[2015] CSIH 84



Lord Menzies

Lady Smith

Lord Drummond Young


delivered by LADY SMITH

in the petition




for Judicial Review

Act:  Party; lay representative Ms Devi

Alt: Nicholson; City of Edinburgh Council

27 November 2015

[1]        The respondent contends that the petitioner lacks standing to bring this petition for judicial review.  The Lord Ordinary agreed with that contention as he explains at paragraphs 52 and 53 of his opinion.  The issue for us is whether or not, in the particular circumstances of this case and of the structures and safeguards provided by our domestic law in relation to proceedings relating to children, the petitioner has demonstrated that he does have standing, the onus being on him to do so. 

[2]        Turning first to the question of whether or not he has standing to raise judicial proceedings as representative of his children, our conclusions are as follows.  In support of a submission that the petitioner had standing because he represented his children and sought to protect their interests, Ms Devi relied on the case of Scozzari and Giunta v Italy (Application nos 39221/98 and 41963/98 ECtHR 13 July 2000).  She relied, in particular, on a passage at paragraph 138.  Taken out of context, the last sentence of that paragraph - in which the court said that the applicant’s standing as the children’s natural mother sufficed to afford her the necessary power to apply to the court on the children’s behalf - might appear to support the reclaimer’s position.  However, it is important to read the sentence in context.  The fundamental concern of the court was that otherwise, there was – in the circumstances of that case - a danger that the children’s interests would never be brought to the court’s attention and thereby the children would be deprived of effective protection.  Those circumstances were that there was a conflict between the natural parent and the person who the court had appointed as the child’s guardian.  That is not the position under Scottish procedure and is not the position in the present case.  As demonstrated by what has occurred in the sheriff court proceedings in relation to the petitioner’s children, curators ad litem may be appointed, there may be referrals to the reporter to the Children’s Hearing and children may instruct their own legal representation once old enough to do so.  None of that infers conflict of the sort that was of concern in Scozzari; to the contrary, it is reassuring as regards the court being appropriately informed about matters relating to the relevant children’s interests.  Here, the children’s interests were in fact protected by two successive curators in litem and the children have now instructed solicitors to represent their interests.  Further, the petitioner is a party to the proceedings in the sheriff court.  There has also been a referral to the reporter to the Children’s Hearing and although the petitioner’s parental rights are now very limited, his right to be a party to any proceedings brought by the reporter to the Children’s Panel has expressly been preserved. 

[3]        In these circumstances, no danger of the sort apprehended by the Grand Chamber in the case of Scozzari arises and we are not, accordingly, satisfied the petitioner has the requisite standing to represent his children’s interests in this petition for judicial review; the Lord Ordinary did not err in his conclusion in that regard. 

[4]        We turn then to the question of whether the petitioner has standing in a personal capacity.  First we note that there are no averments in the petition that the petitioner was a victim of a violation of article 3; it is for the petitioner to establish this.  We have had regard to the passages in Axa General Insurance Ltd and ors v The Lord Advocate and ors [2011] UKSC 46 to which reference was made, but they do not support the conclusion that he has standing in a personal capacity.  Any complaint by the petitioner of interference with his article 3 rights is to the effect that he is an indirect victim.  However, as with the case of Çakici v Turkey (1999) App no. 23657/94, such of the averments in the petition as might be construed as instructing a case that his own article 3 rights have, to some extent, been infringed are not of factors which could amount to a relevant case engaging art 3 or demonstrating its breach.  We, therefore, once more agree with the Lord Ordinary’s conclusion that the petitioner has no standing on any basis.  On that ground alone this reclaiming motion must be refused. 

[5]        We turn then to the plea of mora, taciturnity and acquiescence.  The Lord Ordinary sustained the respondent’s plea of mora and also dismissed the petition in terms of that plea.  He did so having observed that there had been a 16 month delay, (which, we note, has still not been explained), that it was relevant to take account of the fact that the petition related to the interests of children, and that in any matter relating to children, delay is undesirable.  The Lord Ordinary also observed that any such delay was apt to create uncertainty and confusion in the lives of children.  We cannot take issue with any aspect of that approach.  We would only add, first, that it is also not conducive to effective and efficient administration to countenance judicial review proceedings that concern children’s interests after such delay, and secondly, that the petitioner has been in receipt of legal advice since spring 2011, yet it took until April 2014 for these judicial review proceedings to be commenced.  In these circumstances we are readily satisfied that 16 months is an unreasonable delay.  Further, we have no difficulty in holding that there was taciturnity and inferring acquiescence.  The respondent relies on the case of Hendrick v Stephen House & another 2014 CSIH 22 where, we agree, a relevant statement of the applicable law is to be found.  We also agree that the present case is directly comparable.  In particular, having inferred acquiescence we do not require to find separately that there was prejudice. 

[6]        We are accordingly satisfied that the Lord Ordinary did not err in sustaining the respondent’s second plea in law and for that reason also this reclaiming motion falls to be refused.