for this. In summary this was because of the pursuer' s previous convictions for violence, his lack of honesty with the author of the report, the fact that he had had no contact or other relationship with the child and the fact that he did have contact with C (which he had himself stated was on a daily basis). The child had been placed with prospective adopters on 24 July 2008 and, if the present action were to proceed, it would interfere with the progress of the adoption petition. Indeed it had already done so and she (the minuters' solicitor) had been advised that the sheriff who was considering the petition, which had first been called in court on 22 January 2009, had continued it on seven occasions to await the outcome of the present appeal. This had put the prospective adopters under considerable strain. Information had been received from the Scottish Legal Aid Board to the effect that the pursuer's application for legal aid had been refused on 12 May 2009 and since then attempts to contact the pursuer's solicitor had met with no response. It was submitted that the present action had no chance of success and that I should accordingly refuse the appeal and adhere to the sheriff's interlocutor sisting the action.

 

[12] The sheriff's decision to sist the cause was a decision made in the exercise of her discretion and accordingly I am entitled to intervene only in certain limited circumstances - see Macphail's Sheriff Court Practice (3rd Edn) at paragraph 18.111. One of these is that the sheriff misdirected herself in law, and I am persuaded that she did. Article 6.1 of the European Convention on Human Rights provides: "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law". The operative words here are "a fair ..... hearing within a reasonable time", and in my opinion the effect of the sheriff's decision was to deprive the pursuer of his right to such a hearing.

 

[13] It is apparent from what she said in her note, in particular in the final paragraph, that the sheriff was much influenced in her decision to sist the cause by her assessment of the pursuer's prospects of success in his action. If the findings and conclusion of the author of the social work report are to be accepted, then it may well be that his prospects of success are small. But for present purposes this is beside the point. The fact is that he has presented what is accepted to be a competent application to the court for certain remedies in relation to his grandchild and he is entitled to a determination by the court of his application, and for this purpose to a fair hearing in relation to it within a reasonable time. This he will not get if, as the sheriff evidently envisaged, the action remains sisted until a final decision is made in relation to the adoption petition and if, as the minuters no doubt anticipate, an adoption order is made in favour of the prospective adopters. If such an order is made, the pursuer's prospects of success must be considered even more remote than they may be at present, and this will have come about as a result of the sheriff's decision to sist the cause. Besides, the making of such an order would operate to extinguish the defender's parental rights and responsibilities in relation to the child and vest these instead in the adopters - see section 12 of the Adoption (Scotland) Act 1978 (which continues to apply to the adoption petition since it was presented before 28 September 2009). In other words, once an adoption order had been made, the defender would no longer have any interest to defend the present action, nor would the minuters since the child would no longer be in their care. At that stage therefore the pursuer's action would effectively become undefended. But even so the sheriff would scarcely be likely to grant the order sought by the pursuer given that the child would by then have been adopted, or at least not without first giving the adopters an opportunity to be heard either by their being convened as defenders in the present action or else by the pursuer raising a fresh action against them. But here he would be confronted by the further difficulty that, if the adoption proceedings remain confidential as they ought, he would not know the identity of the adopters and hence would not be in a position to convene them as defenders.

 

[14] It can be seen therefore that the effect of the sheriff's decision to sist the cause has been potentially - and indeed probably - to put an end to any prospects of success that the pursuer might otherwise have had in the present action, and this at an early stage in the proceedings before he has had an opportunity to be heard fully, and in particular to lead evidence, in support of his application at a diet of proof (or evidential hearing as it is often referred to in this court). Indeed, so far as I can judge from the interlocutors in the case, there has not so far even been a child welfare hearing. Quite apart from the provisions of article 6, I would have said that this was wrong and that in sisting the cause the sheriff had effectively prejudged and determined its outcome. But in my view the pursuer's entitlement under this article to a fair hearing in relation to his application within a reasonable time puts the issue beyond doubt.

 

[15] In the first and third sentences of middle paragraph of the passage from her note quoted in paragraph [6] above the sheriff observed that, if the present action were to proceed now, it would be bound to interfere with the progress of any adoption proceedings and that it is not in the best interests of a child to have such proceedings delayed except for very clear and compelling reasons. I dare say that no one would take issue with the latter statement. Strictly speaking I do not think the first is necessarily true albeit that in a practical sense it will often be (and evidently has been in this case). But at all events neither affords a sufficient reason to take a decision in relation to the present action the potential, and indeed probable, effect of which is to determine the outcome of the pursuer's claim before he has had a proper opportunity to be heard in support of it. The fact of the matter is that, as the child's grandfather, he has presented a competent application to the court seeking remedies under the Act in relation to the child and he is entitled to a determination of his application now rather than at some indeterminate date in the future when, in consequence of the sheriff's decision, his prospects of success may be considered to be even less than they are now. Moreover, in the second sentence of the paragraph just mentioned the sheriff wrote: "Questions of the pursuer's rights and responsibilities would have to be determined first". Again I do not think that this is strictly correct, albeit that in practice I can well understand why it should be thought that it is in the child's interests that the question whether he should reside with his grandfather should be resolved before an irrevocable decision is taken to make an adoption order in relation to him. Indeed it may well be that it is for this very reason that the sheriff who has been dealing with the adoption petition has thought it right to continue consideration of this pending the outcome of the present appeal.

 

[16] It appears clear from the terms of both the sheriff's note and the note of appeal that neither she nor those who appeared before her at the hearing on 6 February 2009 were aware that the adoption petition had already been presented to the court. But the fact is that it had been, and in my opinion what is required now is that both it and the present action should be determined as expeditiously as possible by the same sheriff on the basis of a complete picture of all of the relevant circumstances - see, for example, F v F 1991 SLT 357 at page 363L. I have arranged this accordingly with the sheriff who has been dealing with the adoption petition and with the sheriff clerk. It will be up to this sheriff to decide how best to proceed to resolve the competing claims consistently with the rights of both the pursuer and the prospective adopters to a fair hearing within a reasonable time of their respective claims. The procedure which was approved in AB and CD Petitioners 1992 SLT 1064 is one possibility. But it is certainly not the only one, and the very wide discretion afforded to the sheriff under rule 33.22A(4) of the Ordinary Cause Rules 1993 in relation to the conduct of a child welfare hearing should give him ample scope to reach a proper determination of the present action without further delay. To this end I have also instructed the sheriff clerk that she should assist the sheriff by making any necessary adjustments to the court programme to give these matters the priority that they ought now to receive.