Father fails in appeal against refusal of contact with child despite sheriff’s ‘out of date’ decision

Sheriff Principal Craig Scott QC (pictured) ruled that the mere passage of time between the conclusion of the evidence and submissions and the issue of the sheriff’s decision “does not per se serve to undermine the decision ultimately arrived at by the court”.

The court heard that the father “ACS” had sought parental rights and responsibilities together with contact in respect of the child “A”, but that the mother “ARA” had challenged the application.

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.

However, having made avizandum after proof in October 2013, the sheriff failed to issue his judgement until August 2014 with the result that a period of some 10 months passed between these two stages in procedure – during which contact between the child and the father had continued until shortly before the ruling was made.

The issue in the appal was therefore whether the passage of time between the case being taken to avizandum and a judgement being issued vitiated that judgement in that it was, by then, “significantly out of date”.

On behalf of the pursuer it was submitted that contact had “worked well” and was a “positive experience for both father and son”.

It was argued that it would have been relevant for the court to know and to consider what had transpired throughout the previous 10 months when it came to on-going contact between the pursuer and the child.

It was also 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 continuing contact.

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, it was submitted.

For the defender, it was 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.

Section 11(7) of the Children (Scotland) Act 1995 requires the court, taking account of the child’s age and maturity, to give him an opportunity to indicate whether he wishes to express his views and have regard to such views as he may express.

The sheriff had indicated that the child’s views about contact were “neutral” and it was submitted that the approach taken by the court in terms of the legislation was “beyond criticism”.

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, it was submitted, a matter which was entirely for the judgement of the sheriff in question and therefore the court should be slow to interfere with the sheriff’s judgement in these circumstances.

The Sheriff Principal rejected the arguments put forward on behalf of the father in support of the appeal, adding that he was “comfortably satisfied” that the arguments presented on behalf of the mother were to be preferred.

In a written judgement, Sheriff Principal Scott said: “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.”

He added that while it was difficult to see the justification for the 10-month delay, there was “no suggestion that a materially different outcome would be arrived at” if a new hearing was ordered.

Sheriff Principal Scott said: “There is no doubt that the passage of time is regrettable. 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.

“There was no actual criticism of the sheriff’s findings in fact or in respect of any views arising from those findings.

“When properly analysed, 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.”