SHERIFFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW
F326/11
JUDGMENT
of
SHERIFF PRINCIPAL C A L SCOTT, QC
in the cause
KA
Pursuer
against
KS
Defender
Glasgow, 10 April 2014.
The sheriff principal, having resumed consideration of the appeal, Allows same; Deletes the sheriff's finding in fact and in law substituting therefor "That the reinstatement of contact with the pursuer is not in the best interests of J."; Recalls the sheriff's interlocutor dated 7 August 2013; Repels the pursuer's plea in law and Sustains the defender's second plea in law; Refuses to grant a contact order in terms of the first crave of the writ; Finds the pursuer liable to the defender in the expenses of the action; and Modifies said award of expenses to nil in respect that both parties are legally aided.
NOTE:-
[1] Whilst the sheriff's interlocutor, following upon a proof, does not actually deal with any award of contact, the present appeal is brought to challenge the sheriff's finding in fact and in law to the effect that it is in the best interests of the child, J, that contact with the pursuer should be reinstated. (There is a typographical error in the first line of the sheriff's finding in fact and in law; "defender" should read "pursuer"). No issue was taken with the competency of the appeal or the fact that, strictly speaking, an order for contact had still to be made by the court. It was recognised that where the defender sought to challenge the sheriff's approach by way of an appeal, it was in the interests of all concerned that the merits or otherwise of the grounds of appeal should be determined sooner rather than later.
[2] The parties to the appeal are the father and mother of the child J. They separated in July 2010. The pursuer has not seen J since then. After proof, the sheriff determined that it was in the best interests of J that contact with the pursuer be reinstated. The detail of any contact arrangements were to be determined at a child welfare hearing assigned for 17 October 2013. However, with the subsequent marking of an appeal, that hearing has yet to take place.
[3] Ms Harrison, for the defender, advanced three grounds of appeal all in terms of the note of appeal. She also tendered written submissions for the benefit of the court. Those written submissions are appended hereto. The first ground of appeal was brought to criticise the terms of paragraph [99] in the sheriff's note. (It should be noted that the note per incuriam appears to proceed directly from paragraph [88] to [99] all as set out on page 18).
[4] Paragraph [99] in the sheriff's note is in the following terms:
"So far as the question of contact is concerned, I consider that the function of the Court is to weigh-up all the relevant factors in a context where the parental link is one intrinsically favouring contact (without need for further proof of that benefit) and deciding (sic.) whether overall the balance comes down in favour of the view that contact is in the best interests of the child and so likely to benefit his welfare."
[5] Ms Harrison, for the defender, submitted that the sheriff appeared to proceed upon the basis that there was a presumption in favour of contact where a biological father/son relationship existed. In arguing that such an approach was inconsistent with established law, Ms Harrison pointed out that the Lord President's remarks in the case of NJDB v JEG [2010] CSIH 83 (to which the sheriff referred at paragraph [88] in his note) had been obiter. She drew the court's attention to the cases of Sanderson v McManus 1997 SLT 629 and White v White 2001 SLT 485. It was submitted that whilst a natural relationship between father and child ought to be taken into account, the importance to be attached to it varied according to the particular circumstances of each case. Ms Harrison stressed what Lord Hope had said in Sanderson at page 635, viz:
"This is a matter which must be decided not by applying any presumption but upon an evaluation of the evidence. As with any other factor which the court is asked to take into account, the question is whether contact with the parent has something to offer which is likely to be of benefit to the child's welfare. This question must be examined from the point of view of the child. It may normally be assumed that the child will benefit from continued contact with the natural parent. But there may be cases where it is plain on the evidence that it has nothing to offer at all. There may be other cases where the evidence will show that continued contact is likely to be harmful. Whatever the view which is taken on this matter in light of the evidence, the child's welfare is paramount. The decision of the court will depend on its analysis of all the factors which bear on the question what is in the best interests of the child."
[6] Secondly, even if it were to be accepted that the sheriff had properly directed himself in law, it was submitted that he had failed to carry out the balancing exercise which he identified in paragraph [99] of his note in any proper or meaningful way. Ms Harrison identified various features in the evidence which made it plain that the sheriff had been critical both of the pursuer and the defender. He had been particularly critical of the pursuer's credibility. However, Ms Harrison contended that, for instance, at paragraphs [104] and [105] the sheriff's treatment of the very negative aspects affecting the pursuer was, at best, superficial.
[7] It was maintained, on behalf of the pursuer, that the sheriff had failed to consider, for instance, the atmosphere of hostility which would prevail at handover, should contact take place, the continued conflict between the parties and the potential emotional and psychological detriment to the child by being exposed to such conflict. The sheriff had failed to deal with any of these factors in articulating his treatment of the balancing exercise.
[8] More acutely, Ms Harrison submitted that the child's best interests had not been weighed in the balance by the sheriff. Indeed, it appeared from the judgment that the sheriff had failed to articulate a considered view as to what material in the evidence actually led him to conclude that the reinstatement of contact with the pursuer would serve the best interests of the child.
[9] At paragraph [104] the sheriff stated that the defender was entitled to be concerned about the pursuer's commitment, behaviour and drug and alcohol habits, but suggested that these factors could all have been addressed by the closely monitored contact proposed. Whilst that might conceivably be correct (although Ms Harrison nevertheless criticised the lack of detailed analysis on the part of the sheriff) nothing was said about the best interests of J. The presence of such negative factors demanded a clear articulation from the sheriff as to why J's best interests were served by the reintroduction of contact against such a prima facie deleterious background.
[10] The terms of paragraph [106] in the sheriff's note were highlighted. That paragraph reads as follows:
"When I look at the facts and the legal test, I consider that there should be an attempt to re-introduce J to his father. He has demonstrated a commitment to the process and to J, he has demonstrated an ability to relate to his nephew and niece, and he has demonstrated an improvement in these aspects of his life which caused the defender such concern. The defender recognises the possibility of a relationship between the pursuer and J; his relationship with GJ is not a substitute for a relationship with his father."
[11] The sheriff's characterisation of the improvement demonstrated by the pursuer was criticised by Ms Harrison as being unduly wide, general and vague. She submitted that such a formulation given in the context of reasons for a judicial decision did not allow the defender properly to understand the decision being taken by the sheriff. Moreover, it was argued that, once again, the sheriff had failed to carry out a proper balancing exercise. Much was being said about the pursuer's commitment etc but, on the other hand, no specific account had been taken of J's best interests in the whole circumstances.
[12] Thirdly, Ms Harrison criticised the sheriff's failure to demonstrate consideration of the matters set out in section 11(7A) and 11(7E) of the Children (Scotland) Act 1995. Lord Reed, in giving the Supreme Court's decision in the NJDB case [2012] UK SC 21, at paragraph 31, highlighted the need for consideration, by the court, of the issues focused in section 11(7). Whilst the sheriff had acknowledged the relevance of the issue of domestic violence he had failed to give consideration to that or to apply any weight to it in the context of the necessary balancing exercise to be carried out by the court. The extent to which parties would or would not be able to cooperate remained unmentioned.
[13] In all the circumstances, Ms Harrison invited the court to substitute the sheriff's finding in fact and law with a finding to the effect that the reinstatement of contact was not in the best interests of the child, J. She also invited the court to recall the sheriff's interlocutor and to dismiss the action.
[14] In reply, Mr Moss, for the pursuer, invited the court to uphold the finding in fact and law, to adhere to the sheriff's interlocutor and to remit the case to the sheriff for a child welfare hearing to take place. He maintained that the sheriff had, in the context of his note, adequately set out why contact should be reinstated. As Mr Moss put it, the sheriff had "left the door open" for the detail of contact arrangements to be argued further.
[15] The sheriff's supplementary note dated 13 January 2014 was referred to and, in particular, paragraph [5] therein was drawn to the court's attention. That paragraph is in the following terms:
"I recognise that an assessment of the same factual background could have given rise to a decision to refuse contact in hoc statu, but I considered that the evidence, and the legal approach I adopted, justified the reinstatement of contact in principle and thereafter the controlled, managed and judicially scrutinised determination of the nature, extent and frequency of any such contact, a matter given explicit approval by the Inner House in Harris v Martin 1995 SCLR 580 IH."
[16] Mr Moss stressed that, in terms of paragraph [106] of the note to the sheriff's interlocutor dated 7 August 2013, the sheriff had considered that there should be an attempt to re-introduce J to his father, the pursuer. It was submitted that the sheriff had taken a common sense, pragmatic approach by holding that contact, in principle, should be reinstated but by, thereafter, for instance, ordaining both parties to attend Parenting Apart workshops. The sheriff had clearly taken the view, having heard all the evidence, that the child would benefit from a relationship with his father. Mr Moss stressed that any contact would take place under supervised conditions in a contact centre.
[17] Mr Moss also submitted that the main concerns regarding the pursuer's lifestyle and mental health had been overcome to the sheriff's satisfaction and that, accordingly, there was no barrier to contact taking place. It appeared, submitted Mr Moss, that the sheriff had formed the view that contact ought to have taken place when the parties separated in July 2010.
[18] In the final analysis, Mr Moss argued that there was "just enough" material in terms of the sheriff's decision for the pursuer to be allowed contact with his son. There had been sufficient evidence before the court to entitle the sheriff to reach the decision he arrived at. It would not be appropriate, in all the circumstances, for an appellate court to interfere with the sheriff's decision. The process envisaged by the sheriff should be allowed to proceed and, in that context, the interlocutor should be adhered to and a child welfare hearing should thereafter take place.
Decision
[19] In my opinion, this is one of those clear instances where the grounds of appeal merit intervention with the decision taken by the sheriff at first instance. Whilst the grounds of appeal are threefold in nature, the core proposition thrown up by the submissions advanced on behalf of the defender was that the sheriff in reaching his decision had failed to take proper account of the best interests of the child, J. In that respect, I agree with the defender's argument.
[20] The sheriff's judgment and, particularly, those paragraphs from [102] onwards setting out the reasons for his decision, is fundamentally silent when it comes to why it is that the reinstatement of contact with the pursuer would operate in the best interests of the child. The main focus in paragraphs [102] onwards is the pursuer and the significant difficulties associated with him. On a reading of the sheriff's decision, one is unable to identify, firstly, any appraisal of factual material dealing with the best interests of J and, secondly, any cogent articulation as to why on the facts found established by the court, the sheriff held that contact should be attempted.
[21] This is a case in which the sheriff indicated that the defender was entitled to be concerned about the pursuer's commitment, his behaviour and his drug and alcohol habits. At paragraph [105] the sheriff states that the pursuer "...was plainly prepared to lie, routinely and glibly, to further his own agenda. However, so was the defender and I additionally have the reports which demonstrate a stability in relation to his mental health and, albeit by snapshot, a very much improved drug and alcohol position." In paragraph [106] the sheriff goes on to record that the pursuer had demonstrated a commitment to the process and to J. He had also demonstrated an ability to relate to his nephew and niece together with an improvement in "these aspects of his life" which caused the defender such concern. All of that may be regarded as positive so far as it goes. However, it is, in my view, nothing to the point when it comes to the best interests of J.
[22] Ms Harrison argued that in approaching his decision, the sheriff had failed to carry out a proper balancing exercise. I also agree with that proposition. There has been no attempt to place in the balance those factors which may or may not have a bearing upon the best interests of J. In a case such as the present where, an objective appraisal of the factual matrix does not present a particularly favourable impression, it was, I believe, incumbent upon the sheriff to articulate why it was that when all relevant facts were weighed in the balance, the reinstatement of contact outweighed adherence to the status quo. In that context, what was required was a careful analysis of all and any evidence tending to suggest what the child's best interests were.
[23] In the event, the sheriff's process of reasoning was bereft of articulation of the child's best interests in the context of a potential award of contact in favour of the pursuer. That may be due to the way in which the sheriff characterised "the function of the court" at paragraph [99] in his note. That characterisation was, of course, criticised by Ms Harrison in the course of her submissions and, at the very least, I agree that when one looks to the sheriff's decision as a whole, it does appear that the sheriff proceeded on the basis that there was a presumption in favour of contact flowing from "the parental link".
[24] Whilst the sheriff, at paragraph [100] explicitly recognised that:
"The interests of the child is (sic.) paramount and the Court should arrive at that decided opinion from the evidence as to what will be most conducive to the child's welfare making where necessary an appropriate Court Order."
He does not appear to have followed through with that approach. As I have indicated already, in "...deciding whether overall the balance comes down in favour of the view that contact is in the best interests of the child and so likely to benefit his welfare", (see paragraph [99] in sheriff's note) the sheriff has failed to identify material in the case which will inform a decision as to the best interests of J. Detailed consideration and discussion of J's welfare needs are absent from the decision. Section 11(7)(a) is quoted at paragraph [88] in the sheriff's note but neither the welfare principle nor the minimum intervention principle have been properly addressed.
[25] All of the foregoing is sufficient to reach the conclusion that the sheriff has left out of account very relevant considerations pertaining to the best interests of the child, J, or has, at least, failed to weigh those relevant considerations in the balancing exercise required of him. I consider it appropriate for this court to interfere with the sheriff's decision. The proposition that the reinstatement of contact with the pursuer would be in the best interests of J has not been made out. Accordingly, I have, in effect, reversed the sheriff's finding in fact and law, recalled the interlocutor based upon that finding.
[26] In the course of her oral submissions, Ms Harrison invited me to dismiss the action. Whilst the defender's first plea in law is a preliminary plea, the hearing before the sheriff was, in nature, a proof as opposed to a proof before answer. Accordingly, for that reason alone it is inappropriate, albeit not incompetent, to pronounce a decree of dismissal. (See Macphail 3rd Edn paragraph 17.12). The appropriate disposal in the context of an action of this nature involves a straightforward refusal of the order sought and that is what the defender's second plea in law invited the court to do.
[27] For completeness, I am also inclined to the view that there is merit in the third ground of appeal advanced by Ms Harrison in that it is far from clear that the sheriff properly considered the circumstances set out in section 11 of the Children (Scotland) Act 1995. However, that, in a sense, is peripheral to the main conclusion which is to the effect that the sheriff has failed to demonstrate that his decision properly took account of the best interests of J.
[28] It was agreed that expenses should follow success. I have, however, modified the award of expenses against the pursuer to nil given that both parties are legally aided.