Sheriff Appeal Court refuses appeal against decision to suspend contact between father and teenage daughter after failure to return

About this case:

• Citation:
  [2023] SAC (Civ) 29
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Appeal Sheriff A M Cubie

It was argued by the appellant, F, that the sheriff had failed to afford the child, H, an opportunity to express her views. The appellant had denied repeated requests to return H to her mother, even after his property was attended by Sheriff Officers seeking to enforce the decree.

The appeal was heard by Sheriffs Principal Kate Dowdalls and Gillian Wade, along with Appeal Sheriff Andrew Cubie. Allison, advocate, appeared for the appellant and Thompson, solicitor, for the respondent.

Punitive reasons

By interlocutor dated 12 November 2023, the appellant was granted residential contact with H. On 16 February 2023, F did not return H to M notwithstanding the terms of the decree and despite repeated requests. The respondent then lodged a minute of variation with Glasgow Sheriff Court seeking delivery of H and the reduction of contact to nil.

The appellant failed to return H, despite the attendance of Sheriff Officers at the property. In advance of a hearing in March 2023 he lodged an affidavit in which he stated that, despite his encouragement, H did not want to return to the respondent and he had not allowed the sheriff officers access to the property as he considered it would cause her distress.

Counsel for the appellant submitted that the sheriff erred in his failure to allow H to express her views. There was no suggestion that H was at risk of harm in his care, and therefore no pressing urgency requiring an immediate decision without taking that step. The decision to suspend all contact was taken, on the face of it, for punitive reasons rather than in the best interests of the child.

For the respondent it was submitted that the sheriff had been presented with a situation in which F had failed to comply with an extant order of the court, and the order he granted was intended to restore the status quo. The true issue was F’s conduct creating emergency situations, and the suggestion that H’s views must be taken in each of these situations was unsound.

Unfairly criticises

Delivering the opinion of the court, Appeal Sheriff Cubie observed: “While we recognise of course the need to take the views of the child, we consider that such a requirement does not arise in relation to every decision, hearing or step in procedure in a section 11 action [under the Children (Scotland) Act 1995). The requirement is to take the views during the proceedings.”

He continued: “The question of the taking the views is mandatory but the timing must be susceptible to the exercise of a discretion. F, unfairly in our view, criticises the sheriff for not articulating the complete thought process in electing not to take the views of H before making any order.”

Analysing the conduct of the sheriff, Appeal Sheriff Cubie said: “He was faced with a situation where H had not been returned to M eight days after the conclusion of a period of residential contact prescribed in a court order. The sheriff, competently and intelligibly, sought to restore the status quo by the order for delivery. The decision made was not substantive, conclusive or determinative of the competing interests of the parties.”

He went on to say: “The decision to proceed as a matter of urgency was not taken in a vacuum but informed by the existing decree, by the material before the sheriff and by M’s wish to reinstate the existence of a status quo that had been agreed and reflected in the decree. These are in our view cogent and compelling reasons for the sheriff’s decision to proceed on 24 February 2023 in the absence of F.”

On whether the suspension of contact was punitive, he concluded: “The sheriff suspended the operation of the contact order; he did not vary the contact to nil. We do not accept F’s characterisation of a variation and suspension as being interchangeable. A variation of contact to nil carries with it the need for the party seeking reinstatement of contact to demonstrate a change in circumstances; suspension of the exercise of contact is a holding exercise pending additional or new information sought by the court. Importantly, it gives rise to no presumption against the reinstatement of contact.”

The appeal was therefore refused, with the matter remitted to a family sheriff for further procedure.