Scottish Sheriff Court Decisions

SHERIFFDOM OF GLASGOW & STRATHKELVIN AT GLASGOW

 

 

JUDGMENT

 

of

 

Sheriff MUNGO BOVEY QC

 

 

in APPEALS by

 

CW

appellant

Against decisions of a children's hearing

dated 9 May 2013 in relation to the children R and S

 

 

 

COURT REF NOs SWA1558/D and SWA1559/D

 

Act: Gordon, AJ Gordon & Co, Solicitors, Glasgow

Alt: Currie, Reporter, Glasgow North West Team

 

Glasgow, 29 July 2013

 

The Sheriff, having resumed consideration of the appeals, allows the appeals to the extent of finding that the appellant was entitled to be a relevant person at the children's hearing on 9 May 2013 and quoad ultra continues consideration of the appeals to the hearing already fixed for 7 August 2013.

 

A Introduction

1. These are appeals by CW, the maternal grandfather of R and S who are 14 and 11 years old respectively. They arise out of a children's hearing on 9 May 2013 at which the children's residence and contact was regulated. At a hearing before me on 10 July 2013, Mr Gordon appeared for the appellant. Ms Currie appeared as the reporter.
2. The issue before me was the preliminary one of competence which arose from the failure of the hearing to recognise the appellant as a relevant person for the purpose of section 93(2)(b) of the Children (Scotland) Act 1995[1].

 

B The facts

3. Neither party sought to lead evidence before me and both were content that I should proceed on the facts as far as they were agreed. The documents lodged by the reporter demonstrate that the grounds of referral were established by the Sheriff on 28 May 2002. The children have been subject to a supervision requirement since then. The appellant has had contact for several years and has attended most of the children's hearings convened to consider the cases of the children.
4. Although Ms Currie did not actively contest Mr Gordon's assertion that his client has had contact four times a year since 2010, she made the point that it has only been regulated by the hearing between June 2009 and January 2010 and since 9 May 2013.
5. The basis on which the appellant has attended children's hearings over the years was said to be as a representative of the children's mother or at the invitation of the Convener of the hearing. This latter capacity was described by Ms Currie as being as a source of information.
6. The children have not lived with their parents for several years. They have been with their current foster carers since 2008. There are no plans to reintegrate them into the natural family and, indeed, the conditions in the decision of 9 May 2013 provide that there is to be no contact with the parents. It provides for supervised contact with their maternal grandmother, who is the ex-wife of the appellant, four times a year. She has not been recognised as a relevant person. Her contact occurs separately from that of the appellant.
7. The hearing's arrangements in relation to the appellant are that the children are to have supervised contact with him four times a year. This contact is to be monitored by social work services and supervised by them where deemed necessary.

 

C Submissions

8. In presenting the appeal, Mr Gordon recognised that the competence of his appeal depended on success on the preliminary issue of "relevant person". He also accepted that his client did not fall within the terms of the subsection as printed. He was dependent on the extension to that section given by the Supreme Court in Principal Reporter v K[2] . In this regard, he referred to paragraphs 68 and 69 of that case:

"68 Mrs Scott's second solution was to insert the words "or appears to be a parent who has a de facto family tie with the child" into section 93(2)(b)(c). This comes much closer to addressing the incompatibility which this court has found. However, it may not go far enough. Persons other than parents may have article 8 procedural rights which require to be protected. This is not as dramatic an extension as it may seem. It is not every aspect of family life which attracts its procedural protection. The family succession rights which were in issue in Marckz v Belgium (1979) 2 EHRR 330, or more recently in Pla v Andorra (2006) 42 EHRR 25, are not affected by the children's hearing. The uncle and aunt in Jucius and Juciuviene v Finland (2009) 49 EHRR 3 would be covered by the existing wording of section 93(2)(a)(c), as it appears would be the grandparents in Bronda v Italy (2001) 33 EHRR 4. If all that may be at risk is informal contact with the wider family, then the participation of each parent and the child will in most cases afford adequate procedural protection for any article 8 rights which the child and other family members may have. But there are cases in which the child's hope of reintegration in her natural family depends upon maintaining the close relationship established with a grandparent or other family member. There would then be a procedural obligation to involve that relative in the decision-making process.

"69 The potential for violation could therefore be cured by inserting the words "or who appears to have established family life with the child with which the decision of a children's hearing may interfere". This goes very much with, rather than against, the grain of the legislation. The aim of the hearing is to enlist the family in trying to find solutions to the problems facing the child. This is simply widening the range of such people who have an established relationship with the child and thus something important to contribute to the hearing. Mostly, these will be unmarried fathers, but occasionally it might include others. It will, of course, involve the Reporter initially and then the children's hearing in making a judgment. But section 93(2)(b)(c) already does this. The discussion during the course of the hearing before this court as to whether a father who shared care with the mother might already be covered by this paragraph was ample demonstration of this. The case law on whether unmarried fathers have established family life with their children is sufficiently clear and constant for Reporters to develop a checklist or rules of thumb to guide them. At the very least, it is likely that all unmarried fathers who were living with the mother when the child was born; or who were registered as the child's father; or who are having contact with the child whether by court order or arrangements with the mother will have established family life with the child. In a borderline case, it would be safer to include him and let others argue than to leave him out. The fact that the Extra Division in Authority Reporter v S [2010] CSIH 45, 2010 SLT 765, with the support of all the parties, felt able to read words into section 93(2)(b)(a) fortifies us in the belief that it is open to us to adopt this course in order to cure the incompatibility which we have found. It does not depart from a fundamental feature of the Act and is well within the overall purpose to which the definition in section 93(2)(b) is directed."

 

9. It was Mr Gordon's contention that the appellant was a person "... who appears to have established family life with the child with which the decision of a children's hearing may interfere". He therefore qualifies as a relevant person by virtue of the extended meaning of that expression that falls to be accorded it in accordance with paragraph 69 of K. Insofar as this might be a "borderline case", it would be safer to include the appellant as the Court suggests in paragraph 69.
10. In response, Ms Currie argued that the fact that the hearing had decided to regulate contact did not of itself mean the person involved was a relevant person. Even if contact has been taking place over the last three years, this is not enough for recognition on the basis of K. As the judgment recognised at paragraph 68, if all that may be at risk is informal contact with the wider family, then the participation of each parent and the child will in most cases afford adequate procedural protection for any article 8 rights which the child and other family members may have.
11. Since there was no plan to reintegrate the children with their parents, the consideration of this matter at the end of paragraph 68 did not arise. It could not be that such reintegration depended on the grandparents. On the other hand, there was no suggestion of interference with the relationship between the children and the appellant or their grandmother. The children's reintegration with the parents did not depend on the relationship with the grandparents which was independent of the relationship with the parents and would continue regardless of whether or not they were reintegrated into the natural family.
12. It was Ms Currie's submission that contact every three months did not constitute family life for the purposes of the Convention or the words inserted by the Supreme Court. A more decision-making role was required. The reference to borderline cases in paragraph 69 was to fathers not grandfathers. Fathers are a particular relationship to be given a particular weight.
13. Even if the relationship between the children did constitute family life, it was not necessary that the appellant be deemed a relevant person. The Supreme Court did not intend every grandparent with a relationship with a child to be deemed a relevant person. That this should only occur in a very rare case was evidenced by their use of the word "occasionally"[3].
14. In reply, Mr Gordon drew my attention to paragraph 38 of K which makes specific mention of grandparents in the context of family life. Ms Currie's response was that this did not mean every relationship is covered.

 

D Discussion

15. Although there is nothing in the decision of the children's hearing relating to this issue, this in itself was a ground for complaint in the appeals. In the answers, it was admitted that the appellant's solicitor has been corresponding with the reporters' administration since at least June 2011 and that the previous reporter responsible for the case had refused to agree that the appellant should be a relevant person. In any event, the reporter did not take issue with my deciding the point in the absence of a substantive consideration by the hearing and, since it is determinative of the competence of the appeal, it seems necessary to do so.
16. Discussion before me centred almost exclusively round the two paragraphs of the Supreme Court decision in K quoted above. While this is certainly the correct starting point, it is not a case about grandparents.
17. The Bronda case referred to at paragraphs 38 and 68 of K was concerned with the relationship between a child and her grandparents, with whom she had lived for a time. The contact between the child and grandparents in that case was, at the relevant time, comparable to that which exists here. But the cases were very different in that the child was 14 and clear that she did not wish to leave her foster parents. In these circumstances, the Court concluded that her interest outweighed that of her grandparents.
18. In Price v. the United Kingdom[4] the European Commission on Human Rights said of the relationship:

"The Commission notes first of all that in normal circumstances the relationship between grandparents and grandchildren is different in nature and degree from the relationship between parent and child, which has been recognised by both the Commission and Court as being of fundamental importance.... When a parent is denied access to a child taken into public care this would constitute in most cases an interference with the parent's right to respect for family life as protected by Article 8 paragraph. 1 of the Convention, but this would not necessarily be the case where grandparents are concerned. Access of a grandparent to grandchildren is normally at the discretion of the child's parents and, where a care order has been made in respect of the child, this control of access passes to the local authority. In the latter situation, there may be an interference by the local authority if it diminishes contacts by refusing to grandparents what is in all the circumstances the reasonable access necessary to preserve a normal grandparent-grandchild relationship. Regulation of access which did not go to that length would not of itself show a lack of respect for family life. "

 

19. In 2000, the ECtHR said:

"The Court recalls that the expression "family life" in Article 8 § 1 is broad enough to include the ties between grandparents and grandchildren.... In the present case, it notes that, until she went to live with her prospective adoptive parents in March or April 1996, H had regular contact with the applicant and his wife, including living with them on a temporary basis between February and April 1995. In these circumstances, the Court considers that the applicant and his wife established family ties with their grandchild and that Article 8 is therefore applicable....

"The Court recalls that it is required to carry out a stricter scrutiny in respect of restrictions on parental access to children, since such restrictions risk destroying family ties completely.... Measures which are so far-reaching as totally to deprive a parent of all family life with his or her child should only be applied in exceptional circumstances and can be justified only by an overriding requirement pertaining to the child's best interests....

"The Court observes, however, that the applicant in the present case is the grandfather, and not the parent, of the child in care. The relationship between grandparents and grandchildren by its very nature generally calls for a lesser degree of protection than that between natural parents and their children[5]."

 

20.  Nearer home, Gillen J in Northern Ireland has considered contact by grandparents on more than one occasion. In 2003 he observed:

" ... there is a growing awareness of the important role of grandparents in the life of children, particularly young children.... Nonetheless the courts can rarely determine such applications purely on the basis of the "status" of being a grandparent. Parliament has not conferred such a status and accordingly grandparents will usually have to justify on the facts the existence of real family life based on more than the blood tie simpliciter .[6]"

 

21. As the Supreme Court recognised, the Act was concerned to make the child the centre of the hearing. The extension of the qualification was intended to facilitate the hearing in addressing the child's problems and to recognise that children do not live in a vacuum. Nonetheless, what one can take from K and the other cases I have cited is that we are here principally concerned with the family life and Convention rights of the appellant. It seems to me that the submissions for the reporter failed to take into account the fact that the conclusions reached in K were that "...a parent (or other person) whose family life with the child is at risk in the proceedings must be afforded a proper opportunity to take part in the decision-making process.[7]"
22. Although Ms Currie sought to distinguish the decision in K on the basis that there are no plans to reintegrate the children into the "natural family" (their parents) I am not persuaded that this is soundly based on what the Supreme Court said. There are no doubt cases in which the child's hope of reintegration in her natural family depends upon maintaining the close relationship established with a grandparent or other family member[8] but I do not read this observation of the Supreme Court or the other authorities as making this a requirement of the participation of a grandparent. The quality of his involvement with his grandchildren requires to be viewed on its merits.
23. Those merits will include putting that involvement in the context of the lives of the children viewed as a whole. In the present case, estrangement from the parents is being enforced. The maternal grandparents' involvement is the remaining link to the natural family (in its wider sense). Although not the same as that posited in the Supreme Court, consideration of the whole circumstances seems to me to point towards rather than away from sanctioning involvement as of right in the children's hearings.
24. I consider that the contact between the appellant and the children and his involvement at children's hearings demonstrate a family life between him and the children for the purposes of article 8 and the extended meaning of section 93. He is part of their lives and they are part of his.
25. It was submitted that the fact that the social workers do not intend to interfere in the contact the appellant has with the children means that the requirement that the hearing "may interfere" in his family life is not met. I do not accept this. I read this requirement as meaning that the hearing has the power to interfere with their shared family life which it certainly has, for example, by regulating contact[9] .
26. Even if I am wrong about this, I consider that the hearing "may interfere" in the sense that there is a realistic risk of such interference. The hearings have chosen to regulate the contact the appellant has been enjoying unregulated. In this appeal he challenges the conditions they applied on 9 May. There is already interference and there may be more.
27. In the circumstances, I consider that both requirements of the extension to the subsection are satisfied.
28. Contrary to the submission made, it appears to me that if these two requirements are met, the appellant should be recognised as a relevant person. I do not read the reference in paragraph 69 of K to relevant persons being occasionally other than unmarried fathers as imposing any further test or sift. The Supreme Court was concerned to cure the procedural defects in the implementation of Convention rights of the putative relevant person. Since it is the same right as that of a father, namely family life, it seems to me that the Supreme Court advice to recognise a borderline case as a relevant person applies to any relative who is likely to have a family life with the child .
29. In these circumstances, the appellant falls to be recognised as a relevant person. I shall allow his appeal to proceed.

 

 

 

 

Sheriff Mungo Bovey QC

29 July 2013