Scottish Sheriff Court Decisions

Devolution Minute by A B in Respect of Purported Appeal under Section 51 of the Children (Scotland) Act 1995

1. On 19 November 2008, A Children's Hearing took place in Glasgow and took a decision in respect of the child C. The appellant is the mother of the said child, and a relevant person for the purposes of the Children (Scotland) Act 1995. She disagreed with the decision. She instructed solicitors to appeal. As a relevant person, she has the right to appeal against that decision. Section 51(1) of the Act provides that she may appeal to the sheriff within a period of three weeks beginning with the date of the decision.
2. She therefore had the right of appeal against the decision complained of, and had access to the court which is charged with the responsibility of hearing it. All she had to do was bring it within the period of three weeks beginning with the date of the decision.
3. Her appeal was not lodged until after the expiry of that three week period. The Act does not contain any provision whereby the Court has discretion to allow an appeal to be brought after the expiry of the time limit for bringing it. There are detailed Rules which relate, inter alia to the procedure for appeals (Act of Sederunt (Child Care and Maintenance Rules) 1997 SI 1997/291, but they do not contain any provision entitling the court to allow an appeal to be heard where it has been lodged outwith the time limit.
4. The Appellant's solicitors then lodged a purported Devolution Minute on 23 December 2008 and it was argued before me on 17 February 2009. That Minute claims that the absence of a power to allow a purported appeal to be lodged late is a defect in the Act. It is then said that that defect is a lacuna in the rules governing the determination of proceedings of this type and that the Court should regard itself as having an inherent power to cure that alleged defect and some sort of inherent power, on cause shown, to allow an appeal to be heard even though it has been lodged after the expiry of the time limit.
5. The minute thus expressly limits itself to alleging a defect in the "rules" and not the Act, but it must be noted that the limitation provision as to time, which is the only restriction limiting the right of appeal, is an express provision of the Act, i.e. of primary legislation. Apart from the requirement to bring an appeal within a specified time beginning with the date of the decision, there is no restriction of the right to appeal, and no restriction on access to the court which is empowered to hear it. The actual reason for the Appeal not being heard was the failure of the Appellant to appeal to the Court within the prescribed time limit.
6. If the appellant was correct to argue that the Court does have some kind of inherent power to dispense with a mandatory requirement of a statute, then the next step would be for the Court to consider on what basis that should be exercised, but other than saying that it should be on cause shown, no further guidance was given. It seemed to amount to a suggestion that a court could dispense with a mandatory provision of primary legislation on some sort of ad hoc basis. In any event, when pressed, no explanation was forthcoming from the appellant's solicitors as to why the appeal was not lodged within the time limit, so it is impossible to say on what basis any exercise of discretion could have been based, even if competent.
7. The appellant also set forth that "the present proceedings" are proceedings to which Article 6 of the ECHR, as enshrined in domestic legislation by Schedule 1 of the Human Rights Act 1998, apply. It is not clear whether the expression "present proceedings" is meant to apply to the purported appeal, or this Minute, or both.
8. It was alleged that the absence of an express dispensing power in the Act of 1995 was incompatible with the appellant's Article 6 right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law, and her Article 8 rights to a family life.
9. But of course the Appellant did have a right, and an unfettered one at that, to a hearing before such a tribunal, and all that she required to do in order to exercise that was appeal to it within three weeks beginning with 19 November 2008, and she failed to do that.
10. It was suggested in the Minute that the absence of a power in the Act to dispense with the time limit for bringing it and to allow an appeal to be heard though late was incompatible with Article 6 and was a "fundamental and inequitable breach of natural justice". The argument relating to natural justice was mentioned briefly in later argument, but is wholly misconceived.
11. Administrative Law has a very well developed concept of "natural justice" and the sort of averment which must be made to make out a case that a party did not get a fair hearing is well established. That is not the issue here. The appellant got a hearing before the Children's Hearing: if she wanted to allege that it had breached the rules of natural justice in dealing with her case, her remedy was to appeal to the sheriff and argue that. She failed to do so. No hearing can take place before the sheriff on account of her failure, unless there is merit in the suggestion that in some way the sheriff can dispense with a mandatory statutory requirement, so no issue of breach of natural justice arises.
12. Finally, the Minute alleges that a Devolution issue arises on account of the "failure of the Scottish Government to rectify the alleged deficiency in the rules", which, it is said, directly led to the Convention Rights of the Appellant and the child being infringed. It must be said immediately that if there is any merit in any of these points, they do not apply to the child. The child has the same right of appeal as the mother. The child has not appealed, and no one has done so on her behalf.
13. The appellant had intended to argue that there had been an attempt at lodging the appeal within the time limit, but that it had not been signed, as any such document requires to be in order to be accepted, but no notice of this argument had previously been given in the purported Devolution Minute, or anywhere else that I could see, and I did not allow that argument to take place, the appellant's solicitor being unable to demonstrate by production of any documentation that the claim was correct. The purported Minute also foreshadowed an argument that the date when the appeal document was lodged was in fact the last day for lodging and therefore was in time, but that argument was abandoned and it was explicitly recognised that the appeal had been lodged out of time.

Inherent Dispensing Power

14. On the question of whether there is some inherent dispensing power in the court to waive requirement with the statutory time limit, it was said that the Rules which formerly governed Appeals, SI 1981/1591 did contain a dispensing power which would allow late appeals, but that these had been repealed. It should be noted that these pre-dated the passing of the Act in 1995, so that even if they did have such a power, the Act, as primary legislation, takes precedence, and anyway whatever power there was has been repealed. Also, when the Act of Sederunt was passed in 1997, Parliament, being conscious of the explicit terms of the Act, which contained no dispensing power, did not provide one in the new Rules.
15. The appellant founded on the provisions which are contained in the Rules of Court governing Ordinary Actions (which includes Family Actions and therefore applies to many actions involving children), Summary Cause Actions and Small Claims Actions, being the three types of process by which a party can commence civil proceedings in the Sheriff Court. All contain a similarly worded power entitling the sheriff to relieve a party from the consequences of failure to comply with a provision "in the Rules" [my emphasis] which is shown to be due to mistake oversight or other excusable cause. That, let it be said, is a provision in the Rules governing procedure and relates to failure to comply with those same Rules. None of those provisions allows a court to relieve a party from failure to comply with a provision of a statute, being primary legislation.
16. The system of children's hearings is not one which equates to civil proceedings in any event. Nor does it equate to criminal proceedings, albeit the statute which governs those, the Criminal Procedure (Scotland) Act 1995, now has a power which has been added into the statute itself, section 300A, which allows the court to excuse a procedural irregularity including one arising from failure to observe a time limit. The critical difference there though, is that the statute now contains the power, and prior to that the Court had no inherent power in criminal cases to excuse any such irregularity.
17. As the appellant accepted, there is plain authority for the proposition that a court cannot construe a Rule in such a way as to enable the court to make orders which are inconsistent with the provisions of primary or secondary legislation (Capurro v Burrows 2004 SLT (Sh Ct) 51), and although an attempt was made to distinguish that case as it was decided without reference to ECHR principles, and that the time limit was 30 days, there is no basis on which it can be distinguished. The case of High-Flex (Scotland) Limited v Kentallen Mechanical Services Co 1977 SLT (Sh Ct) 91 was also referred to but I do not derive any assistance from the very different and unusual circumstances there.
18. Ultimately, this part of the submission came to be that what had happened was a breach of the Appellant's convention rights and a breach of natural justice, and so the Court should allow her appeal despite the plain wording of the statute and there being direct authority that a court cannot do that. It was said that this alleged breach had deprived her of the right of access to justice. That is simply not correct. The appellant had an unfettered right of access to justice, and was denied of it only because she did not bring her appeal within the time limit.
19. The case of Lindsay v Lindsay 2007 Fam LR 18 was founded on to suggest an inherent power to extend time limits at common law, but that case is clearly distinguishable as the time limit in question was one fixed by the court, and which could not be complied with in an ongoing process, and it was ruled that there was a power to take such steps as were necessary to allow justice to be done between the parties. That is far removed from the factual situation here.
20. It was also said that the absence of an express power to dispense with the time limit in the Act need not be presumed to be a deliberate omission.

Response by Reporter and Lord Advocate

21. The Reported submitted that the appeal was, ex concessu, late and that it was in a form of process which could not be equiparated with other forms of process. It was not a Summary Application, but was discreetly regulated by the Act and the Rules of 1997. The case of J v Caldwell 2001 SLT (Sh Ct) 164 is clear authority for the proposition that the court had no power to dispense with the time limit. The case is actually authority for a proposition that the computation of time in these exact circumstances must include the day of the decision, that being the plain wording of the Act, and that if late, it was incompetent. The sheriff there expressed the opinion, @ p167E, that there was no discretion afforded to the court to allow an appeal under section 51 to be lodged late, and founded that decision partly on Court of Session authority (Thomson Petr. 1998 SCLR 898). I respectfully agree with the sheriff in that case, and with the reasoning he gives.
22. The Reporter argued that what the Appellant was seeking to do was convert an incompetent action into a competent one, and that Speirs v Peat 1987 SCLR 369 was authority that that could not be done. The point was that an incompetent appeal cannot be cured by the exercise of discretion, even if it existed. Because the appeal was out of time, there was no appeal, and therefore no proceedings. Tennent Caledonian Breweries Limited v Gearty 1980 SLT (Sh Ct) 71 is authority that what was not competent cannot be made competent by amendment and is therefore a nullity from the outset. (See also Rutherford v Virtue 1993 SCLR 886).
23. The argument went that because there were no proceedings, there were no proceedings in which a Devolution Minute could arise. Schedule 6 to the Scotland Act 1998 and Paragraph 5 of the Act of Sederunt (Proceedings for determination of devolution Issues Rules) 1999 SSI 1999/1347 indicated that there must be extant proceedings before a Devolution Minute could be raised, and here, because the appeal was out of time and there was no power to dispense with the time limit, there were none.
24. This was an interesting argument, attractively presented, and in other circumstances I would have been inclined to accede to it, but for the stance taken on it on behalf of the Lord Advocate.
25. Counsel for the Lord Advocate pointed to the wording of paragraph 4(3) of Part II of Schedule 6 to the Scotland Act 1998. Paragraph 4(1) provides that proceedings, which must mean discreet proceedings, for the determination of a devolution issue may be instituted by the Advocate General or the Lord Advocate. They are Law Officers and must have that power. But Paragraph 4(3) says that "This paragraph is without prejudice to any power to institute or defend proceedings exercisable apart form this paragraph by any person" [my emphasis]. The Lord Advocate's position was therefore that the bringing of the Devolution Minute by this appellant may well be an example of the exercise of the power referred to there, and thus not incompetent, albeit it proceeded upon a late, and therefore incompetent appeal.
26. Further, counsel for the Lord Advocate pointed out, under reference to paragraphs 57 and 58 in the case of Ashingdane v UK 1985 EHRR 351, that the E Ct HR has stated that Article 6 does require an individual to have a "right to a court", albeit that is not an absolute right but may be subject to limitations permitted by implication since the right of access calls for regulation by the state, the proviso being that the limitations must not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired.
27. On this point then, I am persuaded by Counsel for the Lord Advocate that if there was indeed a devolution issue, and that there might be some merit in the particular point sought to be raised, whether that could be decided by me or required to be remitted to the Court of Session for decision, I should not summarily dismiss the present attempt to raise the point, but instead take the view that it should be dealt with on its merits.
28. As to the existence of some form of inherent power to override a statutory time limit, Counsel was quite clear in his argument that there is no such power. The original rules were repealed in 1993, so that when Parliament enacted the Act of 1995 without a dispensing power, it must be taken to have done so deliberately. It could have inserted one in the statute but did not do so. All of the references to dispensing powers in civil proceedings related to Rules, and not primary legislation, and it was not open to a court to waive a requirement contrary to a specific provision in primary legislation. In addition to the case of J V Caldwell (supra), the decision in M Appellant 2003 SLT (Sh Ct) 112 @ paragraphs 11 and 19 was founded on. Capurro (supra) is also in point here.
29. If there remained any doubt about the matter however, it is put beyond peradventure by a recent decision of the House of Lords in Mucelli v Government of Albania [2009] 1 WLR 276. Lord Brown of Eaton-under-Haywood in his speech said, at para 38, that the statutory provision in section 26(4) of the Extradition Act 2003 which provided that notice of an appeal must be made before the expiry of seven days starting with the day on which the order was made (language which is equivalent to the provision here, albeit the time limit here is two weeks longer), was "tolerably plain" in meaning that the appeal must be served within the time limit, and that this being a statutory time limit, was unextendable.
30. Lord Neuberger of Abbotsbury was to similar effect at para 74 where he compared the provision in that statute to provisions in English Rules of Court, which, just as in Scotland, contain certain dispensing powers and says that on the face of it, there is a clear and unqualified statutory time limit and would therefore seem to be no basis on which it could be extended. He stated in terms that Rules provisions about dispensing powers "cannot be invoked to extend a statutory time limit .....unless, of course, the statute so provides".
31. In these circumstances therefore, I am quite satisfied that there is a clear statutory time limit of three weeks, that the first day of the three weeks is the day of the decision (see Mucelli (supra)), that the appellant here did not bring her appeal within that period, that there is no dispensing power provided by the statute, and that there is no inherent power in the court to dispense with that statutory provision. I am also persuaded that the devolution point raised by the appellant only falls to be considered after I have ruled as above, and that to hold that I cannot even rule on that because these proceedings are incompetent may well be to deny the appellant the right to access a court in order to have it determined whether there is a devolution issue. I therefore turn to consider that issue.

The Purported Devolution Issue

32. This was said to arise from the absence of a dispensing power to relieve the appellant from her failure to have exercised her right of appeal. The argument commenced with another concession that the right to access to an independent and impartial tribunal (the sheriff on appeal in the instant circumstances) was not an absolute right and was subject to limitations (see Ashingdane (supra) at paragraph 57, and Stubbings v UK 1996 ECtHR IV 18, which is a very clear case where the English limitation provision for bringing personal injuries claims which strikes out such claims completely if not brought within 6 years of the right of action arising was held not to amount to a restriction on access to a court, and that the 6 year period to bring such actions served a legitimate aim of ensuring legal certainty and finality, protecting potential defendants from stale claims, and preventing injustice which might arise based on old claims and incomplete or unreliable evidence; in other words, proportionality).
33. The appellant' argument therefore recognised that it must be based on proportionality. One real difficulty for the Appellant here is the provision of section 73(6) of the Act which provides that the Appellant may require a review of the supervision requirement made on 19 November 2008 on the expiry of 3 months after that date. That of course means that on 19 February 2009, she could require such a review, and the position of the Reporter was that although such a review could not be held until the expiry of that 3 month period, it could be requested before it, so as to avoid delay in setting it up, since there is a 28 day period for ordering up to date reports.
34. In law, the decision made by the Hearing is not a final decision. It may be appealed, but if not is always subject to review every 3 months. The very nature of things is that as the child at the centre of this process gets older and as the parent whose contact with that child has been restricted may successfully deal with whatever problems he or she had which prevented proper care being given to the child, circumstances may well justify the taking of a different decision at review.
35. It is essential however for the stability of the child, whose rights are paramount, both by the terms of this statute and by UN charter, that there be a period when decisions made in the child's interests are allowed to be progressed. Such a child must not be subject to a constant process of litigation and uncertainty. If endless appeal proceedings are allowed, and appeals are routinely allowed out of time on an ad hoc basis, each cycle of procedure will inevitably run into and overlap with the next. There must be finality, not in the sense that the Hearing's decision is a final judgement, but in the interests of stability in the short term.
36. The appellant's argument was that even with the right of review, it would be more than 3 months before it actually took place, and so that was not good enough, and as a result, was not Convention compliant. She relied on the case of Covezzi and Morselli v Italy (2004) EHRR 28, in which children were removed from their parents following allegations of sexual abuse, and where the Court found that there was a violation of the parents' Article 8 rights based on the failure to involve them in the decision making process, but a proper examination of the passage at paragraph 137 shows that that finding was based on the fact that the parents were not able to play any role in the proceedings for over four months "as they had no right to challenge the need for the care order or to express their opinion to a judicial authority". That is manifestly not the position here. The appellant here had the right to appeal the decision taken in November 2008 but failed to exercise it.
37. The appellant sought to distinguish the case of Seal v Chief Constable of South Wales Police [2007] 1WLR 1910, and argued that while time limits may be proportionate, it is not correct that they can never amount to a breach of a person's Article 6 rights. That case was once again a case which dealt with English general limitation of damages claims provisions, and where leave to bring the case in question was required under the law, but was not sought. As a result, the claim was out of time, and barred absolutely. The majority of the House of Lords ruled that although such a result may be thought of as hard in some cases, the time period involved for bringing actions was 6 years and that there was no infringement of the claimant's Article 6 rights. The appellant's suggestion that that case is distinguishable because there the claimant failed to comply with the time limit at all, whereas here she was only a day late, is without merit. In both cases, the claimant failed to comply with the statutory time limit. There is no difference, and in any event, the passages founded on in the speech of Lord Woolf are to be found in a dissenting judgement.
38. The appellant explicitly recognised that the whole issue of proportionality is a balancing act between the general interest of the community and the requirements of the protection of the individual's fundamental rights (see Sporrong and Lonnroth v Sweden 1982 ECtHR 7151/75).
39. I was urged to have regard to the particular nature of these proceedings, having at their core the welfare of a child, and that a Hearing does not decide disputed issues of fact. Whereas Lord Penrose, in the case of S v Miller 2001 SC 977 stated at para 77 that "A Convention compliant interpretation of the appeal provisions in section 51 of the Children (Scotland) Act 1995 implies an unqualified right of appeal", it was said that the absence of a dispensing power was an unnecessary restriction on that. But that argument ignores the point already made that there is an unqualified right of appeal against the decision at the hearing. The prospective appellant is not restricted in any way from bringing an appeal on any matters he or she wishes to have reviewed. The only limitation is that the right must be exercised within a particular time limit. It is simply not correct to argue, as the appellant did, that there is a denial of access to justice.
40. There was explicit acceptance of the fact that the appellant was expressly told at the conclusion of the Hearing that she had a right of appeal and what the time limit was. And any arguments that she may not have appreciated the consequences of failure to comply with such a time limit are academic here because it appears that she did indeed instruct her solicitors to appeal within that time limit, but no explanation was given as to why it was that it was not timeously lodged.
41. Finally it was argued that the absence of a dispensing power conflicted with the overriding principle of section 16 of the Act which requires the welfare of the child to be the paramount consideration. The question was asked whether Parliament really intended that such a rigid approach be taken to cases involving the welfare of children. The answer to that on behalf of the Reporter and the Lord Advocate has already been given: Parliament must be taken to have intended precisely that, and it must be measured by the test of proportionality.
42. A faint argument was advanced that the appellant's Article 8 rights had also been breached, albeit it was recognised that Article 8 confers no explicit procedural requirements. Under reference to McMichael v UK EHRR 16424/90, the interference with the right to family life under Article 8 must correspond to a pressing social need and be proportionate to the aim pursued.
43. I was asked to invoke the power contained in Schedule 6 to the Scotland Act to refer the devolution issue raised to the Inner House of the Court of Session, on the basis that so long as the point was not frivolous or vexatious, I must do so. There must of course first be a devolution issue, and all that was said was that there was a question whether there was a failure to act by a member of the Scottish [Government] which was incompatible with Articles 6 and 8 of the Convention (Schedule 6 paragraph 1(e)).

Reporter's Response on the Purported Devolution Issue

44. As already noted, the Reporter's answer is that, assuming the question has to be answered at all, there is no devolution issue because there is no breach of the Appellant's Convention rights. The issue is proportionality and the time limit here achieves that object, it was said.
45. The starting point is the wording of Article 6 which entitles the Appellant to a fair and public hearing within a reasonable time.
46. The right is not absolute (Golder v UK (1980) EHRR 524 at para 38. Regulation by the State is permitted and the State enjoys a margin of appreciation. The limitations which the State can apply must not restrict or reduce the access to the individual to such an extent that the right is impaired (see Ashingdane (supra)).
47. Any limitation on an individual to obtain access to a court must be one which pursues a legitimate aim and achieves a reasonable relationship of proportionality between the aim and the means (see Pérez de Rada Cavanilles v Spain 1998 29 EHRR 109 at para 44). It should be reasonably certain and the procedure should be sufficiently clear and coherent (see Societé Levage Prestations v France (1996) EHRR 528). It was said that in this case, the right of appeal is clear, it is certain, and the appellant was told about it.
48. The only restriction on that right was the time limit imposed, but the ECtHR has accepted time limits, even very short ones, in a number of cases. In J & PM Dockery (A Firm) v Secretary of State for the Environment, Food and Rural Affairs [2002] HRLR 27, the court founded on the opinion of the ECtHR in Pérez de Rada Cavanilles (supra at para 45) that the imposition of time limits for enforcing a right are part of the margin of appreciation enjoyed by a State, and that "The rules on the time limits for appeals are undoubtedly designed to ensure the proper administration of justice and compliance with, in particular, the principle of legal certainty. Those concerned must expect those rules to be applied. However, the rules in question, or the application of them, should not prevent litigants from making use of an available remedy".
49. Where the failure of the individual to comply with a statutory time limit has resulted in the loss of a right to appeal, he has not been deprived of his Article 6 right to a hearing (see R. (Lester) v London Rent Assessment Committee [2003]HLR 29) paras 23 and 24, "If she had complied with the rules, she would have had a hearing. It does not follow that by not so complying she is deprived of her rights").
50. It was submitted that the Minute for the Appellant does not really advance any substantive argument under Article 8 which goes beyond anything said under Article 6. I agree with that.

Lord Advocate's Response to the Purported Devolution Issue

51. It was pointed out that the Minute does not specify what it was that the Government had allegedly failed to do. The Scottish Government cannot guarantee that Parliament will pass any legislation it brings forward. Particular stress was laid on the ongoing right of review under section 73 already referred to, and that if appeals, which had a fixed time limit, were allowed to proceed on an ad hoc basis at any time, there could be a constantly rolling series of appeals and the whole process would be distorted. Indeed if the point raised was of general principle, there are scores of statutes whose limitation provisions could simply be ignored by sheriffs on some basis to be determined as they may from time to time see fit, which would lead to chaos.
52. The Lord Advocate founded upon the passage at para 20 of the speech by Lord Bingham in Seal (supra) where his Lordship stated that he could not accept an argument that a provision requiring leave to appeal and which rendered an appeal a nullity if not sought infringed the right of access to the court, going on to say that the claimant's undoing in that case lay not in his failure to obtain leave but in his failure to proceed within the time limit.
53. Since in the present case, the court has been told that instructions to appeal were given within the time for appealing, there was, said Counsel, no basis for holding that the particular time limit of 21 days was insufficient. I agree with Counsel on that point. It follows that Counsel is also correct to say that it cannot be maintained that the provisions of section 51 are themselves incompatible with the Appellant's Convention rights. Only if there was some unspecified failure to act by the Scottish Government could it be said that the Appellant's rights were breached.
54. The argument of the Reporter on the acceptability of time limits, and that 21 days was within the margin of appreciation, was adopted. Because of the very nature of these proceedings, a short timescale is appropriate as children's needs develop over a short time. Much shorter periods have been found by ECtHR not to be incompatible with Convention rights (see e.g. Hennings v Germany (1993) EHRR 83 (one week)).
55. It was submitted that under reference to the McMichael case (supra), there was nothing in the Article 8 argument which added to the Article 6 one. I agree.
56. Counsel also disagreed with the solicitor for the Appellant as regards the test to be applied in determining if there was a devolution issue. Under reference to Brown v Stott 2001 SC (PC) 43, Lord Hope of Craighead said at p72B that the mere raising of a question does not satisfy the definition of para 1 of Schedule 6 to the Scotland Act, nor is it satisfied merely because the point is not frivolous or vexatious. A court may be able to say that a devolution point has not arisen. Lord Clyde at p 80 stated that the merits of the question posed do not disqualify the question from being a devolution issue, but the question must satisfy one or other of the descriptions set out in para 1 of Schedule 6 to the Scotland Act. The person seeking to raise it must plead himself into the paragraphs, it not being enough to say merely that a devolution issue has arisen.
57. In this case, the only suggestion is that there was a failure to act by a member of the Scottish Government, in terms of para (e). That failure is said to arise because the absence of a dispensing power is said to be a deficiency in the rules governing Children's Hearing proceedings.

Conclusion

58. I accept the arguments put forward on behalf of the Reporter and the Lord Advocate. In short, I am of the clear opinion that:
59. Section 51 of the Children (Scotland) Act 1995 provides persons such as the Appellant here with a right of appeal against the decision of the Hearing.
60. The appellant was aware of that right of appeal.
61. The appeal must be brought within a period of three weeks beginning with the date of the decision.
62. The appellant instructed her solicitors to appeal on her behalf within that time period.
63. No appeal was brought within that time period.
64. There is no provision in the Act for extending that period or dispensing with it. The absence of such a provision is not a deficiency in the rules governing the procedure.
65. There is no inherent power in the court to waive the requirement that an appeal be brought within that time period.
66. Even if there had been, no material was produced which would have justified the court in exercising any such waiver or dispensation.
67. The bringing of a purported Devolution Minute allowed the court to consider whether the Appellant's rights under Articles 6 and 8 had been breached.
68. The provisions of section 51 are not incompatible with the Appellant's convention rights under Articles 6 and 8.
69. The existence of a time limit for appealing, the length of the particular time limit, and the absence of a dispensing power are within the margin of appreciation open to the State, satisfy the test of proportionality, and do not breach the Appellant's rights under Articles 6 and 8 of the Convention.
70. The appellant was not deprived of access to the court by any provision of the statute.
71. Since there is no breach of the Appellant's rights as aforesaid, no devolution issue arises.
72. The devolution minute is accordingly refused.
73. I am grateful to the Reporter and to the Lord Advocate for having taken the considerable time trouble and expense in preparing for this hearing. I recognise also that where parties follow the modern practice, as they all did here, of lodging written notes of the arguments they intend to advance, it involves a considerable amount of preparation. This practice is a very helpful one.
74. I have tried to view this matter with the welfare of the child as being the paramount consideration, albeit it appeared to me that the paramount consideration in the mind of the appellant, the child's mother, was the attempted vindication of her own rights, as opposed to those of the child, and an attempt to get round a plain failure on her own part to comply with a provision which afforded her unfettered access to a court.