UZMA NAZ AHMED AGAINST AHMED IQBAL
2014SCGLA17
SHERIFFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW
F777/11
JUDGMENT
of
SHERIFF PRINCIPAL C A L SCOTT, QC
in the cause
Uzma Naz Ahmed
Pursuer
against
Ahmed Iqbal
Defender
Glasgow, 6 June 2014.
The sheriff principal, having resumed consideration of the parties’ submissions, Allows the appeal; Recalls the sheriff’s interlocutor dated 20 February 2014; Varies the sheriff’s interlocutor of 22 November 2013 and that by (a) deleting the third finding in fact and law; and (b) deleting the interlocutory section of the text on pages 4 and 5 of the sheriff’s judgment and by inserting in lieu thereof the words “Sustains the pursuer’s first and second pleas in law; Refuses the defender’s second plea in law; Refuses the first crave for the defender; Grants decree of divorce, divorcing the defender from the pursuer and Allows immediate extract thereof; and Finds no expenses due to or by either party.”; Reserving, meantime, all questions of expenses in respect of the appeal.
NOTE:-
Pursuer’s submissions
[1] The court was informed by counsel for the pursuer that the sheriff in this family action, after hearing proof, had made avizandum on 1 November 2013. Thereafter, he issued a written judgment dated 22 November 2013 incorporating an interlocutor which, inter alia, granted decree of divorce. The interlocutor also purported to continue consideration of the defender’s second plea in law which was to the effect that a contact order should be made in favour of the defender in respect of the child of the parties’ marriage ACA.
[2] The interlocutor from 22 November 2013, in purporting to continue consideration of the question of non-residential contact with ACA, had assigned a child welfare hearing for 20 February 2014. On that date, having heard parties’ agents, the sheriff ordered that contact as between ACA and the defender should take place once a fortnight for up to 2 hours, in the home of the pursuer’s parents. A further hearing was assigned to monitor progress as regards contact.
[3] In introducing the appeal, counsel for the pursuer highlighted findings in fact 22 and 23 within the sheriff’s judgment dated 22 November 2013. Those findings were in the following terms:
“22. It is unlikely that parties would be able to cooperate in arrangements for contact as long as the defender continues to deny that his behaviour or attitudes caused the pursuer unhappiness during their relationship.
23. Although the defender is committed to seeking contact with ACA, he has been uncooperative with the child maintenance authorities.”
[4] Counsel also made reference to the sheriff’s third finding in fact and law:
“3. Subject to the defender taking certain actions as set out in the Note attached to this judgment, having regard to the welfare of ACA throughout his childhood it would be in his interests, and better to do so than not to do so, to make an order that he should have contact with the defender.”
[5] It was submitted that the foregoing finding in fact and law was somewhat curious in that it appeared to be couched in conditional terms. The sheriff’s finding was explicitly made “subject to the defender taking certain actions as set out in the Note attached to this judgment,…”. Counsel argued that, aside from all else, it was inappropriate for the sheriff to seek to amplify the terms of his finding by making reference to his note in that manner. Counsel for the pursuer characterised finding in fact and law 3 as a “qualified” finding in fact and law.
[6] Counsel submitted that his line of argument was also served when regard was had to paragraph (47) on page 17 of the sheriff’s note. In that paragraph, the sheriff, inter alia, stated that “…I consider that on balance there is a potential argument in favour of an order for contact,…”. Counsel stressed that, in terms, the sheriff had demonstrably failed to reach any conclusion regarding whether an order for contact was justified on the evidence. Instead, he had merely identified “…a potential argument”. Moreover, at paragraph (50) the sheriff had observed that the balance would only swing in favour of making a contact order were the defender “able to progress” both of the matters identified at paragraphs (48) and (49) in the sheriff’s note. It was submitted in straightforward terms that, as at 22 November 2013, the sheriff had not reached a proper decision as to whether a contact order should be granted.
[7] Counsel turned to the question of whether the appeal itself was competent. In seeking to identify the nature of the sheriff’s interlocutor from 22 November 2013, counsel observed that the pursuer’s plea directed towards the granting of decree of divorce had been sustained; consideration of the defender’s plea in support of contact had been continued; the pursuer’s plea in support of the refusal of contact had been repelled; immediate extract of the divorce element of the decerniture had been allowed; and the sheriff had also dealt with the question of expenses.
[8] Counsel for the pursuer pointed out that the sheriff could not have been correct when he repelled the pursuer’s second plea in law given that the question of contact as between ACA and the defender remained a live issue. Secondly, counsel queried the competency of allowing immediate extract in regard to only part of an interlocutor. Thirdly, given that the issue of contact remained outstanding, counsel queried why the sheriff had dealt with expenses at that stage. However, for the purposes of his argument, counsel was prepared, at least initially, to proceed upon the hypothesis that the sheriff’s interlocutor from 22 November 2013 was not a final interlocutor and, accordingly, required leave should appeal be taken.
[9] Counsel for the pursuer explained that leave to appeal had been sought and refused. Such refusal had been peremptory and was, therefore, incompetent. Counsel submitted that it was incompetent to refuse a party’s motion for leave to appeal without a hearing taking place.
[10] However, with regard to the issue of competency, counsel’s primary submission was to the effect that the sheriff’s interlocutor dated 20 February 2014 was incompetent in that it was an interlocutor which the sheriff had no power to pronounce. Having heard inquiry into the facts together with parties’ submissions on those facts, and having made avizandum, the sheriff was obliged to pronounce a final order or orders. Counsel argued that it was incompetent for the sheriff to grant interim contact as between the child ACA and the defender in terms of the February 2014 interlocutor. All that being so, counsel submitted that the interlocutor of 20 February 2014 was appealable without leave.
[11] Returning to the question of whether the court was bereft of power to pronounce the February interlocutor, counsel for the pursuer referred to the ordinary cause rules and to Macphail Sheriff Court Practice, 3rd Edn. OCR 29.20 provided for the sheriff hearing parties on the evidence at the close of the proof. Thereafter, the sheriff was obliged to pronounce judgment with the least possible delay. OCR 12.2, inter alia, meant that where at any stage evidence had been led, the sheriff was obliged to make findings in fact and law (in the context of his interlocutor) and to append to such interlocutor a note setting out the reasons for his decision.
[12] Various passages within chapter 17 of Macphail were referred to by counsel. Paragraph 17.07 stated that the court’s interlocutor required to be self-sufficient if read separately from the note. Moreover, it ought to be unnecessary to refer to the sheriff’s note in order to ascertain his finding on any matter of fact or law which had been in issue. At paragraph 17.13, counsel highlighted the proposition that the decree must dispose of the whole of the craves of the initial writ and at paragraph 17.14, the need for clarity and precision within the court’s decree was stressed. “The sheriff may not issue a further interlocutor explaining a supposed ambiguity in a prior interlocutor, or supply deficiency in such an interlocutor by pronouncing a further interlocutor in the same or any subsequent process.”
[13] Paragraph 17.25 in Macphail was read out by counsel for the pursuer in its entirety. However, for the purposes of the appeal, perhaps the most significant sentence within that paragraph is as follows:
“It is an important part of the sheriff’s duty in every case, where he gives judgment after a proof, to state the grounds of his decision. The parties are entitled to know his reasons, as are any appellate courts in the event of an appeal.”
[14] Accordingly, it was submitted on behalf of the pursuer that it was incumbent upon the sheriff, having heard proof, to dispose of all of the craves. The grounds for his decision ought to have been stated in the note in an intelligible manner. Counsel maintained that the whole thrust of the ordinary cause rules was to the effect that parties were entitled to a final decision on the issue in dispute. Counsel submitted that the sheriff in the present case ought to have disposed of the defender’s crave for contact one way or another. To have assigned a child welfare hearing to deal with that matter outwith any decision taken after proof was, argued counsel, incompetent. With regard to finding in fact 22, it was contended that the sheriff was plainly not satisfied on the evidence that it was in the child’s best interests for contact to take place.
[15] The court’s decision in the case of Harris v Martin 1995 SCLR 580 was distinguished. In that case, after proof, the sheriff found in fact and law that it was in the child’s best interests that the pursuer should have access to her and he found in law that, it being in the child’s best interests that the pursuer should have access to her, the pursuer was entitled to decree therefor. The continuation, in Harris, which followed the sheriff’s findings was merely to enable the court to be satisfied about certain practical arrangements. The sheriff, on being so satisfied, thereafter granted a final order for contact.
[16] The case of M v M 2012 FamLR 14 was also distinguished by counsel for the pursuer. In that case the proof had remained open. Nothing had been taken to avizandum. With regard to Perendes v Sim 1998 SLT 1382 the court had continued matters for a report to be prepared. The issue of competency did not arise. Lord Osborne, sitting in the Outer House, was not bound by the ordinary cause rules. He had decided that contact should take place subject to the independent judgment of a clinical psychologist as to whether a resumption was practicable. Counsel submitted that contrary to the present situation, Lord Osborne had not opened up the potential for further inquiry regarding disputed issues having a bearing on the merits of the case.
[17] In any event, counsel for the pursuer maintained that the sheriff had erred by pronouncing an interim order in February 2014 and, thereafter, continuing to a further child welfare hearing. Counsel argued that once the proof had been concluded and the sheriff had made avizandum the parties were entitled to a final determination of the issues at large between them. They were entitled to such a determination in a form which triggered an automatic right of appeal. The point was, suggested counsel, arguably axiomatic but reference was made to Macphail at paragraph 18.01.
[18] Having regard to the overall approach taken by the sheriff, he had, arguably, prevented an appeal being taken against the interlocutors of November 2013 and February 2014, potentially in perpetuity. The situation had been aggravated by the peremptory refusal of leave to appeal. Counsel also expressed difficulty in comprehending the apparent use per se of an interim order in the post-proof procedural context. He queried in what sense such an order might be properly characterised as interim.
[19] It was contended that it was unclear as to how, if at all, the present action was going to be determined. After due procedure, a proof had been assigned and that proof had been brought to a conclusion. It was now unclear as to what further procedure the sheriff might have in mind. At all odds, the sheriff’s particular decision on 20 February 2014 was further criticised by counsel for the pursuer. In terms of the earlier judgment from November 2013, two separate conditions had been imposed upon the defender when it came to the issue of contact. (Paragraphs (48) and (49) refer). However, it was now plain from the sheriff’s subsequent note dated 30 April 2014 that he had remained unsatisfied as far as the second condition was concerned. Counsel referred to paragraphs (5), (6) and (7) within the foregoing note. Nevertheless, in February of this year, the sheriff had proceeded to make an order for contact. In doing so, he was, in effect, contradicting the position he had adopted in the earlier judgment. Counsel submitted that in truth the only apparent explanation for this contradiction was to be found within paragraph 7 in the note from April of this year. However, it was argued that no colourable reasons had been articulated for the sheriff’s change in position. At best, the position was wholly unclear.
[20] Counsel for the pursuer argued that the way in which matters had been handled by the sheriff effectively drove a “coach and horses” through the court’s obligation to set out its reasons for a decision having made avizandum. The procedure adopted by the sheriff was either inappropriate or incompetent. Counsel maintained that it was inappropriate to remit the case back to the sheriff and that the interlocutor of 20 February 2014 should be recalled and contact as between ACA and the defender refused.
Defender’s submissions
[21] Mr Moss, for the defender, argued that the sheriff’s decision from 22 November 2013 should not be interfered with on appeal. He invited the court to consider the sheriff’s note in greater detail. It was submitted that the sheriff “had it in his mind” to grant a contact order. That being the case, he was acting within the scope of his powers and it was perfectly competent for the court to assign a child welfare hearing in the way that it did.
[22] Mr Moss submitted that were the procedure adopted by the sheriff to be viewed as unusual it did not follow that it should be deemed incompetent. It was clear that the sheriff had taken the view that the best way to expedite matters, given that the interests of a child were involved, was to assign a child welfare hearing. The sheriff had fulfilled the duties incumbent upon him, according to Mr Moss. Similarly, any criticism of the sheriff’s order from February of 2014 was ill-founded. It was an interim order in the sense that it had yet to be made final by the court.
[23] Mr Moss contended that the cases of Harris v Martin and M v M supported the approach undertaken by the sheriff and he also referred to ordinary cause rule 33.22A. It was, Mr Moss submitted, competent for the court to assign a child welfare hearing at any stage. The fact that the sheriff did so after proof had taken place in the present action did not undermine that procedural course of action. Mr Moss urged the court to refuse the appeal and to allow the order for contact to stand.
Reply for the pursuer
[24] In a short reply, counsel for the pursuer maintained that, having made avizandum and having issued a final judgment after proof had taken place, the sheriff was, as he put it, functus, subject to any involvement that might be required in organising the mechanics of contact. Counsel argued that it was a misuse of child welfare hearing procedure to prolong litigation after what was or ought to have been a final judgment. He reiterated that the parties had been entitled to certainty and finality once avizandum had been made by the sheriff. In the present circumstances, the action might run on ad infinitum submitted counsel. He reminded the court that the Supreme Court had criticised the length of court proceedings where children were involved.
[25] Counsel for the pursuer noted Mr Moss to have characterised the sheriff’s decision on 20 February 2014 as amounting to “…reconsideration of the weight to be afforded to the evidence”. That, argued counsel, was exactly what the sheriff was not entitled to do. In effect, the sheriff’s interlocutor of February 2014 had reviewed his own interlocutor of 22 November 2013.
[26] Counsel entertained a further practical observation. He submitted that, in its present predicament, the case might be allowed to drift off into limbo, as he put it. The approach taken by the sheriff had “unhinged” the case from the traditional rules of procedure which remained in force and which still applied to family actions.
[27] Counsel expressed difficulty in understanding how any meaningful review of the decisions taken by the sheriff might be arrived at. Even if a final interlocutor were ultimately to be issued by him, the task of reviewing the same would be rendered extremely difficult where the court’s written decision on the evidence had been made months or even years earlier. Counsel renewed his motion to the effect that, particularly, the interlocutor of 20 February 2014 should be recalled and an order for contact refused.
Discussion
[28] In order to arrive at a proper determination in this appeal, it is necessary to take notice of certain fundamental tenets of ordinary civil procedure in the sheriff court. A proof in the action was assigned for July 2013. It will be seen that a child welfare hearing had previously been assigned for 15 October 2012; that a report had been commissioned from a member of the local bar regarding the circumstances of the child ACA; that a pre-proof hearing had been assigned; and that an earlier proof diet had required to be discharged in favour of the July diet.
[29] For the purposes of ordinary cause procedure in the sheriff court, where proof in an ordinary action has been concluded and where the presiding sheriff has made avizandum, what is then expected, as of right, is a written judgment determining and disposing of the issues remitted to proof. Whilst much effort may go into avoiding the need for proof or reducing the scope of any proof, where proof has been ordered the court proceeds on the basis that a full inquiry into those facts and issues which remain in controversy will, in turn, achieve finality.
[30] Therefore, I agree with the submission of counsel for the pursuer to the effect that, on the basis of the sheriff’s findings as formulated, the sheriff was wrong to continue consideration of the defender’s second plea in law. Having made avizandum and, thereafter, having issued findings in fact, the sheriff was bound by those findings and, in any event, required to pronounce a final decree following upon those findings. On the basis of Harris v Martin, an interlocutor issued post-avizandum which continues an action is competent but only where, for instance, the practicalities or mechanics of contact require to be confirmed.
[31] However, in Harris v Martin, the court had already made a final, reasoned determination on the merits. The sheriff had found in fact and law that it was in the child’s best interests that the pursuer should have access to her. In the present case, the sheriff, in continuing consideration of the defender’s plea regarding contact was continuing consideration as to the merits of that plea. That, in my view, was a procedural route which was not competently open to the sheriff. The merits or otherwise of that plea required to be determined once the sheriff had made avizandum.
[32] Consequently, in seeking to defer his disposal of that plea, the sheriff was precluded from embarking upon any further fact‑finding agenda whether by way of child welfare hearing or otherwise. (In passing, I observe that had continued consideration of the defender’s plea regarding contact been appropriate, then consistency would have dictated that the pursuer’s equivalent plea be continued also. It should not have been repelled.)
[33] Counsel for the pursuer’s criticism as to the nature of the sheriff’s third finding in fact and law is, to my mind, well-founded. As indicated supra, the expectation when it comes to the court’s findings after proof embraces finality and certainty. The third finding in fact and law is neither final nor certain. The proposition that contact between ACA and the defender would be in the child’s best interests is qualified by the preface “Subject to the defender taking certain actions as set out in the Note attached to this judgment…”.
[34] Paragraph 17.07 in Macphail, inter alia, states that “…it should not be necessary for a reader to refer to the note in order to ascertain the sheriff’s finding on any matter of fact or law which has been in issue.” I respectfully agree with that clear proposition which, when applied to the present case, unfortunately, exposes error on the part of the sheriff in regard to finding in fact and law 3. In any event, that finding only serves to re-open factual inquiry on the merits which has, of course, already been the subject of definitive closure at the conclusion of the proof, avizandum having been made.
[35] The case of M v M can properly be distinguished on the basis that the proof had been continued at the end of the evidence. The generous construction afforded to ordinary cause rule 33.22A, by Lord Stewart, was not challenged by counsel for the pursuer in the present appeal. However, counsel stressed, of course, that any construction of the relevant rule of court did not and could not countenance a child welfare hearing being fixed after the proof sheriff had made avizandum. In any event, in M v M, the sheriff had decided, in principle, that contact should be ordered. Lord Osborne’s decision in Perendes v Sim falls to be distinguished for similar reasons.
[36] All that contrasts with the present case where, taking the sheriff’s own words at their highest, no more than “…a potential argument in favour of an order for contact” existed as at 22 November 2013 and where any form of contact was said to be conditional upon “…2 steps the defender must take” (see paragraphs 47 to 49 in sheriff’s note). Those two steps required to be taken before the sheriff could be satisfied that it would be in ACA’s longer term interests “to start down” the route of a relationship between ACA and his father.
[37] I have already identified the difficulties attaching to the manner in which the sheriff’s third finding in fact and law is formulated. However, putting its less than categorical formulation to one side for the moment, when one does read the terms of the sheriff’s note, it is apparent that the conclusion arrived at from the decision-making process embarked upon by the sheriff after the proof, actually fell short of supporting finding in fact and law 3.
[38] In contrast to the cases of Harris and M v M, there was no reasoned determination, in principle, that there should be contact. As counsel for the pursuer submitted, in the mind of the sheriff, as articulated in the note appended to his interlocutor of 22 November 2013, nothing more than “a potential argument” in favour of contact existed. Regrettably, that, to my mind, is insufficient. A potential argument in favour of contact no doubt existed prior to the commencement of the proof. Notwithstanding the leading of evidence, paragraph 47 in the sheriff’s note expressly confirms that the position had not altered. Accordingly, I do not consider that the sheriff was entitled to make finding in fact and law 3.
[39] Issues as to rights of appeal and further procedure afford a colourable extension to counsel for the pursuer’s overall argument. Were I to have held that the post‑proof procedure adopted by the sheriff was competent, as the circumstances in the present case have demonstrated, a party aggrieved by the sheriff’s “decision” after proof might well be frustrated in any attempt to appeal that decision (notwithstanding the fact that it ought to have been final). Even if some form of competent appellate review of the sheriff’s decision following proof were to be engaged at some point, I share counsel for the pursuer’s difficulty in understanding just how meaningful that review could be where the court’s findings in fact etc after proof had been made months or even years earlier.
[40] Similarly, in my view, real questions would arise in regard to whether the action might run on ad infinitum or find itself in some sort of procedural limbo, particularly where, as counsel reminded this court, the Supreme Court has made plain the requirement to confine the duration of proceedings involving children.
[41] Issues of those sorts were mentioned by Lord Stewart in M v M, under reference to the case of Hartnett v Hartnett 1997 SCLR 525. At paragraph [35] in M v M, Lord Stewart recorded the observation that:
“The case of Hartnett v Hartnett, referred to in passing by both sides, illustrates the difficulties that may arise by departing too far from formality in favour of supposedly family friendly solutions.”
His Lordship refers to the commentary attached to the report wherein the unfairness that might arise where a sheriff, without making a final disposal, were to “set up some arrangement to allow limited contact over a period of time and then to review matters” was discussed.
[42] As to whether this appeal is itself competent, it would be easy to get slightly confused given the post-proof procedural route adopted. However, on any view of matters, the interlocutor of 22 November 2013 ought to be treated as a final interlocutor particularly where the question of expenses was disposed of. It is not clear why the sheriff saw fit to deal with expenses whilst, at the same time, continuing consideration of the defender’s second plea in law. The fact that the interlocutor incompetently sought to prolong or extend consideration of an issue (ie contact) which ought to have been finalised (on the merits, at least) there and then, should not, in my view, prevent it from being challenged without leave.
[43] Of course, counsel for the pursuer’s primary position was, indeed, to the effect that the court’s interlocutor of 20 February 2014 was incompetent (in that it was an interlocutor which the sheriff had no power to pronounce) and, as such, it was appealable without leave. Whilst I accept that a degree of ambivalence seems to attach to what was said in the case of Gupta’s Trustee v Gupta 1996 SLT 1098 (particularly in light of the earlier case of Gupta v Lawrie 1994 SCLR 176) I take the view that the present case throws up an instance wherein it would be almost absurd were the sheriff principal not entitled to consider a challenge to the interlocutor of 20 February 2014.
[44] Separately, and in any event, counsel for the pursuer also founded upon the peremptory refusal of leave to appeal. The pursuer had been denied the right to a hearing in that regard. Once more, I agree with the point taken by counsel for the pursuer. The issue of whether or not leave to appeal the interlocutor of 22 November 2013 ought to be granted should not have been determined without a hearing and, therefore, the sheriff erred in proceeding in that manner. In the whole circumstances, it is my opinion that, where necessary, leave to appeal ought to have been granted.
[45] Accordingly, whichever way the matter of competency (of the appeal) is approached, I have concluded that the pursuer’s appeal is competent. It is manifestly in the interests of justice that the arguments presented by counsel for the pursuer should be considered.
Decision
[46] For the reasons advanced by counsel for the pursuer in the appeal, I have varied the sheriff’s interlocutor of 22 November 2013 and recalled the sheriff’s subsequent interlocutor dated 20 February 2014, all in terms of the foregoing interlocutor. I accept that, on the basis of the authorities, it may be competent for the court, having arrived at its decision on the merits of the case, to order further procedure, perhaps, in the form of a child welfare hearing. However, procedure after the court’s judgment has been issued ought not to be adopted with a view to determining any aspect of the merits left undone. As in the cases of Harris v Martin and Perendes v Sim, a decision, in principle, must have been taken and any further consideration by the court must be restricted to the practicalities associated with a decision it has already taken.
[47] I acknowledge that Lord Stewart in M v M took the view that a child welfare hearing as a procedural vehicle competently served the sheriff’s purpose (see paragraph [33]). I also note his Lordship’s opening observation at the outset of the Discussion section of his opinion:
“The wisdom of Solomon is that ordinary procedures do not apply where children are concerned: but prudence dictates that ordinary decision makers should not be too inventive.”
Whilst there can be no doubt that chapter 33 of the ordinary cause rules provides a useful extra layer of flexibility for dealing with children’s cases, the chapter 33 provisions must not, in my view, be applied out of proper procedural context.
[48] On any view of matters, the terms of OCR 33.22A indicate that procedure by way of child welfare hearing is intended to be a feature of a “front-loading” exercise as opposed to forming some sort of “rearguard” operation. OCR 33.22A(4) imposes a duty on the sheriff to seek to secure the expeditious resolution of disputes etc. It is plain from the terms of (4)(b) that any child welfare hearing is normally intended to take place in advance of proof.
[49] Therefore, in my opinion, its use as a procedural vehicle once a court has pronounced judgment after an inquiry into the facts of the case, ought to be limited. Moreover, its use, coupled with any associated court order (whether said to be interim or otherwise) must not transgress any party’s legitimate expectation regarding finality of decision or any party’s right to mount an appeal where a judgment has been issued after proof. In most cases, it is axiomatic that the court should, in the interests of certainty and finality, issue its judgment on all aspects of the case without consideration being given to any further procedure.
[50] For completeness, I agree with counsel for the pursuer’s submissions regarding the making of what was said to be an interim contact order on 20 February 2014. In my view, the order made by the sheriff on that date was not truly an interim order and, therefore, should not have been denoted as such. In any event, had the sheriff been entitled to defer a disposal in relation to the defender’s second plea in law and to assign a child welfare hearing in that connection, he ought then to have made a final order embracing a decision on contact having already made avizandum after a full inquiry into the facts of the case. That would then have avoided any complications regarding rights of appeal.