Council’s appeal against sheriff’s post-adoption contact order refused by Sheriff Appeal Court

Dundee City Council claimed that the sheriff had gone “plainly wrong” in the exercise of her discretion, but the Sheriff Appeal Court said there was “no cogent argument” in support of that contention and dismissed the appeal as “totally without merit”.

Sheriff Principal Craig Scott QC, sitting with Sheriff Principal Marysia Lewis and Sheriff Alasdair MacFadyen, heard that in February 2016 the sheriff at Dundee granted a permanence order in respect of the child “A” and as part of that order also determined that there should be contact between A and his father, the respondent in the appeal, four times a year.

The permanence order had been sought by Dundee City Council (DCC) and at the hearing before the sheriff the local authority did not seek to exclude post-order contact between father and child, but it founded upon evidence given by a member of its social work department to the effect that it was in A’s “best interests” that direct contact post-adoption be “no more than twice per annum”.

The note of appeal purported to identify certain errors in law on the part of the sheriff, but the appeal sheriffs observed that the appeal could only be construed as “a challenge to the exercise of the sheriff’s discretion”.

For the purposes of the appeal, the solicitor for DCC sought to highlight the proposition that the post-adoption placement intended for A had been withdrawn “as a result of the sheriff’s decision on contact”.

It was submitted that, had the sheriff simply followed the social work approach to contact, the placement would have remained “open and available”.

However, the thrust of the appeal carried with it the contention that in electing to order that contact should take place four times per annum rather than two the sheriff had been “plainly wrong” when it came to the exercise of her discretion.

Counsel for the respondent submitted that the issue for the court at first instance was to determine the extent of contact, as parties had agreed that post-order contact was in the child’s “best interests”.

Whether there ought to be post-order contact and, if so, the extent of such contact were matters for the sheriff to determine subject to her assessment of the evidence presented to her.

It was therefore argued that the appeal could only amount to a challenge to the exercise of the sheriff’s discretion.

Counsel also reminded the court that when it came to the sheriff’s assessment of the evidence, an appellate court would only be entitled to interfere with the sheriff’s assessment and analysis of the factual material in question if her decision was “plainly wrong”.

In reflecting upon the merits or otherwise of the appeal, the appeal sheriff said it was worth noting the approach actually taken by the sheriff.

She had noted the “competing positions” adopted at the hearing, stating that DCC favoured no more than twice yearly whereas, on behalf of the respondent, it was submitted that contact should continue as was then the case, namely once per month.

The sheriff went on to note the social worker’s position to the effect that while twice yearly contact was in A’s best interests, contact three times per annum could be “detrimental” to him.

However, the sheriff stated that she found that view “difficult to accept” and then presented her analysis of the flaws in such an approach.

Delivering the opinion of the court, Sheriff Principal Scott said: “In our view, in the foregoing extracts from her decision and, indeed, looking to the sheriff’s decision as a whole, she has displayed a careful and balanced approach to the issue in question, viz. the extent of post-adoption contact between father and child. It appears to us that no basis exists for this court to interfere with the exercise of the sheriff’s discretion.

“More generally, when the court pauses to analyse the scope of the issue brought before it on appeal, it struggles to avoid the conclusion that the appeal verges upon being unstateable. In reality, what it seemed to boil down to was DCC’s displeasure at the sheriff’s decision not to give effect to the tenor of the evidence from their social work department.

“We observe that it is the court’s duty in cases of this nature to place the evidence led before it under close and, if need be, critical analysis before arriving at its decision as to what lies in the best interests of any child. It does not and cannot follow that a court of first instance has indulged in an improper exercise of its discretion merely because it happens to disagree with the evidence of a particular witness.

“Accordingly, in these circumstances we have refused the appeal as being entirely without merit.”