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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mason v South Ayrshire Council [1998] ScotCS 100 (15 December 1998) URL: http://www.bailii.org/scot/cases/ScotCS/1998/100.html Cite as: [1998] ScotCS 100

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The petitioner seeks suspension and interim suspension of a decree of the sheriff at Ayr dated 15 October 1998 by which the sheriff, on the application of the respondents, cancelled the registration of the petitioner as a day care provider. The petitioner also seeks interdict and interim interdict against the respondents from acting upon that decree by, inter alia, informing the persons specified in the list appended to the petition that the petitioner has had her registration cancelled.

On 1 December 1998 the case came before Lord Marnoch on the motion of the petitioner for interim suspension and interim interdict. Lord Marnoch allowed the motion to be dropped so that the petitioner could raise an action for reduction of the decree of the sheriff. That action has now been raised. The case has come before me on the renewed motion of the petitioner for interim suspension and interim interdict. During the hearing of the motion counsel for the petitioner intimated that he no longer sought interim interdict.

The relevant legislation in this case is set out in Part X of the Children Act 1989 ("the 1989 Act") which regulates child minding and day care for young children. Section 71(1)(b) of the Act provides that every local authority shall keep a register of persons who provide day care for children under the age of eight on premises (other than domestic premises) within the authority's area. Section 73 specifies the requirements with which a day care provider must comply. These requirements relate to matters such as the maximum number of children who may be looked after on the premises, the maintenance and safety of the premises, the number of persons required to assist in looking after children on the premises, and the keeping of records.

Section 74(2) entitles the local authority at any time to cancel the registration of a registered day care provider with respect to particular premises on any of a number of specified grounds. One such ground is that with respect to those premises the registered person has contravened, or failed to comply with, any requirement imposed on him under section 73 (s. 74(2)(c)(i)). Section 77 provides a right of appeal by summary application to the sheriff against the decision of the local authority under section 74. Pending the disposal of the appeal the registration remains in force (s. 77(11)).

Section 75 provides for cancellation in a case of emergency. It provides, inter alia, as follows:

When a judicial cancellation is made under section 75, section 77(11) (supra) does not apply. The order has immediate effect and the premises must be closed.

The undisputed facts of the case appear to be as follows. In 1996 the petitioner applied to the respondents under the 1989 Act for registration as a day care provider at premises known as Kinderworld at 18 Mill Wynd, Ayr. Her registration was granted in August 1996. As a condition of registration the respondents imposed on the petitioner their detailed requirements in terms of section 73 (supra).

Between February 1997 and February 1998 officials of the respondents' Pre-Five staff carried out numerous inspections of the petitioner's premises. In the view of the respondents' officials, these inspections demonstrated repeated failures on the part of the petitioner to maintain the standards required of her in terms of her registration. The officials' concerns related mainly to the adequacy of the staffing and the standards of hygiene. The Head of Community and Cultural Enrichment and the Director of Community Services considered that the petitioner's registration should be cancelled.

On 19 February 1998 the Director of Educational Services and the Director of Community Services submitted a detailed Joint Report to the Community Services Convener and the Vice-Convener's Group in which they made a formal recommendation to that effect. In the Report it was alleged that the respondents' Pre-Five staff had found the petitioner to have breached the minimum standards seventeen times in the previous twelve months. The Report referred to warnings given to the petitioner of the risk that her insurance cover might be invalidated and that her registration might be jeopardised. The Report also said that the petitioner had given assurances on numerous occasions that she would take corrective action and maintain the required standards.

The petitioner had been given notice of the respondents' intention to cancel her registration. She submitted a Note of Objections to the proposed cancellation. The Note stated, inter alia, that:

On 19 March 1998 the respondents resolved to cancel the petitioner's registration in terms of section 74.

The petitioner appealed against that decision to the sheriff at Ayr under section 77. Since about October 1998 the appeal has been sisted at the instance of the petitioner to enable her to apply for legal aid. Diets fixed for the hearing of the appeal in October and November have been discharged on this account. On 13 November the petitioner's application for legal aid was refused. The petitioner has since appealed against that refusal.

After the lodging of the petitioner's appeal, the petitioner continued to operate the premises and the respondents continued to monitor them. On 2 September 1998 Mrs Mary Hogg, Principal Officer (Early Years) in the respondents' Department of Educational Services, wrote to the petitioner stating that in the period between 19 March 1998 and 24 August 1998 there had been a number of instances when her nursery had been found to be operating below minimum standards. Attached to the letter was a statement of the requirements of the respondents in relation to the limits on use of the single downstairs playroom at the premises and a detailed list of the findings of the inspections by the respondents' Pre-Five officials. The petitioner did not reply to that letter.

Thereafter the petitioner informed one of the respondents' Pre-Five officials that she intended to go on holiday. On or about 15 October 1998, while the petitioner was on holiday, the respondents' officials again inspected the premises. The findings of that inspection are a matter of dispute between the parties. On 15 October 1998 the respondents applied to the sheriff at Ayr for an order cancelling the petitioner's registration. The application was accompanied by a statement of the reasons for which it was being made.

On the same date the sheriff granted the order ex parte. This is the order complained of in the present process.

There are numerous factual issues on which the parties disagree. The respondents maintain that the petitioner has admitted in the past to their officials that she has failed to comply with their minimum standards and that she has promised to maintain those standards. The petitioner accepts that there have been minor infractions of the respondents' standards; but she maintains that the respondents have enforced their standards to the letter in circumstances where flexibility would have been appropriate. She maintains that all of the hygiene questions raised by the respondents' officials have been attended to.

The most serious area of disagreement relates to the October inspection which precipitated the section 75 application. The respondents allege that one of their officials, Miss Morag McGill, inspected the downstairs playroom and found that there were only two members of staff present when there ought to have been three. According to Miss McGill, there was an incident involving two children, both aged 2, in which one attacked the other, put her hands on his face and banged his head against a cot. The petitioner maintains that this incident was not untoward; that it did not result in injury to the child; that a member of staff, Miss Karla Clark, dealt with it promptly and effectively; and that it caused the child's mother no concern.

For her part, the petitioner makes the serious allegations that the respondents are not even-handed in the enforcement of their standards between publicly-run and privately-run nurseries; that the section 75 application was made tactically during her absence on holiday; that the application to the sheriff was "trumped up", and that it was made for the purpose of closing her business.

A further issue emerged at the hearing in the light of the submissions of counsel for the respondents. From counsel's account it appears that when the matter came before the sheriff, the respondents gave details of the incident spoken to by Miss McGill and the sheriff, without taking evidence on oath, asked questions of the respondents' officials regarding the incident. Counsel for the petitioner reserved the petitioner's position on the competency of the proceedings in this respect.

Counsel for the petitioner submitted (1) that the respondents ought not to have sought, and the sheriff ought not to have granted, an order under section 75 while the proceedings under section 74 remained to be concluded; (2) that in any event the sheriff ought not in all the circumstances to have granted the order ex parte, particularly since the respondents knew that the petitioner was abroad, and (3) that the statement of reasons lodged in support of the application failed to satisfy the statutory criteria, there being no child named as suffering or likely to suffer significant harm.

Counsel for the petitioner also submitted that the allegations made to the sheriff were in substance unfounded in fact.

On the question of balance of convenience counsel for the petitioner submitted that the closure of the nursery was depriving the petitioner of her livelihood; that it would cause long-term damage to her reputation; that if the petitioner were eventually to succeed in these litigations, she would find it difficult to restore the status quo; that the parents and their children were being deprived of nursery facilities which they enjoyed, and that there was no evidence that any child was likely to come to any harm.

On these submissions, counsel for the petitioner invited me (1) to suspend the order complained of ad interim; failing which, (2) to suspend ad interim and remit the case to the sheriff for him to hold a hearing inter partes; failing which, (3) to remit to the sheriff without any further order.

Counsel for the respondents argued that from the documentary evidence lodged it could be inferred that from the time of the petitioner's registration the respondents had been increasingly concerned as to her competence as a day care provider; that the petitioner had persisted in breaches of the staffing, hygiene and other requirements laid down by the respondents, and that the application under section 75 had been precipitated by her going on holiday leaving the nursery inadequately staffed, with the result witnessed by Miss McGill.

On the balance of convenience, counsel for the respondents argued that there was a risk of harm to the children, all of whom were under five; that the court should give weight to the fact that the petitioner had never submitted any reply to the warning letter dated 2 September 1998 or rebutted any of the detailed allegations in that letter; that the petitioner by having the appeal sisted had delayed the resolution of the questions between the parties under section 74; that the petitioner had been dilatory in lodging the present petition; that despite the appeal against the cancellation of her registration by the respondents, she had persisted in breaches of the requirements of her registration; that she had ignored repeated warnings; that if the decree were to be suspended ad interim, the monitoring of the nursery would make disproportionate demands on the staff resources of the respondents; that the nursery had now been closed for two months; and that the majority of the children had now been placed in other nurseries which the respondents considered to be satisfactory. This last point was not contradicted by counsel for the petitioner.

I have to decide the present motion on the basis of the petition, productions and affidavits and on the representations made at the bar. In these circumstances, it is not appropriate that I should express any view on the questions of law that the petition raises, nor that I should reach a view on any disputed question of fact. If these questions are put to one side, the only remaining question, as counsel agree, is that of balance of convenience.

In my view, the balance of convenience favours the repondents. So long as there is at least a possibility that the respondents' complaints about the management of the premises may have some substance, it would be wrong, in my view, that the purpose of section 75 should be circumvented by an interim suspension of the sheriff's order. In a case of this nature, where the safety and welfare of the children is in issue, it would not be appropriate, while such questions remained unresolved, that the petitioner should be able to re-open the nursery in order to avoid the financial and other effects of closure that she apprehends. The section 74 appeal could have been disposed of by now; but it has not been concluded because the petitioner herself requested that it be sisted so that she could apply for legal aid. It is also significant that this petition was not raised until about six weeks after the decree complained of. The nursery has now been closed for two months and during that period most of the children have been placed in other nurseries that the respondents consider to be satisfactory.

I shall therefore refuse the motion for interim suspension. I shall grant an order for intimation and service of the petition as amended at the bar.

I should add that I would not have been prepared to remit this case to the sheriff for a hearing inter partes, if only because neither the prayer of the Petition nor the motion enrolled seeks that remedy. In any event, while such a remit appears to be competent in England (cf. R. v St Albans Magistrates' Court, ex p. Read [1994] 1 FCR 50), I am not prepared to hold, without hearing the matter argued, that it is competent in Scotland. That question should be decided after a debate when the pleadings have been adjusted.