SHERIFFDOM OF TAYSIDE CENTRAL AND FIFE

F181/09

JUDGMENT

of

SHERIFF PRINCIPAL R A DUNLOP QC

in the cause

AY

Pursuer and Respondent

against

MM

Defender and Appellant

and

WILLIAM WARDEN, Curator ad Litem

Third Party Minuter and Respondent

__________________________________________

Act: Mr Brand, Solicitor, Dundee

Alt: Mr Sharpe, Advocate, instructed by RSB Macdonald, Solicitors, Dundee

Alt. Mr Jack, Advocate, instructed by Finlay Macrae, Solicitors, Dundee (Third Party Minuter)

DUNDEE, 26 July 2013. The Sheriff Principal, having resumed consideration of the cause, allows the appeal; varies the sheriff's interlocutor of 3 August 2012 complained of (1) by deleting the seventh finding in fact and law and the fourth finding in law and (2) by inserting (at page 14) after the words "direct contact with the defender" the words "each Thursday from 9am to 6pm and"; recalls the said interlocutor insofar as it makes an order in terms of section 11(2)(a) of the Children (Scotland) Act 1995 depriving the defender of the parental responsibilities set out in section 1(1)(a), (b) and (d) of said Act and the parental rights contained in section 2(1)(a), (b) and (d) of said Act; finds no expenses due to or by any party in respect of the appeal.

NOTE:

[1] This is an appeal in a family action in which the pursuer sought declarator that he was the father of a child born to the defender and for an order for residence in respect of that child. The defender had a competing crave for residence which failing contact.

[2] Following a proof the sheriff found and declared the pursuer to be the father of the child and made an order in terms of section 11(2)(c) and (d) of the Children (Scotland) Act 1995 that the child should primarily reside with the pursuer but providing that the child should have contact with the defender. He also made an order in terms of section 11(2)(a) of the 1995 Act depriving the defender of the parental responsibilities in relation to the child set out in section 1(1)(a), (b) and (d) and the parental rights contained in section 2(1)(a), (b) and (d) of the Act.

[3] The defender has appealed against the sheriff's decision in this latter regard and unusually all parties appearing at the appeal, including the Curator on behalf of the child, were at one in submitting that the sheriff had misdirected himself in his construction of the provisions of section 11 of the 1995 Act and that this had vitiated his decision to deprive the defender of certain parental responsibilities and rights. Furthermore, all parties submitted that there was an insufficient evidential basis to support the removal of parental responsibilities and rights as a necessary and proportionate step and that the sheriff's decision in this regard was taken on his own initiative without any party having supported that course of action.

[4] Standing this common position I find it unnecessary to enter into a lengthy exposition of the issue but, recognising the contrary view of the sheriff, it is important that I set out briefly the reasons why I think that common position is well founded, particularly given that the sheriff's view has had some publicity. A key passage from the sheriff's judgment which indicates his approach is as follows:-

"In my opinion courts should consider with care the particular responsibilities and rights which it confers upon litigants, removes from litigants or leaves with litigants with a view to avoiding a situation that can produce conflict. I have never understood, for example, why a parent would need both the right in section 2(1)(a) to have a child residing with him or otherwise have a right to regulate the child's residence, on the one hand, and the right in section 2(1)(c) if the child is not living with him, to maintain personal relations and direct contact with the child on a regular basis. It seems to me that these are alternative rights and I cannot conceive of any circumstances in which anyone with an interest in a child would require to have both of these rights at the same time. The concept therefore of a "full" parental rights and responsibilities order, as they have come to be known, seems to me to be a confusion of conflicting rights especially when these are enjoyed by more than one person, and there is therefore potential for conflict between the parties. That potential for conflict would seem to me prima facie to be contrary to the interests of the child. It is therefore the responsibility of the court to make orders to avoid or remove such a conflict."

[5] In a further passage, referring to a commentary of Professor Joe Thomson on the amended provisions of section 11 introduced by section 24 of the Family Law (Scotland) Act 2006, the sheriff states:

"The implication from Professor Thomson's statement ... would seem to be that in the equivalent type of situation where one parent will be the primary carer with the other merely having contact, the equivalent of the right of custody - the right to have the child reside or to control the child's resident - should normally be revoked so far as concerns the rights and responsibilities of the parent who will not be the primary carer."

[6] A central proposition advanced at the appeal was that this constituted a misdirection and that it had plainly influenced the sheriff's decision. Specifically it was submitted that the sheriff was wrong to view the rights in sections 2(1)(a) and 2(1)(c) as alternative rights and that there were no circumstances which would require a party to have both of these rights at the same time. It was submitted that the sheriff's error was evident when one had regard to the approach of the Inner House in W v Aberdeenshire Council 2012 CSIH 37 in which such an argument was rejected. The submission in that case was that an order vesting the responsibility and right of contact in adoptive parents was not appropriate when the child in question would be residing with these adoptive parents. Specific reference was made to section 2(1)(c) of the 1995 Act the argument being that a parental right of contact only existed "if the child is not living with" the parent.

[7] The response of the Inner House to this submission is to be found in paragraph 33 of the decision as follows:-

"The answer to this apparent conundrum lies in the nature of the responsibility and right to maintain personal relations and direct contact with the child on a regular basis. Of all the responsibilities and rights, it is the only one qualified by the provision that it applies "if the child is not living with" the person. However it is a responsibility and right which in terms of sections 1 and 2 of the 1995 Act every parent has at the birth of the child. Simultaneously every parent has the right "to have the child living with him or otherwise regulate the child's residence". That can be exercised in conjunction with the right to maintain personal relations and direct contact, eg where the parents live apart but the parent not living with the child agrees to an arrangement for the child to reside with the other parent. As (counsel) pointed out in her submission, but in a different connection, a person may have the right to regulate a child's residence but the child may meanwhile be in the care of another on account of the illness of parent or child, or if the absence of the parent on a work commitment or for some other reason. That parent may actively exercise both the right "to have the child living with him or otherwise to regulate the child's residence" and the right "if the child is not living with him to maintain personal relations and direct contact with the child on a regular basis". Since the contingencies of life are unpredictable, it is in our opinion entirely consistent with the terms of section 82(1)(c) and (d) of the 2007 Act, where a child is to live with foster parents as prospective adoptive parents and the natural parents were exercising only the latter of these two rights, for both rights to be vested in the prospective adopters to place them in the same position, so far as possible at that stage, as the natural parents."

[8] It was submitted that this authority, albeit a decision in the field of permanence, supported the view that there was nothing inherently wrong in a party having what the sheriff has described as a "full" parental rights and responsibilities order, which merely reflects the position of every parent from the moment of the birth of their child.

[9] In my own decision in T v A 2001 SCLR 647 I drew a distinction between the possession of responsibilities and rights in terms of sections 1 and 2 of the 1995 Act and the exercise of those rights. My analysis of the provisions of the 1995 Act was endorsed by the Inner House in Principal Reporter v K 2010 SC 328 (see paragraphs 61 and 63) and while the decision of the Inner House was overturned in the Supreme Court in that case it seems to me that my analysis in T v A survived that decision, a view which is consistent with a number of later authorities in which the distinction is apparently accepted (see for example East Lothian Council v LSK 2012 CSIH 3 at para. 9 and Petition of JDM and FBM 2012 CSOH 186 at paras. 69 and 70). Also one should not overlook the fact that section 11(2)(c) speaks of an order of the court "regulating the arrangements as to (in that case residence)", a formula repeated in subsections 11(2)(d) and (e), which in my view supports the distinction to which I have referred. Section 3(4) of the 1995 Act is also relevant in this context.

[10] Since coming into force the 1995 Act has been consistently construed so as to countenance the possibility of what the sheriff describes as a "full parental rights and responsibilities order" and with respect to the sheriff it would seem an unlikely result if, after such a length of time, that approach were to be held to have been misguided. Looking at the material to which I have referred however in my opinion there is nothing inherently objectionable about such an order and in taking the view that there is a "confusion of conflicting rights" I consider the sheriff has fallen into error. While one cannot take issue with the sheriff's adoption of the observations of Lord Carloway in Principal Reporter v K (sup.cit.) about the importance of interlocutors not being ambiguous or capable of alternative construction, it does not seem to me that there is any ambiguity in allowing a parent to continue to possess the full range of parental responsibilities and rights albeit the exercise of those responsibilities and rights may be otherwise regulated by a specific order of the court.

[11] While the sheriff has gone on to consider whether on the evidence there had been a deterioration in the level of co-operation between the parties, I think it is clear that the principal motivation for making the order depriving the defender of certain parental responsibilities and rights was his view that, but for that order, there would be a confusion of conflicting responsibilities and rights. Since in my opinion that was an erroneous view it follows that that matter is now at large for my decision.

[12] In expressing these views I am by no means saying that there may not be circumstances in which it is entirely proper in the interests of a child that the court should make an order depriving one or other parent of some or all of the parental responsibilities and rights given to them. Furthermore White v White 2001 SC 689 is authority for the proposition that the court can make an order even when no party seeks one. On the other hand it is clear that there must be an evidential basis for any order made by the court and in my view the attitude of the parties to the proposal that an order should be made is at least a relevant consideration, not least because the matter only comes before the court at the instance of the parties and in terms of section 11(7) the court is enjoined not to make an order unless it considers that it would be better for the child that the order be made than that none should be made at all. While not in any way determinative of the issue it seems to me that the common position of all the parties, including the curator on behalf of the child, that an order depriving the defender of parental responsibilities and rights should not be made ought to be given some weight and for my part I think the court should be hesitant about making such an order on its own motion against the wishes of all the parties unless there were compelling reasons for doing so. It is unnecessary for the purposes of this judgment to go into the details of the factual circumstances which were explained to me. Suffice it to say that, considering the matter of new, in my opinion those circumstances are not such as to justify an order in terms of section 11(2)(a) and accordingly I shall allow the appeal and recall the sheriff's interlocutor to that extent.

[13] Parties also asked me to vary the sheriff's interlocutor in relation to the extent of contact awarded to the defender to reflect what was actually now taking place and which by all accounts was working satisfactorily. It was agreed that no question of expenses arose.