Inner House refuses appeal against residential contact awarded to father after sheriff found rape allegations not justiciable in contact action

About this case:

• Citation:
  [2024] CSIH 33
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lady Wise

Pursuer SN, the father of three children with defender JN, had raised the action seeking residential contact arrangements. The mother appealed a sheriff’s decision that they were not justiciable in the context of a contact action, and further that the matter was not germane to the limited issues considered at the proof. The appeal was remitted to the Inner House from the Sheriff Appeal Court given the complexities of the issues involved.

The appeal was heard by the Lord President, Lord Carloway, together with Lord Malcolm and Lord Wise. Clark, advocate, and Smeaton, advocate, appeared for the pursuer and respondent and Scott KC and Cartwright, advocate, for the defender and appellant.

Toxic relationship

The parties married in 2016 and had three children, LN, PN and ON, aged 10, four and three respectively. The mother also had an older child from a previous relationship, C. On 3 October 2022, the father moved out of the family home and shortly after was charged in connection with an allegation of assault. He was released on bail subject to a special condition not to approach or contact his wife.

After breaching that bail condition, the father was made subject to a non-harassment order in November 2022 prohibiting him from contacting his wife except in relation to the children. He breached that NHO as well, and after trial was convicted of behaving in a threatening and abusive manner towards the mother. A further NHO was imposed on him preventing him from approaching or contacting his wife at all.

On 25 October 2022, the father raised an action in the sheriff court seeking residential contact with his children. The sheriff made interim orders for shared residence in January 2023 providing for the children to spend alternative weeks with each parent. In advance of a diet of proof due to take place in August 2023, the mother introduced averments alleging that the father had raped her on two occasions in February and April 2022, causing the proof to be delayed into late 2023 to early 2024.

On 13 March 2024 the sheriff determined that the existing care arrangements would continue, and that the allegations of rape were not justiciable in the context of a residence and contact action. He recorded that neither party had a fundamental concern about the ability of the other to care for the children and assessed the mother’s evidence as inconsistent and less reliable than that of the father.

Counsel for both parties proceeded on the basis that the allegations of rape were justiciable, with the focus of submissions being on whether they were germane to the central issues for determination. For the appellant it was submitted that the history of the case should have led the sheriff to the conclusion that the intensity with which he expected the parties to exchange the children would expose them to a toxic relationship and present a greater risk to the mother.

Restricted to single issue

Lady Wise, delivering the opinion of the court, began with the fundamental issue of the case: “While the current proceedings were raised before the formal procedure of case management was codified in the sheriff court, we note from the interlocutors that the sheriff held a number of case management hearings. This commendable practice was, we understand, well utilised in the sheriff court prior to its codification in rules. Unfortunately, in the present case, when the allegations of rape were introduced by late amendment, there seems to have been no attempt to analyse these and consider whether they were germane to the issues for proof.”

Assessing what would have happened if the issue had been considered earlier, Lady Wise said: “A number of factors would have been taken into account, including that; the allegations predated the parties’ final separation and had not been raised as an issue material to the issue of arrangements for the children at any previous stage; there was no suggestion that the children were aware of the allegations or the circumstances giving rise to them; it was not contended that the father should have either no contact or minimal non-residential contact as a result of the behaviour alleged and there was no application to alter the interim arrangements in conjunction with the introduction of the allegations.”

She continued: “Had those factors been identified and considered at the case management stage, it would have become apparent that proof or otherwise of the rape allegations was not essential to determine the narrow issue between the parties, notwithstanding that those allegations were of the utmost seriousness. The case had always been restricted to the single issue of whether the shared care arrangement should continue on the basis already in place or be altered but with the father continuing to have the children with him residentially for lengthy periods.”

Lady Wise concluded: “The sheriff’s approach was to consider the relevant statutory provisions on risk of abuse, but to do so against the backdrop of the narrow scope of the dispute, the father’s proven track record of parenting and the assessment he had made of credibility and reliability. He was concerned to minimise the direct communication between the parties and to reinforce an arrangement that was necessarily inflexible but was operating effectively. His analysis was succinct and pragmatic. In the particular circumstances of this case, we do not consider that he erred in taking that approach.”

The appeal was accordingly refused.