Scottish Sheriff Court Decisions

(F1186/05)

JUDGMENT OF

SHERIFF PRINCIPAL EDWARD F BOWEN QC

 

in the appeal by

 

S (a child)

Minuter and Appellant

 

in causa

 

A J B

Pursuer

 

against

 

A R B

 

Act: Halley, Advocate, instructed by Campbell Smith

Alt: Defender - no appearance

Ms Hodge, Advocate, for the curator ad litem (Lisa M Girdwood)

Ms Innes, Advocate, for the child S, instructed by Garden Stirling & Burnet

 

 

EDINBURGH,       March 2011

The Sheriff Principal having resumed consideration of the cause refuses the appeal and adheres to the sheriff's interlocutor of 30 November 2010; remits the cause to the sheriff to proceed as accords.

 

(signed) E Bowen

Note:

1. This action, between estranged husband and wife, concerns the arrangements for their children S (aged 12) and C (aged 9). It has been ongoing since December 2005. There has been sundry procedure involving a number of Child Welfare Hearings and the obtaining of reports from three separate psychologists. In December 2009 the sheriff heard five days of proof, evidence being given by the pursuer and D.C., the defender's cohabitee.

 

2. The children currently reside with the defender. The critical issue is whether the children, and S in particular, should have contact with their father the pursuer. I was informed that parties - pursuer, defender and the curator ad litem to S - were agreed that such contact was in the best interests of S. S's position, at least on the face of it, is that he does not wish to see his father. Professor Thomas MacKay, a consultant psychologist, has been working with the family towards achieving a resolution as well as reporting to the court.

 

3. By Minute lodged on his behalf on 16 November 2010 S sought leave to enter the process in his own right and to lodge Defences. His motion to do so was heard on 30 November 2010. It was opposed by the curator ad litem and by counsel for the pursuer. The sheriff refused the motion. Whilst acknowledging that S was entitled to express his views and to have them taken into account the sheriff observed that this could be achieved by a variety of methods. One was through the curator ad litem. The sheriff considered that the curator ad litem had carried out her function in this respect. Whilst it was asserted that S had lost confidence in the curator the sheriff considered that the basis for that was one which required to be examined. He said "the evidence to date may also support the view that D.C. is very domineering and has exerted a strong influence on S. Thus the justification for S's expressed view may be questioned". The sheriff further observed that were S to be permitted to enter the process section 15(5)(b) of the Family Law (Scotland) Act 1995 would have the effect of ending the curator's right to act in the action since S would be regarded as having capacity to act on his own behalf. That would result in the termination of the curator's appointment. Such a decision would, by virtue of section 11(2)(b) fall within the orders specified in section 11(1), to which the welfare principle of section 11(7) applied. The sheriff went on to observe that he doubted whether it was in S's best interests to enter the process.

 

4. At the outset of the appeal Ms Innes appearing on behalf of S indicated that parties were agreed that the sheriff was wrong to hold that permitting S to enter the process would have the effect of terminating the curator's appointment by virtue of section 15(5)(b). The reason for this agreement was that it was accepted that a curator ad litem was not a "legal representative" as envisaged by Part 1 of the 1995 Act.

 

5. There was a further area of agreement in that, although it had not been referred to in the submissions presented to the sheriff, the present application fell within the terms of OCR 13.1, the effect of which gave the sheriff discretion as to whether to allow a party who has shown title and interest, to enter a process as a Party Minuter and to lodge Defences. In the light of that, and as it was common ground that the sheriff's decision had been heavily influenced by his understanding that were S to enter the process the appointment of the curator ad litem would be terminated, it was now accepted that the matter was at large for the appeal court and I should consider the position afresh. There was no question that S had title and interest. The area of contention related to the factors to be taken into account in the exercise of discretion in the particular circumstances of the application, the weight to be given to those circumstances, and how that discretion should be exercised.

 

6. Ms Innes commenced her submissions by referring to the Age of Legal Capacity (Scotland) Act 1991. In terms of section 2(4A) a child of 12 years of age or more shall be presumed to be of sufficient age and maturity to have sufficient understanding to instruct a solicitor in connection with any civil matter. S became 12 in December 2010. That presumption now applied to him. The application to enter the process at this stage came because, as he grew older, his views had become stronger and clearer. He now wished to challenge the assessment, made by others, that it was in his best interests to have contact with his father.

 

7. There was no Scottish authority on the circumstances in which a child of S's age should enter the process as a party. In Henderson v Henderson 1997 FAMLR 120 Sheriff A M Bell had expressed some disapproval of a child entering a process, saying: "The court should normally be able to have regard to the views of the child without the child entering the process and, while there may always be exceptional cases, I would deprecate any general tendency for applications to be made for children to be Party Minuters and to lodge Defences" (paragraph 22-42). It was worth noting that in that case the child's view was exactly the same as that of the defender. On the other hand in Fourman v Fourman 1998 FAMLR 98 Sheriff Morrison, QC had observed that it was "entirely appropriate" for a 14 year girl (described as exceptionally able, very mature for her age, highly motivated and eloquent) to enter a process and lodge an Affidavit.

 

8. In England there is a more structured approach, founded on the Family Proceedings Rules 1991 (SI 1991/1247) as amended. Rule 9.2A makes detailed provision for the situation where a child wishes to begin, prosecute or defend proceedings without a next friend or guardian ad litem and for the granting of leave to do so. Paragraph (4) provides for the granting of leave to prosecute or defend "the remaining stages of the proceedings". Paragraph (6) provides that where the court is considering whether to grant leave under either of these provisions "it shall grant the leave sought and, as the case may be, remove the next friend or guardian ad litem if it considers that the child concerned has sufficient understanding to participate as a party in the proceedings concerned or proposed without an ex friend or guardian ad litem".

 

9. These provisions had been considered by the Court of Appeal in Mabon v Mabon and Others 2005 3WLR 460, a case in which the Judge at first instance had refused to allow three children aged 17, 15 and 13 to be represented separately from their guardian ad litem, holding that this would result in "delay from prolongation of the proceedings, unquantifiable emotional damage from contact with the material in this case and exposure to the harshness of the litigation process". In allowing the appeal Lord Justice Thorpe had observed (paragraph 25) that the direction set by Rule 9.2A(6) amounted to "a mandatory grant of the application provided that the court considers "that the minor concerned has sufficient understanding to participate as a party in the proceedings concerned". Thus the focus is on the sufficiency of the child's understanding in the context of the remaining proceedings". He referred to the fact that the rule was "sufficiently widely framed to meet our obligations to comply with Article 12 of the United Nations Convention on the rights of the child and Article 8 of the European Convention of Human Rights and said that: "Unless we in this jurisdiction are to fall out of step with similar societies as they safeguard Article 12 rights we must, in the case of articulate teenagers, accept that the right to freedom of expression and participation outweighs the paternalistic judgment of welfare" (paragraph 28).

 

10. In the same case Lord Justice Wall made the following comments (paragraphs 42-43): "The judge, it seems to me, was motivated by two particular considerations. The first was his laudable desire to protect the three children from the effects of the litigation. The second was his belief that the children were not, in reality, expressing their own views, but those of their father. In those circumstances the strength and validity of their views were, in the judge's eyes, substantially if not entirely devalued and could be advanced by the guardian. My difficulty with that approach is that the judge seems to me, with all respect to him, to have perceived the case from the perspective of the adults. From the boys' perspective, it was simply impossible for the guardian to advance their views or represent them in the proceedings. He would, no doubt faithfully report to the judge what the boys were saying, but the case he would be advancing to the judge on their behalf would be (or was likely to be) directly opposed to what the boys were actually saying". This, stressed counsel, drew attention to the tension between reporting the views of the children and advancing an argument as to what was in their best interests. The two might be totally different.

 

11. Counsel maintained that in determining whether the child should be allowed to enter the process as a party it was wrong to take into account any question of the child's view having been influenced by others. That was relevant to an assessment of the weight to be attached to any view which the child might express, but was not relevant to whether it was appropriate for him to be sisted as a party. It was equally wrong to take into account the fact that the child could express his views to Professor MacKay. The child was entitled to more than an opportunity to express his views to someone who would convey them to the court. What he was entitled to was to representation on his own behalf to advocate that those views be followed. The weight to be attached to his views was important, and in consequence the expression of those views to the court should not be left to others.

 

12. It was not relevant to take into account the fact that as a party to the action S would have access to information which might not be in his best interest to know. As a person with capacity to instruct solicitors, and the person most directly affected by the proceedings, he ought to be entitled to know what is said concerning him. But part of his discussion with his solicitors would involve discussion about the extent of his involvement in his proceedings. It was to be noted that in Mabon one of the considerations of the judge at first instance was that desire to protect the children from the effects of the litigation. Lord Justice Thorpe had described this as an approach which "perceived the case from the perspective of the adults" (paragraph 43).

 

13. Undue weight should not be placed upon the procedural and evidential difficulties which might be occasioned by the allowance of the Minute. That was a matter which ought to have little weight in comparison to the child's right to be heard and his Article 6 and 8 rights. If the decision was considered to be a narrow one - and the sheriff had expressed the view that it was - the court ought to exercise discretion in favour of allowing S to be sisted.

 

14. Counsel for the pursuer, whose submissions were adopted and supported by counsel for the curator ad litem, submitted that in the exercise of my discretion I should decline to allow S to enter the process. For a number of reasons articulated by counsel in the course of these submissions I am satisfied that I should not exercise my discretion in favour of the Minuter.

 

15. Parties are agreed that this is an application under OCR 13.1 which is in its essence a procedural rule. In the ordinary case the primary considerations which the court would have regard to in relation to the exercise of discretion would be likely to be procedural. One of these considerations is the stage at which the proceedings have reached, and the procedural consequences of allowing a party to enter the process and lodge Defences. It must be difficult to avoid the conclusion that to admit a new party to an action after five days of proof when evidence has been taken from two principal witnesses, is not a prospect which would normally find favour. It becomes even less attractive when there is a distinct possibility that these witnesses may require to be recalled and cross-examined on matters which were not put to them when they first gave evidence.

 

16. I have no doubt that this danger arises in this case. I am conscious of the fact that I am in a position of disadvantage compared to that of the sheriff in that I have not heard the evidence nor do I have the same degree of familiarity with the various reports which have been obtained. One thing is clear, however. That is that there is a tendency in this long running saga for the emergence of allegations concerning the pursuer which may or may not be factually correct and may or may not have a bearing on contact. One of the contentions is that S and his brother have been influenced to make allegations of improper conduct on the part of the pursuer. As I understand it at least some of these allegations were not put to the pursuer when he gave evidence. It appears to me that there must be a distinct possibility that if S enters the process with his own representative this whole area might require to be revisited.

 

17. One cannot, however, dispose of this application simply on procedural considerations. The acknowledgement of the right of the child who has now attained the age of 12, and is in consequence presumed by statute to have sufficient understanding to instruct a solicitor in connection with civil proceedings, must, for the reasons articulated by Thorpe, LJ in Mabon, be given due regard. I also accept the force of the point made by counsel for S that the right is not only one to have his views conveyed to the court but to have his position advocated in accordance with his instructions.

 

18. Counsel for the pursuer contended that there was in this case material on which one could conclude that direct participation on the part of S would pose an obvious risk of harm to him. I am not in a position to reach such a specific, or indeed extreme, conclusion. It nevertheless, concerns me that permitting S to enter the process in his own right will do little more than add to the pressures to which he has already been subjected. As I have indicated my familiarity with this case is obviously limited. I have, however, read the second supplementary report from Professor MacKay, the terms of which lead me to the conclusion that S may well be a confused young man who has been subjected to pressures in his life, arising from the circumstances of this litigation, which no child should be expected to cope with. His position in relation to a possible meeting with the pursuer altered fairly radically between a meeting with Professor MacKay towards the end of September 2010 and a further meeting on 23 November 2010. Certain of the observations by D.C., alluded to by the sheriff when he considered this matter, must raise a very real question as to whether S's motivation in entering the proceedings was inspired elsewhere. In short, this is a boy who may well feel under pressure to take "a particular line".

 

19. Although the approach of the English courts is necessarily dependent on interpretation of the terms of Rule 9.2A of the Family Proceedings Rules, it is interesting to note how the court has approached the question of the child's "understanding". Thus in Mabon (at paragraph 29) Thorpe LJ said: "In testing the sufficiency of a child's understanding I would not say that welfare has no place. If direct participation would pose an obvious risk of harm to the child arising out of the nature of the continuing proceedings and, if the child is incapable of comprehending that risk, then the judge is entitled to find that sufficient understanding has not been demonstrated. But judges have to be equally alive to the risk of emotional harm that might arise from denying the child knowledge of and participation in the continuing proceedings". The court in that cased commented favourably on a decision of Coleridge J. in the Family Division in Re N (Contact) Minor seeking leave to defend and removal of Guardian (2003) 1FLR 652 in which an application under Rule 9.2A was refused, as a "careful exercise of judicial discretion to the facts of a particular and highly complex case".

 

20. There is, of course, no comparable rule in Scotland to Rule 9.2A. There is no doubt that S has legal capacity to instruct his own representation in terms of section 4A of the 1991 Act but, as counsel for the pursuer pointed out the reference to a "general understanding" in that provision is quite different from saying that a child has an understanding of the issues in the case such as would give a proper ability to participate in the proceedings. I note that in Re N (supra) the judge referred to the ability "to cope with all the ramifications of the proceedings and give considered instructions of sufficient objectivity". In my judgment in considering whether a child of 12 years should be afforded the opportunity of participating as a party in proceedings of this nature it is that sort of ability which the court should attempt to examine before exercising its discretion in terms of Rule 13.1. On the material before me there is a real doubt as to whether S can be expected to give instructions other than of a restricted nature, and even more doubt as to whether it is fair, or in his interests, to expect him to cope with the pressures of being a party to the case additional to those which he has been already.

 

21. In these circumstances I am not prepared to exercise my discretion in favour of allowing the Minute and permitting S to lodge Defences. In short, the combination of disruption to the proceedings, the potential delay in bringing them to a conclusion (which would plainly not be in the interests of S or his brother) and the possibility of harm caused by the additional pressures on him outweigh his right to be involved as a party. I am conscious in expressing this view that the sheriff will remain bound by the terms of OCR 33.19 in terms of which he shall not grant any order unless an opportunity has been given for the views of S to be obtained and heard. It is a matter for the sheriff to be satisfied that the views of S are properly before the court, whether they be presented by the curator, conveyed by Professor MacKay or obtained by way of personal interview.