Father seeking contact with child wins appeal after action was dismissed over procedural failure

The Sheriff Appeal Court allowed the appeal after ruling that the sheriff failed to have the welfare of the parties’ six-year-old daughter as his “paramount consideration”.

Sheriff Principal Marysia Lewis, sitting with Sheriff Principal Craig Turnbull and Appeal Sheriff Nikola Stewart, heard that the pursuer and appellant “MJ” raised proceedings against his former partner “KJ” seeking contact with their daughter “EJ”.

Pre-hearing conference

At a child welfare hearing on 16 February 2017 the sheriff, having noted the parties’ position that there was “no possibility of compromise or agreement” on the issue of contact, made no order, and stated that the matter should proceed to proof as quickly as possible.

An options hearing called before the same sheriff on April 4, at which that sheriff assigned a case management hearing to call before him for May 8.

In terms of rule 33AA.3(1) of the Ordinary Cause Rules, the parties must hold a pre-hearing conference in advance of the case management hearing, where they must discuss settlement of the action, and agree, so far as is possible, the matters which are not in dispute between them.

Rule 33AA.3(2) requires the pursuer to lodge with the court a joint minute of the pre-hearing conference prior to the case management hearing or explain to the sheriff why such a minute has not been lodged.

A pre-hearing conference took place on May 3, following which a draft joint minute was prepared by the agents for the pursuer and appellant and forwarded to the agents for the defender and respondent on May 8, after the case management hearing, which was continued.

The second case management hearing on June 19, which was presided over by the same sheriff who had dealt with the child welfare hearing and the options hearing, was continued to a further case management hearing before the same sheriff; the interlocutor stipulating that a pre-hearing conference minute required to be lodged prior to the next calling of the case.

Default

When the third case management hearing called on June 26 the sheriff was unavailable and the case called before a different sheriff who had no previous involvement with the case.

The joint minute of the pre-hearing conference had still not been lodged, with the agent for the pursuer and appellant blaming the agents for the defender and respondent for refusing to approve the draft, whereas the agent for the defender and respondent complained that the draft did not reflect all matters of importance.

Based on the information before him and the explanation given to him and in the context of “sluggish progress” of the case, the sheriff decided that the failure to lodge the long awaited joint minute constituted a “default” which was “intolerable” and he dismissed the action.

However, before the appeal court the pursuer and appellant argued that the sheriff had “erred”.

It was submitted that the presiding sheriff’s failure to have regard to the reasons why a joint minute was not available amounted to a “wholly unreasonable exercise of discretion”.

The appeal sheriffs agreed that the sheriff had “misdirected himself in law”.

‘Wholly unreasonable decision’

Delivering the opinion of the court, Sheriff Principal Turnbull said: “The requirement imposed upon the pursuer by rule 33AA.3.(2) is not simply to lodge a joint minute of the pre-hearing conference. The rule envisages that this may not be possible.

“If the joint minute is not lodged, the pursuer requires to explain to the sheriff why that is so. Whilst rule 33AA.3.(2) imposes an obligation upon a pursuer, it seems to us that that pre-supposes there being an agreed joint minute to lodge.

“In our opinion, a default can only arise under rule 33.37 if no joint minute is lodged and no explanation is tendered to the court. In this case, an explanation was offered to the sheriff.”

Accordingly, the court held that there was no default.

The Sheriff Principal added: “He failed to have the welfare of the child concerned as his paramount consideration. Such reasoning as there is in this regard proceeds on a misunderstanding of the history of the case and the reasons for the delay in progressing matters.

“He appears to have failed to have regard to what had been said previously by the sheriff who had predominantly managed the case. The net effect of the foregoing is that the decision taken was…wholly unreasonable.”