Scottish Human Rights Law Group

Contribution by:  Jennifer Spence

Court of Session (Inner House), 21 January 2010

Lord President (Hamilton), Lady Paton, Lord Carloway

Mr K, the unmarried father of a child (“X”), born 6 May 2002, applied to the Sheriff for parental rights and responsibilities in terms of section 11 of the Children (Scotland) Act 1995 (c.36) (“the Act”).  Mr K was named on X’s birth certificate and was in possession of an interim contact order. As the application proceedings progressed, amidst allegations of domestic violence, plagium and sexual abuse by Mr K, X was referred to the Children’s Hearing. Proceedings continued both before the Sheriff Court and Children’s Hearing, and on 27 October 2006, in the section 11 proceedings, the Sheriff purported to award Mr K parental rights and responsibilities to the extent that he became a “relevant person” in the children’s referral relating to X.  Certain rights and obligations flow from the status of “relevant person”.

The Principal Reporter thereafter petitioned the Lord Ordinary, and was granted interim suspension of the Sheriff’s interlocutor, on the basis that that participation in a Children’s Hearing was not in itself a parental right or responsibility which could be conferred by a court, thus Mr K was not a “relevant person” in terms s.93(2)(b) of the Act.

Mr K reclaimed against the decision of the Lord Ordinary and sought declarator that s.93(2)(b) of the Act, was incompatible with his rights under the European Convention on Human Rights, Articles 6, 8 and 14.  Senior Counsel for Mr K submitted that (1) the order of the Sheriff was competent and, in allowing Mr K to exercise parental responsibilities directly in the course of the hearing (and, in doing so, to safeguard and promote X’s health, development and welfare), had placed him within the definition of a relevant person; (2) the definition of “relevant person” in s.93(2)(b) of the Act was incompatible with Articles 6 and 8 if the effect of that provision was that, in order to be able to participate in a Children’s Hearing,  unmarried fathers had to commence proceedings in the Sheriff Court, as that created a disproportionate hurdle and was not necessary in a democratic society; and (3) Article 14 was also violated as there required to be weighty reasons for the difference in treatment between unmarried fathers and mothers.

Held:

In refusing the reclaiming motion and application for declarator and granting decree of suspension:

1. when a court was asked to make an order in relation to parental responsibilities and/or rights it had to address the three overarching principles set out in s.11 of the Act, with the child’s welfare being the paramount consideration, and a court may impose parental responsibilities, even if that imposition may have no immediate practical effect in relation to the child: T v A (Parental Rights), 2001 S.C.L.R. 647, approved;
2. the Sheriff, in restricting himself to the limited question of whether Mr K’s appearance at a Children’s Hearing would be of assistance to that hearing in determining the appropriate order to make, had failed to apply the three overarching principles and had thus erred in law and had acted in an incompetent manner. It followed that his subsequent interlocutor was also incompetent;
3. the scheme of the Act complied with Mr K’s right to respect for his family life in providing him with the ability to obtain parental responsibilities and rights, which, if obtained, would provide him with a right to participate fully in the proceedings before the Children’s Hearing and to appeal any decisions taken at such a Hearing;
4. section 93(2)(b) was not incompatible with Article 8 as it affords the right, and imposes the obligation, on all those: (a) who have parental responsibilities and rights by virtue of the Act; (b) who have such rights vested in them (e.g. by a court); and (c) who have charge or control of the child. Thus, its aim can be seen to be to give the right, and impose the obligation, of attendance on all of those who have practical involvement in the child’s upbringing and welfare. The sub-section provides for the inclusion rather than exclusion of persons;
5. Mr K could not validly claim that his Article 6 rights had been infringed by s.93(2)(b), as the existence of those rights had yet to be competently determined by the Court. Before a Children’s Hearing decision could be perceived as determining the father’s “civil rights”, he would first have to be a person with parental responsibilities and rights. In this father’s case, he would have to have had these rights vested in him. The existence of a two-stage procedure did not of itself point to any incompatibility with Article 6, as it would be necessary in many situations for a person to establish a particular fact before he could claim to have a civil right to be determined.  Further, any procedural deficiencies due to concurrent proceedings before a Children’s Hearing did not amount to a contravention of Article 6;
6. the existence of different hurdles to be overcome in order to meet a series of qualifications for a right to be heard at a Children’s Hearing did not carry with it the implication that there was thereby discrimination of a type violating Article 14 rights.

Observed:

1. that interlocutors should be unambiguous, and if they proved otherwise, they ought to be corrected, recalled or dealt with in accordance with the practice and procedure applicable to appeal and review; and
2. that in an appropriate case, the Court could, applying the overarching principles, impose defined parental responsibilities but expressly limit their exercise and the rights flowing from them in a specific way, but ought to specify which of the defined rights and responsibilities it was imposing.

The full decision can be read by clicking on the link below:

http://www.scotcourts.gov.uk/opinions/B92_09.html