FOURTH SECTION

Application no. 76760/12 N.J.D.B. against the United Kingdom lodged on 22 November 2012

STATEMENT OF FACTS

The applicant, N.J.D.B., is a British national, who was born in 1954, and lives in Hertfordshire. He is represented before the Court by Mr Andrew Smith QC, a barrister practicing in Edinburgh.

A. The circumstances of the case

1. The background facts

The applicant has a son, S., who was born in April 2000. The applicant was not married to the child ’ s mother, G., and the relationship ended a few months after S. ’ s birth. After the separation, S. continued to live with G. The applicant maintained contact with S. and Z., G. ’ s child from a previous relationship. On 17 August 2003, G. stopped the applicant ’ s contact with the children.

In October 2003 the applicant instituted proceedings before Alloa Sheriff Court seeking parental rights and responsibilities in relation to Z. and S. and residence of the two children or, alternatively, residential contact with them.

On 12 December 2003 the judge (“the Sheriff”) granted the applicant interim residential and non-residential contact with S. on specific dates in December 2003 and January 2004.

On 20 January 2004 the Sheriff decided that the applicant should not have contact with Z. He granted the applicant residential contact with S. on a weekly basis. A substantive hearing “(proof”) was fixed to take place in July 2004.

In early July 2004, following intensive negotiation, the applicant and G. agreed that the children should reside with G. and that the applicant should have contact with S. The agreement was set out in a joint minute of agreement, on the basis of which the Sheriff Court in an interlocutor dat ed 7 July 2004 granted the applicant parental rights and responsibilities in respect of S.; found that the applicant was entitled to residential and non-residential contact with S. on a basis and on dates specified in the interlocutor; and held that G. was to consult with the applicant when making decisions of importance with respect to the health, welfare, education and upbringing of S. The interlocutor did not provide for the dates upon which the regular contact was to begin or when during each four-week period it was to occur. It also failed to take into account pre-arranged holidays.

2. The domestic proceedings

(a) The Sheriff Court

Because of the ambiguity in the interlocutor, the relationship between the applicant and G. quickly deteriorated. On 17 December 2004 the applicant lodged two minutes at the Sheriff Court: one to vary the July 2004 interlocutor by seeking a residence order in respect of S.; the other seeking a finding that G. was in contempt of court for breaching the July 2004 interlocutor.

The minutes first called in the Sheriff Court on 14 January 2005. An order was made for answers to be lodged.

Between 25 February 2005 and 18 January 2008, approximately twenty-one child welfare hearings were assigned. A number of other procedural hearings took place and a further twenty-one interlocutors were pronounced. A curator ad litem was appointed by the Sheriff and an expert report was ordered. Throughout this time the Sheriff attempted to regulate and monitor contact between S. and the applicant. The applicant lodged number of motions regarding alleged failures by G. to respect the terms of the July 2004 interlocutor, none of which were determined by a finding that G. was in contempt of court.

In September 2005 the applicant alleged that G. ’ s husband had acted in a sexually improper manner towards S. He reported the allegations to the police and a child protection investigation was opened. On 4 October 2005 he applied for an interim residence order. During this period contact had been ordered to take place but did not take place because of the poor relationship between G. and the applicant and because of S. ’ s opposition to contact.

On 21 October 2005 the Sheriff refused the applicant ’ s request for interim residence. He also suspended contact with S., to relieve the child from pressures surrounding contact. A proof, to consider both the question of residence and the issue of contempt, was fixed to begin on 10 January 2006 to last for three days. The hearing was discharged on 13 December 2005 on the parties ’ joint motion.

On 24 February 2006, the contempt minute was dismissed on the applicant ’ s motion.

The expert report, delayed by the child protection investigation, was completed in March 2006. It recommended that S. and Z. should reside with G. and that the applicant should have contact with S. only. The applicant accepted the conclusions and contact was restored from April 2006.

S. became increasingly unenthusiastic about contact with the applicant. On 27 December 2006 he refused to participate in a contact meeting. Contact continued from January 2007 until August 2007, despite S. ’ s growing opposition. A contact visit which ended on 13 August 2007 was the last contact S. had with the applicant. Two further contact visits attempted in the following month were not successful as S. refused to go and showed anger and distress at the prospect of contact. S. was interviewed by the curator ad litem and explained that he did not enjoy contact with the applicant and was unwilling to continue with it. From December 2007, the applicant did not send cards or presents to S. or seek to communicate with him.

In January 2008 the cause was remitted to Stirling Sheriff Court.

On 4 June 2008 the curator ad litem met with S. S. did not want to see his father and said that he would refuse to attend for any further contact.

In June 2008 the written pleadings in the case were finalised and the Sheriff allowed the parties a proof.

The proof began on 9 September 2008 with G. giving evidence. G. ’ s evidence finally concluded, after twenty no n-consecutive court days, on 29 May 2009. The applicant then called witnesses before giving evidence himself over seven days. The curator ad litem then gave evidence. The evidence concluded, after fifty-two n on-consecutive court days, on 2 November 2009.

The Sheriff ’ s decision was issued on 22 January 2010. It ran to 173 pages, 35 pages of which were devoted to the findings of fact and law and the remainder to a note in which the findings were explained. He reviewed in great detail the history of the case, explaining his view of the reasons for the deterioration of the relationship between the parties in the case. He noted that S., G. and G. ’ s husband were strongly opposed to contact. He referred to the “atmosphere of hatred, distrust and bitterness” between the applicant on one hand and G. and her husband on the other. He criticised both the applicant and G., at times using stark and uncompromising language.

On the question of contact, he said:

“160. The pursuer and defender are incapable of having a cordial or civilised relationship. If contact between [S] and pursuer were to occur, handovers would take place amid an atmosphere of hostility, assuming that [S] willingly attended for contact. Were a contact order to be made, [S] would be unwilling to attend. It is probable that he would refuse to attend. It would probably distress him and involve him again in the continuing conflict between the parties. There is no third party that would be prepared to take on the role of intermediary. It is not in [S] ’ s best interests that he is exposed to such conflict.”

He considered that having regard to S. ’ s age, the history of the case and the influences at work on S., he would derive no benefit from contact in such circumstances. He therefore concluded that there had been a material change in circumstances since the interlocutor of 7 July 2004; that it was in S. ’ s best interests that he did not have contact with his father; and that the interlocutor of 7 July 2004 required to be recalled.

In his judgment, the Sheriff also set out at length the procedural background to the case. Discussing the delay which had occurred in the proof, he said:

“[7] It ... had originally been anticipated that evidence in this case would take approximately 10 days for which a diet was assigned when the case started in September 2008. However, that diet had to be adjourned shortly after the defender had begun to give evidence because her father took seriously ill, and subsequently died ... With the cooperation of the sheriff clerk, a tranche of dates was identified in January 2009 for the evidence to be completed. However, the forecasts of how long the case would take proved completely unrealistic. Further tranches of dates also, regrettably, proved inadequate. Subsequent dates were required.

[8 ] ... The proceedings were frequently punctuated by legal argument, which on one occasion required me to adjourn the proof for a couple of days before issuing a 17-page judgment. Time was also taken up by parties seeking from time to time to add to the numerous productions already lodged. Even towards the end of the evidence, I was required to hear further evidence in relation to an incident within the court building involving two witnesses who had already given evidence, which required witnesses to be recalled.

...

[10] Because of the inordinate time that the evidence had taken, I was particularly anxious to remember that there is a nine-year-old boy at the centre of this litigation who deserves to have a decision made about contact with his father as soon as practically possible, consistent with the interests of justice.

[11] Three days were provided for submissions in the original proposed timetable. Quite frankly, I feared that this estimation was as unrealistic as others had been. I could foresee counsel for the pursuer and defender taking substantially longer than three days for each of their own submissions alone, such was the volume of evidence (about 6000 pages) that had been heard. With that in mind, I provided a timetable for parties to lodge and circulate written submissions along with proposed findings-in-fact and responses thereto. This allowed the issues to be focused and reduced the time required in oral submissions. More importantly, it avoided a significant number of days hearing oral submissions, which potentially could have substantially prolonged the case yet further.

...

[13] Further, brief, oral submissions were heard on 23 November 2009, following which I made avizandum , almost 15 months after evidence began.

[14] For these reasons, this case has taken far longer than had been anticipated. The Sheriff Principal has facilitated writing time to enable this judgment to be issued as soon as possible, for which I am grateful.”

(b) The Inner House of the Court of Session

The applicant appealed to the Inner House of the Court of Session. In his grounds of appeal, he challenged the Sheriff ’ s approach to assessing whether contact was in S. ’ s best interests; he claimed that the Sheriff had not acted judicially by his use of inappropriate language; he criticised the Sheriff ’ s decision to recall, rather than vary, the July 2004 interlocutor which had the effect of withdrawing his parental rights; and he complained that the action was not concluded within a reasonable time.

In light of the allegation that the Sheriff had failed to act judicially, on 7 July 2010 the Inner House asked the Sheriff to report to it on the comments made by the applicant. The Sheriff duly reported.

Pending the hearing of the appeal, the Inner House found the applicant entitled ad interim to parental rights restricted to letterbox contact with S. once a month under supervision. On three occasions the curator ad litem attempted to deliver a letter from the applicant to S., but on each occasion S. refused to accept or open the letter.

The Inner House delivered its judgment on 22 October 2010. It did not uphold the applicant ’ s appeal. However, it varied the January 2010 interlocutor to make it clear that it in turn only varied the July 2004 interlocutor in respect of contact but did not make any change to the finding that the applicant enjoyed parental rights and that he had to be consulted on matters concerning S. ’ s health, welfare, education and upbringing.

The court noted that it was a “radical step” to deny to a father contact of any kind with a young son. However, it considered that given the findings of fact reached by the Sheriff, that was a conclusion to which he had been entitled to come. In particular, the Sheriff was entitled to conclude that, at the time of his judgment, contact with the applicant was not consistent with S. ’ s welfare or best interests. The court further observed that the applicant would not be wholly excluded from S. ’ s life, as the Sheriff ’ s conclusion as to contact left intact the elements of the July 2004 interlocutor granting the applicant parental rights and requiring that he be consulted on matters concerning S. ’ s health, welfare, education and upbringing (acknowledging the anomaly as regards the January 2010 interlocutor in this respect). It found there to be no evidence that the Sheriff had failed to address the core issues or had taken into account irrelevant considerations.

As regards the applicant ’ s contention that the Sheriff had failed to act judicially, the Inner House found therefore to be no merit whatsoever in the applicant ’ s criticisms made about the observations made by the Sheriff in his judgment.

The Inner House also commented on the length of the proof in the case. It emphasised that in cases concerning the care of children the objective had to be, in the interests of the child, an expeditious disposal. It explained:

“[23] ... The primary responsibility for achieving such a disposal lies with the parties ’ professional advisers, solicitors and counsel. In a situation where, for their clients, the proceedings may well be emotionally charged, professional advisers have a duty to take steps to identify and concentrate on, and only on, the issue – the welfare of the subject child or children. Exploration of every byway in the relationship between the parents must be avoided. Professional advisers have a duty not only to their clients and to the court but also, in cases of this kind, to the subject child or children. Performance of that duty means that every measure to reach an expedited but right disposal should be taken. Under current arrangements sheriffs and judges are not best placed to control the scope of proceedings. Pleadings are largely in the hands of professional advisers and, at a proof, the only controlling measure which the sheriff or judge can take may be limited to ruling upon exceptions to questions or to lines of evidence as going beyond the scope of the pleadings. Nor are they best placed to decide in the course of a proof whether a particular line is relevant or helpful. If, as is suggested, the present case is not atypical, it may be that the liberty which professional advisers have hitherto enjoyed in this field should be curtailed ... ”

(c) The Supreme Court

The applicant sought leave to appeal to the Supreme Court. Leave was granted and the case was heard on 13 and 14 March 2012. The court handed down its judgment on 23 May 2012. It refused to uphold the applicant ’ s appeal.

Lord Reed, with whom the other justices agreed, summarised the three grounds of appeal as follows:

“10. First, it was argued that the sheriff had failed to address his mind to the appropriate legal framework. In that regard, counsel founded upon the sheriff ’ s failure to refer to the relevant statutory provision, namely section 11 of the Children (Scotland) Act 1995 as amended, or to the case law providing guidance as to its application. Secondly, it was argued that the sheriff ’ s findings could not reasonably warrant the conclusion which he reached. In that regard, counsel submitted that most of the sheriff ’ s findings, and most of his note, were concerned with matters whose relevance to the real issue was at best peripheral. Thirdly, it was argued that the sheriff had failed to act judicially, and that his decision should not therefore be allowed to stand. In that regard, counsel founded upon remarks made by the sheriff about the appellant and the counsel who represented him at the proof, which were said to betray a lack of objectivity and impartiality.”

Lord Reed found it apparent that the Sheriff had had in mind the correct test and had treated the welfare of the child as the paramount consideration. He considered that the judgment reflected the Sheriff ’ s focus on S. ’ s best interests. Lord Reed was also of the view that the Sheriff ’ s findings provided a reasonable basis for his conclusion that contact would not be in S. ’ s best interests. Indeed, Lord Reed suggested that that conclusion was “inevitable” in light of the history set out in the judgment. Finally, as regards the Sheriff ’ s critical remarks, Lord Reed said that only exceptionally would the language used by a judge give rise to an issue of law which might vitiate his decision. In the applicant ’ s case, he could detect no error of law; indeed, the Sheriff had been even-handed in his criticism of the parties.

Lord Reed considered it appropriate to make observations concerning the length of the proceedings before the Sheriff. He commented that the “glacial pace” of the proceedings was itself inimical to the best interests of the child and explained :

“22. There is no need for a dispute over contact to take so long to resolve. It did so in this case only because the court allowed the parties to determine the rate of progress ...

He referred to the obligation inherent in Article 8 to avoid undue delay in the determination of disputes of this nature and continued:

26 . ... A fundamental problem in the present case was that counsel, in the pleadings, made averments about everything which was arguably relevant to the question whether contact was in the child ’ s best interests; and those pleadings were then treated as dictating the scope of the proof. It is not altogether surprising that counsel cast their net so widely, given the wide range of matters within the life of a child and his parents which can be said to have some relevance to a dispute over contact. Indeed, even if counsel for one of the parties had been prepared to focus upon the matters of the most immediate significance, the introduction by his opponent of allegations relating to less central matters might in practice have required him to respond in kind. Equally, there was little the sheriff could do to prevent counsel from pleading their case as fully as they chose, although the time allowed for the adjustment and amendment of the pleadings need not have been as generous as it was: as explained earlier, it was only three and a half years after the proceedings had begun that the pleadings were finally closed and the proof allowed. In the absence of any judicial control over the leading of evidence within the scope of the pleadings, it was inevitable that the proof would be of considerable length.”

He noted that it appeared to be accepted that the system by which disputes involving children were dealt with in Scotland was in need of reform. He added:

“34. In the meantime, there are measures which the courts themselves can take in order to set their house in order. One obvious step is for sheriffs to exercise their existing powers to ensure that proceedings are conducted with reasonable expedition. Those include powers in relation to time limits for the lodging and adjustment of pleadings, the allowance of amendments, the fixing of proofs and the leading of evidence. In particular, contrary to the impression conveyed by some of the submissions in the present case, the sheriff ’ s role at a proof is not confined to ruling on objections and otherwise sitting impassively in silence. He possesses the power to intervene to discourage prolixity, repetition, the leading of evidence of unnecessary witnesses and the leading of evidence on matters which are unlikely to assist the court to reach a decision. Equally, he can encourage the use of affidavits and other documents (such as reports) in place of oral evidence, or as the equivalent of evidence in chief. These are only examples of measures which can be taken.”

B. Relevant domestic law and practice

Section 1 of the Children (Scotland) 1995 Act (“the 1995 Act”) provides that a parent has “parental responsibilities” in relation to his child. These include the responsibility: (a) to safeguard and promote the child ’ s health, development and welfare; (b) to provide, in a manner appropriate to the stage of development of the child direction and 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.

To enable parents to fulfil their responsibilities, section 2 bestows upon them “parental rights”, including the right: (a) to have the child living with him or otherwise to regulate the child ’ s residence; (b) to control, direct or guide, in a manner appropriate to the stage of development of the child, 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.

Under section 11 of the 1995 Act the Court may make orders relating to parental responsibilities and rights. Section 11(7) provides:

“ ... [I]n considering whether or not to make an order under subsection (1) above and what order to make, the court—

(a) shall regard the welfare of the child concerned as its paramount consideration and shall not make any such 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; and

(b) taking account of the child ’ s age and maturity, shall so far as practicable—

( i ) give him an opportunity to indicate whether he wishes to express his views;

(ii) if he does so wish, give him an opportunity to express them; and

(iii) have regard to such views as he may express.”

COMPLAINTS

The applicant complains under Articles 6 and 8 of the Convention that the proceedings were not concluded within a reasonable time.

He also complains under Article 6 § 1 of the Convention that the refusal of legal aid to fund the appeal to the Supreme Court deprived him of equality of arms.

QUESTIONS TO THE PARTIES

1. Was the refusal to grant the applicant legal aid for the proceedings before the Supreme Court compatible with Article 6 § 1 of the Convention? In particular, was it compatible with his right of access to a court and with the principle of equality of arms?

2. Was the length of the proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?

3. Was the length of the proceedings compatible with the applicant ’ s rights under Article 8 of the Convention?