GM AGAINST MB AND AS
SHERIFFDOM OF NORTH STRATHCLYDE AT DUMBARTON
[2016] SC DUMB 38
F233/15
INTERLOCUTOR AND NOTE
BY SHERIFF CRAIG TURNBULL
in the cause
GM
Pursuer
against
MB
Defender
and
AS, appointed as Curator ad Litem on behalf of the children, CHM, ZNM and LEM (Assisted Person)
Third Party Minuter
Pursuer: Mitchell, Stirling & Gilmour
Defender: party
Third party minuter: party
Dumbarton, 22 April 2016
The Sheriff, having resumed consideration of the cause and the child witness notices lodged by the defender nos. 21, 22 and 23 of process, (1) grants the defender’s application and orders that the child CHM give evidence without the benefit of any special measure; (2) refuses the defender’s applications for the children ZNM and LEM to give evidence without the benefit of any special measure and authorises, for both the said ZNM and the said LEM, the special measures of (a) the taking of evidence by a commissioner; and (b) a supporter; (3) appoints Sheriff C.D.Turnbull as commissioner; (4) on cause shown, refuses to dispense with interrogatories; (5) appoints the defender to intimate draft interrogatories to the pursuer and third party minuter within 3 weeks of today’s date; appoints the pursuer and third party minuter to intimate draft cross-interrogatories to each other and to the defender within 3 weeks thereafter; allows the parties 3 weeks thereafter to adjust the draft interrogatories and draft cross-interrogatories; (6) appoints parties to be heard on the approval of the interrogatories and cross-interrogatories; on the settlement of any dispute as to their contents; and the fixing of a diet or diets for the execution of the commission to examine the witnesses ZNM and LEM and assigns 7 July 2016 at 12 noon, within the Sheriff Court House, Church Street, Dumbarton, as a diet therefor before Sheriff Turnbull; (7) reserves meantime the question of expenses arising from the hearings on 8 April 2016 and 20 April 2016; and (8) appoints parties to be heard on the defender’s motion no. 7/8 of process and assigns 12 May 2016 within the Sheriff Court House, Church Street, Dumbarton, as a diet therefor.
NOTE
1. Background
[1] The pursuer and the defender were in a relationship which ended in or around early 2007. There are three children of that relationship, namely, CHM, who is 15, ZNM, who is nearly 12, and LEM, who is 10. The pursuer was not named on the children’s birth certificates. He was found entitled to parental responsibilities and parental rights in relation to each of them by order of Glasgow Sheriff Court dated 2 March 2007.
[2] In or around June 2007 the children were removed from the care of the defender and placed in the care of the pursuer, as a consequence of a lack of parental care on the part of the defender. The children remained in the care of the pursuer from that time as a condition of orders granted at children’s hearings. On or around 20 February 2016, CHM was voluntarily received into the care of the local authority and placed in a residential children’s unit. ZNM and LEM remain subject to compulsory supervision orders which require them to reside with the pursuer and his partner.
[3] From the point in time the children were placed in the care of the pursuer, the extent of contact between the children and the defender changed from time to time until 17 June 2013 when the compulsory supervision orders were varied so that the defender was to have no contact. That position subsisted until 15 March 2016 when the defender was allowed contact with CHM twice per week on a supervised basis. The defender does not presently have contact with ZNM and LEM. That has been the case since June 2013. On 1 March 2016 the compulsory supervision orders in respect of ZNM and LEM were continued subject to the conditions that they reside with the pursuer and his partner and have no contact with the defender (see productions 5/6/6 and 5/6/7 for the pursuer). Those orders have effect until 28 February 2017.
[4] The pursuer alleges that he and his partner have been abused by the defender on numerous occasions outwith and in the presence of the children; that the defender has made false allegations against the pursuer; and that the defender’s behaviour is erratic and unpredictable. The pursuer alleges that the defender has a history of unstable behaviour and disregards the terms of compulsory supervision orders in relation to the children.
2. The Proceedings
[5] The pursuer commenced the present action in August 2015. The initial writ presented to the court has 25 craves, which comprise 7 for interdict (and interdict ad interim); 7 related craves to attach powers of arrest in terms of the Protection from Abuse (Scotland) Act 2001; a crave for a non-harassment order; a crave for residence (and interim residence) in relation to the three children; 8 craves seeking warrant to intimate; and a crave in relation to expenses. As set out below (see paragraph [11], the pursuer has since been permitted to introduce a crave depriving the defender of her parental rights and parental responsibilities in respect of each of the children.
[6] A warrant to cite the defender (and to intimate to a variety of parties) was granted by the sheriff on 21 August 2015; intimation on the children was dispensed with due to CHM being diagnosed with Asperger’s Syndrome and given ZNM and LEM’s respective ages. The sheriff appointed parties to be heard on the question of the interim orders sought and assigned 28 August 2015 as a hearing. Amongst the parties upon whom intimation was made was the third party minuter (a local solicitor) on the basis that she had previously been appointed as safeguarder to the children in relation to children’s hearing proceedings.
[7] On 28 August 2015, the presiding sheriff, having heard the solicitor for the pursuer, the defender personally and the third party minuter, appointed the third party minuter as curator ad litem to the children and sisted her as a party to the proceedings. Thereafter, he allowed the pursuer to amend what was then crave 5 and granted interim interdict against the defender in terms of the amended crave, preventing her from contacting the children, by approaching them anywhere within the jurisdiction of Dumbarton Sheriff Court and by contacting them by any other means whatsoever and thereby breaching any of the compulsory supervision orders dated 1 April 2015 in respect of the children. The sheriff refused to make interim orders in terms of the remaining craves of the initial writ in hoc statu.
[8] It is appropriate to record, at this juncture, that the defender has chosen to represent herself in these proceedings, as she is entitled to do (see Macphail “Sheriff Court Practice”(3rd edition) at 4.118).
[9] A notice of intention to defend was lodged and an options hearing assigned for 16 October 2015. A child welfare hearing was subsequently appointed for the same date in relation to the pursuer’s crave for residence. By 16 October 2015 the defender had not lodged defences and the third party minuter had not lodged answers. The presiding sheriff gave each of them further time to do so; continued the interim interdict previously granted (adding a direction as to what the defender was to do in the event of any one of the children presenting themselves at the defender’s house) and refused in hoc statu the pursuer’s motion to attach a power of arrest to the interim interdict.
[10] After certain further procedure, at a continued options hearing and child welfare hearing on 8 January 2016, the presiding sheriff refused the pursuer’s motion for interim residence in hoc statu and thereafter, ex proprio motu, closed the record and allowed parties a proof of their respective averments. A proof was assigned for 4 April 2016, with a pre-proof hearing on 17 March 2016.
[11] On 3 March 2016 the pursuer lodged with the court a motion (no. 7/5 of process) and a minute of amendment (no. 16 of process). The minute of amendment, amongst other things, sought to add a new crave (with relative averments and plea-in-law) depriving the defender of her parental rights and parental responsibilities in relation to the children. The motion invited the court to receive the minute of amendment; to allow fourteen days to answer, if so advised, and a period for adjustment of 4 weeks; and to assign a hearing in terms of rule 18.3. Neither the defender nor the third party minuter opposed the motion. As the motion did not address the issue of the proof assigned for 4 April 2016, a hearing was fixed, to call alongside the pre-proof hearing previously assigned for 17 March 2016.
[12] I presided at the pre-proof hearing on 17 March 2016. The pursuer’s solicitor moved her motion (no. 7/5 of process) and that the proof assigned for 4 April 2016 be discharged. That motion was not opposed by the third party minuter. It was, however, opposed by the defender. I refused the motion to discharge the proof in hoc statu; allowed the minute of amendment to be received and appointed answers to be lodged within 7 days. I assigned a rule 18.3 hearing for, and continued the pre-proof hearing to, 31 March 2016.
[13] On 16 March 2016 the pursuer had lodged with the court a motion (no. 7/7 of process) which inter alia asked for permission to cite the children as witnesses. That motion was dealt with at the hearing on 31 March 2016. At that time, the presiding sheriff refused to allow the defender’s answers to the pursuer’s minute of amendment to be received although late; and thereafter allowed the record to be opened up, amended in terms of the pursuer’s minute of amendment (no. 16 of process) and closed of new. In relation to the defender’s motion (no. 7/7 of process) the presiding sheriff found it unnecessary for the court to grant permission for the defender to cite the children; refused to dispense with the need for special measures in respect of the children; and continued the cause, and consideration of what special measures were to be used in the event of the children giving evidence, to the proof previously assigned for 4 April 2016. As at the hearing on 31 March 2016, no child witness notices had been lodged by the defender (as required by s.12 of the Vulnerable Witnesses (Scotland) Act 2004 (which is hereinafter referred to as “the 2004 Act”)).
[14] Late on the afternoon of Friday 1 April 2016, the defender lodged with the court child witness notices in respect of each of the children. The child witness notice in relation to CHM is no 21 of process; the child witness notice in respect of LEM is no. 22 of process; and the child witness notice in respect of ZNM is no. 23 of process. They are in broadly similar terms. In each case the notice invites the court to direct that the child witness give evidence without the benefit of special measures (in terms of s.12(1)(b) of the 2004 Act). For completeness, at the hearing on 8 April 2016, I was advised that witness citations in relation to each of the children had been served by sheriff officer on the afternoon of 1 April 2016.
[15] I presided on Monday 4 April 2016 when the proof required to be adjourned due to a lack of shrieval resources. In terms of rule 45.5(1)(c) I fixed a hearing in relation to the child witness notices for Friday 8 April 2016.
3. The Hearing on 8 April 2016
[16] I first heard parties on the child witness notices on 8 April 2016. Miss Mitchell appeared for the pursuer; the defender appeared on her own behalf; and the third party minuter appeared on her own behalf.
Submissions for the Defender
[17] The defender argued that there was no need for special measures. The children wanted to speak. Using a screen or other special measures would make it awkward. The children would think there was something wrong with them. The children did not need to be hidden away like criminals. They want to talk properly. Everyone should see them and see (sic) what they have to say.
[18] The defender stated that if one of the children had taken a bottle of wine from Tesco they would be up in court in a minute without special measures. Asperger’s does not stop anyone from talking. It does not prevent you saying where you want to live and if you want to see your mother. The defender advised that CHM does not have full autism. He can talk. He is very clever for his age.
[19] The defender reminded me that her daughters were now 10 and nearly 12. She sought to refer me to a document she had prepared for the hearing on 31 March 2016 (a copy of this is no. 26 of process). At this stage, I was advised by Miss Mitchell that the defender had been permitted to read this document out in full (it extends to 5 pages) at the hearing on 31 March 2016. Having considered the document, I indicated to the defender that it did not appear relevant to the issue before the court i.e. the child witness notices; that I would not permit her to read it out; and that I would consider the document fully before reaching a decision in this matter. I have done so prior to issuing this note.
[20] The defender argued that the children are old enough to come to court. She advised me that CHM had been a witness in a (criminal) case against her which did not proceed. The children were old enough to be responsible criminally. The court would be making it harder for them by imposing special measures, not easier. Special measures would make it seem as if the children had done something wrong.
[21] The defender stated that no law said that there has to be special measures. If there was, she invited the court to tell her what it was. I asked the defender if she had seen the 2004 Act and in particular s.12. It became apparent that she had not, albeit she did not say as much. She argued that s.12 was not the law, it was “just procedure”.
Submissions for the Pursuer
[22] For the pursuer, Miss Mitchell opened her submissions by clarifying that there was no suggestion that the views of the children should not be taken. The issue before the court was how that should be done. The children are all under 18 (and were as at the date of commencement of the action). Accordingly, they are deemed to be vulnerable witnesses by virtue of s.11(1)(a) of the 2004 Act.
[23] The court could only permit the children to give evidence without the benefit of special measures if satisfied that, in each case, (a) they had expressed a wish to give evidence without the benefit of any special measure and that it was appropriate for the child witness so to give evidence, or (b) that the use of any special measure for the purpose of taking the evidence of the child witness would give rise to a significant risk of prejudice to the fairness of the proceedings or otherwise to the interests of justice, and that risk significantly outweighed any risk of prejudice to the interests of the child witness if the order was made (see s.12(4) of the 2004 Act).
[24] Miss Mitchell submitted that special measures would not prejudice the evidence of the children. Each child witness notice stated that special measures have not worked up to now. Special measures had, in fact, not been adopted previously. When considering special measures, these may not be the same for all three children. They are of different ages. CHM has Asperger’s. The defender did not appear to appreciate what was involved in being a witness, namely, that witnesses are not only examined in chief but, in all likelihood, will be cross-examined and re-examined also.
[25] The court required to be “satisfied” that the child witnesses had expressed a wish to give evidence without the benefit of special measures (see s.12(4)(a) of the 2004 Act). Miss Mitchell asked how the defender knew this to be the case. Whilst the defender was now permitted contact with CHM, she was not permitted contact with ZNM and LEM and had not had contact with them since 2013 (see para [3] above). Miss Mitchell could not express a view on the wishes of the children, however, she anticipated that the third party minuter would be able to do so.
[26] Miss Mitchell submitted that the appropriate special measure in this case would be the taking of the children’s evidence by way of a commissioner with interrogatories. I raised with Miss Mitchell whether the use of such a special measure, in a case where the defender was a party litigant, might give rise to a significant risk of prejudice to the fairness of the proceedings or otherwise to the interests of justice (see s.12(4)(b)(i) of the 2004 Act). Miss Mitchell submitted that there would be no such prejudice if the court authorised the special measure proposed by her.
Submissions for the Third Party Minuter
[27] The third party minuter advised the court that each of the children had been cited by sheriff officer on Friday 1 April 2016. It had, apparently, been indicated to the court at the hearing the previous day (see para [13] above) that, had the proof proceeded, there was no prospect of the evidence of the children being reached on 4 April 2016. It was anticipated that the pursuer’s evidence in chief would take up the whole of the first day of the proof. I enquired of the third party minuter if the court was being invited to draw any conclusions from this. I was advised that no such invitation was being made.
[28] The dispute before the court related to interdict; residence; and parental rights and responsibilities. The court required to consider the circumstances of each child separately; the matters upon which they could be anticipated to give evidence; and how that might affect each child. I was referred to the Scottish Government’s guidance to the 2004 Act (see http://www.gov.scot/Publications/2007/11/22120443/1).
[29] The third party minuter had not had the opportunity to obtain the views of the children. The court could not make the orders sought by the defender if it was not satisfied that the children had expressed a wish to give evidence without the benefit of special measures. The third party minuter sought a continuation to enable her to seek the views of the children.
[30] Whilst initially opposed to a continuation, once it had been explained to the defender that the court would not, in all likelihood, make the orders sought by her without the views of the children, the defender did not oppose the motion of the third party minuter. That motion was not opposed by the pursuer. Accordingly, I continued the hearing in relation to the child witness notices until 20 April 2016 at 2 pm.
4. The Hearing on 20 April 2016
[31] I again heard parties on the child witness notices on 20 April 2016. Miss Mitchell appeared for the pursuer and the third party minuter appeared on her own behalf. The defender did not appear. She had been present when the hearing was fixed. Due to other court business, the hearing did not commence until almost 2.45 pm. Standing the limited purpose of the continued hearing; the fact that submissions had already been made by the parties; the delay that had been occasioned by the defender lodging the child witness notices on the court day prior to the proof; and the fact that the views of the children had been sought and obtained on the issue, I determined that the case should proceed in the absence of the defender.
Submissions for the Third Party Minuter
[32] The third party minuter advised the court that she had seen ZNM and LEM in their family home on 16 April 2016. She had seen them separately and with no-one else present. The third party minuter saw CHM on 18 April 2016 within the children’s unit in which he is presently accommodated. CHM was accompanied by a member of staff from the children’s unit. The third party minuter advised that she had sought and obtained the views of each of the children. Those are set out below along with the views of the third party minuter.
CHM
[33] CHM was very clear that he wishes to give his evidence without the benefit of any special measure. The third party minuter had explained the available special measures and was satisfied that he understood them. The third party minuter also spoke to the staff at the children’s unit in which CHM is presently accommodated. He has been there for almost 2 months (see paragraph [2] above). The staff are of the view that CHM is able to express his own views. They indicated to the third party minuter that when CHM sees his mother, “his world lights up”. They believe that CHM would be able to cope with giving evidence. Whilst speaking to the third party minuter, on several occasions CHM asked if the third party minuter had seen LEM and ZNM and what they had said.
ZNM
[34] ZNM is presently 11, she will be 12 in June. The third party minuter advised the court that ZNM was very distressed about the prospect of coming to court. She does not want to do it. She does not understand why she needs to come. The available special measures were explained to ZNM. She thought she would want a supporter and named the family social worker. It was confirmed by Miss Mitchell that the family social worker would be a witness for the pursuer. The third party minuter explained to ZNM that she would be asked questions and asked ZNM if she felt she would be able to tell the truth when answering them. Her response to being told that her mother (the defender) would be asking her questions was, “I don’t think I would be strong enough to say what I really feel” and “I don’t think I would be able to tell the truth.” ZNM also told the third party minuter that when she and LEM had contact with CHM on 15 April 2016, he had gone in to a bedroom with them and talked to them about what the defender was saying.
LEM
[35] Initially, LEM said she would do what ZNM did. The third party minuter’s assessment is that LEM is quite mature for her age. She is 10. The third party minuter explained to LEM about the court and the special measures that were available. LEM’s response was that she did not want to come to court. The third party minuter’s assessment is that LEM is not as anxious as ZNM, however, she may not have fully understood what was involved in giving evidence. LEM indicated that she would like to give evidence from a different room (i.e. by live television link) and thinks she would like someone to sit beside her, albeit she is not sure who at this time. LEM made no comment as to what she thought about being asked questions by her mother (the defender).
ZNM and LEM
[36] The third party minuter advised the court that both ZNM and LEM thought it would be “OK to speak to the judge”. They would not be as worried if it was only “the judge” that they had to speak to.
Views of the Third Party Minuter
[37] In relation to CHM, the third party minuter is of the view that he may well have been influenced by the defender, however, she indicated that CHM may not be satisfied unless he gives his evidence in “open court” (i.e. without the benefit of any special measure). Whilst the third party minuter, generally, does not like children having to give evidence (in the conventional manner), that may be the only way forward here.
[38] In relation to ZNM, the third party minuter’s view is that it would be very damaging for her to give evidence without special measures. She is not sure if the same would apply to LEM. Assuming that special measures are to be used for ZNM and LEM, the third party minuter was not sure about the use of a commission with interrogatories, however, she conceded that the remaining available special measures were impractical where the defender was a party litigant, therefore, her position was that the court may have no option but to proceed in that manner.
Submissions for the Pursuer
[39] The pursuer was content to accept the views of the third party minuter and agreed that CHM may not be satisfied if he was not permitted to give evidence in the conventional manner. In response to a question from me, asked having regard to the terms of s.15(2) of the 2004 Act, Miss Mitchell confirmed that the pursuer’s position remained that he would prefer that the children did not give evidence, however, if they were to do so, the pursuer’s view was that they should each do so with the benefit of special measures.
[40] Having heard the foregoing submissions, ex proprio motu I discharged the hearing assigned for 21 April 2016 on the defender’s motion no. 7/8 of process and made avizandum.
5. The Vulnerable Witnesses (Scotland) Act 2004
[41] The issue of special measures for child witnesses is dealt with by s.12 of the 2004 Act, which provides as follows:
“(1) Where a child witness is to give evidence in or for the purposes of any civil proceedings, the court must, before the proof or other hearing at which the child is to give evidence, make an order–
(a) authorising the use of such special measure or measures as the court considers to be the most appropriate for the purpose of taking the child witness's evidence, or
(b) that the child witness is to give evidence without the benefit of any special measure.
(2) The party citing or intending to cite a child witness must lodge with the court a notice (referred to in this Part as a “child witness notice”)–
(a) specifying the special measure or measures which the party considers to be the most appropriate for the purpose of taking the child witness's evidence, or
(b) if the party considers that the child witness should give evidence without the benefit of any special measure, stating that fact,
and the court must have regard to the child witness notice in making an order under subsection (1) above.
(3) If a child witness notice specifies any of the following special measures, namely–
(a) the use of a live television link in accordance with section 20 where the place from which the child witness is to give evidence by means of the link is another part of the court building in which the court-room is located,
(b) the use of a screen in accordance with section 21, or
(c) the use of a supporter in accordance with section 22 in conjunction with either of the special measures referred to in paragraphs (a) and (b) above,
that special measure is, for the purposes of subsection (1)(a) above, to be taken to be the most appropriate for the purposes of taking the child witness's evidence.
(4) The court may make an order under subsection (1)(b) above only if satisfied–
(a) that the child witness has expressed a wish to give evidence without the benefit of any special measure and that it is appropriate for the child witness so to give evidence, or
(b) that–
(i) the use of any special measure for the purpose of taking the evidence of the child witness would give rise to a significant risk of prejudice to the fairness of the proceedings or otherwise to the interests of justice, and
(ii) that risk significantly outweighs any risk of prejudice to the interests of the child witness if the order is made.
(5) Subsection (6) below applies in relation to a person other than a child witness who is to give evidence in or for the purpose of any civil proceedings (referred to in this section as “the witness”).
(6) The court may–
(a) on an application (referred to in this Part as a “vulnerable witness application”) made to it by the party citing or intending to cite the witness, and
(b) if satisfied that the witness is a vulnerable witness,
make an order authorising the use of such special measure or measures as the court considers most appropriate for the purpose of taking the witness's evidence.
(7) In deciding whether to make an order under subsection (6) above, the court must–
(a) have regard to–
(i) the possible effect on the witness if required to give evidence without the benefit of any special measure, and
(ii) whether it is likely that the witness would be better able to give evidence with the benefit of a special measure, and
(b) take into account the matters specified in section 11(2)(a) to (f).
(8) In the case of relevant proceedings, the child witness notice or vulnerable witness application—
(a) must be lodged or made before the commencement of the hearing at which the child or, as the case may be, vulnerable witness is to give evidence,
(b) on cause shown, may be lodged or made after the commencement of that hearing.”
[42] The procedure to be followed when considering a child witness notice in a case such as this (one where the court is invited to make an order that the child witnesses give evidence without the benefit of special measures under s.12(1)(b) of the 2004 Act) can involve two distinct exercises, namely, that required under s.12(4)(a) and that required under s.12(4)(b). The court needs be satisfied in respect of one of these in order to proceed without special measures.
[43] Dealing with s.12(4)(a), an order in the terms sought by the defender can only be made if the court is satisfied (i) that child witness has expressed a wish to give evidence without the benefit of any special measure; and (ii) that it is appropriate for the child witness so to give evidence.
[44] In the case of s.12(4)(b), the court is required to have regard to the issue of prejudice to the fairness of the proceedings. An order that a child witness gives evidence without the benefit of special measures can be made only if the court is satisfied that (i) the use of any special measure for the purpose of taking the evidence of the child witness would give rise to a significant risk of prejudice to the fairness of the proceedings or otherwise to the interests of justice; and (ii) that risk significantly outweighs any risk of prejudice to the interests of the child witness if the order is made.
[45] The use of the word “may” in s.12(4) makes it clear that, even were the court to be satisfied that the requirements of either subsection were met, the court retains a discretion not to make an order under s.12(1)(b).
[46] I was not referred to any authority by parties. The requirements of Part 2 of the 2004 Act (the part dealing with civil proceedings) do not appear to have been considered in any reported case. There is passing mention of s.11 in paragraph [22], and of s.18 in paragraph [41], of the opinion of Lord Stewart in Murtaza Petitioner [2011] CSOH 214. There is also mention of s.12 in paragraph [11] of the judgment of Sheriff Sheehan in City of Edinburgh Council v S 2015 SLT (Sh.Ct.) 69, which paragraph sets out the terms of the special measures authorised by the court in that case. The issue of the conduct of a case in which there are child (or vulnerable) witnesses and a party litigant did not arise in either of the reported cases.
6. s.12(4)(a) of the 2004 Act
[47] The views of the children, as given to their curator ad litem, the third party minuter, are as set out in paragraphs [33] to [36] above. The provisions of s.15 of the 2004 Act are also relevant. Insofar as relevant to this case, it provides that:
“(1) Subsection (2) below applies where–
(a) …
(b) the court is making an order under section 12(1) …
(2) The party or, as the case may be, the court must–
(a) have regard to the best interests of the witness, and
(b) take account of any views expressed by–
(i) the witness (having regard, where the witness is a child witness, to the witness's age and maturity), and
(ii) where the witness is a child witness, the witness's parent.
(3) For the purposes of subsection (2)(b) above, where the witness is a child witness–
(a) the witness is to be presumed to be of sufficient age and maturity to form a view if aged 12 or older, and
(b) in the event that any views expressed by the witness are inconsistent with any views expressed by the witness's parent, the views of the witness are to be given greater weight.”
[48] Neither ZNM nor LEM has expressed a wish to give evidence without special measures. In such circumstances, it is not necessary to consider if it would be appropriate for them so to do. In relation to them, the test set out in s.12(4)(a) of the 2004 Act is not satisfied. I return to the position of ZNM and LEM below.
[49] Having regard to the views of CHM, the court requires to consider whether it is appropriate for him to give evidence without the benefit of special measures. In doing so, the court must have regard to the best interests of CHM and (my emphasis) take account of any views expressed by him and by his parents (i.e. the pursuer and the defender). Having regard to CHM’s age, he is presumed to be of sufficient age and maturity to form a view. Where CHM’s views are inconsistent with any views expressed by either parent, CHM’s views are to be given greater weight.
[50] CHM wishes to give evidence without special measures. His mother (the defender) agrees with his view. His father (the pursuer) does not. As CHM’s views differ from those of his father, I am obliged to give greater weight to CHM’s views than to his father’s. That, however, is not determinative of the matter. I have regard also to the views expressed by the staff from the children’s unit in which CHM is presently accommodated. I also have regard to the views of the third party minuter. I share her concern that CHM may have been influenced by the defender (his interest in the views of ZNM and LEM and his behaviour during contact with them on 15 April 2016, as spoken to by ZNM, may support such a concern). Nevertheless, the third party minuter’s ultimate view is that CHM should be permitted to give evidence without special measures.
[51] Taking all the foregoing in to account, and having regard to the matters upon which CHM is likely to be asked questions (see paragraph [55] below), I am satisfied that it is in CHM’s best interests that he be permitted to give evidence without the benefit of any special measure. I am satisfied that it is appropriate that he does so. Accordingly, the test set out in s.12(4)(a) of the 2004 Act is satisfied in the case of CHM. As I indicated at paragraph [45] above, notwithstanding this conclusion, the court does retain a discretion not to make an order under s.12(1)(b) of the 2004 Act. In my view, there are no circumstances to justify adopting such a position here. Accordingly, I will order that CHM is to give evidence without the benefit of any special measure.
7. Special Measures
[52] Albeit in a different context, the theory underlying special measures was helpfully described by Lord Rodger of Earlsferry in R v Camberwell Green Youth Court, ex p D [2005] 1 WLR 393. They maximise the quality of children's evidence in terms of its completeness, coherence and accuracy. They are designed to enable children to give the best evidence of which they are capable. Special measures will assist them to do so by reducing any strain caused either by the formal atmosphere of the court room or by the presence of the defender.
[53] In my view, before the court can determine the issue of whether the use of any special measure for the purpose of taking the evidence of ZNM and LEM would give rise to a significant risk of prejudice to the fairness of the proceedings or otherwise to the interests of justice (as required by s.12(4)(b) of the 2004 Act), it requires to consider what special measures are realistically available in this case.
[54] In this case, the pursuer is represented by a solicitor and the third party minuter (the curator ad litem to the children) is a solicitor. As noted previously, the defender appears as a party litigant. She is unemployed and in receipt of benefits. She has elected to represent herself in these proceedings (and, indeed, in other proceedings before this court), as is her right. She has not sought the advice of a solicitor.
[55] As the third party minuter correctly observed in her submissions (see paragraph [28] above), the court requires to consider the circumstances of each child separately; the matters upon which they could be anticipated to give evidence; and how that might affect each child. The action relates to interdict; residence; and parental rights and responsibilities. In relation to interdict, the pursuer avers that he and his partner have been abused by the defender on numerous occasions, both outwith and in the presence of the children. It is realistic to anticipate that the children will be asked questions in relation to the incidents at which it is said they were present. The pursuer currently seeks a residence order in relation to all three children. It is realistic to anticipate that the children will be asked questions in relation to their own wishes in this regard. The pursuer also seeks an order depriving the defender of her parental rights and responsibilities in relation to all three children. He avers that the behaviour and conduct of the defender is having an adverse effect on the children’s physiological and emotional welfare. It is realistic to anticipate that the children will be asked questions in relation to this issue also.
[56] Whilst comparisons between civil and criminal procedure are seldom helpful, in this particular case, when considering the issue of the appropriateness of special measures for the ZNM and LEM, it is instructive to consider how matters might proceed if (a) as the pursuer avers in the current action, he suffered abuse at the hands of the defender and that abuse was witnessed by the children; (b) criminal proceedings were brought against the defender in relation to that allegation for, say, a contravention of s.38(1) of the Criminal Justice and Licensing (Scotland) Act 2010; and (c) the defender chose to represent herself in those proceedings.
[57] In such a case, the children would be deemed vulnerable by virtue of their ages (see s.271 of the Criminal Procedure (Scotland) Act 1995 (hereinafter referred to as “the 1995 Act”) and the procedure set down in relation to special measures (see s.271A of the 1995 Act, which has a number of similarities to that to be found in s.12 of the 2004 Act) would likely operate.
[58] Where, however, there is a material divergence between criminal and civil procedure is the existence in the former of provisions such as s.288F of the 1995 Act. That prohibits the personal conduct of an accused’s defence in certain cases involving vulnerable witnesses. The counterpoint to the prohibition against self-representation by an accused is to be found in s.288D of the 1995 Act; the requirement placed upon the court to appoint a solicitor to represent the accused. It is notable that s.288F(3) prevents the court from making an order prohibiting the accused from conducting his case in person if it considers that:
“(a) the order would give rise to a significant risk of prejudice to the fairness of the hearing or otherwise to the interests of justice, and
(b) that risk significantly outweighs any risk of prejudice to the interests of the vulnerable witness if the order is not made.”
The similarity to the requirements of s.12(4)(b) of the 2004 Act will be observed. There appear to be no reported cases in relation to s.288F(3) of the 1995 Act.
[59] In relation to criminal cases, Parliament’s view is that there are certain classes of case in which vulnerable witnesses should not be examined by accused persons. No broadly equivalent provision exists in civil cases in relation to party litigants, leaving it to the court to resolve what can be an extremely difficult issue.
[60] Returning to the likely scope of the children’s evidence in this case and the scenario I posed in paragraph [56] above, it is difficult but to draw the conclusion that, from a child witness’s perspective, speaking to allegations of abuse in relation to a crave for interdict is unlikely to be materially different from speaking to similar circumstances in a criminal trial for an alleged contravention of s.38(1) of the Criminal Justice and Licensing (Scotland) Act 2010. Such an offence is one to which s.288F of the 1995 Act would apply and if the court was satisfied that it was in the interests of the vulnerable witness to do so, an order could be made prohibiting the accused from conducting his or her case in person with the court appointing a solicitor to represent them.
[61] Indeed, when one moves from the craves for interdict to those seeking residence and an order depriving the defender of her parental rights and parental responsibilities, it seems to me that to permit a party litigant to examine (or cross-examine) a child witness on such matters has the potential to be extremely distressing for the child in question. Against that must be weighed the right of the defender to conduct her own defence and the potential outcome of this action, particularly insofar as an order is sought to deprive the defender of her parental rights and parental responsibilities in relation to each of the children.
[62] The special measures which may be authorised by the court in civil proceedings are detailed in s.18(1) of the 2004 Act. They are (a) taking of evidence by a commissioner; (b) use of a live television link; (c) use of a screen; (d) use of a supporter; and (e) such other measures as the Scottish Ministers may, by order made by statutory instrument, prescribe. My understanding is that no such statutory instrument has been made. The court can authorise the use of more than one special measure (see s.12(1)(a)) of the 2004 Act).
[63] Looking again to s.12 of the 2004 Act, had the defender’s child witness notice specified any of the special measures set out in s.12(3), that special measure is taken to be the most appropriate for the purposes of taking the child witness’s evidence. Those special measures are (a) the use of a live television link from another part of the court building; (b) the use of a screen; or (c) the use of a supporter in conjunction with either of the preceding two special measures. It is difficult but to conclude that this provision pre-supposes the parties being represented by solicitors. I am reinforced in this view by the terms of s.21 of the 2004 Act.
[64] The use of screens as a special measure is regulated by s.21 of the 2004 Act. So far as relevant, s.21 provides as follows:
“(1) Where the special measure to be used is a screen, the screen must be used to conceal the parties to the proceedings from the sight of the vulnerable witness in respect of whom the special measure is to be used.
(2) However, the court must make arrangements to ensure that the parties are able to watch and hear the vulnerable witness giving evidence.”
[65] When one considers s.12(3) in the context of a party litigant, the use of a screen simply could not work in a satisfactory manner (with or without the use of a supporter). The parties to the proceedings must be concealed from the sight of the witness. Arrangements must be made to ensure that the parties are able to watch and hear the witness giving evidence. It is difficult to believe that Parliament intended to permit a child witness being asked questions by a party litigant from the other side of the screen.
[66] In relation to the use of a live television link (again, with or without the use of a supporter), the child witness would see the party litigant, albeit in a different manner to that were there to be no special measures. Whether this would be better or worse for the child witness is a matter of speculation. In my view, in the case of a party litigant, use of this measure would not afford the child witness the protection envisaged by the legislation.
[67] In this case, I am not faced with a child witness notice which specifies any of the special measures set out in s.12(3) of the 2004 Act, therefore I need not address the peremptory terms of that sub-section in light of the difficulties I mention above where the case involves a party litigant.
[68] For the reasons set out in paragraphs [65] and [66] above, in this case, where the defender is a party litigant, I am not satisfied that (a) the use of a live television link from another part of the court building; (b) the use of a screen; or (c) the use of a supporter in conjunction with either of the preceding two special measures would be appropriate.
[69] The only other special measure the court may authorise is the taking of the child witnesses’ evidence by a commissioner in accordance with s.19 of the 2004 Act, which provides as follows:
“(1) Where the special measure to be used is taking of evidence by a commissioner, the court must appoint a commissioner to take the evidence of the vulnerable witness in respect of whom the special measure is to be used.
(2) Proceedings before a commissioner appointed under subsection (1) above must be recorded by video recorder.
(3) A party to the proceedings–
(a) must not, except by leave of the court, be present in the room where such proceedings are taking place, but
(b) is entitled by such means as seem suitable to the court to watch and hear the proceedings.
(4) The recording of the proceedings made in pursuance of subsection (2) above is to be received in evidence without being sworn to by witnesses.”
[70] A commission can proceed in one of two ways, namely, with or without interrogatories. As observed in Macphail “Sheriff Court Practice” (3rd edition) at 15.31, it is now relatively unusual for a commission to proceed with interrogatories. In the sheriff court, the default position (in terms of rule 45.11(3)) is that a commission proceeds without interrogatories unless, on cause shown, the sheriff otherwise directs.
[71] The terms of s.19(3) of the 2004 Act provide that a party to the proceedings must not, except by leave of the court, be present in the room where proceedings before the commissioner take place. This, again, poses a difficulty in the case of a party litigant. The appearance of the words “except by leave of the court” may offer a solution, however, it is difficult but to conclude that this provision also pre-supposes the parties being represented by solicitors.
[72] Where the special measure to be used is the taking of evidence by a commissioner without interrogatories, permitting a party litigant to appear at and conduct that commission would, in many respects, be tantamount to dispensing with special measures. The witnesses would be confronted by the party litigant; and subject to questioning by her, without any other protection. I do not believe that such a scenario would be appropriate in relation to either ZNM or LEM.
[73] That leaves the possibility of authorising as a special measure the taking of the ZNM and LEM’s evidence by a commissioner with interrogatories. The questions to be put to the children could be settled in advance and any dispute as to the content of the interrogatories and cross-interrogatories adjudicated upon by the court. The pursuer’s solicitor and the third party minuter need not be present at the commission. In my view, the fewer people present, the easier it will be for the children to give their evidence. The requirements of s.19(3)(b) of the 2004 Act would be complied with. Taking the evidence of the children in this manner has none of the practical difficulties associated with the other special measures open to the court, in light of the defender being a party litigant.
[74] Accordingly, in my view, having regard to the fact that the defender is a party litigant, the only special measure that is realistically available in this case is the taking of the children’s evidence by a commissioner and that the circumstances of this case, as set out above, amount to sufficient cause not to dispense with interrogatories (in terms of rule 45.11(3)).
8. s.12(4)(b) of the 2004 Act
[75] In relation to ZNM and LEM, having determined that the requirements of s.12(4)(a) of the 2004 Act have not been satisfied, the court can only make the orders sought by the defender in relation to them (i.e. that ZNM and LEM give their evidence without the benefit of special measures) if the use of any special measure for the purpose of taking the evidence of the child witness would give rise to a significant risk of prejudice to the fairness of the proceedings or otherwise to the interests of justice, and that risk significantly outweighs any risk of prejudice to the interests of the child witness if the order is made (see s.12(4)(b) of the 2004 Act). I consider this issue on the basis of the only special measure I have determined is realistically available, namely, the taking of ZNM and LEM’s evidence by a commissioner with interrogatories.
[76] That there are limitations on the evidence of witnesses being taken by a commissioner with interrogatories is beyond question, however, the reported cases, perhaps unsurprisingly, tend to focus on the difficulties associated with cross-interrogatories, see, for example Charteris v Charteris 1967 SC 33 (where the First Division refused a motion to allow cross-interrogatories to be postponed until after the answers to the interrogatories had been lodged in process) and Barr v British Transport Commission and Others (No.2) 1963 S.L.T. (Notes) 59, in which Lord Kilbrandon observed:
“… cross-interrogatories are, as every practitioner knows, a farce. No one can cross-examine a witness if he has not heard the examination-in-chief, and no one can conduct a cross-examination in ignorance of the answers which are being given to the questions as the cross-examination proceeds.”
There is a helpful discussion of the procedure in chapter 9 of “Commission and Diligence” by MacSporran & Young.
[77] In this case, both the pursuer and the third party minuter, in opposing the child witness notices relative to ZNM and LEM, invite me to authorise the taking of their evidence by a commissioner with interrogatories. In doing so, they are both no doubt alive to the difficulties this may occasion them.
[78] The preparation of interrogatories requires considerable care to ensure that all the desired questions are put to the witness. Even then, the ability to re-phrase the next question in light of the answer just received (a position many practitioners will be acutely familiar with) is simply not available. Where the evidence of a witness is likely to occupy a position of unique importance in an action, the granting of a commission on interrogatories, without examination and cross-examination, has been held by the Second Division to be unsatisfactory and described by them as a course of last resort (see Nicolson v McLachlan and Brown 1985 S.C. 48). In this case, the evidence of ZNM and LEM cannot be said to occupy a position of “unique importance”. The pursuer does not intend to call either of them (or CHM). Their evidence in relation to the matters in issue will, nevertheless, be relevant.
[79] To proceed by way of a commissioner with interrogatories would, undoubtedly, place limitations upon the defender as to how she conducts her defence, however, I require to balance the interests of the defender against those of the children. The terms of interrogatories are a matter for parties, however, the addition of a general question would enable the sheriff presiding at the commission to perhaps take on a more inquisitorial role than normal. As observed in Dobie “Law and Practice of the Sheriff Courts in Scotland” at page 212:
“It is always competent to the commissioner to put any further questions either ex proprio motu, or at the request of parties’ representatives, if present, in order to elucidate the position. It is customary for the final interrogatory to embody a general authority to the commissioner to put such further questions.”
[80] Having regard to the foregoing, I am of the view that the taking of the children’s evidence by a commissioner with interrogatories does not give rise to a significant risk of prejudice to the fairness of the proceedings or otherwise to the interests of justice. Even had I held there to be such a risk in this case, it would not significantly outweigh any risk of prejudice to the interests of the children if I were to direct that they give evidence without the benefit of any special measure. In this case, I am firmly of the view that the best interests of ZNM and LEM require there to be special measures in place. Accordingly, in their cases, the test set out in s.12(4)(b) of the 2004 Act is not satisfied. Had I required to consider the position of CHM in relation to this sub-section I would have reached the same conclusion.
9. Special Measures for ZNM and LEM
[81] In determining which special measures are the most appropriate, I require to have regard to s.15 of the 2004 Act (see paragraph [47] above). That requires me to have regard to the best interests of ZNM and LEM. As I have already indicated, I am firmly of the view that the best interests of the children require there to be special measures in place. As neither ZNM nor LEM is yet 12, I need not take account of their views, however, their views (see paragraph [36] above) would tend to suggest that such a course of action would be preferred by them. The views of their parents differ. The pursuer is for special measures; the defender is against.
[82] Having regard to the foregoing, and to what I have determined above in relation to the fact that, as the defender is a party litigant, the only special measure that is realistically available in this case is the taking of ZNM and LEM’s evidence by a commissioner with interrogatories. Accordingly, I will make an order to this effect under s.12(1)(a) of the 2004 Act in relation to ZNM and LEM.
[83] Whilst I am not required to have regard to the views of ZNM and LEM, both have expressed a wish for a supporter. I will authorise that and make an order to that effect under s.12(1)(a) of the 2004 Act in relation to ZNM and LEM. In doing so, I observe that there may be insurmountable difficulties in the family social worker acting as supporter for ZNM having regard to the terms of s.22(2) of the 2004 Act.
10. Summary and Further Procedure
[84] I will grant the defender’s application for CHM to give evidence without the benefit of any special measure. I will refuse the defender’s applications for ZNM and LEM to give evidence without the benefit of any special measure. For ZNM and LEM, I will authorise the special measures of (1) the taking their evidence by commissioner; and (2) a supporter. On cause shown, I will refuse to dispense with interrogatories. Due to the complications that arise in this case, it is appropriate that the commissioner appointed is the sheriff who will hear the proof. Standing the procedure that will require to be followed in light of my decision, it is not appropriate to fix a new date for proof at this stage. Accordingly, I will appoint myself as commissioner on the understanding that, when fixed, the proof in this matter will proceed before me.
[85] I will appoint the defender to intimate draft interrogatories (that is the questions she wishes to put to ZNM and LEM) to the pursuer and third party minuter within 3 weeks of today’s date. Thereafter, the pursuer and third party minuter will have 3 weeks to intimate draft cross-interrogatories to each other and to the defender. I will allow the parties 3 weeks thereafter to adjust the draft interrogatories and draft cross-interrogatories. I will assign a hearing for parties to be heard on the approval of the interrogatories and cross-interrogatories; the settlement of any dispute as to their contents; and the fixing of a diet or diets for the execution of the commission to examine ZNM and LEM. As I was not addressed on the question of expenses, I will reserve meantime the question of expenses arising from the hearings on 8 April 2016 and 20 April 2016.
[86] A hearing on the defender’s motion no. 7/8 of process had been assigned for 21 April 2016. I discharged that hearing ex proprio motu before I made avizandum. The motion is opposed. Accordingly, I will fix a new hearing in relation to it.