IN THE APPEAL IN THE CAUSE BETWEEN J.M. AND P.K.
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2015] CSIH 54
XA121/14
Lord Eassie
Lord Drummond Young
Sheriff Principal CAL Scott
OPINION OF COURT
delivered by LORD EASSIE
in the appeal
in
the cause between
JM
Pursuer and respondent;
and
PK
Defender and appellant:
Pursuer and respondent: Bell; Digby Brown LLP
Defender and appellant: Party
8 July 2015
Introduction
[1] The parties to this action are respectively the mother and the father of a young girl – BK - who was born on 17 September 2010. They began to live together in about 2005 and separated in November 2011. Following the separation the defender (the father) continued to see and care for his daughter on a part‑time basis by informal arrangement. But on 29 June 2012, following an argument between the parties in a restaurant, the defender took his daughter to his home and refused to return the child to the pursuer. That refusal led to the raising of the present proceedings in the sheriff court; and thereupon the defender returned his daughter to her mother’s care on 6 July 2012.
[2] In the proceedings the mother seeks a residence order in terms of section 11(2)(c) of the Children (Scotland) Act 1995. The defender also sought an order, in terms of that section 11, that the daughter should reside with him and failing an order for residence the defender seeks an order for contact between him and the child. It is accepted that the defender has parental rights and responsibilities in terms of that Act. Following various interim hearings and orders the matter came to proof before the sheriff [1] in January 2014. By the time of the proof diet the defender had previously intimated that he no longer sought a residence order. The issue before the sheriff was accordingly confined to contact between the defender and his daughter. By interlocutor dated 27 February 2014 the sheriff refused the defender’s application for contact.
[3] The defender thereupon appealed that decision to the sheriff principal. Having been refused legal aid for that appeal, the defender was required to present his appeal in person. The sheriff principal refused his appeal. The defender now appeals to this court. At the hearing of the appeal on the summar roll, the defender applied for and was granted lay representation through Mr Ian Maxwell. The court was greatly assisted by Mr Maxwell’s careful, informed and articulated submissions.
The essential facts
[4] It appears from the sheriff’s findings in fact and the terms of his note appended to those findings that to a significant extent the focus of the proof was on the relationship between the parents, including such matters as whether the defender had been honest with the pursuer prior to the birth of the child and whether he had conducted a relationship with another woman; or had on one occasion struck the pursuer. The particular focus of the proof was however on certain concerns expressed by the defender to social workers reflective of the mother’s care of the child and whether those complaints had been made maliciously. The relationship between the parties was volatile and arguments between them for which both might be said to be to blame continued to take place after their separation.
[5] The facts respecting the defender’s actual care of and contact with the party’s daughter are however stated relatively briefly. It appears that while the parties were living together the defender assumed a significant role in looking after the very young child. Finding in fact no. 7 reads:
“7. Prior to the separation, the defender had been actively involved in the child’s care, looking after the child while the pursuer was at work.”
Nothing more is said in respect of the position while the parties were living together. Following the separation (in November 2011, when the child was about 14 months old) the defender cared for the infant daughter on three days each week from 7.00am to around 5.30pm while the pursuer was at work (finding in fact no 8). Following the commencement of the proceedings in July 2012, that arrangement continued but was formalised by an interim order for contact on those three days per week from 7.30am until 5.30pm. A minor change took place by interlocutor of 7 August 2012 adjusting the hours to 7.45am until 5pm. The defender thus continued to care for the infant while the pursuer was at work until 18 December 2012 when the sheriff recalled the order of 7 August 2012 and substituted contact at a contact centre. The sheriff’s decision followed the breakdown on 16 October 2012 of a court ordered mediation. The mediation broke down because the mother lost her temper. She did so because the defender had not told her that earlier in October, having been concerned about a discharge in the child’s nappy, he had consulted a general medical practitioner and taken the child to the Sick Children’s Hospital where he had been reassured that there was nothing of medical concern (see findings in fact nos 27 to 30). Thereafter the defender and his daughter continued to have regular contact at the contact centre until 6 August 2013 when the sheriff reduced “contact to nil”.
[6] We shall require to consider later the circumstances in which the sheriff pronounced that interlocutor. For the present however it is to be noted that it is not suggested – and there is certainly no finding in fact to that effect – that the standard of care or affection which the defender provided to his daughter while looking after her was in any way deficient or that the contact between them in the contact centre was other than satisfactory.
[7] As already indicated, at the proof much attention appears to have been directed to the contention that, motivated by animosity towards the pursuer, the defender had made unwarranted and malicious reports to social workers concerning the welfare of the child. It appears from the sheriff’s findings in fact that there were broadly four occasions upon which the defender made reports of his concerns to the authorities.
[8] First, on an unspecified day in about July 2012 an anonymous telephone call was received by the local social work department to the effect that the pursuer was involved in drugs. The sheriff found that the call was “instigated” by the defender (finding in fact no 18). There is no finding in fact that the call was ever acted upon by the recipients.
[9] Secondly, on 11 July 2012 and also on 14 and 16 July 2012 (that is to say, shortly after the initiation of the proceedings) the defender complained to the social work department about marks on the child’s body “which he attributed to the pursuer”. The defender also consulted his general practitioner about those marks. On 17 July 2012 two social workers observed the marks on the child to which the defender had referred. They formed the view that the marks were the symptoms of a skin condition but they arranged for the child to be seen by a paediatrician from whom they obtained advice that the marks did not give rise to medical concern. The sheriff found that the defender was aware that the infant had suffered from a skin condition (findings in fact nos 19 to 22).
[10] The next, that is to say the third, episode of complaint to authorities occurred some six months later in April 2013. The infant had suffered a minor injury while in the care of a childminder. The pursuer did not tell the defender about the injury which his daughter had suffered nor did she tell him how it had been caused. When the defender next saw the child he observed the marks of the injury and reported the matter to the social work department (finding in fact no 31).
[11] The fourth and final incident occurred some three months later in July 2014. The child had suffered minor injury to her leg while in the care of the pursuer. Again, the pursuer did not inform the defender about the injury or about the circumstances in which it had been sustained. The defender observed the injury on the infant while he was having contact with her at the contact centre and the staff of the centre provided him with an antiseptic cream which he applied to the wound. The defender thereafter informed the police that he was concerned that the child might have been abused. The police visited the pursuer at a time at which the infant was asleep. The sheriff found that the child “had to be woken and examined unnecessarily that the police might satisfy themselves that she had not been abused” (finding in fact no 34).
[12] The sheriff however treated this matter as the impetus for bringing all contact ad interim to an end on 6 August 2013. The precursor to that decision was that in April 2013 the pursuer, in pursuit of her wish to end contact between the defender and their daughter, had enrolled a motion to that effect. By interlocutor of 30 April 2013 the sheriff refused that motion in hoc statu. But the interlocutor continued “...and in respect of the defender’s undertaking not to make complaints other than through his solicitor allows interim contact to continue in terms of the order previously granted.” On 6 August 2013, at a hearing at which the defender was not legally represented but appeared in person, the sheriff pronounced an interlocutor containing these terms:
“...and in respect that the defender admits that he made a complaint to the police other than through his solicitor, contrary to his undertaking recorded in the interlocutor dated 30 April 2013, finds that the defender breached his undertaking; reduces contact to nil and varies the interlocutor of 18 December 2013 accordingly; ex proprio motu discharges the pre proof hearing fixed for 12 August 2013 and, of new, assigns 19 August 2013 at 10.00am as a pre proof hearing; continues consideration of contempt of court until said hearing.”
[13] Subsequent interlocutors continued “the question of the defender’s contempt” to the proof diet. Paragraph 43 of the sheriff’s note states:
“43. That leaves me to deal with the defender’s contempt of court. Since his conduct in so doing has led to contact being stopped, and not resumed, I do not consider it expedient to mete out any punishment. I have therefore admonished the defender.”
The sheriff’s decision
[14] The basis upon which the sheriff decided that there should be no contact between the child and her father may, we think, be conveniently summarised as follows. The sheriff took an adverse view of the defender’s credibility as a witness. He held that the complaints which the defender had made to the social workers or, in the last instance, to the police were made maliciously, out of animosity to the pursuer, rather than out of a genuine concern for the welfare of the infant. Those complaints had exposed “the child to unnecessary investigations which were not in her interests”. The defender had made some derogatory remarks about the pursuer in the presence of the infant. The defender still bore some ill will towards the pursuer. The sheriff dismissed any evidence by the defender that he would adopt a more positive attitude to his relationship with the pursuer in the future. He considered that there was thus a risk that, were the defender allowed to have any contact with the child in the future, he would make further unwarranted complaints about the mother’s care; and the making of such complaints would not be conducive to the child’s interests.
[15] Having set out the views which we have just summarised, the sheriff then concludes in paragraphs 41 and 42 of his note as follows:
“41. It must be acknowledged, of course, that the defender was able to look after the child adequately, when he did have contact and before the parties separated. Although, some minor concerns were expressed by the pursuer’s mother these were evidently not such as to raise concerns in the mind of the pursuer at the time as to constitute a reason for stopping or even reducing contact. It is not said that the child would be at any risk of physical abuse at the hands of the defender, albeit repeatedly taking her unnecessarily to the doctor and hospital, and exposing her to unnecessary investigations, could be seen as a form of abuse. However, contact should not be awarded simply because the defender is able to tend to the child’s immediate physical needs. That could equally be said of a child-minder or baby sitter. There must be a discernable benefit to the child if contact is to be allowed. The defender had every opportunity to state what benefit contact would bring the child, but was unable to put forward any concrete example. Rather, he said that ‘he’ would derive a lot from it, yet another example of his focus on himself rather than the child. He said he and the child would do father-daughter things, but did not explain how they would benefit the child. Contact would of course help to preserve the father-daughter relationship, but there is no presumption that that is always in a child’s interests, and each case must turn on its own facts. In the present case, I have come to the view that the risks inherent in resuming contact and of consequent emotional damage to the child outweigh any benefit which contact might bestow upon her. I do not consider that the defender is capable, at this time, of giving her appropriate control, direction or guidance and I do not see that contact would confer any benefit on the child at this stage in her life.
42. Since I have concluded that contact would not be beneficial to the child, it follows that it is not better for the child to make a contact order than not to do so. The defender’s claim for contact therefore falls to be refused.”
The sheriff principal’s decision
[16] Although the pursuer was unrepresented before the sheriff principal, grounds of appeal formulated by his early legal advisors were before her. The grounds upon which it was sought to challenge the sheriff’s decision foreshadowed in fair measure the arguments and submissions to be developed and refined before us by Mr Maxwell, of which the sheriff principal did not have the benefit. In these circumstances we intend no disrespect to the sheriff principal by turning now to the submissions made to us.
Submissions
[17] In his grounds of appeal the defender advances a criticism that while in paragraph 34 of his note the sheriff had correctly recorded that there was no onus on the parent seeking contact, in his subsequent paragraph 41 the sheriff expressed himself differently in that he required of the defender that he should have stated in his evidence a “concrete example” of a “discernable benefit” to the child. That was in effect to place just such an onus on the party seeking to maintain contact. In refusing the appeal, the sheriff principal’s judgment referred to that paragraph 34 but made no reference to the later, differently expressed passage in paragraph 41. While in his submission to us Mr Maxwell advanced that criticism, he did so in the wider context of his submission on the other grounds of appeal that the sheriff had failed to appreciate that the defender and his infant daughter had a right to family life which was protected against interference by virtue of article 8 ECHR and, importantly, that any interference with that required to be justified as “necessary”.
[18] In advancing that proposition Mr Maxwell made clear that it was not contended that the provisions of the Children (Scotland) Act 1995, which made the welfare of the child a paramount consideration, were other than compatible in legislative terms with article 8 ECHR – see White v White 2001 SC 689. But it was apparent from paragraphs 42-44 of the judgment of the European Court of Human Rights – “ECtHR”- in Elsholz v Germany (2002) 34 EHRR 58 that interference in the relationship between a parent and the child by denying their having contact with each other involved an element of “necessity”. As we understood Mr Maxwell, what he meant by this proposition was essentially that, where a court was invited to bring to an end the substance of the relationship between a parent and his or her child, there required to be weighty and cogent grounds before the court could properly hold that the best interest of the child necessitated the termination of that family relationship. All factors required to be carefully considered, examined and balanced. It should be for the party contending for the ending of the relationship to establish those significant, cogent elements in the factors to be balanced which necessitated, in the best interest of the child, that the relationship should in its substance be ended.
[19] In regard to the circumstances of the present case, while the defender disputed the negative view taken of him by the sheriff, Mr Maxwell recognised that, particularly given the absence of any transcript of the evidence, this court could not overturn the sheriff’s factual findings. The defender was therefore constrained to accept that he had been found not to have behaved well towards the pursuer. But that was in respect of his interaction with the pursuer; there was nothing to justify any finding that the defender’s attitude to the pursuer had had any effect on the welfare of the child. She was not even three years of age when the sheriff terminated contact in August 2013. There was no evidence, and certainly no finding, that she was aware of or had any appreciation of the four complaints, alleged to be “spurious”, made by the defender. Finding in fact no 34 did record that when the police attended at the pursuer’s home the infant was asleep; but nothing could be said of her having been aware of anything as a result of being woken on that occasion. In any event, taking an infant to be seen by a medical practitioner was an ordinary event and not emotionally damaging.
[20] There was a recognition that generally it was in the best interests of any child to have and maintain contact with both parents – cf White v White. In the present case that general consideration was in fact reinforced by the extensive contact which the defender and his young daughter had enjoyed. There was no evidence other than that he had cared for her well. In order to terminate that family relationship, important and weighty reasons were therefore required. At best the sheriff had decided that there was a “risk” that the defender might at some point in the future make further expression of concern to social workers, which by in turn might be unwarranted. But that risk – which the defender disputed – could not constitute a reason, respecting the best interests of this young child, which necessitated interfering with the family life of the child and her father by terminating that existing, significant relationship.
[21] For his part counsel for the pursuer submitted as respects the first ground of appeal, in essence, that while it was accepted that there was no onus of proof on the parent seeking contact- and that the sheriff would have erred if he decided on the basis that the defender had failed to prove any positive ground for contact -the sheriff had not in fact done so. That which, in the submission of counsel, the sheriff had done was to decide that there was a risk that, were contact to be resumed, the defender would make allegations or complaints to social workers which would be unwarranted and that the making of such an allegation or complaint would not be conducive to the child’s best interests. The sheriff had thus decided matters on the basis of a risk of detriment, and not on the basis that the defender had failed to discharge a burden of proof.
[22] As respects the second ground of appeal, there was no test of “necessity”. That criterion was not mentioned in the 1995 Act, which had been held to be ECHR compliant. While a balancing of the interests of the parent and the child was required, in so far as there might be any conflict whatever in that balance, the interests of the child must prevail. The sheriff had concluded that there was a risk that the defender would make further unwarranted complaints respecting the mother’s care and that the making of such a complaint would not be conducive to the welfare of the child. That finding of a risk that something not conducive to the interest of the child might occur, in itself, had to prevail over any other considerations. There was no need at all to examine further whether it might otherwise be necessary to interfere in the family relationship by refusing any future contact.
Discussion
[23] In advancing his argument on behalf of the defender, Mr Maxwell placed weight upon the judgment of the ECtHR in the case of Elsholz v Germany as supporting both his contention that refusing further contact between the defender and his daughter was an interference in their family life and that the interference had to be “necessary” in the sense in which he advanced that notion, namely that in balancing all of the relevant factors there had to emerge cogent reasons for concluding that the interests of the welfare of the child, which were foremost or paramount, necessitated disruption of that family life.
[24] The particular passages of the judgment of the ECtHR pertinent to this matter are these:
“48 In determining whether the impugned measure was ‘necessary in a democratic society’, the Court will consider whether, in the light of the case as a whole, the reasons adduced to justify this measure were relevant and sufficient for the purposes of paragraph 2 of Article 8 of the Convention. Undoubtedly, consideration of what lies in the best interest of the child is of crucial importance in every case of this kind. Moreover, it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned. It follows from these considerations that the Court’s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities regarding custody and access issues, but rather to review, in the light of the Convention, the decisions taken by those authorities in the exercise of their power of appreciation.
49 The margin of appreciation to be accorded to the competent national authorities will vary in accordance with the nature of the issues and the importance of the interests at stake. Thus, the Court recognises that the authorities enjoy a wide margin of appreciation, in particular when assessing the necessity of taking a child into care. However, a stricter scrutiny is called for in respect of any further limitations, such as restrictions placed by those authorities on parental rights of access, and of any legal safeguards designed to secure an effective protection of the right of parents and children to respect their family life. Such further limitations entail the danger that the family relations between the parents and a young child would be effectively curtailed.
50 The Court further recalls that a fair balance must be struck between the interests of the child and those of the parent and that in doing so particular importance must be attached to the best interests of the child which, depending on their nature and seriousness, may override those of the parent. In particular, the parent cannot be entitled under Article 8 of the Convention to have such measures taken as would harm the child’s health and development.”
These passages were noted by this court in White v White.
[25] In our view Mr Maxwell was correct in his broad submission that where a decision is taken to interfere in an existing, and in practical terms significant, family relationship between a parent and the child by, in substance, bringing that relationship to an end a careful balancing exercise requires to be carried out and factors require to be identified which clearly make that step necessary and justified in the paramount interest of the child.
[26] Although a submission broadly on those lines was advanced to the sheriff by the defender’s solicitor, the sheriff rejected it. In paragraph 33 of his note the sheriff says:
“33 It follows that I cannot accept [the defender’s solicitor’s] submission that the test for not making an order is one of necessity. That may well be so when a court is considering whether or not to terminate the parent – child link, in adoption or permanence proceedings, or in considering other state intervention, but that is not the issue currently before the court. As Lord Hope said in Sanderson, even the cessation of contact does not amount to a permanent severing of the link between parent and child, since it is always open to a court to come to a different decision upon a change in circumstances. “
The sheriff principal endorsed that approach. In paragraph 40 of the sheriff principal’s note the sheriff principal says:
“The necessity test accordingly has a place where there is the most serious interference in private or family life such as adoption where the parental rights and responsibilities are severed. On the other hand withdrawal of contact is a decision by the court not to make an award of contact and does not involve the extinguishment of parental rights or responsibilities. The appellant in this case continues to have parental rights and responsibilities.”
[27] We are not persuaded that the approach of the sheriff and the sheriff principal on this point is sound. The issue before the ECtHR in Elsholz v Germany was indeed one of contact between the child and the non‑residential parent; the refusal of contact constituted the interference by the state; and it did not amount to a permanent severing of the legal relationship of parent and child. In our view, it is the substance and extent of the interference which matters. The greater the substance and extent of the interference, the more is required in the opposing scale of the balance to justify that interference. The practical import of the sheriff’s decision in the present case was to end for an indefinite time – with no identifiable prospect of resumption – the existing and continuing family life enjoyed by the child and her father. That interference required to be one which could be justified as necessary, in the sense in which Mr Maxwell deployed that concept, even if the interference did not involve the technical extinction of the legal relationship of parent and child. In this respect, it appears to us that the courts below may be said to have fallen into error.
[28] The question then becomes whether, recognising of course the advantages of a first instance judge who has heard the evidence, this court may be satisfied that nonetheless the sheriff has properly approached that task in this case and has properly directed himself to the need to carry out a careful balancing exercise and in that, perhaps difficult, ponderation to identify the weighty and cogent elements which necessitated interfering by way of severance, unlimited in time, of the existing family relationship between the defender and his infant daughter.
[29] In that respect it is in our view important to appreciate that, prior to the sheriff’s interlocutor of 6 August 2013, the defender played a significant part in the life of the child. Although lacking in detail, it is evident from finding in fact 7 that prior to the parties’ separation in November 2011 the defender played an important rôle in the sense that he cared for their daughter while the pursuer was at work. There is no finding that when she was not at work he did not also perform the normal rôle of a good father. After the separation the defender continued to have the care of the infant on three days per week until 18 December 2012 when, following the breakdown of the mediation, the sheriff ordered that contact should be in a contact centre. The sheriff does not trouble to detail in his findings in fact the extent of that contact; but there is no suggestion that it was in any respect minimal or unproductive for the continuing relationship between the child and her father. Nor is there any finding that the defender did other than look after the little girl well and positively. While (in paragraph 36 of his note) the sheriff does make some acknowledgement of the past contact as being “in the defender’s favour”, it is given scant attention by comparison to the extensive attention devoted by the sheriff in his discussion to the personal dispute between the parents and particular to the spurious complaints, which seemingly came to dominate the enquiry before him.
[30] The facts found by the sheriff respecting the complaints must, in our view, be examined with some care. First, as Mr Maxwell pointed out, the relationship between the parties had been volatile with the pursuer also much to blame for the arguments between the parties. The animosity was therefore not one sided. (We would observe en passant that the breakdown of the mediation session, which in turn led to the sheriff’s acceding to a motion to withdraw contact by confining it to contact in a contact centre, was caused by loss of temper on the part of the pursuer.) But while the sheriff may have found that the defender behaved badly as respects his relationship with the pursuer, there was nothing to the effect that his advancing concerns to social workers had any actual consequence for the child; she was not aware of, nor would have any appreciation of, the making known of those concerns. It is also to be noted that (apart from the anonymous telephone call respecting the pursuer’s being involved in drugs) each of the complaints respecting the child was made in circumstances in which it is found as a fact that the child had indeed marks or other physical symptoms about which the mother had not informed the father. As it was put by Mr Maxwell, the high point is perhaps the fourth incident in which, by reason of the attendance of police officers, the child was awoken from sleep – we presume by the mother for the sheriff’s findings do not elaborate on that. Accordingly while it may no doubt be that, fuelled by the animosity between the parties, the defender’s conduct may be open to criticism and it may be that following the voicing of his concerns the infant was examined, in the event unnecessarily, by a social worker on two occasions, on one occasion by a paediatrician and on one occasion by a general practitioner in respect of injuries or physical conditions which were in fact present on the infant, it is hard to conceive that these examinations were in any material way detrimental to the emotional welfare of the very young child. As Mr Maxwell observed, almost all young children are from time to time examined by medical practitioners; and no reasonable person would regard that as emotionally damaging even if the examination were prompted by misplaced anxiety on the parent’s part.
[31] There being thus no proper basis for concluding the relationship enjoyed by the child and the defender from her birth to date was in itself other than satisfactory and should continue on the accepted view that it is best that a child have a relationship with both parents, the sheriff’s decision must turn on his conclusion respecting future risk. That conclusion was to the effect that there was a risk (a) that the defender would, in future, make a further spurious complaint or complaints about the mother’s physical care and (b) if, as the still very young child which she was, the child were aware of those complaints, the child might suffer some emotional damage. And since the defender had not been able to put forward “any concrete example” of a “discernable benefit”, other than doing normal “father and daughter things”, the risk must prevail to the extent of requiring the relationship to be terminated with no foreseeable prospect of its resumption.
[32] Two principal observations may be made on that balancing of interest.
[33] The first is that while the ground of appeal may have presented the matter as one of onus, the approach of the sheriff in requiring that the defender identify a “concrete example” of a “discernable benefit” from continuing contact and in dismissing the defender’s explanation of the benefit of contact by doing normal “father and daughter things”, is an approach which in itself largely sets aside the intrinsic value of the child’s having a relationship with both parents. Doing “normal father and daughter things” is simply a part of a normal relationship between a female child and her father. The point is reinforced by the circumstances of the present case in which the defender had extensive care of his daughter and cared for her well. As we have already observed, it is notable that in both the sheriff’s findings in fact and his extensive note the relationship between the defender and his daughter and the value to her of growing up further in contact with the father who had been significantly involved in her care since her birth receives little attention.
[34] The second observation is that, on an objective view, the sheriff’s conclusion that there was a risk of future emotional harm from the repeated making of spurious complaints respecting the child’s welfare in the future proceeds on relatively slender foundations. The initial group of complaints, made within a period of successive days, followed the emotive argument in July 2012 and were all concerned with a skin complaint. No further complaint was made to any social worker or other similar authority which might be suggestive of any complaint about the mother’s care was made until April 2013 when marks on the young child were brought to the attention of social workers by the defender. The third incident was some three months later and again in response to the presence of actual signs of injury. In our view this history of the temporally relatively well spaced incidents gives little objective support for the sheriff’s dismissal of the defender’s expression of willingness to adopt a more positive view of the pursuer. Nor does the sheriff offer any reason for not “running the risk”, when all the other circumstances pointed strongly to the continuing of the existing relationship between the child and her father and the making of a complaint, even if in the event unjustified, does not automatically mean damage to the child. Further, the sheriff does not contemplate or envisage any event or situation for the resumption of contact at any time in the foreseeable future; nor does he consider how the effects of severing the relationship – which can only increase with the passage of time- might be made good or repaired. We also note that while in her concluding paragraph 43 the sheriff principal expressed hopes for the future she was not able to offer any answer to the obvious question, given the terms of the sheriff’s decision, of the circumstances in which that might arise.
[35] In the course of his submissions counsel for the pursuer submitted that the import of the argument advanced by Mr Maxwell on behalf of the defender amounted to a submission, not contained in the grounds of appeal, that the sheriff had “gone plainly wrong“. That may well be a sound analysis of the result and we do not disagree with it. We consider that, for the variety of reasons which we have set out, this is a case in which as an appellate court we should conclude that the sheriff has gone plainly wrong; and in our view we should not be deterred, especially in a case in which the appellant did not have the assistance of counsel, from giving effect to that conclusion for the technical reason that it may not have been wholly appropriately focussed as a discrete ground of appeal.
[36] As a corollary to that conclusion, we have to voice some concerns about the circumstances in which the sheriff held the defender to be in contempt of court. That contempt was said to be a breach of an undertaking to the court. In order to found a basis for a subsequent finding of contempt, an undertaking to the court must be formally recorded in terms which meet the precision required of a decree of interdict and which could competently be included in an interdict. We find no such undertaking in the loose terms of the sheriff’s interlocutor of 30 April 2013. Further, according to the interlocutor of 6 August 2013, when the sheriff found the defender to be in contempt, the defender was not represented and did not have the benefit of legal advice. Before making a finding of contempt, the person alleged to have been in contempt should normally be accorded the benefit of legal representation. Moreover, to find contempt there must be wilful disobedience to the court. On any view the noted terms of the undertaking were not, and could not be, an undertaking not to make any complaint respecting the mother’s care of the infant daughter. At best they related to the medium of making such complaints. Plainly, circumstances may be such that a much more immediate method than the medium of complaint through a solicitor was desirable; thus the latter may be wholly inappropriate in certain circumstances. In other words, the undertaking was little thought through. We have also concerns that the mere fact that a complaint was voiced other than through the medium of a solicitor appears to have been treated by the sheriff as itself a reason for terminating contact without any inquiry as to whether there might in fact be justification for making the complaint.
[37] For all these reasons we have come to the conclusion that this appeal must be allowed. We shall therefore recall the interlocutor of the sheriff principal of 8 July 2014; and recall the operative part of the sheriff’s interlocutor of 27 February 2014 insofar as it refuses the defender’s crave for contact. Parties appeared to us to be at one in thinking that in the event of us reaching that conclusion the matter should return to the sheriff court for consideration by a different sheriff. We shall follow that course.
[1] Unless otherwise indicated, all references to “the sheriff” are to the same individual holding that office.