Issue 32 April 2006 - Current Awareness: Adoption, Legal Aid, Constitutional Law, Professional Negligence, Social Work

ADOPTION - GK v Dundee City Council and the Scottish Ministers [2005] CSIH 90, Second Division

GK had parental rights and responsibilities in respect of his child, CM. Dundee sought an order for freeing for adoption for CM. This would have the effect of terminating the parental rights and responsibilities of GK and transferring them to Dundee. This state prevented GK from ever being able to apply for any order under s.ll of the Children (Scotland) Act 1995 to give him parental rights and responsibilities. GK argued that this statutory scheme breached Art.8. He argued that in the future he should be able to seek such an order to intervene in the life of CM in the interests of that child and, in particular, to seek contact with CM.

Held: appeal dismissed

(1) Art.8 was engaged but not violated;

(2) the effect in question secured a legitimate aim, that is to secure the integrity of the categories of order mentioned in s.ll (4);

(3) there may be cases where the dispensing with the consent of the natural parent may still have to be sought to avoid a breach, but on the facts this was not one of them;

(4) as a general proposition it would not normally be possible to determine if Art.8 would be breached without inquiry into the facts where a freeing order was being sought. Critical to the issue of any breach of the rights of the natural parent was whether the Art.8 rights of the child would be protected by freeing. Not every case would show that a freeing order was proportionate.

Comment: This case lies to rest a long standing view that freeing for adoption could in itself be a disproportionate breach of Art.8 because of the inability of the natural parent to seek orders under s.ll. In Midlothian Council v W, 2005 S.L.T. (Sh.ct) 146, Sheriff Horsburgh held that to grant freeing orders to a local authority in respect of the two children of W would breach Art.8. The decision was referred to in GK but no opinion expressed on the correctness of it, although standing the general tenor of GK, it is arguably wrong.

 

ADULTS WITH INCAPACITY - Aberdeenshire Council v Petrie, Banff Sheriff Court, 6 October 2005, Sheriff PP Davies

A local authority, A, sought an order from the Sheriff to have appointed the Chief Social Work Officer of A (CSO) as welfare guardian in terms of s.59 of the Adults with Incapacity (Scotland) Act 2000. C, the father of S, also sought such an order. C raised a devolution issue and resisted the application brought by A on the basis that such an order would violate Art.6 read with Art.14. C argued that s.59 was unfair and discriminatory in that there was no requirement on the part of A to demonstrate the fitness of the CSO in making an application whereas C was required to demonstrate fitness.

Held: Minute refused. (1) Art.6 was not engaged. The application did not determine the civil rights or obligations of C. C had no right to appointment. C only could exercise civil rights and obligations on the part of S if and when C was appointed by the court. Insofar as C could assume obligations on appointment, these were public and not civil in nature. Further, the character of the 2000 Act was of a public law nature;

(2) as Art.6 was not engaged Art. 14 could not be engaged; (3) even if Art.14 were engaged it was not violated. The difference in treatment as between the CSO and C was capable of objective justification. The CSO was in a different position from an ordinary natural person such as C. The CSO was qualified in the care of persons such as S. He had experienced staff to assist him. Set against the protective purpose of the Act, the difference in treatment was justified.

 

ASYLUM & IMMIGRATION - Hasani v Secretary of State for the Home Department [2005] CSOH 168, Lord Philip

H, an asylum seeker, claimed that to return him to Macedonia would violate Art8. He was diagnosed as depressed with thoughts of self harm. The risk of actual self harm would increase if returned. His appeal to an adjudicator was refused on the basis that medical treatment was available in Macedonia. H contended that the evidence did not show that treatment was available. H sought judicial review of the refusal of leave to appeal to the Immigration Appeal Tribunal.

Held: petition refused (1) the Art.8 case had not been focused on the terms relied on before either the Home Secretary or the adjudicator, and with the relatively limited medical material before the adjudicator it was difficult to criticise the decision;

(2) the situation in Macedonia had improved since the medical report was written;

(3) there was, in the absence of any contrary material, sufficient evidence to show that mental health services were available in Macedonia.

 

CIVIL PROCEDURE - McKie v MacRae, 2006 S.L.T. 43

In a damages claim brought by the children of the deceased and arising from a fatal road accident in which both drivers were killed, the defenders sought to have the case dismissed at procedure roll debate. The accident had occurred in 1986. The action was raised in 1996 against the widow of the other driver and also against the party who had hired the car to another passenger. By 1996 the children were no longer subject to non-age. It was sisted in August 1997 and the sist was recalled in August 2003. In March 2005 the children sought to amend the pleadings to introduce averments on the speed of the car and alcohol consumption in relation to the driver and in relation to the hirer to the effect that the tyres were poorly maintained. The defenders argued that the court had an inherent jurisdiction to dismiss the action because of alleged delay by the pursuers which was said to be prejudicial to them. They also argued that they should be assoilizied, which failing the action should be dismissed, as the continuation of the case would involve a violation of Art.6.

Held: the action was dismissed (1) the Court of Session as a supreme court had an inherent power to dismiss an action which was an abuse of the jurisdiction of the court;

(2) the power was to be used where there would be prejudice by continuing or where a fair trial was not possible;

(3) if the defenders were deprived of the right to a trial within a reasonable time, the court could not lawfully allow a hearing to take place;

(4) on the facts of this case criticism of the pursuers could be made and dismissal was appropriate.

 

CONSTITUTIONAL LAW - Davidson v Scottish Ministers [2005] UKHL 74

D, a prisoner, sought judicial review of his detention in conditions which he alleged violated Art.3. He sought an order interdicting the Ministers from detaining him in such conditions. The Inner House, relying on McDonald v Secretary of State for Scotland, 1994 S.c. 234, held that this was not a competent order because s.21 of the Crown Proceedings Act 1947 had to be construed as preventing such coercive orders.

Held: appeal allowed (1) given that the 1947 Act made comparable remedies against the Crown in England competent (M v Home Office [1994] 1 A.C. 377) it would be odd if such remedies were not open in Scotland, particularly when prior to 1947 such remedies were competent in Scotland but not in England, and the intention of the Act was to provide for equality of treatment as regards the Crown in both Scotland and England;

(2) on a proper construction of s.21 the prohibition only applied in civil proceedings. In essence these were litigations of a private law nature. Judicial review was not a form of civil proceeding and accordingly such remedies could be sought in judicial review proceedings.

 

LEGAL AID - Mungo Bovey Q.C. v Auditor of the Court of Session [2005] CSOH 154, Lady Dorrian

B, a Queens Counsel, sought judicial review of a decision of the Auditor to the effect that he had no jurisdiction to tax legal aid fees in relation to criminal devolution issue proceedings before the Judicial Committee of the Privy Council. B contended that on a proper construction of the Criminal Legal Aid (Scotland) Regulations 1989 (SI 1989/388) as amended by the Scotland Act 1998 (Consequential Modifications) (No 1) Order 1999, such a right existed. Further as it was accepted that there was jurisdiction to tax in civil cases, Art.14 as read with Art.l of the First Protocol would be breached as the discrimination thereby arising could not be justified.

Held: petition allowed (1) on a proper construction of the Regulations a solicitor could get such fees taxed as had been the case before the Scotland Act 1998 and it would be anomalous if they had no right to taxation;

(2) it would be a further anomaly if counsel could not get their fees taxed, as solicitors with rights of audience could;

(3) although appeal proceedings in the Judicial Committee were not specifically referred to as regards taxation, "proceedings in the High Court" did attract taxation and on parity of reasoning with the reference case of HM Advocate v Touati, 2001 S.L.T.1195,it would be anomalous if there was a right to taxation in references but not appeals to the Judicial Committee;

(4) as there was no difference in treatment, Art.14 was not engaged. In any event Art.14 would not have been engaged as any difference of treatment would not have been based on "status" within the meaning of Art.14.

 

McCall v The Scottish Ministers [2005] CSOH 163, Lord Carloway

M, an advocate sought judicial review of the Criminal Legal Aid (Scotland) (Fees) Amendment Regulations 2005 (SSI 2005/113). The Ministers sought to apply the Regulations to work carried out before 4 April 2005 where the case was concluded after that date. The fees payable under the Regulations were less than under the provisions which governed work done under the previous regulations. M argued that the retrospective application of the new regulations violated the right to peaceful enjoyment of possessions secured by Art. 1 of the First Protocol.

Held: petition allowed and case out by order to determine further procedure

(1) claims for fees for work carried out before 4 April 2005 were possessions;

(2) whilst the claim for fees made by M was not completely negatived, there was an effect on the fees claimed; (3) there was no control as such but there was a clear interference by the State on property owned by M;

(3) the retrospective application of the Regulations did not strike a fair and proportionate balance even if the Regulations in other respects were in the general public interest;

(4) it followed that there had been a violation of Art. 1 of the First Protocol;

(5) the case required to be put out by order to consider the retrospective effect of the decision in light of s.l02 of the Scotland Act 1998.

 

PROFESSIONAL NEGLIGENCE - Wright v Paton Farrell and others [2006] CSIH 7, First Division

W alleged that his defence to a criminal charge by his solicitor had been conducted in a negligent manner. He had been jailed but his conviction was set aside on appeal. At first instance the court had held that there was still immunity even in light of Arthur J.S. Hall & Son v Simons [2002] 1 A.C. 615 which had removed immunity from suit in England in civil proceedings. The House of Lords did not decide what the position was in criminal proceedings. W reclaimed. The solicitors also reclaimed as the Lord Ordinary had held that if, in the alternative, there was no immunity, W was entitled to proof before answer. W argued inter alia that immunity from suit in criminal proceedings breached the right of access to the court secured by Art.6.

Held: reclaiming motion allowed and cross-appeal and action dismissed (1) there was a strong public interest in the retention of immunity from suit in alleged negligence arising from criminal proceedings in Scotland; (2) the decision in]. S. Hall & Son v Simons dealt with civil proceedings in England and was not in point in this case; (3) the alleged immunity did not breach Art.6. The common law did not recognise any substantive civil right to sue in these circumstances. The bar was substantive and not procedural. The content of civil rights was a matter of national law. There was following Z v United Kingdom and others (2001) 34 E.H.R.R. 97 no breach of Art.6.

Comment: On the last point see the case of Roche v United Kingdom, referred to in the Stop Press section.

 

SOCIAL WORK - Crossan v South Lanarkshire Council [2006] CSOH 28, Lady Smith

C, the father of D who was 13 and had Down's syndrome sought judicial review of the decision of the Council not to pay for after school care. C paid for care from a private provider who received some grant funding from the Council. A Council needs assessment showed that this care was needed. C argued that under ss.23-27 of the Children (Scotland) Act 1995, the Council were obliged to provide the care identified in the assessment and to pay for that care. C alleged breaches of the 1995 Act and also a violation of the Art.8 right to respect for family life.

Held: petition refused (1) the statutory duties were only target duties and did not provide children with a specific right to the provision of care needs found on assessment;

(2) the Council had a discretion as to how needs might be met and there was nothing in the Act which prevented the Council from charging for the provision of care needs;

(3) it followed that there was nothing inconsistent with the Act in having a private provider meet the assessed needs and to charge for it;

(4) the case did not engage Art.8. D was in the place where his parents wanted him to be. In general terms, Art.8 did not require positive financial assistance from the state save in circumstances which the present facts came nowhere near.