in the cause











Glasgow, 13 April 2015.


The sheriff principal, having resumed consideration of the appeal, refuses same; adheres to the sheriff’s interlocutor dated 19 August 2014; and finds no expenses due to or by either party in respect of the appeal.









[1]        This family action concerns the pursuer’s attempt to secure parental rights and responsibilities together with contact in respect of the child A.  The pursuer is the father of the child; the defender is the mother.  The sheriff records in paragraph [1] of his note that, after sundry procedure, the matter proceeded to a protracted proof.  Having heard evidence and submissions the sheriff found in fact and law that it was not in the best interests of the child for the pursuer to have parental rights and responsibilities nor was it in his best interests for the pursuer to exercise direct or indirect contact.


[2]        The unfortunate feature underpinning the appeal by the pursuer is that, having made avizandum, after proof, in October 2013, the sheriff failed to issue his judgment until 19 August 2014 with the result that a period of 10 months or thereby passed between these two stages in procedure.


[3]        Whilst the note of appeal, as framed, encapsulates seven discrete grounds of appeal, it was plain, when the various submissions presented by the pursuer’s solicitor were articulated, that the de quo of the appeal focused fairly and squarely upon the third ground of appeal.  Indeed, Mr Kilcoyne, for the pursuer, confirmed that to be so towards the end of his oral submissions.


[4]        The third ground of appeal highlights the fact that contact between the child A and the pursuer had continued throughout the time when the case was at avizandum.  The court was advised that it had ceased shortly prior to the sheriff’s decision being made available.  However, the breakdown in contact arrangements had not arisen through any fault on the part of the pursuer.


[5]        Accordingly, in these circumstances, the broad issue for the court on appeal was whether the passage of time between the case being taken to avizandum and a judgment being issued somehow vitiated that judgment in the sense that it was, by then, significantly “out of date”.


Pursuer’s submissions

[6]        In developing the “passage of time” theme, Mr Kilcoyne drew the court’s attention to the case of Osborne v Matthan (No 2) 1998 SC 682 and to a particular passage taken from the opinion of Lord President Rodger at 688H to 689B:


“In some passages in the authorities dealing with decisions on parental rights it is said that the first instance judge exercises a discretion when deciding whether to make an order and, if so, in what terms.  See, for instance, Re KD (A Minor) per Lord Oliver at page 819G.  It appears to me, however, that the decision which a trial judge reaches on custody may perhaps be better described not as a matter of discretion but as a matter of judgment exercised on consideration of the relevant factors.  The court must consider all the relevant circumstances and decide what the welfare of the child requires. Once the court has identified that, it has no discretion: the court must do what the welfare of the child requires.”


[7]        Mr Kilcoyne argued that, where it was incumbent upon the court to consider all the relevant circumstances, the sheriff in the present case had failed to meet that requirement.  As at the time of the sheriff’s decision, Mr Kilcoyne submitted that it would have been relevant for the court to know and to consider what had transpired throughout the previous 10 months or thereby when it came to on-going contact between the pursuer and the child.  Mr Kilcoyne articulated his client’s contention that between the making of avizandum and the breakdown in contact arrangements, contact had worked well and was a positive experience for both father and son.


[8]        Reference was made to paragraph [62] in the sheriff’s note.  That paragraph confirmed that the sheriff had met with the child A in order to ascertain his views.  However, the sheriff had, in turn, formed the opinion that A was not keen to engage in discussion.  There was reference to certain limited features from the dialogue with A but, as he recorded in the subsequent paragraph [63], the sheriff did not take matters further given the age of the child.  The sheriff indicated that A’s views about contact were neutral and that his view would not be determinative.


[9]        Mr Kilcoyne criticised the sheriff’s approach regarding the interview with A.  He firstly submitted that the sheriff ought to have probed to a greater extent with a view to eliciting more detail from the child.  Mr Kilcoyne seemed to suggest that, had the sheriff done so, A would have confirmed that he liked the pursuer and enjoyed having contact with him.


[10]      Secondly, it was contended that, with the passage of time, the sheriff ought to have arranged a further meeting with the child in order to procure his up to date views on, for example, continuing contact.  Mr Kilcoyne argued that the sheriff erred by not taking that particular approach notwithstanding the fact that the case had been taken to avizandum.  It was submitted that the sheriff should have ex proprio motu sought out the contemporaneous views of the child.


[11]      Mr Kilcoyne sought to derive support from the decision of an Extra Division of the Inner House in S v S 2002 SC 246.  He highlighted a passage from the opinion of the court at page 250E:


“We emphasise that the duty on the court to comply with the provisions of sec 11(7)(b) is one which continues until the relevant order is made and the fact that formal intimation may have been dispensed with as ‘inappropriate’ in no way relieves the court of complying with that continuing duty.” 


Mr Kilcoyne’s reliance on the case of S v S seemed to be derived from a passage within Wilkinson & Norrie on The Law Relating to Parent and Child 3rd Edn at the end of paragraph 9.43.  The learned authors there stated that:


“A failure on the part of the court either to give the child an opportunity to express views or to have due regard to such views as are expressed will give a ground of appeal against the court’s decision on the basis of procedural irregularity or error of law.”


[12]      In summary, as I understood his submission, Mr Kilcoyne invited the court to hold that the sheriff had erred in issuing his decision at a stage in time which precluded a contemporaneous approach to the circumstances of the case and which also deprived the child from offering up his views as regards on-going contact at the time when those views were most relevant.  The court was invited to recall the sheriff’s interlocutor of 19 August 2014 and to order that further proof be heard by the sheriff particularly with a view to obtaining the views of the child A. 


Defender’s submissions

[13]      By way of reply, Mr Allison, for the defender, maintained that for the pursuer to succeed in the appeal, he required to satisfy the court that the points raised in argument would result in there being a materially different outcome from the determination arrived at by the sheriff.  The sheriff’s reasoning was analysed.  In particular, reference was made to various findings in fact including Nos 12, 15, 20 and 37.  These findings, inter alia, embraced violence on the part of the pursuer, threats involving a firearm, the pursuer’s limited involvement in A’s upbringing and, for the reasons set out in earlier findings in fact, the defender’s implacable opposition to unsupervised contact.


[14]      Mr Allison contended that there was no basis upon which to conclude that the contact which had taken place was an overtly positive experience for the child.  He submitted that continued contact between the child and the pursuer had, in fact, had a negative impact on the child, in turn, because of the negative effect it had on the defender.  It was maintained that there was a clear, rational basis for the sheriff’s decision.  His full reasoning appeared at paragraphs [77] to [84] in his note and Mr Allison particularly highlighted the terms of paragraph [84].  With regard to the case of Osborne, Mr Allison invited the court to read on from the passage quoted on behalf of the pursuer and to note what had been said at page 689B-C:


“Even though the decision may therefore not be truly one depending on the discretion of the judge, I none the less consider that counsel for the defender were right to acknowledge that, in a case like the present where the sheriff has seen and heard the witnesses, it would be unusual for an appeal court to interfere with the sheriff’s judgment on the issue of custody.  The sheriff will obviously have advantages which no scrutiny of the transcript of the evidence by an appeal court, however careful, can hope to replicate.  That is a real factor of importance in this case where it is plain from the terms of his judgment that the sheriff formed certain views about the defender’s possible conduct on her return to Jamaica as a result of the impression which she made on him when she gave evidence in the witness box.”


[15]      It was submitted that the sheriff in the present case had the benefit of having heard the witnesses who gave evidence.  Moreover, for the purposes of the appeal, no transcript of the shorthand notes had been produced.  Accordingly, Mr Allison argued that the court should be slow to interfere with the sheriff’s judgment in these circumstances.


[16]      In regard to Mr Kilcoyne’s contentions in relation to the views of the child A, Mr Allison took the court to the relevant part of the legislation and, in particular, to section 11(7) of the Children (Scotland) Act 1995.  He referred to section 11(7)(b) which requires the court, taking account of the child’s age and maturity, and so far as practicable, to:


“(i)    give him an opportunity to indicate whether he wishes to express his views;

(ii)     if he does so wish, give him an opportunity to express them; and

(iii)    have regard to such views as he may express.”


[17]      Mr Allison submitted that having regard to the terms of section 11(7)(b) the approach taken by the sheriff with the child A was beyond criticism.  Moreover, he reminded the court that the sheriff, in reaching his decision, had also taken account of the material contributed in the context of bar reports.  Mr Allison contended that the case of S v S was not in point.  The sheriff in that case had failed to allow the child to have an opportunity to express his views.  That plainly contrasted with the present situation.


[18]      In light of the argument put forward on behalf of the pursuer, Mr Allison queried where, if that argument were correct, the necessary “cut off point” regarding the child’s view would be arrived at.  He referred to the case of MacDonald v MacDonald 1985 SLT 244 where it was held that the court should not depart from the recognised procedure of determining disputed questions of access by proof in open court, even with consent of the parties.  In the MacDonald case, it appeared that the Lord Ordinary had indicated to both parties that instead of having a proof he would prefer to interview the child privately and thereafter interview the parties separately and question them on what the child had said.  The Second Division had no difficulty in criticising that approach.  In passing, Mr Allison observed that the pursuer in the present case might have sought to lead proof by replication.  However, that was not done.


[19]      Whether the passage of time between the making of avizandum and the issuing of his decision made any material difference to the nature and integrity of that decision was, submitted Mr Allison, a matter which was entirely for the judgment of the sheriff in question.  Where a material change of circumstances were to arise, the remedy open to the party seeking to rely upon any such change involved procedure by way of minute to vary.  Accordingly, in the present circumstances, it could not be said that the pursuer was somehow deprived of a remedy should, as a matter of fact, a change of circumstances have occurred.  In that connection, Mr Allison referred to the case of Sanderson v McManus 1997 SC(HL) 55 in which the House of Lords made it clear that no decision about parental rights was a final decision because the child’s welfare remained open to further consideration by the court throughout his childhood.  In particular, Mr Allison referred to a passage at page 63C in the report.


[20]      The child A had only recently reached the age of 9 years.  The sheriff had concluded that having met with him, his views were not determinative.  Mr Allison stressed that, at the proof, no evidence had been led regarding the quality of the contact between the pursuer and the child.  The pursuer had only offered up evidence regarding himself and his own personal qualities, in that context.  There was no evidence constituting an independent account in regard to the contact which had taken place.  No expert witness had testified nor was there testimony from anyone who had observed the contact taking place.  Above all else, Mr Allison argued that this was not a case where the decision of the court was finely balanced on the issue of the quality of contact.  For all of the foregoing reasons, Mr Allison invited refusal of the appeal.



[21]      In my opinion, the arguments put forward in support of this appeal fall to be rejected.  The criticism of the sheriff’s treatment of the interview with A can be dealt with in short compass.  Nothing said by Mr Kilcoyne persuaded me that the sheriff had erred, particularly when it came to the application of section 11(7)(b) of the 1995 Act.  The case of S v S is not in point.  It was perfectly open to the sheriff to conclude that A’s views about contact were neutral.  The sheriff was best placed to reach that conclusion having seen and heard the witnesses in the course of the proof.  There can be no suggestion that the sheriff failed to have regard to any view expressed by A.  Having made avizandum, it was not open to the sheriff to arrange a future meeting with A.


[22]      At first sight, Mr Kilcoyne’s criticism of the sheriff’s failure to adopt a contemporaneous approach to the circumstances of the case might be thought to be worthy of greater consideration.  There is no doubt that the passage of time is regrettable.  Moreover, it is not clear whether the sheriff’s explanation at paragraph [76] in his note to the effect that he had delayed the issue of his judgment to await the outcome of an appeal in relation to the use of child welfare hearings post-proof (A v I, 6 June 2014), justified the period of delay involved. 


[23]      Nevertheless, on the particular facts and circumstances of this case, in my view, the mere passage of time between the conclusion of the evidence and submissions and the issue of the sheriff’s decision does not serve to vitiate that decision.  In this connection, Mr Kilcoyne’s argument either ignored or overlooked the substance of the sheriff’s decision.  The latter’s assessment of the evidence can be found at paragraph [64] onwards within his note.  The sheriff was plainly unconvinced by the pursuer.  He was clearly troubled by the pursuer’s “…wish for control, and his ability to consider the wishes, feelings and condition of the defender”.  The sheriff preferred the evidence of the defender.  He concluded that her “…fear and distress were raw and stark and convincing…”


[24]      Certain of the sheriff’s findings in fact inevitably gave rise to serious concerns in his mind.  At paragraph [79] in the note, the sheriff recorded that:


“I find from the evidence that her fear of the father is genuine and intelligible.  I am satisfied that she was subject to coercion, violence, (including sexual violence), threats and bullying and to cavalier treatment; such cavalier treatment continues.  The pursuer was sneering and disbelieving about her illness and the consequences of the illness, and about the counselling which she received.  It was all ‘an Act’ (sic).  He did not in my view take the child’s nut allergy seriously until compelled to by the development of the contact.  He was unable to recognise or accept that the child might suffer as a result of such an attitude.”


[25]      The rationale underpinning the sheriff’s determination is to be found within paragraphs [81] to [84].  It is to be noted that, in the course of the appeal hearing, no argument was advanced with a view to challenging what appears within those paragraphs.  There was no actual criticism of the sheriff’s findings in fact or in respect of any views arising from those findings.  Accordingly, it seemed to me that there was merit in Mr Allison’s contention that the appeal ought to fail since there was no suggestion that a materially different outcome would be arrived at should proof of new be ordered.


[26]      Indeed, aside from the somewhat bland proposition that contact (between the making of avizandum and the breakdown in contact arrangements) had been a positive experience for both father and son, Mr Kilcoyne was unable to point to any cogent factor from which it might be inferred that the sheriff’s approach to the evidence and to the application of the law was somehow incorrect or misguided.  When properly analysed, Mr Kilcoyne’s argument on appeal relied almost exclusively upon the passage of time element which, as I have already indicated, does not per se serve to undermine the decision ultimately arrived at by the court.


[27]      Of course, had there been a material change in circumstances tending to suggest that the factual matrix presented to the sheriff at proof was no longer relevant or entirely relevant to consideration of the question of contact, as Mr Allison submitted, it would be open to the pursuer to seek a variation of the court’s order under section 11 of the 1995 Act by lodging a minute in the process.  (See, for example, Macphail, Sheriff Court Practice, 3rd Edn, paragraph 22.52).  However, on the basis of what formed Mr Kilcoyne’s submissions to the court, no change in circumstance of any nature emerged.


[28]      Therefore, when the situation is looked at as a whole, I am comfortably satisfied that the arguments presented on behalf of the defender in the appeal are to be preferred.  As Mr Allison suggested, this is not an instance where a party is deprived of a remedy should there, in fact, be an alteration in the circumstances of the case.  Moreover, it is also worth noting that Mr Allison’s submission regarding the absence of evidence from the pursuer as to the qualitative nature of contact between himself and the child went unchallenged.  That feature also serves to diminish the overall integrity of the pursuer’s arguments on appeal.


[29]      The appeal has been refused.  Parties were, however, agreed that whatever the outcome there should be a finding of no expenses due to or by either party in respect of the appeal given that both the litigants are in receipt of legal aid.