FIRST DIVISION, INNER HOUSE, COURT OF SESSION
Lord President Lady Paton Lord Carloway	[2010] CSIH 5 P391/09 OPINION OF THE COURT delivered by LORD CARLOWAY in the Petition of THE PRINCIPAL REPORTER Petitioner and Respondent; against (FIRST) JPK and (SECOND) JR First Respondent and Reclaimer and Second Respondent; and (FIRST) THE LORD ADVOCATE and (SECOND) LRK'S CURATOR AD LITEM Minuters: for Suspension of an Interlocutor of the Sheriff at Glasgow dated 27 October 2006 _______

Petitioner and Respondent: Di Rollo QC, Brabender; Biggart Baillie LLP

First Respondent and Reclaimer (father): JM Scott QC, AN Stirling; Drummond Miller LLP (for Al Gordon, Glasgow)

Second Respondent (mother): Guinnane; Aitken Nairn (for Livingston Brown, Glasgow)

First Minuter: DEL Johnston QC, Dunlop; Scottish Government Legal Directorate

Second Minuter : Cheyne; HBM Sayers, Glasgow

21 January 2010

1. Legislative Framework

[1] The Children (Scotland) Act 1995 (c 36) is divided into four parts. This litigation involves the inter-relationship of Part I, which concerns the private rights of persons, including parents and children, with Part II, which provides for local authority intervention in the care of children. Part I commences with general provisions about parental responsibilities and rights; phraseology designed to promote a move away from the common law concepts of rights to the tutory and custody of children and of access to them. Thus, sub-section 1(1) provides that "a parent" has the responsibility:

"(a) to safeguard and promote the child's health, development and welfare;

(b) to provide...(i) direction; [and] (ii) guidance, to the child;

(c) if the child is not living with the parent, to maintain personal relations and direct contact with the child on a regular basis; and

(d) to act as the child's legal representative...".

"Parental responsibilities" are defined as the matters referred to in sub-sections (a) to (d) (ss 1(3)) and the child has the right to sue in respect of them (ss 1(3)).

[2] Sub-section 2(1) retains the idea of "parental rights" by providing that a parent, in order to enable him to fulfil his parental responsibilities, has the right:

"(a) to have the child living with him or otherwise to regulate the child's residence;

(b) to control, direct or guide...the child's upbringing;

(c) if the child is not living with him, to maintain personal relations and direct contact with the child on a regular basis; and

(d) to act as the child's legal representative".

The matters referred to in (a) to (d) are the defined parental rights and a parent is entitled to sue in respect of them (ss 2(4)). Where two or more persons have a parental right, each may exercise that right without the consent of the other, in the absence of a decree or deed regulating that exercise (ss 2(2)).

[3] Section 1 refers to a "parent" having responsibilities and this word is defined as meaning "genetic parent" (ss 15(1)). But section 3 then specifies who is to have parental responsibilities and rights. A mother has such responsibilities and rights (ss 3(1)(a)) but, in terms of the section as originally enacted, a father only had such responsibilities and rights if married to the mother at the time of the child's conception or subsequently (ss 3(1)(b)). This limited category of fathers was expanded to include any father registered as such on the child's birth certificate (ss 3(1)(b)(ii)), but only when the child is born after 4 May 2006 (Family Law (Scotland) Act 2006 (asp 2) s 23). However, a mother with parental rights and a father without them can agree that the father should have such rights (ss 4(1)).

[4] The Act expressly provides (ss 3(4)) that:

"The fact that a person has parental responsibilities or parental rights... shall not entitle that person to act in any way which would be incompatible with any court order..., or with any supervision requirement under section 70...".

[5] A court has the power to make such orders "as it thinks fit" in relation to parental responsibilities and rights (ss 11(1)-(2)). It can make orders depriving a person of some or all of his parental responsibilities and rights or imposing such responsibilities and rights on a person (ss 11(2)(a)-(b)). In particular, it can regulate a child's place of residence by pronouncing a "residence order" and it can make arrangements for contact between a child and others by granting a "contact order". It can determine any particular conflict by way of a "specific issue order". In making any of these orders, the court must have regard to the welfare of the child as the paramount consideration (ss 11(7)). Furthermore, it should not make an order unless it considers that it would be "better" for the child to do so and, where practicable, it can only pronounce an order after ascertaining the child's views. These considerations are commonly referred to as the "three overarching principles" of welfare, minimum intervention and consultation.

[6] Part II of the Act provides (s 16) for the same three considerations to be taken into account when a Children's Hearing or a court is determining whether, in terms of section 52, a child requires compulsory measures of supervision. A local Reporter will refer any child, whom he thinks is in need of these measures, to a Children's Hearing (ss 65(1)). When this is done, the child has a right, and is under an obligation, to attend the Hearing (ss 45(1)). The Act provides (ss 45(8)) that "a person who is a relevant person" also has that right and is under that obligation. It is the duty of the chairman of the Hearing to explain the proceedings to the child and any relevant person (ss 65(4)). The child and the relevant person may accept the grounds for referral (ss 65(5)), thus avoiding the need for a proof before the Sheriff (ss 65(7)). The child and any relevant person have the right to be represented at any such proof (ss 68(4)) They also have a right of appeal to the Sheriff against a decision taken by the Hearing (ss 51(1)).

[7] It is of importance, therefore, to ascertain just who a "relevant person" is, since it is only this person who, apart from the child, has a general right to participate in proceedings either before the Children's Hearing or the Sheriff. The definition section (ss 93(2)(b)) stipulates that a relevant person is:

"(a) any parent enjoying parental responsibilities or parental rights under Part I of this Act;

(b) any person in whom parental responsibilities or rights are vested by, under or by virtue of this Act; and

(c) any person who appears to be a person who ordinarily...has charge of, or control over, the child".

This is supplemented by a provision (ss 103(1)) whereby any reference:

"to a person having, or to there being vested in him, parental responsibilities or parental rights shall, unless the context otherwise requires, be construed as a reference to his having, or to there being so vested, any of those rights or as the case may be responsibilities".

But where a Sheriff is determining whether to transfer parental responsibilities and rights to a local authority under section 86, a relevant person is defined simply as either "a parent of the child or a person who for the time being has parental rights" (ss 86(4)).

[8] The Children's Hearings (Scotland) Rules 1996 (SI 1996 No 3261 (S 251)) add to the limited category of fathers requiring notification of proceedings, and being allowed to attend, by including those who live with the mother (Rules 5(3)(b) and 12). As well as expanding upon the methods of intimation and explanation referred to in the primary legislation, the Rules make provision (Rule 13) for the chairman to allow certain persons to attend a Children's Hearing, namely:

"(a) the chairman and members of the Children's Panel Advisory Committee...

(b) any members or possible members of children's panels...for the purpose of their training...

(c) any student engaged in formal education or training in social work or any person engaged in research relating to children...

(d) any other person whose presence at the hearing may in the opinion of the chairman be justified by special circumstances".

The Child Care and Maintenance Rules 1997 (SI 1997 No 291) impose certain procedural requirements on a Sheriff hearing a referral to hear any relevant person (Rule 3.47(4)).

2. Facts

[9] The respondents are respectively the father and mother of the child LRK, who was born on 6 May 2002. They both appear on the child's birth certificate as parents. The respondents commenced their relationship in about April 2000; the father having a daughter from another relationship, aged 3, at that time. They lived together. The mother gave birth to a son from another relationship on 25 January 2001. LRK encountered medical problems in Summer 2002 and these lasted for over a year. The father attended hospital with the child on a number of occasions over this period and at times stayed overnight with her. The respondents separated in either February 2003 or 2004, depending on whose averments are accepted.

[10] In about May 2004, the father raised an action in the Sheriff Court at Glasgow craving:

"1. ...an order imposing upon the [father] full parental responsibilities and rights to the child...and to impose such responsibility (sic) and award such rights ad interim in terms of Section 11.2b (sic) of the Children (Scotland) Act 1995.

2. ...a contact order in respect of [the child] whereby she is to be with the [father] every weekend from Friday at 6.00 pm until Sunday 6.00 pm or at other times as the Court may deem appropriate and to grant such an order ad interim".

An interim residential contact order was made by the Sheriff, on the unopposed motion of the father, on 11 May 2004. The cause was then sisted "for continued contact". Contact took place until Christmas 2005, when it was stopped by the mother. The mother took the child to her general medical practitioner alleging sexual abuse. The precise allegation, as reported by the child and recorded in the subsequent Full Assessment Report & Care Plan prepared by Social Work Services on 31 May 2006, was that "Dad had stuck 'his bum' in her and that her Dad had 'stuck his pencil' up her". The mother reported that the child had had a vaginal discharge at about the relevant time. A police investigation took place, but concluded that there was insufficient evidence to support the allegations. Around this time there was also an episode when the father removed the child from the mother, resulting in his conviction and admonition for plagium. The mother complained of persistent harassment by the father.

[11] On 21 March 2006 the case called in the Sheriff Court on the father's motion no. 7/2 of process: (1) to recall the sist; (2) to make an order granting the father "full parental rights and responsibilities in terms of Crave 1"; and (3) to ordain the mother to appear at the bar to explain her failure to obtemper the contact order of 11 May 2004. Only the first part of the motion was granted, the remaining parts being continued for consideration at a Child Welfare Hearing on 5 May 2006. On that date, the Sheriff suspended interim contact and ordered a report from a local solicitor. This appears to have been interpreted in subsequent procedure as the appointment of a curator ad litem (the second minuter); that appointment only being made on 18 August 2006.

[12] On 19 June 2006 the child was referred to the Children's Hearing on the grounds that: (a) in terms of sub-section 52(2)(c) of the 1995 Act, she was likely: (i) to suffer unnecessarily; or (ii) to be impaired seriously in her health or development, due to lack of parental care; and (b) in terms of sub-section 52(2)(d), she was a child in respect of whom a criminal offence had been committed, viz. being exposed to unnecessary suffering or injury to health contrary to section 12 of the Children and Young Persons (Scotland) Act 1937. The statement of facts attached to the referral narrated a history of domestic violence, mostly in the form of verbal aggression by the father to the mother witnessed by the child, but including also the episode of plagium and the allegations of sexual abuse.

[13] The Sheriff Court case called again on 23 June, when the Sheriff was advised of the upcoming Children's Hearing, which had been fixed to take place a few days later on 28 June. The issue of the father's right to participate in that Hearing was raised before the Sheriff. The father therefore again moved for a grant of parental rights in terms of part 2 of the motion originally heard in March (supra). The Sheriff declined to make such an order and continued the Child Welfare Hearing until 18 August 2006.

[14] The Children's Hearing took place as scheduled, but had to be continued for procedural reasons. The father was recorded as being "in the building but did not attend the hearing". It was noted that he was "not regarded as a relevant person and there is a high level of conflict between him and [the mother]". At a continued Hearing on 20 July, the mother accepted most of the statement of facts but denied the grounds of referral. The Hearing sent the matter to the Sheriff for proof. The Sheriff appears (the orders were not produced) to have found the grounds established on 11 August; but the father did not participate in the proof.

[15] At the continued Child Welfare Hearing on 18 August, the Sheriff, on joint motion, made an order for interim contact from 10 am to 12 pm at a contact centre. He assigned a further diet for a Child Welfare Hearing on 27 October 2006. The Children's Hearing re-convened on 4 October, when the father attended, having been informed of the date and time despite, as was again minuted, not being recognised as a relevant person. The mother did not appear and a continuation was allowed so that she could do so. When the Hearing convened once more on 19 October, she was present, as was the father. The Hearing imposed a supervision requirement, the only specific provision of which was that the address of the mother and child should not be revealed to the father. The Hearing noted that:

"Contact was discussed with both mum and dad. Contact at the moment was through a court order and the panel felt it was appropriate to leave as it is".

[16] Attention swung back to the Sheriff Court on 27 October 2006 when the Sheriff pronounced the following interlocutor:

"The Sheriff, having heard the Curator ad Litem and agents for both parties, Grants Pursuers motion, no 7/2, in part, conjoined by the Curator ad Litem despite Defenders opposition, and in terms thereof; Grants the Pursuer Parental Rights and Responsibilities to the extent that he becomes a relevant person in the Children's Referral relating to the child...".

The mother did not seek to appeal this interlocutor at the time.

[17] Further Child Welfare Hearings occurred. On 16 February 2007, the Sheriff made an order for residential contact every alternate weekend. But this did not take place. The order was recalled on 8 May 2007, when a further report from the curator ad litem was called for. Contact at a contact centre was again ordered by interlocutor dated 8 June, but recalled again on 3 August 2007.

[18] Another Children's Hearing took place shortly thereafter on 13 August 2007. Both father and mother attended. A social worker outlined reported concerns about the father's inappropriate behaviour towards children and his removal of the child during contact on four occasions. The social worker requested the cessation of contact pending an appraisal of the situation. The Hearing was told that the curator ad litem had also recommended cessation of contact. The father was heard and denied the allegations against him. The Hearing decided "to continue the Supervision Requirement terminating contact" with the father meantime. When the matter was reviewed on 1 November, a similar decision was reached; again after hearing the father. The father's solicitor had also been permitted to be present.

[19] On 17 January 2008 the Children's Hearing were advised that Social Work Services were recommending termination of the supervision requirement, because they had no concerns about the care of the child with the mother. However, the Hearing queried this, speculating that, were it to be terminated, the father could return to Court to seek a new contact order. After the father had been heard (his solicitor again being present), the social worker attending appears to have expressed the view that the supervision requirement should continue because "no contact ... should remain in place whilst family support work is ongoing". This was the decision of the Hearing. The same result followed at a Hearing on 4 June, again after representations from the father with his solicitor present.

[20] A further Children's Hearing was held on 19 January 2009. This time, the father's solicitor was not present but the father agreed that the Hearing should proceed. The same decisions of "no contact" and non-disclosure of address were reached. At this point, the father was noted as "stating that the panel is now allowing his child to be abused...and making a farce of the judicial system". Shortly thereafter, he lodged an appeal against the decision under section 51 of the 1995 Act, averring that he was a "relevant person" and thus able to do so. The Answers lodged by the Reporter initially "accepted" this. An Amended Appeal averred that "relevant person" status had been conferred on the father in terms of the interlocutor of 27 October 2006, which had not been appealed. The Answers to this document denied that the father was a relevant person in terms of the 1995 Act and averred that the interlocutor, pronounced in a cause to which the Reporter was not a party, was incompetent.

[21] Some time in February 2009, a belated attempt was made by the mother to appeal the interlocutor of 27 October 2006 to the Sheriff Principal. This appears to have reached a hearing in September 2009, when, not surprisingly, the Sheriff Principal questioned whether the interlocutor was a final determination or merely an interim order. He seems to have persuaded the parties not to proceed with the appeal, but instead to ask the Sheriff for leave to appeal. This prompted the mother to lodge a motion to "revoke" the order for parental responsibilities and rights contained in the interlocutor, which failing to grant leave to appeal to the Sheriff Principal. This motion remains to be dealt with; the Sheriff declining to determine the matter in advance of a conclusion to the present proceedings.

[22] The latter have occurred because the Principal Reporter took steps to suspend the interlocutor by petition to this Court. A motion to suspend the interlocutor ad interim was heard during the Court recess on 27 March 2009. The Lord Ordinary granted the motion holding that, following Principal Reporter, Petitioner 2006 SLT 1090, participation in a Children's Hearing was not in itself a parental right or responsibility which could be conferred by a court. The father was not therefore a relevant person in terms of the legislation. It is against that interlocutor that a motion for review has been enrolled.

[23] The current situation otherwise is that the appeal to the Sheriff from the Children's Hearing is still extant and a diet for that had been fixed for 17 December 2009. A proof has been allowed in the father's action for parental responsibilities and contact. A proof in that action has been fixed for 4 February 2010 and the four succeeding days.

3. Submissions

[24] Each party lodged a Note of Argument in writing, the detail of which may be consulted if required. The Notes were expanded upon orally at the Bar. Only a summary of the central points is given here. It should be recorded in limine that no issue was taken about the decision of the Lord Ordinary being only for interim suspension. All parties were content to proceed as if the interlocutor were a final one. It should also be recorded that no Note was requested from the Sheriff explaining his decision.

FATHER

[25] The Court ought to allow the reclaiming motion, recall the interlocutor of the Lord Ordinary of 27 March 2009 and dismiss the petition. The Sheriff had pronounced a competent order, the effect of which was that the father became a relevant person. In addition, the Court should pronounce a declarator that sub-section 93(2)(b) of the 1995 Act is incompatible with Articles 6, 8 and 14 of the European Convention on Human Rights and Fundamental Freedoms.

(i) Competency of the Interlocutor

[26] A person could have imposed upon him parental responsibilities and rights, limited in such a way that he could only exercise them at a Children's Hearing. The Sheriff could limit the exercise according to the circumstances. In practical terms, the Children's Hearing became the effective decision-maker as soon as a supervision requirement was made. Although formerly the Court could make an award of custody, and could now impose parental responsibilities and rights, a Children's Hearing could control, and interrupt, the exercise of these private law rights for the time being (Aitken v Aitken 1978 SC 297, LP (Emslie) delivering the Opinion of the Court at 301, 303). While it remained competent for the court to make orders that conflicted with the terms of a supervision requirement, it was "inappropriate, and in that respect could be said to be incompetent," for a court to do so (P v P 2000 SLT 781, Lord Cameron of Lochbroom, delivering the Opinion of the Court, at 788). There was firm discouragement of courts making orders that conflicted with the terms of supervision requirements.

[27] There had been a number of attempts by unmarried fathers and others over the years to secure entry to the Children's Hearing system by applying to the courts for various rights designed to qualify them as relevant persons. It had been said that the system was fair, because those whose cases had merit could access the Children's Hearing system with ease by securing an appropriate court order (McMichael v UK (1995) 20 EHRR 205, Judgment at para 77). But, in practice, securing such an order had been fraught with difficulty (vide, for the pre 1995 Act position: Kennedy v H 1988 SC 114; M v Lothian Regional Council 1989 SC 281, LJ-C (Ross), delivering the Opinion of the Court, at 287; L v H 1996 SC 86, LJ-C (Ross) at 91; A v G 1996 SLT (Sh Ct) 123; and, for post 1995 Act cases: P v P 2000 SLT 781, 1999 SCLR 679 (Sh Ct); Greenhorn v Hamilton, unreported, Glasgow Sheriff Court, 2 March 1999; T v A 2001 SCLR 647, Sheriff Principal (Dunlop QC) at 656; Principal Reporter, Petitioner 2006 SLT 1090; S v Authority Reporter, Edinburgh 2008 Fam LR 84; Children's Reporter v D 2008 SLT (Sh Ct) 21; D v Children's Reporter 2009 Fam LR 88).

[28] It appeared that the law was that: (a) relevant person status would arise if any parental responsibility or right were conferred on a person; (b) a court should not make an order that conflicted with a supervision requirement; (c) a court must have regard to the three overarching principles; and (d) a court could not confer relevant person status by an order simply to that effect. But there was confusion about whether a court could make an order conferring responsibilities and rights simply to give a person locus standi at a Children's Hearing.

[29] The father fell within the definition of relevant person as a result of the Sheriff's interlocutor. The Sheriff's order allowed the father to exercise parental responsibilities directly in the course of the hearing, thus allowing him to safeguard and promote the child's health development and welfare and by offering the child direction and guidance at the Hearing. The Hearing would be considering compulsory measures of supervision and a father could have a relevant contribution to make. The opportunity for a parent to participate in proceedings in a Children's Hearing was consistent with Article 9 of the United Nations Convention on the Rights of the Child. If the father was a relevant person and had not been invited to the hearing as such, or if he were not permitted to pursue an appeal to the Sheriff, there would be a procedural irregularity (S v N 2002 SLT 589).

[30] The Sheriff's interlocutor should be read in a way which was consistent with the European Convention, just as legislation required to be so read (Human Rights Act 1998 (c 42) section 3, Ghaidan v Godin-Mendoza [2004] 2 AC 557, Lord Rodger of Earlsferry at paras 106-7). The father and child had a "family life" in terms of Article 8 (Keegan v Ireland (1994) 18 EHRR 342, Judgment at paras 42-44, 49-51). There had been interference with the right to family life, although it was in accordance with the law. Any interference had to be for a legitimate aim, ie the welfare of the child. It had to be "necessary in a democratic society"; proportionate to the legitimate aim (W v United Kingdom (1987) 10 EHRR 29, Judgment at paras 60 et seq.).

[31] If there required to be recourse to a "two proceedings solution" and in the meantime the relationship between the parent and child were damaged by the passage of time, this would be a violation of Article 6 (W v United Kingdom (supra), partly dissenting Opinion of Judge Gersing at 61-2; K v Authority Reporter 2009 SLT 1019, Lord Mackay of Drumadoon, delivering the Opinion of the Court, at paras 57-62). There had already been exceptional delay in determining the father's applications. The interlocutor reclaimed against inhibited the father from proceeding with his appeal and participating in the Children's Hearing. If the father required to return to the Sheriff Court to seek some other interlocutor, the delay would be exacerbated. There was good reason to read and give effect to the interlocutor of 27 October 2006 as valid and effective to allow the father to proceed with his appeal and to make representations to the Children's Hearing.

(ii) Compatibility

[32] Sub-section 93(2)(b) of the 1995 Act was incompatible with Articles 6, 8 and 14 of the Convention and the Court should declare as incompatible: "(a) the exclusion of fathers who do not enjoy parental responsibilities or parental rights under Part I of the...1995 Act and do not have charge of or control over the child from the definition of 'relevant person'... (b) the requirement for such persons to commence proceedings under Part I and secure orders in those proceedings in order to become 'relevant persons' for the purposes of...Part II...".

[33] If sub-section 93(2) facilitated the participation of unmarried fathers in the Children's Hearing, via a Sheriff Court order, then there would be no incompatibility. If the effect of the sub-section were that an unmarried father must: (i) commence proceedings in the sheriff court; (ii) establish, on the basis of the overarching principles, that responsibilities and rights should be conferred on him; and (iii) then go to the Children's Hearing to ask for a modification of the compulsory measures of supervision, then the definition of relevant person was incompatible with Articles 6 and 8.

[34] It was accepted that there was no "bright line" exclusion of unmarried fathers, but it was nevertheless a violation of Article 6 and 8 rights because the definition created a disproportionate hurdle and was not a necessary measure in a democratic society. It created an unnecessarily convoluted procedure. The unmarried father was required to secure orders that may be empty of direct content in order to make representations about measures that were potentially for the welfare of the child. It prevented determination of civil rights within a reasonable time. It imposed a difference in treatment between unmarried fathers registering births before and after a particular date and between unmarried fathers and mothers. The exclusion of the unmarried father was not considered necessary in other parts of the 1995 Act.

[35] Separately, there was a violation of Article 14, read with Article 8 and/or Article 6. While the Court in McMichael v United Kingdom (supra) was prepared to accept that there were sufficient reasons to bring the case within the margin of appreciation, there had been changes since then that justified a reconsideration. Statistics showed that, although only a small percentage of births were registered only by the mother, there was an increasing number of births "out of wedlock"; now about half of all births. In any event, the Court in McMichael had not been asked to consider the position where the parents were opposing parties. Weighty reasons were required to justify a difference in treatment on the ground of birth out of wedlock (Sahin v Germany
[2003] 2 Fam LR 671, Judgment at paras [85] - [95]; Sommerfeld v Germany (op cit) paras [91] - [98]). This answered any argument based on a discretionary permission to attend under Rule 13(d) (supra) (Delcourt v Belgium [1970] 1 EHRR 355). It was incoherent not to apply the 2006 changes to fathers of children born prior to the coming into force of the 2006 Act (cf, for private rights, B v United Kingdom [2000] 1 FLR 1). The mother may be the correct comparator as she was a parent who had an immediate and undisputed locus standi. There required to be some justification for the difference in treatment.

CURATOR AD LITEM

[36] The submissions of the father on competency were adopted, but not those on compatibility. The Curator had attended the hearing of the motion at the Sheriff Court and had taken the view that the father ought to be regarded as a relevant person. He should not be excluded for technical reasons, having regard to the function of a Children's Hearing. The Sheriff had been entitled to pronounce the interlocutor, even if it could have been more clearly expressed by conferring the particular responsibilities or rights, which he saw as pre-requisites to being a relevant person, rather than eliding the two matters. He had conferred all parental responsibilities and rights, but limited their exercise to the right of being a relevant person. The Sheriff had not over-reached himself in terms of P v P (supra), because there was already a contact order in force. The Sheriff had a wide discretion in exercising his powers. He had in mind the necessity of imposing parental responsibilities and rights because the right to participate was not a free-standing one which he could grant.

PRINCIPAL REPORTER

[37] The reclaiming motion should be refused. First, the interlocutor of 27 October 2006 was incompetent in respect that it purported to grant to the father "Parental Rights and Responsibilities to the extent that he becomes a relevant person in the Children's Referral ...". Being a relevant person was not a parental responsibility or a parental right. Being a relevant person was a consequence which could flow inter alia from having parental responsibilities and rights. Parental responsibilities and rights could not be limited to participation in a Children's Hearing. It was not practical to impose all parental responsibilities and rights exercisable solely during a Hearing, with those responsibilities and rights not being capable of exercise either before or after the Hearing took place.

[38] The Sheriff required to consider the overarching principles and to discriminate between what responsibilities and rights might be imposed. The Sheriff had granted all such rights. At the time of the interlocutor, the father had a contact order in his favour. That did not mean that he thereby had a parental responsibility or right, although the Sheriff could have imposed such a responsibility or right upon him. The legislation had in mind the imposition of parental responsibilities which would thereby qualify the person as relevant. But it was not designed to permit a court to determine whether a parent, who was not a relevant person, should have a right to participate in a Children's Hearing. P v P (supra) was not authority for the proposition that, because there was a "no contact" supervision requirement, a person could not apply for parental responsibilities and rights. Aitken v Aitken (supra) was of limited value and did not assist the father's argument.

[39] The Sheriff was entitled to make any order which he thought fit, but it did not follow that a person upon whom a responsibility was imposed thereby had a right. The Sheriff had pronounced his interlocutor solely for the purpose of granting the father a right to be heard at the Children's Hearing. But that right was not a parental responsibility or a parental right. The father was an obvious candidate for the grant of parental responsibilities since he had a continuing contact order, was registered as the child's father and had had a family life with the child. Thus it might have been reasonable to impose parental responsibilities upon him and to grant him the parental right of a parent who had contact in terms of sub-section 2(1)(c). The Principal Reporter would have no objection, were responsibilities to be imposed upon the father in a competent interlocutor.

[40] Secondly, the exclusion of the father from being a relevant person did not result in a breach of his Convention rights. The father could obtain the status of relevant person by a number of means and, in any event, could be permitted to attend and to make representations at a Children's Hearing, even if he were not a relevant person. It was reasonable and proportionate to limit the class of persons who qualified as relevant.

[41] The Court ought to consider the particular case before it and not whether the 1995 Act complied with the Convention in a theoretical sense. The father had not specified in what respect the suspension of the interlocutor had breached any of his rights under the Convention. He had also not attempted to read down the terms of the legislation in a manner compatible with Convention rights. The father could apply for parental responsibilities and parental rights in the form of an explicit and specific court order. That remedy was available ad interim without the need for proof or protracted procedure, although inquiry may be appropriate (T v A (supra)). In practice, an order ad interim could be sought either by motion or at a Child Welfare Hearing.

[42] An unmarried father who did not qualify as a "relevant person" and who did not live with the mother of the child could be permitted to attend the Children's Hearing (Rule 13(d) (supra)). That was sufficient to comply with the Convention. An order regulating the arrangements for contact was not a determination of civil rights. Only a determination on whether to make an order imposing parental responsibilities or giving parental rights was a determination of civil rights.

[43] Article 14 was only engaged if Article 6 or 8 were engaged. It only complemented the other substantive provisions of the Convention. It had no independent existence, since it had effect solely in relation to "the enjoyment of the rights and freedoms" safeguarded by those provisions. There was an objective and reasonable justification for the difference in treatment between married and unmarried fathers (B v United Kingdom (supra) and McMichael v United Kingdom (supra)). In Sahin v Germany (supra) the problem had been that the application of the German Civil Code to the particular case had placed a heavier burden on an unmarried father seeking access to his child than a divorced father. No such distinction was made in Scots Law.

[44] Even if there were a possibility that section 93 (2) was incompatible, it could be read in such a way as to be compatible by implying the words "or contact in terms of a contact order" into sub-section 93(2)(b)(a) as follows: "any parent enjoying parental responsibilities or parental rights or contact in terms of a contact order under Part I of this Act".

MOTHER

[45] The Principal Reporter's submissions were adopted. The interlocutor of 27 October 2006 was incompetent. The Lord Ordinary had been correct in stating that the Sheriff had acted in error in endeavouring to pronounce an interlocutor intended, as a device, to give the father, as a parental right, the ability to attend a Children's Hearing. In essence, what the Sheriff had done was determine that the father ought to be a relevant person. The situation had to be approached the other way around. Those who had parental responsibilities and rights were entitled to attend Children's Hearings, but those who did not have such responsibilities or rights could not obtain that entitlement as a free-standing right. The Sheriff did not say what parental responsibilities or rights were being granted. The interlocutor significantly omitted the word "full" (being the description of the rights craved in the Initial Writ).

[46] Although the father may have been invited to attend the Children's Hearing, that invitation and attendance did not make him a relevant person. Parental rights were conferred in order to enable a parent to fulfil his or her parental responsibilities. Attendance at or participation in a Children's Hearing was not the fulfilment of a parental responsibility and was not in itself a parental right. A parent making representations at a Children's Hearing did not do so in fulfilment of a parental responsibility or a right but in his own interests. The parental responsibilities defined in the 1995 Act did not include attendance at a Children's Hearing.

[47] The rights of the father under Articles 6, 8 and 14 of the Convention had not been breached. The father had applied to the Sheriff for parental responsibilities and rights in an action which was defended by the mother. A proof had been allowed. The father's rights would be determined in those proceedings after the hearing of evidence. Until the conclusion of those proceedings, any argument by the father that his human rights had been breached was premature. No further order imposing any parental rights or responsibilities should be made in this process standing the proximity of the proof.

LORD ADVOCATE

[48] The primary interest of the Lord Advocate was the issue of compatibility. If the father was a relevant person, then the father's compatibility argument had no practical significance and the Court should not address it. Compatibility required to be analysed under reference to the factual issues arising in the particular case (R (Animal Defenders) v Culture Secretary [2008] 1 AC 1312, Lord Scott of Foscote at para 42; Dundee City Council v GK 2006 SC 326, LP (Hamilton) at para [14]).

[49] The current provisions applicable to the father were compatible with his Convention rights. The key point was that the Court could make an order imposing parental responsibilities or rights on the father, having regard to the overarching principles. He would thus become a relevant person. There was no blanket ("bright line") exclusion of a person in the father's situation (cf K v Authority Reporter (supra)). The order could competently be limited to responsibilities and rights relating to continuing contact under sub-sections 1(1)(c) and 2(1)(c) of the 1995 Act, or could otherwise be qualified having regard to the welfare of the child as the paramount consideration.

[50] Even if an unmarried father were not granted an order qualifying him as a relevant person, it did not follow that the legislation was incompatible with his Convention rights. Refusal of such an order on the ground that it would not be in the interests of the child's welfare would be compatible with Article 8.

[51] The 1995 Act did not prevent the father from being allowed to attend further Children's Hearings. The chairman of the Children's Hearing had express power to allow persons who were not relevant persons to attend the Hearing (Rule 13(d): L v H 1996 SC 86, LJ-C (Ross) at 93). The Reporter or the chairman could also provide the father with such information as might be required in respect of his Convention rights. Although this would not entitle an unmarried father (who had been allowed to participate in a Hearing) to appeal, the absence of a right of appeal did not contravene any aspect of Article 6 (Delcourt v Belgium (supra), Judgment at para 25).

[52] It was possible to read and to give effect to the provisions of the 1995 Act in such a way that a father having contact fell to be regarded as a relevant person. This could be done in one of three ways. First, sub-section 93(2)(b)(a) could be read as: "any parent enjoying parental responsibilities or parental rights or contact in terms of a contact order under Part I of this Act". Secondly, the words "a person who ordinarily ... has charge of, or control over, the child" in sub-section 93(2)(b)(c) could be interpreted as covering an unmarried father exercising contact in terms of a contact order. Thirdly, a person "enjoying" parental responsibilities or parental rights could be interpreted as including an unmarried father with a contact order.

[53] The European Court of Human Rights had already rejected a challenge to the pre-1995 law (McMichael v United Kingdom (supra)). The definition of relevant person did not discriminate between persons on the grounds of gender or marital status. The definition distinguished between persons on the basis of whether or not they had: (a) parental responsibilities or rights; and (b) charge of, or control over, the child. An unmarried mother or a married father only had a right to attend a Children's Hearing if she or he satisfied these criteria. There was no such right if the parent in question has been deprived of parental responsibilities or rights by a court. Having regard to the purposes of a Children's Hearing, it was rational to define the class of persons who were entitled, and obliged under pain of criminal sanction, to attend, and who had a right to appeal. This did not preclude the possibility of other persons, including an unmarried father who had no such responsibilities or rights, being permitted to attend the hearing where respect for his family life required his attendance.

[54] It was legitimate for the law to distinguish mothers from fathers. The biological link between mother and child was indisputable. The Convention required the state to recognise that link irrespective of marital status (Marckx v Belgium (1979) 2 EHRR 330). In contrast, the question of whether a particular man was so linked might not be answerable without inquiry. The biological father of the child may or may not be in a continuing relationship with the mother when the child was born. His relationship with the mother and the child thereafter may be one of "ignorance and indifference" or may be close and stable (McMichael v United Kingdom (supra), Judgment at para 98). Biological kinship was not sufficient on its own for an unmarried father to have Article 8 rights (Lebbink v The Netherlands App 45582/99, Judgment at para 37).

[55] The 1995 Act did not distinguish, in terms of the imposition of parental responsibilities and rights, between fathers simply on the basis of marriage. It respected the requirement of proportionality by permitting fathers, who did not have parental responsibilities and rights, to obtain these. It also provided a mechanism whereby fathers and mothers, who did have these responsibilities and rights, might be deprived of them.

[56] The decision not to extend parental responsibilities and rights to all fathers, irrespective of marital status, had been a deliberate one. The Scottish Law Commission had recommended to the contrary (Report on Family Law, Scot Law Com No. 135 at 12-14) but both the Government and Parliament had rejected this. The choice had been within the discretionary area of judgment for the legislature. Re-examination of the issue had resulted in a change whereby unmarried fathers, who were registered as fathers, acquired parental responsibilities and rights. That change had been the result of a consultation process, which had addressed whether the change should be retrospective (Improving Scottish Family Law, 1999; Parents and Children, 2000; Family Matters: Improving Family Law in Scotland). The decision not to make the legislation retrospective had been taken in the interests of legal certainty. It was recognised that it was undesirable to change the legal consequences of decisions taken by people in the past. It would also have been problematic to impose obligations, fenced with criminal sanctions, retrospectively.

[57] McMichael v United Kingdom (supra) was still good law despite Sahin v Germany (supra) (cf B v United Kingdom (supra); Petrov v Bulgaria, (2008) App No 15197/02, Judgment at para 55). What was objectionable, and hence incompatible with Convention rights, was a blanket "bright line" exclusion (In Re G (Adoption: Unmarried Couple) [2009] 1 AC 173, Lord Hoffman at para 11, Baroness Hale of Richmond at paras 113, 115). There was no such exclusion in the 1995 Act.

4 Decision

COMPETENCE

[58] Interlocutors should be unambiguous. They ought not to be capable of alternative constructions. Any court order must be compatible, so far as legally permissible, with the rights afforded to parties under the European Convention. If it is not, it may be appealed, reduced or suspended. But there is no principle of reading down interlocutors, as distinct from legislation, in a way which would render them compatible with Convention rights. Interlocutors must mean what they say and, if they are ambiguous, they must be corrected, recalled or otherwise dealt with in accordance with the practice and procedure applicable to appeal and review.

[59] The form of the interlocutor of the Sheriff raises a number of problems. First, it is phrased as if it were a final determination, granting the father parental responsibilities and rights. That in itself could render it incompetent given the stage of the proceedings reached. But this point may be regarded as technical, albeit that it is one which the Sheriff Principal correctly identified relative to leave to appeal. He appears to have regarded the interlocutor as one intended only as an interim order and it seems reasonable to proceed on that basis.

[60] Secondly, the interlocutor does not specify what parental responsibilities and rights are being granted. It is significant that the interlocutor does not grant "full" parental rights as requested in the motion and crave. Rather, the word "full" is, presumably intentionally, omitted from the order. The lack of specification is a more serious defect, but this might not, in itself, render the interlocutor incompetent.

[61] The Court agrees with the detailed analysis of the 1995 Act set out by the Sheriff Principal (Dunlop QC) in T v A (supra pp 654-659). The starting point is the terms of the Act itself. The powers of the Court are set out in section 11. The orders which the Court can make are defined as those specified in sub-section 11(2), referring back to sub-section 11(1); that is to say, in the context of this case, "orders...in relation to - (a) parental responsibilities; and (b) parental rights...". The order may be expressed, in an appropriate case, in the most general of terms. It may, therefore, simply impose upon a father the responsibilities set out in sub-section 1(1). In the case of an unmarried father, whose child was born before 4 May 2006, the effect of that would be simply to place him in the same position as if he had been married to the mother. But the order may be of a more restricted nature, limited to the responsibilities contained in one or more of sub-sections 1(1)(a) to (d).

[62] However, when a court is asked to make an order, whether in general or more restricted terms, it must address the three overarching principles; with the child's welfare as the paramount consideration. It must therefore, before imposing any parental responsibility, consider whether the father is "meritorious" (McMichael v United Kingdom (supra), Judgment at para 98) in child welfare terms. It must ask whether it would be better that the father have the particular responsibility sought and, where practicable, ascertain the child's views on that matter. In a situation where the child and father have had a family life with each other in terms of Article 8, it may be difficult to resist the conclusion that the father ought to have some parental responsibility, but it would be by no means impossible to do so on welfare grounds.

[63] Again for the reasons given by the Sheriff Principal in T v A (supra), a court may impose parental responsibilities, even if that imposition may have no immediate practical effect in relation to the child. When a court grants the parental responsibilities in section 1(1) (meaning all of those responsibilities), the scheme of the 1995 Act is that the parent would thereby also have the rights which flow from those responsibilities, including, for example, the "right to have the child living with him or otherwise to regulate the child's residence" (ss 2(1)(a)). But were there to be a supervision requirement in place already regulating that residence, the order would have no immediate practical effect. That was effectively the position in T v A, where there was a place of safety order. Equally, a supervision requirement of "no contact" would override any "right" in that regard to "maintain...direct contact with the child on a regular basis" (ss 2(1)(c)), just as it would a court order for contact (ss 3(4)). The correct interpretation of P v P (supra) is simply that a contact order may be inappropriate where it conflicts with a supervision requirement. Thus, in the normal case, a Court should not grant such an order. But it is not incompetent to do so and there may be situations where such an order will meet the criteria of the overarching principles. For example, it may be known that a supervision requirement, or a condition of it, will shortly expire and a court may consider it appropriate to regulate matters in anticipation of the expiry date.

[64] It must be recognised that, in the absence of a supervision requirement or a court order regulating the matter, a general imposition of responsibilities, which will normally carry with it the rights in sub-section 2(1), will put the father in the same position as the mother regarding the child. It will, for example, confer equal "rights" so far as residence and contact are concerned. Thus, in a situation where, as here, there was no supervision requirement or court order regulating matters such as residence, a court would have to be careful, before making any order, to consider the effect of imposing all parental responsibilities. It would have to consider the practical consequences of such a grant and to decide whether the responsibilities and rights ought to be limited.

[65] In determining whether a father should have parental responsibilities, one factor may be that the grant will carry with it the right to be heard at a Children's Hearing. However, such a right is not a defined responsibility or right in terms of the 1995 Act. Once more, the Court agrees with the reasoning of the Sheriff Principal in T v A (supra). He considered the approach of the Sheriff (Kerr QC) in Greenhorn v Hamilton (supra). The Sheriff had expressed the view that it was incompetent to grant a specific issue order for "parental rights in terms of section 2(1)[(a) or](c)...for the purposes of Chapter 2" of the 1995 Act; i.e. an application for parental rights solely to qualify the father as a "relevant person". The Sheriff reasoned that it was the intention of Parliament in passing the 1995 Act:

"to permit an unmarried father or other person to compel acceptance of his attendance at a children's hearing only if he had the child under his charge and control or if he were able to persuade a court that he should otherwise be granted an order conferring or imposing particular parental rights or responsibilities upon him. By the emphasised "otherwise" above I mean that the court must first be persuaded, applying the [overarching principles], that good reason exists for the conferring or imposing on the unmarried father (or other person) of a particular parental right or responsibility by court order before he can attain the status of "relevant person" and not the other way round. By their ingenious presentation of the present application... the pursuer's legal advisers have... sought to invert the priorities envisaged by the Act, suggesting in effect that the pursuer should be granted orders in terms of the [crave] simply because he will thereby acquire "relevant person" status and so be entitled to attend children's hearings, which will somehow...of itself be conducive to the paramount welfare of the [children] (as distinct from the well being of the pursuer himself)".

[66] With those sentiments the Court agrees (vide also Principal Reporter, Petitioner (supra), Lady Paton at para [10], and P v P 1999 SCLR 679, Sheriff JK Mitchell at 692). The scheme of the Act is that a father must first persuade the court on the merits, applying the overarching principles, of imposing upon him the defined parental responsibilities, or one or more of them. Success in such an application will make the father a relevant person.

[67] The Sheriff in this case clearly appreciated that he could not simply grant an order making the father a relevant person. He had in mind that he would have to impose upon him a parental responsibility or give him a parental right; hence the structure of the interlocutor. But it is apparent, from the submissions made concerning the Child Welfare Hearing of 27 October 2006, that the Sheriff nevertheless restricted himself to the limited question of whether the father's appearance at a Children's Hearing would be of assistance to that Hearing in determining the appropriate order to make and would thus contribute beneficially to the child's welfare. No party suggested that at the Child Welfare Hearing the Sheriff had addressed, or had even been invited to address, the three overarching principles. It was not maintained by any party that what had occurred was that the Sheriff had reached the view that the father was "meritorious" (McMichael v United Kingdom (supra), Judgment at para 98). In failing to form a view, by applying the overarching principles, the Sheriff erred in law. He acted otherwise than within the powers conferred by the Act (ss 11(7)) and thus in an incompetent manner.

[68] In an appropriate case, a court could, applying the overarching principles, impose defined parental responsibilities but then expressly limit their exercise, and those rights flowing from them in terms of sub-section 2(1), in a specific way; including restricting their exercise to appearing at a Children's Hearing or in other legal processes (ss 11(2)(e)). But a court ought to specify which of the defined parental responsibilities and/or rights it is imposing. This interlocutor does not do so. It simply says that it "grants" the father undefined "parental rights and responsibilities" before limiting their scope to the father becoming a relevant person in the Children's Hearing referral. But in any event, for the reasons given, the Sheriff's approach was not a competent one and the Court must conclude that the consequent interlocutor is incompetent also.

[69] It follows that the reclaiming motion must be refused. The effect of that would normally be that the Sheriff's interlocutor would remain suspended ad interim and the petition process would be remitted to the Outer House to proceed as accords. However, since the parties were content to proceed as if the Lord Ordinary's suspension had been a final one, it is appropriate to grant the prayer for suspension on a permanent basis. It is perhaps worth recording that it was not argued that the fact that the interlocutor had been acted upon was a bar to such suspension.

[70] The Court has considered whether it might be possible to alter the interlocutor in some way, by, for example, suspending it in part or substituting different words. After all, the practical reality in this case may be that some parental responsibilities ought to be imposed in the particular circumstances of the case given that the father and child have had a family life together. However, the Court is conscious that it has not seen the background reports or heard submissions on this matter. It does not have the necessary material upon which it could decide, applying the overarching principles, that it would be better for the welfare of the child that her father should have certain parental responsibilities ad interim or otherwise. Furthermore, there is now a proof set to take place in less than two months time. In those circumstances, it seems appropriate to leave it to the Sheriff to take, after full consideration, a decision on the merits of the father's case in the Sheriff Court action.

COMPATIBILITY

[71] The starting point in determining whether to make a declaration of incompatibility of sub-section 93(2)(b) of the Children (Scotland) Act 1995 is to consider whether the way in which it operates in the father's situation has violated his Convention rights. Hypothetical examples of ways in which it might do so will not suffice (R (Animal Defenders) v Culture Secretary (supra), Lord Scott at para 42). In relation first to Article 8, the manner in which the sub-section operates is to define what class of persons qualify as relevant persons who have the right of attending, and the obligation to attend, a Children's Hearing. It does so not by distinguishing persons by reference to their status, or at least not directly so. The sub-section 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, the aim of the sub-section 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.

[72] Where there is a distinction is not in sub-section 93(2)(b) but in sub-sections 3(1)(a) and (b), as originally enacted, whereby it is only the mother of a child and a father who has been married to the mother who automatically have parental responsibilities and rights. A father who has not been married to the mother at some point does not therefore qualify under sub-section 93(2)(b). The question is whether that of itself interferes with a father's family life with his child, or the child's family life with his or her father. The answer to that is in the negative.

[73] It is important to recognise what right is afforded to a parent under Article 8. First, it is not a right which arises simply because of a biological relationship but one occurring where there has been a close personal relationship, which might be interfered with (Lebbink v Netherlands (supra), Judgment at para 37). Secondly, it is not a proprietary right vested in either parent or child but a societal one whose principal purpose, where there are children, is the welfare of those children. The right protected is not family life itself but respect for it (White v White 2001 SC 689, LP (Rodger) at para 24, quoting Re F (Adult: Court's Jurisdiction) [2000] Fam LR 512, Sedley LJ at 531 - 532).

[74] The European Court has recognised that there is a difference between the maternal and paternal link with a child in that:

"it is axiomatic that the nature of the relationship will inevitably vary, from ignorance and indifference at one end of the spectrum to a close stable relationship indistinguishable from the conventional matrimonial-based family unit at the other" (McMichael v United Kingdom (supra) Judgment at para 98 approving the remarks of the Commission).

That is no doubt correct. It is virtually impossible for a mother to be ignorant of the existence of her child and rare for a mother to be indifferent to the child's welfare. The point cannot perhaps be pushed too far, since examples of maternal indifference are by no means uncommon. Nevertheless, there is a practical distinction in reality and the structure of the 1995 Act recognises this.

[75] An unmarried father may start off in a different position from the mother under the 1995 Act in certain situations. Where the father is registered as such on the birth certificate, this will now only arise if the child is born before 4 May 2006. Of more significance, it will arise only if he is not living with the mother, hence not ordinarily having charge or control of the child within the family unit; and, even then, only if he has not reached an agreement with the mother to have parental responsibilities and rights. In that event, if he has thus far failed to qualify under sub-section 93(2)(b)(a) or (c), he has the option of going to court and obtaining rights and responsibilities under 93(2)(b)(b)). As was said in McMichael v United Kingdom ((supra), Judgment at para 43), this can be done expeditiously where the mother consents. In any event, it can be obtained by obtaining an interim order.

[76] Having regard to the differences noted above and to the fact that marriage is still widely recognised as conferring a particular status on those who enter into that institution (In re G (Adoption: Unmarried Couple) (supra), Baroness Hale of Richmond at para 115), the scheme of the 1995 Act does comply with the father's right to respect for his family life. The law does recognise that respect. In the father's particular situation of estrangement from both mother and child, the law affords him what ought to be a relatively simple route to obtaining paternal responsibilities and rights by application to the court. As distinct from the situation at common law, where he would have no "rights" at all in relation to an "illegitimate" child, the 1995 Act now provides him with the ability to obtain such rights.

[77] The father in this case has attempted to obtain these responsibilities and rights and may yet succeed in doing so. That will 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. In that context, the Court does not regard the discretionary powers of the chairman at such a Hearing to allow certain persons, whose presence may be justified, to attend a Hearing under Rule 13(d) as of assistance. That provision envisages permission only to attend for the purposes of observation, without a right to be heard. Although it is clear that this provision has been used to permit unmarried fathers to participate in Hearings (following the plea of the Lord Justice-Clerk (Ross) in L v H (supra) at 93), it cannot be seen as sufficient to ensure compliance with Convention rights.

[78] The terms of subsection 93(2)(b) cannot be seen as amounting to an infringement of Article 6. Even looked at in a theoretical manner, they simply regulate, in part, who is to be allowed to participate in a Children's Hearing and to appeal decisions from it. A Children's Hearing's decision may be seen as interfering with a person's right to respect for his family life, although that interference would be compatible with a person's Convention rights since it would be in accordance with the law and be necessary in a democratic society for the protection of health and morals and the rights of others; that is to say for the welfare of the child. However, as was accepted in McMichael v United Kingdom (supra, Judgment at para 77), 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. Since that has not, as yet, been competently done, he cannot validly complain that his Article 6 rights have been infringed in the Children's Hearing proceedings. The existence of these rights has yet to be competently determined by the Court.

[79] The existence of a two stage procedure does not, of itself, point to any incompatibility with Article 6 rights. It will be necessary in many situations for a person to establish a particular fact before he can claim to have a civil right to be determined. Thus in the context of an unmarried person claiming to be a father of a child, he may first have to prove paternity and, in certain situations, the existence of a family life with the child. Before that is established, the second stage of determining whether he should have parental responsibilities and rights imposed upon him may not be reached. In the ordinary situation, the two stages may be determined in the same court process and, possibly, at the same hearing or hearings. There is nothing unusual about this.

[80] Where there are, in addition, concurrent proceedings before a Children's Hearing, there is the complication of having two concurrent legal processes. On one view, it is unfortunate that the legislation does not promote the combination of civil processes, whether in the form of Family actions or otherwise, with Children's Hearing appeals and remits for proof to the Sheriff. That might enable all issues concerning the child to be litigated with greater expedition. It is also unfortunate that it is not infrequently the case that in some Sheriffdoms a number of different Sheriffs are often allocated to Child Welfare and other hearings involving the same family over relatively short time scales. However, these procedural deficiencies do not amount to a contravention of Article 6 rights. Similarly, the time both the Sheriff Court process and the Children's Hearing have taken might be seen as lengthy. But it has to be recognised that, in matters of child welfare, the situation may change over time depending on the continuing relationship between parent and child. It is not a question of determining what is to occur, and what rights are to be given or responsibilities imposed, once and for all at a particular time. Rather, the procedure in both fora involves deciding what is to happen in changing circumstances over a period of time. This is recognised in the parties' own willingness to sist the Sheriff Court process for periods to see how contact might work out.

[81] The final issue is whether there is any incompatibility between sub-section 93(2)(b) and the right in Article 14 to have the other Convention rights secured without discrimination on any ground "such as sex...birth or other status". This ground has, in large measure, already been covered. Sub-section 93(2)(b) does not so discriminate. It operates as a gateway to the Children's Hearing. It permits persons to have that right if they qualify as a relevant person. A person can qualify in a number of different ways. It is true that a father cannot qualify as a mother for obvious reasons. But he can qualify: (i) if married to the mother; (ii) if the child is born after 4 May 2006 and he is registered as the father; (iii) if (in effect) the child is living with him; and (iv) if he obtains an appropriate court order. There is no "bright line" (vide In re G (Adoption: Unmarried Couple) (supra), Lord Hoffman at paras 11 - 13) or blanket exclusion of unmarried fathers from participation at a Children's Hearing of a type which might be described as discriminatory on the grounds of sex or status. As has already been identified, if a person can establish paternity and the existence of a family life with the child, he ought to be able to seek and to obtain a court order imposing parental responsibilities with reasonable expedition, unless the application of the three overarching principles dictates that no such order should be granted. The existence of different hurdles or gateways requiring to be overcome or opened in order to meet a series of different qualifications for a right to be heard does not carry with it the implication that there is thereby discrimination of a type violating Article 14 rights.

[82] For all of these reasons, the reclaiming motion and the application for a declarator of incompatibility must fail. In the circumstances, the Court will grant decree for suspension in terms of the prayer of the petition.