Sheriff Appeal Court allows appeal of residence order after three sheriffs fail to obtain 11-year-old’s views

The defender and appellant, FBI, sought to appeal the interlocutor of three sheriffs granted in favour of the pursuer and respondent, MH. She argued that the sheriffs had failed to seek the views of the child when it had in fact been reasonable to do so.

The appeal was heard by Appeal Sheriffs William Holligan, Thomas McCartney, and Fiona Tait. The appellant was represented by McRae, solicitor.

Tender years

The respondent had previously been granted a residential contact order in respect of the child, who was born in May 2009, in 2015. Until then, the child had resided de facto with the appellant for the entirety of her life.

On 6 November 2020, the first sheriff granted interim interdicts against removal of the child from the respondent’s care and control and furth of the sheriffdom jurisdiction and from her primary school in St Andrews without the respondent’s permission. The sheriff dispensed with seeking the views of the child “due to her tender years”.

On 12 November 2020, as there was uncertainty as to service of the minute, a second sheriff granted warrant for re-service and granted interim orders in the same terms as the interlocutor dated 6 November 2020. He dispensed with intimation and the seeking of views of the child, again “due to her tender years”.

A third sheriff later appointed a procedural hearing for 2 February 2021. At that hearing, the sheriff granted decree as craved by the respondent, with the appellant lodging no answers. The appellant attributed her failure to take any steps to oppose the respondent’s minute to her poor health. In condescendence, the respondent had noted that the child was too young to understand the nature of proceedings.

It was submitted that the pursuer ought to have included a crave for a warrant for intimation and the seeking of the child’s views in Form F9 and submit a draft Form F9 in terms of the Ordinary Cause Rules. At the date of the warrant, the child was 11 years old and therefore more than capable of providing her own views. It was difficult to understand how, in the absence of any reason other than age alone, it was felt appropriate to dispense with intimation.

Suggestive of a formula

The opinion of the court was delivered by Appeal Sheriff Tait, who began: “The Minute discloses no averments to suggest that the child was not capable of forming a view, that it was not practicable to consult her or that she was not of sufficient age and maturity to form and express a view. The reference to ‘tender years’ and ‘unable to understand’ are suggestive of a formula rather than of any particular consideration given to the individual child.”

She continued: “It may well be the case that a child will not understand the full import of proceedings but that ought not to inhibit completely their participation in the making of decisions affecting them and does not reflect the statutory test.”

Examining the decision of the third sheriff, she said: “The sheriff who considered the Minute and interim orders on 10 December 2020 may have lost sight of the court’s duty under section 11(7)(b) of the [Children (Scotland) Act 1995] and may have given undue weight to the decisions of the two sheriffs dated 6 and 12 November 2020. It is appreciated that these were interim orders sought on the basis of averments of child protection concerns and while opportunity was being given for the now appellant to enter proceedings by lodging Answers.”

She continued: “From her note, the sheriff is clearly reluctant to embark upon an exercise of seeking the child’s views and considers that she can ascertain the views to an extent from school and social work records. Nonetheless, a residence order is now in contemplation and a child almost aged 12 years has not been given an opportunity to express a view. There are no circumstances which would militate against the opportunity being given in terms of maturity, practicability or welfare.”

Appeal Sheriff Tait concluded: “There may be concerns that the issue of a Form F9 may cause distress or anxiety to the child; there may be other ways of securing views such as the appointment of a child welfare reporter. The court may require more information and may welcome input from both parties on how best to engage the child in the process. However, such consideration does not negate the duty imposed upon the court by section 11(7)(b).”

The appeal was therefore allowed, and the residence orders and interdicts recalled and remitted to the sheriff for fresh consideration.