Glasgow sheriff refuses to recuse himself from child relocation case

The case commenced when the pursuer and father, AB, sought to secure the return of their child from the USA, where they had previously been taken by the defender, CD, the child’s mother. Child welfare proceedings thereafter continued in Scotland.

The case was heard at Glasgow Sheriff Court by Sheriff Andrew Mackie.

Hidden agenda 

The action was commenced in the Court of Session in January 2016 before being remitted to the sheriff following the return of the child to Scotland and the grant of an interim interdict preventing the further removal of the child. Sheriff Mackie found that the pursuer was entitled to interim contact in June 2016. 

The case was sisted until August 2017 to allow contact to operate. At a child welfare hearing on 8 August 2017 the pursuer expressed concerns that the defender’s intention continued to be to relocate with the child to the USA and that the views of the child regarding contact were being influenced by her. The defender submitted that the child’s distress and reluctance to attend contact were due to the significant number of contact visits the pursuer had failed to attend. 

A verbal motion was made for the recusal of the sheriff by the defender in October 2017. The defender’s agent submitted that the sheriff may have prejudged the case based on a suggestion by the pursuer’s agent that there was a “hidden agenda” to relocate the child throughout the life of the action and remarks he had previously made to the defender reminding her that the court would look very closely at whether she had been encouraging the child in this respect. 

It was submitted for the defender that only the possibility of bias required to be shown, and that the defender had doubts based on the sheriff’s view that she had an agenda. She felt that that previous issues involving the defender taking the child to the USA in the first instance which did not form part of proceedings may influence the sheriff in the manner in which he would judge this case going forward. 

The pursuer’s agent submitted that the words “hidden agenda” had only been used in a communication by her firm to an advocacy service in September 2017. The defender had applied for legal aid in respect of seeking a specific issue order permitting her to relocate to the USA, which the sheriff was aware of, giving credence to the suggestion there had always been an agenda of relocation. 

It was further submitted that, as the communication from the pursuer’s agents did not contain any direct quotations from the sheriff but simply stated he had acknowledged the suggestion made that the defender may have had an agenda throughout proceedings, a fair-minded and informed observer would not conclude that the sheriff was biased in the circumstances. 

No quotation 

In his decision, Sheriff Mackie said of his conduct in the August hearing: “I observed, in addressing the defender, that she should consider quite carefully that, in any court process where she sought an order from the court permitting such relocation, that the court would ultimately, at proof when evidence is led, look very closely at whether or not the defender had been encouraging said child to exercise contact with the pursuer while all parties were resident in Scotland.” 

Turning to the September communication by the pursuer’s agents, he said: “The text of the communication sent on 11 September 2017 from the pursuer’s agents to the advocacy service does not contain any quotation of my words. The interpretation is that of a solicitor within the pursuer’s agents’ firm.” 

He continued: “I observe that the communication does not appear to have been prepared by the solicitor who was present at the child welfare hearing on 8 August 2017. I made no reference to there being a hidden agenda to relocate said child throughout the life of the action.” 

Addressing the fair-minded observer test, he said: “A fair-minded and informed observer would also take into account that I am a specialist sheriff at Glasgow Sheriff Court tasked with managing family and child proceedings; that such a role requires an interventionist approach to case management; that this approach often involves inviting parties to consider their positions in respect of certain relevant issues prior to hearing evidence; and that issuing such invitations does not mean that those issues have been summarily determined at a preliminary stage in the proceedings.” 

Sheriff Mackie concluded: “Having considered the remarks which I made in the context of the issues raised by parties during the child welfare hearing on 8 August 2017, I do not consider, looking at the matter objectively, that the defender has been able to demonstrate a real possibility that I am biased against the defender.” 

He also noted: “There is a need for judicial continuity in the context of family law proceedings, particularly where those proceedings relate to the welfare of children and where the context is the changing dynamics of individuals within a family. In that context there may be a need to decide a number of issues over a number of years before the same judge.” 

For these reasons, the defender’s motion was refused.