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You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> MRS. JOYCE McLEAN v. MIS KATRINA DORNAN AND DUMFRIES AND GALLOWAY COUNCIL [2001] ScotSC 9 (6th April, 2001) URL: http://www.bailii.org/scot/cases/ScotSC/2001/9.html Cite as: [2001] ScotSC 9

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MRS. JOYCE McLEAN v. MIS KATRINA DORNAN AND DUMFRIES AND GALLOWAY COUNCIL [2001] ScotSC 9 (6th April, 2001)

Act: Miss K Millar, Dumfries & Galloway Council

Alt: T Andrew, Messrs McAndrew & Co

STRANRAER: 6 April 2001

The Sheriff Principal, having resumed consideration of the appeal recalls the interlocutor of the sheriff of 16^th  January 2001; repels the first plea-in-law for the pursuer and respondent; finds no expenses due to or by either party; and remits the cause to the sheriff to proceed as accords.

NOTE

1.1 The pursuer seeks an order imposing on her parental responsibilities and rights in relation to Alexander Albert Patterson, born on 13^th June 1996. She also seeks an order depriving the defender of her parental responsibilities and rights. She seeks a residence order in respect of the child in favour of herself. The defender is the mother of the child. The pursuer is his grandmother. On 19^th July 2000, one week after the initial writ was lodged in court, the sheriff made a parental responsibilities and rights order in favour of the pursuer. The defender appears to have been represented on that occasion. The motion was unopposed. It appears that the defender has taken no further part in these proceedings. On 8^th September the sheriff granted leave to Dumfries and Galloway Council to enter the process as a party minuter. Dumfries and Galloway Council lodged a document headed "Defences for Party Minuter" with the sheriff clerk's office in Stranraer on 22^nd September. The record was closed on the writ and the party minuters' "defences" on 24^th November. Following a debate on the first plea-in-law for the pursuer, which was to the effect that the minuters did not have title and interest to enter the process, the sheriff, on 16^th January 2001, sustained that plea-in-law to the extent of repelling the defences lodged by the minuters. He allowed the cause to proceed as undefended. Against that decision the minuters have appealed.

1.2 Before the sheriff the issue came to be whether it was competent for the minuters, as a local authority, to enter a process such as this, i.e. a process in which neither divorce nor separation was sought. If such orders had been sought they could have lodged a minute: See Ordinary Cause Rule 33.7(1)(e)(i) and Form F5. In coming to the conclusion which he did the sheriff had regard to the fact that the dispute between the pursuer and the defender arose in terms of Part I of the Children (Scotland) Act 1995 whereas the role and functions of local authorities in relation to the promotion of the welfare of children were dealt with in Part II of that Act. The sheriff pointed out that, where an action is raised by a person who is not the parent of a child, intimation of the action to the local authority for the area in which the child resides requires to be made in terms of Ordinary Cause Rule 33.7(1)(g) and From F9. That Form requires the local authority concerned to submit to the court a report on all the circumstances of the child and the proposed arrangements for the care and upbringing of the child. No such report had been submitted by Dumfries and Galloway Council at that stage. Instead the minuters had lodged the "defences" to which I have referred. These defences narrate that the child concerned is subject to a supervision requirement made by the Children's Panel. In terms of that supervision requirement the child is required to live with foster carers who are also prospective adopters of the child. An application to free the child for adoption is before Stranraer Sheriff Court. In answer 3 the minuters set out at considerable length the reasons why, in their opinion, the pursuer is not a suitable person to be granted parental responsibilities and rights in relation to the child and why it would not be conducive to the welfare of the child for such an order to be made. The minuters also give reasons why they consider that it is not conducive to his welfare for a residence order to be made in favour of the pursuer. If the averments of the minuters are correct they raise matters of considerable substance which are very relevant to any decision which the court may take in this action. The minuters have not sought any orders in their own favour in relation to the child concerned.

1.3 In his note the sheriff drew attention to the terms of sections 11(1), (3) and (5) in relation to parental responsibilities and rights. An application may be made by a person "claiming an interest". Section 11(5) provided that "in sub-section 11(3)(a), 'person' includes (without prejudice to the generality of that sub-section) the child concerned; but it does not include a local authority". Section 15(4) provided that "any reference in this Part of this Act to a person (a) having parental rights or responsibilities ..... is to a natural person only". The sheriff refers to the commentary by Professor Norrie on the Children (Scotland) Act 1995 in the Green's Annotated Acts Series at page 36 - 35. Professor Norrie expresses the opinion that Part I of the Act deals exclusively with private law matters in respect of which local authorities have no standing. Local authorities' rights, duties, powers and interests are dealt with exclusively in Part II. Professor Norrie regarded the provisions of Part II as the limit of their interest and role. He considered that Part I could not be used in any way by local authorities. While the minuters were not making an application in the process themselves in relation to parental rights, as the sheriff saw it, they claimed an interest to oppose an application which was competently made under Part I of the 1995 Act.

1.4 The sheriff drew attention to the heading of Part I: "Parents, Children and Guardians". He considered that, since these are all natural persons, Part I related to private rights. He referred to Wilkinson and Norrie on Parent and Child, Second Edition, at paragraph 9.57. The authors there comment that: "The only other 'person' who is expressly denied title to seek a section 11 order is a local authority. The reason is to reflect the fact that Part I of the 1995 Act deals exclusively with private law matters, in respect of which local authorities have no standing. There were conflicting sheriff court decisions under previous legislation on the question of whether a local authority could nevertheless seek to rely on a principle or rule such as is now contained in Part I of the 1995 Act in a case competently before the court. ...... The underlying principle is that the rights and powers of local authorities to become involved in the upbringing of children are governed by Part II of the 1995 Act, which both specifies and limits their power and role. It would subvert the very structure of the Act, and also run the risk of procedural confusion, if local authorities were able to found upon principles in Part I to achieve ends that they are incapable of achieving under Part II whether as pursuers or defenders". The sheriff followed the reasoning of the sheriff principal in City of Edinburgh Council v M 1996 SLT (Sh Ct) 112. He accepted that the minuters have a general interest to enter the process but concluded that they have no title to do so. It was his view that a local authority had no private law right or entitlement in relation to parental rights or responsibilities over a child. Such rights and entitlements as were conferred on them were conferred by statute and were to be found in Part II of the 1995 Act. Accordingly, he repelled the defences lodged by the minuters. This appeal is concerned with whether his approach is sound in law and practice.

2.1 It was accepted that the appellants could not enter the proceedings as minuters in order to seek an order. However the minuters had duties in relation to the child concerned. In terms of the Children (Scotland) Act 1995, section 17(1)(a) the local authority was required to safeguard and promote the welfare of a child who is "looked after" by them. In exercising that duty the child's welfare is their paramount concern. This child was subject to a supervision requirement by the Children's Panel. In terms of section 71(1) of that Act the minuters, as the relevant local authority, were required to give effect to the supervision requirement. This child was in foster care and was subject to an application for a freeing order in relation to which closing submissions were about to be heard. In fulfilment of their statutory obligations the minuters were entitled to make representations to the sheriff that no order should be made by him. If this had been an action of divorce or separation the minuters would be allowed to enter the process. See Ordinary Cause Rule 33.7(1)(e)(i) and Form F5. It would be anomalous to prevent a local authority entering a process such as this when the local authority was responsible for safeguarding and promoting the welfare of the child concerned and was in a position to make representations of considerable relevance. In this case the minuters sought no order in terms of section 11 of the 1995 Act, but they did seek an opportunity to put material information before the court. Reference was made to A B and C D Petitioners 1992 SLT 1064 at 1068H-K. In that case a grandmother had been allowed to enter adoption proceedings because she had information material to the decision of the court. The court allowed her to do so because it had a duty to consider all relevant information. The decision of the court in P v. P 2000 SLT 781 at page 786A indicated that Parts I and II of the Children (Scotland) Act 1995 were not distinct. Reference was made to "Parental Rights and Supervision Requirements" 2000 SLT (News) 171 at pages 173-174. It was common practice for local authorities to enter processes such as the present in order to place material information before the court. It was in the interests of the welfare of children concerned in such applications that that should be so. In the circumstances of this case the minuters were entitled to lodge a minute inviting the court to make no order. The court should allow the appeal and allow the minuters to continue to be parties to this action.

3.1 In this case the local authority had an opportunity in terms of the Ordinary Cause Rules to lodge a report. Such a report had now been lodged. The local authority had powers in terms of the 1995 Act to apply for a parental rights order. See section 86 of that Act. The local authority had not exercised any of the powers open to them in terms of Part II of that Act. See Wilkinson and Norrie, Parent and Child, Second Edition, para. 9.57, City of Edinburgh Council v M 1996 SLT (Sh Ct) 112 at pages 114J - 115A. It was conceded that the minuters have an interest in this application, but they did not have title to enter the process. The sheriff had reached the correct decision for sound reasons. The appeal should be refused.

4.1 When considering an application for an order in terms of the Children (Scotland) Act 1995, section 11 by a person entitled to apply for such an order the court is required to regard the welfare of the child concerned as its paramount consideration. The court is required not to make such an order unless it considers that it would be better for the child that the order be made than that none should be made at all. In terms of section 11(5) a local authority is not entitled to apply for a section 11 order. In principle the fact that a local authority may not apply for such an order should not prevent the views of a local authority being taken into account by a court when dealing with an application by a person who is entitled to seek such an order if the circumstances are that the local authority concerned has responsibilities in relation to the child to whom the application relates. Although there is a view that Part I and Part II of the Act deal with separate matters the two are closely linked in a number of respects. For example section 3(4) provides that: "The fact that a person has parental responsibilities or parental rights in relation to a child shall not entitle that person to act in any way which would be incompatible .... with any supervision requirement made under section 70 of this Act". Section 71 of the 1995 Act requires the relevant local authority to give effect to a supervision requirement to which a child is subject. Section 5(1) provides that it shall be the responsibility of a person who has care or control of a child but who has no parental responsibilities or parental rights in relation to that child to do what is reasonable in all the circumstances to safeguard the child's health, development and welfare. Section 5(1) would appear to apply to a local authority which is responsible for the care of a child.

4.2 In the present case the child concerned is subject to a supervision requirement. That supervision requirement must be given effect to by Dumfries and Galloway Council. The duties imposed on a local authority by section 17 of the 1995 Act apply to the Council in respect of this child. In terms of section 17(1) of that Act, where a child is looked after by a local authority, they shall safeguard and promote his welfare. The welfare of the child is their paramount concern. The child in this case is being looked after by the local authority because he is subject to a supervision requirement and Dumfries and Galloway Council is the relevant local authority. See section 17(6)(b) of the 1995 Act.

4.3 It is apparent from the minute lodged by the Council that they are in possession of a considerable amount of information relevant to the assessment of what is in the best interests of this child and, in particular, in relation to his welfare. In the present case the application by the child's grandmother has not been opposed by the child's mother who has been called as defender. There is, in the absence of any representations by the Council, no contradictor to the assertions of the applicant. The Council do not wish to seek an order in terms of section 11 of the 1995 Act but they do wish to be present and represented when the welfare of this child is considered by the court. To that end they wish to be in a position, if appropriate, to lead relevant evidence so that the court can arrive at a conclusion as to where the best interests of the child lie. In particular the Council wish to seek to persuade the court that this is a case in which it would be better for the child that no order be made in favour of the applicant. The child is subject to a supervision requirement. There is a freeing order hearing in connection with this child which is currently at an advanced stage. The present foster carers of the child wish to adopt him. If the opinion of the sheriff is correct, the procedures which he considers that he must follow would, in this case, prevent the Council from doing more than lodging a written report in court. Unless the Children (Scotland) Act 1995 or the relevant rules of court expressly prohibit the Council from further participation in this action the court should not deprive itself of an opportunity to become fully informed before taking a decision relating to the welfare of the child. That suggests that it would be preferable to allow the Council to be heard on the minute lodged by them if that is competent.

4.4 I have carefully considered the passages referred to by the sheriff in Professor Norrie's commentary on the Children (Scotland) Act 1995 and in Wilkinson & Norrie: Parent & Child, Second Edition at para. 9.57. I have also considered the opinion of the court in P v P, supra. In that case (at page 786A) the court said: "In our opinion Pts I and II of the Act do not operate as separate and distinct schemes. They are in important respects inter-related. Thus it is clear that the primary purpose which underlies both parts, and is either explicit or at least implied throughout, is to ensure the welfare of the child. Thus, for instance, the parental responsibilities in s 1 are defined in terms directed to the needs of the child, while parental rights in s 2 are expressed solely in terms that enable the parent to fulfil those responsibilities. Again the requirement in s 11(7) is that amongst other things the court shall regard the welfare of the child as its paramount consideration, and this requirement and its two fellows, referred to conveniently as 'the three over-arching principles', find an exact echo in the provisions of s 16(1) at the outset of Part II, which itself is headed 'Promotion of children's welfare by local authorities and by children's hearings etc.'. The inter-relationship of the two Parts, one with the other, is demonstrated, for instance, by the provisions of s 2(4) and also by those of s 5(1) which would come into play where a supervision requirement was in existence and where the care and control of the child lay with the person who did not have any parental responsibilities or parental rights".

4.5 Not infrequently there will be cases before the court in which a party seeks a section 11 order and the child is subject to a supervision requirement. The case of P v P, supra was such a case. While a local authority cannot seek a section 11 order, in my opinion it can competently make representations to the court to the effect that the court should make no order in favour of a party applying for a section 11 order. In some cases the best way in which to put that point of view forward may be by entering the process as a party minuter. The party minuters lodged a minute in the form of defences in this case. There is no reason to believe that the court would not benefit from the participation of the minuters in this case. No other party is able to bring to the attention of the court the material information relating to this child which is in their possession. The court should be fully informed before taking the decisions which it is invited to take in this case. For these reasons, in my opinion, the minuters should be allowed to insist in their minute. Nothing in either the 1995 Act or in the Ordinary Cause Rules, in my opinion, renders the procedure adopted by the Council incompetent in this case. That is consistent with the approach of the court in AB and CD Petitioners, supra. In my opinion the appeal must succeed.

4.6 Consideration might usefully be given to amending the rules so as to provide that a person or local authority having responsibility for the care of a child should receive intimation of an application such as this and that such a person or local authority should be empowered to lodge a minute in the process.

4.7 It was agreed that in that event there should be a finding of no expenses due to or by either party.