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[1998] UKSSCSC CSCS_5_1997 (03 June 1998)

R(CS) 3/99

Mr. W. M. Walker QC CSCS/5/1997

Maintenance assessment – whether an extract copy of a minute of agreement registered in the Books of Council and Session constituted a court order under Scots law

The parent with care and the absent parent entered a Minute of Agreement to regulate inter alia custody of, access to and aliment for their child. The Minute of Agreement was registered in the Books of Council and Session for preservation and execution and an extract copy thereof obtained. The question arose as to the status in Scots law of an extract copy and whether it constituted the equivalent of a court order for the purposes of section 10 of the Child Support Act 1991 and regulation 3 of the Child Support (Maintenance Arrangements and Jurisdiction) Regulations 1992. The Commissioner considered the historical background and the development of this procedure.

Held, allowing the appeal, that –
it remains the law of Scotland that an extract from the Books of Council and Session is an "order" for the purposes of the legislation cited (paragraph 12);

an "order" required to be made under one of the enactments listed in regulation 3(1) of the Child Support (Maintenance Arrangements and Jurisdiction) Regulations 1992 and it was evident that the Court of Session Act 1868 was included in that list since that Act secured that Court of Session decrees, including extracts which contain a warrant for execution, were within power and jurisdiction (paragraph 17).

DECISION OF THE CHILD SUPPORT COMMISSIONER

This appeal by the absent parent succeeds. I hold the decision of the Edinburgh child support appeal tribunal dated 16 December 1996 to be erroneous in point of law and accordingly I set it aside. In exercise of the power conferred by section 24(3)(a) of the Child Support Act 1991 I give, myself, the decision which I consider should have been given by the tribunal.

That decision is to allow the appeal from a decision of a child support officer and to remit the case to be dealt with by a child support officer in accordance with the following directions:-

(1) the errors in paragraph 23 should be recognised and the child support officer should amend the assessment in the light of those findings;

(2) at the relevant time an order falling within regulation 3(1) of the Child Support (Maintenance Arrangements and Jurisdiction) Regulations 1992 was in force so that the effective date of the maintenance assessment in this case falls to be two days after the assessment was made, all in terms of paragraph (5) of said Regulations, and the child support officer should amend the assessment accordingly.

Accordingly, I now refer the case to a child support officer to give effect to that decision and to the direction at the end of paragraph 8 below.

The first part of my substituted decision coincides with that made by the tribunal. Since I was not addressed thereon I take it to be common ground that referral for that purpose should stand. The issue before me was that determined by the second part of my substituted decision and I give reasons upon it alone.

That issue arose in this way. The absent parent claimed that he had the equivalent of a court order in force with respect to his child. Accordingly, there was an issue under said regulation 3 as to the date from which any assessment fell to be made. The order to which he pointed was an extract from the Books of the Lords of Council and Session of a Minute of Agreement. At least by the time of the hearing before me it was clear that it was the extract and not the minute which fell to be considered as to whether it amounted to an order for the purposes of the regulations. The child support officer resisted the appeal. The parent with care made comments upon the case which, however, do not precisely bear upon the legal issue before me. The absent parent requested an oral hearing, which request was granted by a Nominated Officer.

Thus it was that the case came before me for hearing, which occupied part of some three separate days for the reasons which I explain below. At the hearing the absent parent was represented by Mr. S. Hall, of the Bathgate Welfare Rights Team. The child support officer was represented by Mr. I. G. Armstrong, Advocate, instructed by the Solicitor in Scotland to the Department of Social Security. The parent with care neither appeared nor was represented.

To qualify for the purposes of said regulation 3(5), a court order, or rather "an order" to use the exact terms of the regulation, must not only be made by a judicial authority but must have been made under one or more of the enactments listed in paragraph (1). Two questions therefore have to be considered in turn. Mr. Hall, in his opening submission, founded upon advice tendered to him by the absent parent's solicitor to the effect that the extract of the agreement was "similar to a court decree". His case really relied upon that advice which had equally been given to the child support agency by the solicitors on 22 May 1996 - document P3 of the bundle. Moreover, submitted Mr. Hall, the agreement having, in the prior negotiations, met the terms of the Family Law (Scotland) 1985, qualified in terms of said regulation 3(1) since that Act is mentioned at sub-paragraph (t). When the parents divorced some three years later no mention was made of the matters contained in the minute since they had been dealt with thereunder. Those matters included custody of, access to and aliment for the child. That was as far as Mr. Hall felt able to assist me.

Mr. Armstrong opened by adopting the support for the appeal set out in the submission by the child support officer dated 20 November 1997 - documents 18 to 22 inclusive of the bundle. The essence of that support appears in paragraph 7 of the submission and is to the effect that the tribunal merely stated its conclusion upon the legal status of the extract and had not explained why it rejected the absent parent's evidence regarding the minute of agreement. I understand why that has been said. However, as already noted, it was not the minute but the extract which fell to be considered and the status of the latter was a matter of law and not for evidence. In essence, in this case at least, there were no issues of fact although, on a very strict view, the errors brought to the tribunal's attention by the child support officer were such that a purist might have suggested that something should have been rehearsed in their findings in that regard. The tribunal's reasons were these:-

"The tribunal were satisfied that the minute of agreement entered into by the appellant was not a "maintenance order" within the terms of the Act and the Child Support (MAJ) Regulations 1992 as amended."

Again it was the extract that mattered and the tribunal should have explained the basis for their determination that as a matter of law that extract was not an "order" for the purposes of the legislation, or had not been made under one of the listed enactments, as the case might be. Their failure to do that was and is an error of law. For the reasons which follow I have reached the conclusion that their decision was also wrong in law. These are the grounds upon which I have set aside their decision.

Mr. Armstrong helpfully put the issues into the statutory perspective. He started by drawing attention to section 10 of the Child Support Act 1991 which provides that a prescribed order in force with respect to a qualifying child and so far as dealing with periodical payments, i.e. aliment, is to cease to have effect to such extent as may be determined. As the side note indicates, the section is really concerned with the relationship between maintenance assessments and certain court orders. The effect of the section and the regulations quoted is that once a maintenance assessment has been made any relevant court order ceases to have effect and the effective date of the assessment is then to be two days after it was made. Regulation 5 of the Maintenance Arrangements and Jurisdiction (MAJ) Regulations provides for notification by child support officers not only to the party affected but to appropriate officers of the relevant court. The child support officer, upon the review and revisal of this assessment order in accordance with my decision, will thus be required to make due intimation in terms of regulation 5(4)(b)(i).

Mr. Armstrong's first point about the extract not being a decree was to pick up the words of the solicitor's letter and to submit that the extract was, according to them, only equivalent to a decree. He accepted that it could be enforced as a decree but he contended that was not, of itself, a decree. In order that that matter might be more fully explored, I drew to his attention page 60 of Maxwell, "The Practice of the Court of Session", certain authorities there indicated and adjourned the hearing for further consideration.

When the hearing resumed Mr. Armstrong kindly favoured me with a substantial review of the history of documents recorded in the Books of Council and Session and the legal effect of extracts therefrom which bear not only that they are registered for preservation but also for execution with the time honoured words at the end of the extract:

"AND the said Lords grant Warrant for all lawful execution hereon."

A photocopy of the extract appears at document C4, albeit in a form heavily blacked through excessive zeal on the part of someone to protect the whereabouts of the parties. Since the document is a public document and anybody could have obtained a copy on payment of an appropriate fee, blacking was pointless.

The extract is from the "Registers of Scotland". Its backing is also headed "The Books of Council and Session". The preamble indicates that the minute of agreement reproduced was presented for registration in these Books for preservation and execution and then records the precise form of the minute. According to Maxwell, "The Practice of the Court of Session", at page 60, the Books of Council and Session originated as the court books of the Lords of Council and Session [which means the court books of the Judges of the Court of Session]. And he notes from section 13 of the Reorganisation of Offices (Scotland) Act 1928 that the full title is:

"The register of deeds, probative writings, protests and certificates of judgment."

The last three words of that title are important and Maxwell goes on to say that:

"Registration of a deed or writ for execution gives the holder a decree of registration: such a decree is, in effect, a decree of the Court of Session, and on an extract all lawful diligence may proceed."

The child support officer would no doubt found upon the qualification "in effect". But, as Mr. Armstrong pointed out, in the authority cited by Maxwell, namely Taylor, Petr 1931 SLT 260, Lord Pitman, sitting in the Bill Chamber, had to consider whether an extract from the Books with a warrant of execution fell to be regarded as "a judgment ...obtained...in the Court of Session in Scotland" for the purposes of section 10 of the Administration of Justice Act 1920. He held that it did so having regard to various authorities to some of which I shall later turn, including Bell's Commentaries and Bell's Lectures. He said at page 261 that such a decree was:

"Just a decree issued summarily in virtue of the consent of the debtor. "The decree by consent, called a decree of registration, may generally be described as directly grounded on the registration of an obligation or contract in the books of a Court of competent jurisdiction by virtue of a previous consent incorporated in the obligation or contract. Proceeding on such consent a fictitious judgment is given forth by the Clerk of Court authorising all usual and necessary writs of execution as if by authority of the judge" (Bell's Comm., Book I. cap. l)."

And then he referred to a little history:

"Originally, registration for execution was a judicial act, and process could not be done 'without the judge be present to heir the samen red and interpone his authoritie thereto,' and in early days Counsel used to sign on behalf of the grantor of the bond (see Bell's Lectures, Book I, Title 9, cap.3; see also the Act 1584 cap. 4)."

Lord Pitman then went on to indicate how the procedure became fictitious in that:

"By Act of Sederunt of 9 December 1670 the Lords of Council and Session authorised the Lord Register and the clerks of Session, his deputes, to register bonds and therein to insert the consent of advocates as procurators, 'notwithstanding that the advocates do not subscribe their consent,' and this practice was followed until [a newer] practice was introduced by the Registered Writs Execution (Scotland) Act 1887."

Lord Pitman pointed out that however the procedure altered, and I would interpolate may have become even more of a legal fiction, nonetheless the decree implicit in an extract from the Books which includes a warrant of execution:

"...is nonetheless a decree of the Court of Session, and is, in my opinion included in the definition of judgment given in section 12 of the Act of 1920."

Mr. Armstrong in elaboration took me through a number of the institutional writers who have dealt with the matter but the practical effect is as rehearsed by Lord Pitman. Bell in his Lectures at the passage cited explains the advantages of the procedure as being less tedious and expensive than having to raise an action and then upon the debtor admitting or confessing the claim, judgment being passed against him. Mr. Armstrong indicated that he understood that such a procedure as the latter was akin to that in operation in England. Bell then narrates that the procedure in Scotland started as a regular although summary process before the court. It assumed

"that, at the request of the grantee or holder of the deed, but in the name of the grantor, and as authorised by his consent, and especially appointed by his procuratory, a Counsel or Agent duly qualified appears in court, producing the document of debt or claim, and moves the Judge to insert or register the document in the books of the court, and to interpone his decree in conformity with the consent or clause of registration therein expressed. The judge ordains the deed to be registered accordingly, gives the same the strength of his decree, and authorises legal execution in terms of the consent."

The history is equally clearly recorded in Greens Encyclopaedia of the Law of Scotland under the heading "Registration and Records" at paragraph 767. Menzies' authoritative work on Conveyancing, in Chapter XIV, observes that whilst:

"...we cannot exhibit in detail the precise steps by which the existing practice gradually attains its present form, the statutes and authorities contain expression and indications sufficiently significant to leave no doubt that the modern extract of the registered deed, which contains indeed the substance and efficacy of a judicial decree, is merely the counterpart of the ancient judgment, pronounced after all the forms of a judicial process between the parties had been gone through."

Earlier he noted a practice and procedure very similar to that already noted from Bell. In light of those authorities Mr. Armstrong really accepted that an extract from the Books with warrant for execution contained a court order sufficient to fall within the section 10 of the Child Support Act and regulations 3 and 5 of the MAJ Regulations, subject of course, to one remaining question. I am happy to accept, and indeed was entirely persuaded, that however much the procedure may now be in the nature of a legal fiction, it remains the law that an extract from the Books with warrant for execution is an "order" for the purposes of the legislation with which I am concerned. That is because registration implicitly proceeded by virtue of a decree of the Court and in cases such as the present, for execution which gives rise to the warrant. It is in much the same status in law as an extract of a decree which has proceeded upon a joint minute to which the Court has interponed authority. In each case the textual substance of the decree is contained in a document other than the decree itself. But there remains yet another question.

The remaining question then is whether this order, albeit a judicial order, was made under one of the listed enactments in regulation 3(1) of the MAJ Regulations. Mr. Hall was, quite understandably, unable to help me on that although I accepted from him that the basic agreement had been reached to comply with the provisions of the 1985 Family Law Act. Mr. Armstrong's first position was that none of the statutes permitted or regulated the decree or order before me. He pointed to the various enactments which dealt with consistorial causes and those involving custody, aliment or custody of children in Scotland. They, he said, covered all the possibilities where a court in Scotland might make an order envisaged by section 10 of the Act. I agree. Clearly this "order" had not been made "under" any of them. I enquired of him, why there had been included the Court of Session Act 1868 and the Sheriff Courts (Scotland) Act 1907, notwithstanding the repeal and replacement of those Acts by later Acts. Mr. Armstrong pointed out that they had not been in the original regulation but had been added with effect from April 1995. He accepted, of course, that they could apply to the present case.

The order here being from the Books of Council and Session, only the Court of Session Act 1868 remains relevant to this particular case. After a further adjournment to allow further research, Mr. Armstrong pointed out that the Sheriff Courts (Scotland) Act 1907, although largely supplanted by later legislation, nonetheless still contains the rule making powers for the Sheriff Courts and so provided the statutory authority for the governance of the procedure of those courts. There could there be seen, he submitted and I accept, a reason for that Act to be mentioned, namely so that any order of a Sheriff Court made under the more particular Acts listed would have nonetheless to be within the rules of procedure made under, and the bounds of jurisdiction prescribed for those courts within, the 1907 Act. But in respect of the Court of Session Act 1868 the matter, he felt, became more difficult. That Act has been supplanted substantially by legislation in 1933 by the Administration of Justice (Scotland) Act of that year and now also the Court of Session Act 1988. Indeed, consideration of the parts of the 1868 Act repealed by the last two mentioned Acts indicates little of moment to have been left in force. Mr. Armstrong submitted that the intention probably was to cover the relevant statutes which had within them the possibility of an order about aliment but which order had been made prior to the Family Law (Scotland) Act 1985. Whilst, as noted, that might have justified the inclusion of the Sheriff Court Act of 1907 because of the rule-making powers contained therein, it would hardly have applied to the Court of Session which always had, as a Sovereign Court, its own inherent rule-making powers albeit specialised powers may have been conferred from time to time in legislation.

Mr. Armstrong rejected any suggestion that the 1868 Act might have been mentioned as the foundation for the modern form and procedure of the Court of Session, albeit substantially modified and subsequently in part replaced, even having regard to the terms of section 20(2) of the Interpretation Act 1978. That provided that:

"Where an Act refers to an enactment, the reference, unless the contrary intention appears, is a reference to that enactment as amended, and includes a reference thereto as extended or applied, by or under any other enactment, including any other provision of that Act."

Mr. Armstrong demurred from the idea that the 1868 Act had been amended or extended in any sense but contended that it had simply largely been replaced. His researches brought to light only one case in which section 21(2) of the 1978 Act had been considered - namely Regina v Secretary of State for the Home Department Ex Parte Abdul Wahid, on 18 June 1990 in the Queen's Bench Division before Pill J. Mr. Armstrong contended, and I accept, that there was nothing in that judgment to assist in the present case.

I am reluctant to ascribe, even to regulations, a motivation that reference to an enactment has been included in a list without reason, or even simply ob majorem cautelam and so without any clear or particular purpose. All the other statutes in the list have a clear purpose, although the two Court Acts are less clear. I accept Mr. Armstrong's contention that the Sheriff Court Act was included so as to make sure that orders of those Courts, properly made in terms of procedure, were included for the purposes of said regulation 3. I suspect then that the purpose of the 1868 Act was to provide a parallel provision for the Supreme Courts, although the 1988 Act could have been a better choice. The 1868 Act did, however, seek to lay down in a comprehensive code the procedure and jurisdiction of the Court of Session for the first time for a very long time - Maxwell op cit. sup. at 61. The original statutory rule making power was in the College of Justice Act 1540. That power was later eroded and much changed, in particular by legislation at the end of the eighteenth and the first half of the nineteenth centuries. The 1868 Act started a tidying up process. By the 1933 Act some power was further returned to the Court to regulate its own procedure. That remains effectively complete under the 1988 Act. Nonetheless, so far as statutes are concerned, that of 1868 is the only one readily usable to refer to a code of these Acts for the Court of Session. And of course the order is, as I have held, a decree from it and so was, however notionally, necessarily from within its jurisdiction and procedure. Whether, then, by direct reference or by reference to the 1868 Act as extended by the two twentieth century Acts, the order I must hold, again however much as a legal fiction, was one made under the 1868 Act. It was not made under any other Act and yet its authority must flow from some legal source. It does not depend, as far as I can see, on the common law. The 1868 Act read with those of 1933 and 1988 provides a comprehensive survey of and guide to Court of Session procedure, organisation and powers under statute. I think the real purpose of including the 1868 Act was to include something in parallel to the 1907 Act for the Sheriff Court, but in respect of the Supreme Court. I therefore think it right to read the reference to the 1868 Act, to that Act "as extended ....by...any other enactment", namely those of 1933 and 1988. It is largely under those latter Acts that the Court will now regulate its procedure. I am, of course, aware that the Books of Council and Session for present purposes now form part of the Registers of Scotland and that they are now operated, as it were, by the Keeper of the Registers and not by any Clerk of Court. Despite the artificiality, I feel somewhat fortified in my conclusion because, so far as I can see, unless inclusion of the Court of Session Act 1868 was intended, however obliquely, to secure, in some such way as I have outlined, that Court of Session decrees be within power and jurisdiction, in parallel to the Sheriff Courts and their Act of 1907, then it could have had no purpose in being on the list.

For the foregoing reasons this assessment must go back for reconsideration and redetermination. Accordingly the appeal by the absent parent must be allowed.

Date: 3 June 1998 (signed) Mr. W.M. Walker QC

Commissioner