AW4/11

IN THE SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH

JUDGMENT

by

SHERIFF NMP MORRISON, QC

in the cause

M (AP)

Minuter and Applicant

against

M (AP)

Respondent and Minuter

__________________

Act: Knight; Wilson Terris & Co, Solicitors, Edinburgh

Alt: Melia; Melia Legal, Solicitors, Glasgow

EDINBURGH, 14 March 2013

Introduction and issues

[1] I shall refer to the applicant as the mother, and the respondent as the father, of the adult. The procedure is complicated by the fact that both parties have to apply by minute; the mother by minute to renew welfare and financial guardianship and the father by minute to seek other orders in the mother's application.

[2] The original application for guardianship by the mother under section 57 of the Adults with Incapacity (Scotland) Act 2000 was opposed by the father who sought sole guardianship. The mother's appointment as guardian for one year was eventually agreed. At the end of that year the mother has now applied for renewal of sole guardianship in her favour under section 60 of the 2000 Act. The father has lodged answers opposing sole guardianship to the mother and has now presented a minute seeking sole guardianship for himself under section 57 of the 2000 Act, or to be an additional guardian under section 62(1)(b) of that Act, or to be a substitute guardian under section 63.

[3] The case came before me for debate on competency and relevancy of the father's answers to the mother's minute. On Friday 8 March 2013 there were lodged for the father two notes of adjustment of pleadings. Mr Knight, for the pursuer, did not receive them until the morning of the debate on 11 March. The period of adjustment had in fact ended on 14 January 2013 and any further alteration of the father's answers required to be by minute of amendment. At such short notice Mr Knight was not able to say whether the adjustments, if converted into a minute of amendment, would cure the defects of relevancy. Part of the competency argument for the mother was cured by the father lodging a minute with appropriate craves; there still remained, however, two issues of competency that could be dealt with at the debate.

[4] The issues were (1) whether the father, as minuter in the mother's application by minute for renewal of guardianship, had to lodge the reports required under section 57(3) of the Act, and (2) whether the father's application to be an additional guardian had to be made in one application by the mother and father together.

[5] I gave my decision on 11 March at the end of the debate that the father did not have to lodge section 57(3) reports to support his applications by minute and that his application to be an additional guardian did not require to be made jointly with the mother. I indicated that I would give my reasons in writing later.

The section 57(3) reports

[6] For the mother, Mr Knight argued that, since the mother's application was under section 60 for renewal, the father's application by minute for sole guardianship was under section 60. Under section 60(3), section 57(3) applied to the mother's application for renewal. Section 57(3) also applied to the father's application as minuter. The father was obliged to lodge the reports required by section 57(3). I was referred to Arthur v Arthur, 2005 SCLR 350. In that case there was an application for guardianship under section 57 in which another relative sought by minute to be appointed sole guardian instead but had not lodged reports. It was held by Sheriff Baird that the minuter could be appointed guardian on an application by minute, because the sheriff is making the appointment under section 59 of a person considered suitable; and that the minuter did not have to lodge reports required under section 57(3).

[7] In my opinion, the father is not making an application under section 60. An application under section 60 is for renewal of guardianship. The father is not applying for renewal. He is applying for sole guardianship in the mother's application for renewal. The method by which the father must apply for any sort of guardianship, once the mother has made an application, is by minute in the mother's application: Summary Application Rules 1999, r.3.16.8. Section 60(3) applies to the application for renewal and not to the application by someone else in that section 60 application. Therefore, there is no requirement for a minuter seeking guardianship in another's application under section 60 for renewal of guardianship, to lodge reports required under section 57(3).

[8] I do not see how the case of Arthur, above, assists Mr Knight's argument. If a minuter for sole guardianship does not require to lodge section 57(3) reports, a view with which I respectfully agree, I do not see how a minuter is required to do so in a minute to an application by a guardian for renewal under section 60.

[9] Another argument by Mr Knight was that the application by the father to be sole guardian was an application (as craved in the father's minute) under section 57. Therefore, the section 57(3) reports were required. This argument is met by the decision in Arthur. In any event, the obligation under section 57 to lodge section 57(3) reports is on the applicant under section 57 and not the minuter, just as the obligation in a section 60 application is on the guardian and not the minuter.

[10] There was a further argument that the application by the father to be an additional guardian required the section 57(3) reports. I reject that argument also. There is nothing in section 62 that requires section 57(3) reports by such an applicant. Section 62 applies sections 58 and 59. In deciding suitability to be an additional guardian, the sheriff has, by virtue of section 62(4), to have regard to section 59(3) to (5). Such an applicant does not have to lodge a report under section 57(3)(b)(ii) for that purpose.

[11] I think that one has to have regard to what section 57(3) says about the reports and what their purpose is. That subsection provides for three reports, namely, (a) an examination and assessment of the adult; (b) where the application relates to personal welfare, a report from the mental health officer as to (i) the appropriateness of the order sought and (ii) the suitability of the proposed guardian; and (c) where the application relates to financial provision, a report based on an interview and assessment of the adult by a person with knowledge to report on the matters in (b)(i) and (ii). Apart from a report dealing with (b)(ii), it would be unnecessary and pointless for the minuter also to lodge reports about the other matters because they are already lodged by the applicant making the primary application under section 57 or section 60. This may explain why the minuter in another's section 57 or 60 application does not have to lodge them. The only reports that could possibly be required would be that under (b)(i) where the report deals with the guardianship sought and (b)(ii) relating to the suitability of the minuter. I have decided, however, that that is not required of a person applying by minute in another's application under section 57 or 60. In many cases the reporter will be aware of competing claims and will in fact comment on these in the report. Where there are competing claims, the minuter will still have to adduce evidence in support his or her claim to be guardian if not dealt with in the section 57(3) reports, and may have to produce reports.

[12] In this case the mental health officer, in her first section 57(3)(b) report lodged with the application for renewal, and in a subsequent report, did in fact comment on some of the father's claims for guardianship and in a later amended report dealt with substitute guardianship. I was informed by Miss Melia that the mental health officer had lodged with the court an amended section 57(3)(b) report dated 8 February 2013 stating that the father was suitable to be substitute guardian. (The amended report was not in fact in the process.) I note that, under section 63, a person can be appointed substitute guardian if he or she could competently be appointed a guardian under section 59. In other words, it may be said that a person who is not suitable to be a guardian may not be appointed as a substitute guardian.

[13] The mother does not oppose the father becoming a substitute guardian. Mr Knight did not argue that the father should lodge section 57(3) reports in relation to his application to be a substitute guardian.

[14] Finally, I should say that any appointment as guardian, whether in an original application or on an application by minute, is made by the sheriff under section 59.

Application as an additional guardian

[15] Mr Knight argued that the father had to apply jointly with the mother in order to be appointed additional guardian. I was referred to Cooke v Telford, 2005 SCLR 367. In that case Sheriff Baird held that an application for joint guardianship under section 62(1)(a) had to be made jointly by both and could not be sought by minute by one person in another's application for sole guardianship. This was because section 62(1) provided for "An application" (emphasis added).

[16] In my opinion, that does not mean that an application to be an additional guardian must be made jointly. In the first place, in relation to an application for joint guardianship section 62 provides-

"(1) An application may be made ...

(a) by two or more individuals seeking appointment, for their appointment as joint guardians ...".

That is not the position for a person seeking appointment as an additional guardian. For such an application section 62 provides-

"(1) An application may be made ...

(b) by an individual seeking appointment, for his appointment as an additional guardian to an adult jointly with one or more existing guardians."

Clearly, where two people seek to be joint guardians, they must make a joint application. In the second place, if Mr Knight's argument is correct, there is no distinction between a joint guardian and an additional guardian as both applications must be made jointly. If that is so, what is the point of section 62 making a distinction between the two by referring to one as "joint" and the other as "additional"? The point is that the former must be made jointly and the latter need not be (in fact it will not be).

[17] It seems to me that an application by minute to be an additional guardian, in an application by another for guardianship, is a proper method for a person to seek to be added as a guardian. Section 62 (1) recognises that an application to be an additional guardian will arise in a different way from that of two or more people seeking to be appointed as joint guardians.