The Appellant brought an appeal under Section 51(1) of the Children (Scotland) Act 1995 (“the 1995 Act”) against a decision of the Children’s Hearing making a supervision requirement in respect of the Appellant’s son, in terms of which the Appellant was to have no contact with his son. Shortly before the Hearing, an interim contact order had been made in the Appellant’s favour. That order was made in a Sheriff Court action brought by the Appellant against the child’s mother in which he sought a contact order under Section 11 of the 1995 Act; a declarator of paternity; and an award of parental rights and responsibilities. The Appellant had never been married to his son’s mother and was not named on his birth certificate. It was accepted at the appeal that the Appellant was the child’s father. The Children’s Hearing had been aware of the interim contact order but the Appellant had not been notified of the Hearing nor invited to attend on the basis that he was not a relevant person in terms of Section 93(2)(b) of the 1995 Act. The Appellant argued that he was a relevant person and also that, by virtue of Section 3(1) of the Human Rights Act 1998 (“the 1998 Act”), Section 93(2)(b) should be interpreted in a way that was compatible with his human rights under Articles 6 and 8 of the European Convention on Human Rights. He argued that his human rights had been breached by the Hearing. The issue for the appeal turned on the interpretation of the term “relevant person”. The Appellant argued that the existence of the interim contact order brought him within Section 93(2)(b) of the 1995 Act. The Respondent argued that the appeal was incompetent. The Appellant was not a relevant person because he had no parental rights and responsibilities in respect of the child. The existence of the interim contact order did not mean that he had parental responsibilities or rights. The Sheriff reviewed the relevant provisions of 1995 Act and the 1998 Act. He pointed out that the case raised an entirely novel point. Two conflicting decisions had been made on the question of whether the Appellant should have contact with his son and each decision had been made by a public authority, although on different grounds. The Sheriff concluded that the effect of the Sheriff’s order was to allow the Appellant to exercise the particular parental responsibility under Section 1(1)(c) of the 1995 Act “… to maintain personal relations and direct contact with (his son) on a regular basis” and the equivalent parental right under Section 2(1)(c). It followed, therefore, that when the Reporter, and the Hearing itself, came to consider the matter, the Appellant was “enjoying” parental responsibilities or rights under Section 93(2)(b) and, accordingly, he was a relevant person. The Sheriff reached this conclusion by applying the ordinary rules of statutory interpretation to the appropriate sections of the 1995 Act and without resorting to the duty imposed on the court by Section 3(1) of the 1998 Act. If this was not correct, it was possible to read and give effect to the term “relevant person” in a way which was Convention-compliant. Crucially, the Appellant had a court order allowing him contact with his son on an interim basis. That contact order provided a link between the Appellant and his son. If he could not participate in a decision about his son because he was denied access to proceedings, his Article 6 rights would be breached. The Sheriff allowed the appeal and repelled the Defender’s plea to the competency of the appeal. It was agreed that the case should be remitted to the Hearing for reconsideration.
Court: Sheriff Court (Scotland)
