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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2021] CSIH 14
XA87/20
Lord Malcolm
Lord Woolman
Lord Doherty
OPINION OF THE COURT
delivered by LORD MALCOLM
in the Appeal
by
M
Pursuer and Respondent
against
C
Defender and Appellant
Pursuer and Respondent: Ardrey; Allan McDougall
Defender and Appellant: Aitken; Drummond Miller LLP
23 February 2021
[1]
This case concerns the court's duties when considering whether to explore the views
of a child before making an order under section 11(1) of the Children (Scotland) Act 1995.
Section 11(7)(b) states that, taking account of the child's age and maturity, the court "shall so
far as practicable" take steps to ensure that any views he or she wishes to express are taken
into account.
2
The decisions of the sheriff and the Sheriff Appeal Court
[2]
When refusing an application for a contact order the sheriff stated that it would not
be appropriate to inquire into any views of the child. He had a concern that information
might be communicated which a child of just under 5 years of age should not be told, but he
did not explain the nature of the information or why it would not be practicable to ascertain
the child's views without it being divulged. On appeal to the Sheriff Appeal Court ("SAC")
the appeal sheriff held that the sheriff had failed to apply the correct test. A child who is
capable of forming a view has a right to be heard unless it is not practicable to consult him
or her. In this regard "practicable" means "able to be put into practice, able to be
accomplished, effected or done, feasible" (Shorter Oxford Dictionary 6
th
ed). He remitted to
the sheriff to proceed in the light of this guidance.
LRK v AG
[3]
considered another case where the views of a 6 year old child were not explored. It held that
the sheriff failed to address the test of impracticability. There are many ways in which the
position of a child can be ascertained. Some might be impracticable, but others might not
(paragraph 8 of the opinion of the court).
[4]
The SAC had a concern that if "impracticable" was given its strictest sense the views
of the child would have to be sought even where taking that course would be damaging to
the child. It supposed a case (paragraph 11) where a child had always wrongly thought that
someone was her father. A psychologist had reported that telling her that she was another's
child and asking whether she wanted to see him would be harmful to her mental health.
The court canvassed the possibility that impracticability might be construed in light of the
overriding considerations expressed in article 3 of the United Nations Convention on the
3
Rights of the Child (1989) ("UNCRC") (that "the best interests of the child shall be the
primary consideration") and in section 11(7)(a) of the 1995 Act (to regard the welfare of the
child concerned as the paramount consideration). It ventured that if that was the correct
approach it would mean that the sheriff does indeed have a decision to make no matter that
it is possible, for example, for the child to be interviewed by a reporter, curator or the sheriff.
It observed that the issue will not be resolved when section 11ZB of the 1995 Act comes into
force. (This provision, introduced by the Children (Scotland) Act 2020, removes the test of
practicability with the only exceptions to the court's duty being when the child's
whereabouts are unknown or if the child is incapable of forming a view. We note, however,
that section 11ZA will provide that in deciding whether or not to make an order under
section 11(1) and what order (if any) to make, the court must regard the welfare of the child
concerned as its paramount consideration.)
Parties' submissions
[5]
Turning to the parties' submissions to this court, counsel for the appellant contended
that the practicability test should be interpreted in a manner which allows potentially
harmful consequences for the child to be taken into account. The appeal sheriff's approach
of a strict feasibility test creates a conflict with the paramount consideration which is causing
concern in courts throughout the country. In the present case at the end of the proof the
sheriff listened to submissions on the matter and reached a decision which was open to him.
The appeal should be upheld and the sheriff's decision restored. Counsel for the respondent
submitted that the appeal sheriff was correct to remit the case on the basis that the sheriff
failed to apply the correct test, but it did not follow that the welfare of the child is an
irrelevant consideration. Reference was made to certain authorities in this area of the law,
including S v S 2002 SC 246 and Woods v Pryce 2019 SLT (Sh Ct) 115, however the court has
4
not previously been asked to adjudicate on the present issue concerning the nature of the
practicability test, thus they are of little assistance.
[6]
Counsel for the appellant explained how and why the issue has arisen now. Until
recently, 12 years of age was regarded as an appropriate milestone for these purposes.
However a review of procedures recognised that this meant that the views of primary school
children were being overlooked. Reference was made to Ordinary Cause Rule 33.19 and the
Form F9 procedure. If the child returns the form or otherwise indicates a wish to state views
"the sheriff shall order such steps to be taken as he considers appropriate to ascertain the
views of that child." Rule 33.7A allows an initial writ to seek dispensation from the Form F9
procedure when it would be "inappropriate", with a child under 5 years of age being given
as an example. While the 12 years rule of thumb was reduced to 5 years, sheriffs considered
that they had been afforded a relatively wide discretion to proceed as seemed best for the
child.
Discussion and decision
[7]
Section 11(7)(a) of the 1995 Act provides that when considering whether to make an
order under Section 11(1) the court "shall regard the welfare of the child concerned as its
paramount consideration ---". Section 11(7)(b) states that when considering such an order,
taking account of the child's age and maturity the court "shall so far as practicable" give him
an opportunity to indicate whether he wishes to express views; if yes, give him an
opportunity to express them; and have regard to such views as are expressed.
[8]
Both considerations arise in the same statutory provision. It seems inherently
unlikely that Parliament intended that steps had to be taken to explore any views of the
child no matter how harmful that would be for him or her. On the contrary, and in line with
5
article 3(1) of UNCRC, the court's over-arching duty is to safeguard the welfare of children
and promote their best interests.
[9]
The approach of the appeal sheriff disengages the paramount consideration when
the court is considering the terms of section 11(7)(b), and this on the basis of a dictionary
definition of what is meant by something being "practicable". However the court's function
when interpreting a statute goes beyond the application of the day to day usage of a word or
phrase. The aim is to ascertain the intention of Parliament, which requires the passage in
question to be set in its context, not only in respect of the surrounding provisions, but also
with regard to its purpose. Where necessary the court can imply a meaning which the
words used would not ordinarily carry. If a suggested meaning would contradict another
provision in the statute, that should prompt particular care as to whether another
construction is available which would avoid the conflict.
[10]
The word "practicable" is not a straightforward term. It can be seen as having a
narrow or a more extended meaning depending on the circumstances of its use. If a court is
ordered to treat the best interests of a child as paramount, and also to do something
concerning the child if it is practicable, it does little if any violence to that wording to decide
not to do that something if it violates the first instruction. As a result of the adverse
consequences, which include a breach of the court's primary duty, it would not be within
the realms of a possible or workable course of action. Even under reference to the definition
relied on by the appeal sheriff, in such circumstances it would be sensible to say that it is not
something which is able to be put into practice. It is not a feasible thing for the court to do
because it conflicts with the duty to treat the child's best interests as its paramount
consideration.
6
[11]
We have no hesitation in reading the test in section 11(7)(b) as importing a
consideration of any harmful consequences for the child in question and whether they
render all and any steps to explore the child's views not practicable. This follows from the
shared context of the provisions in this part of the statute, namely the court's consideration
of whether to make a section 11(1) order, and the paramountcy of the child's best interests.
In LRK the SAC expressed a concern about applying the practicability test in its strictest
sense. By "strictest sense" it meant an approach whereby if particular steps to explore the
child's position can be taken, they must be taken. In our view "practicable" is a more
nuanced term which need not exclude all consideration of consequences. If something can
be done, but only at the cost of serious harm to the child at the heart of the proceedings, it
can be said that it is not a practicable course of action.
[12]
It is necessary to warn that this does not replace the statutory test with a judicial
discretion. Both section 11(7)(b) and article 12 of UNCRC place great weight on the right of
a child to be heard in proceedings such as this. That right is not unqualified, but it will
rarely be correct to conclude that seeking the views of a child will cause unavoidable and
material harm to the child. Vague concerns that inappropriate information might be
communicated are not a good reason for not seeking a child's views. Such matters can be
guarded against. If children are of sufficient age and maturity to form and express a view,
their voices must be heard unless there are weighty adverse welfare considerations of
sufficient gravity to supersede the default position. Careful thought as to how a child's
position is to be ascertained will often resolve concerns. The court would require to be in a
position to justify the proposition that the welfare issues are such as to render the exercise
impracticable.
7
[13]
As for the present appeal, the sheriff did not address the correct test, thus the appeal
sheriff did not err in remitting the matter to him. It follows that the appeal is refused.
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