Sheriff Appeal Court refuses appeal against permanence order by mother of child with developmental difficulties

About this case:

• Citation:
  [2022] SAC (Civ) 22
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal Marysia Lewis

A permanence order in respect of the child, A, was granted in April 2022, with contact between A and his mother permitted at the discretion of the respondent, Highland Council. The appellant, who herself had learning difficulties, was not present at the hearing at which the order was granted.

The appeal was heard by Sheriff Principal Marysia Lewis and Appeal Sheriffs Norman McFadyen and Patrick Hughes. The appellant was represented by Mr Allan, solicitor, and the respondent by Ms Davey, solicitor.

Late opposition

The application for a permanence order under section 80 of the Adoption and Children (Scotland) Act 2007 in respect of A, the eldest of four siblings all in foster care, sought to extinguish the rights and responsibilities of A’s birth parents and specify annual indirect contact as well as discretional contact as determined by the council to be in A’s best interests. The appellant took no steps to oppose the granting of the order until 23 March 2022, a week after the deadline of 16 March.

On the day of the hearing, the appellant contacted her solicitor to advise that she would not be able to attend the hearing. It was her understanding that the hearing was to be in person in Inverness Sheriff Court, however it was in fact to take place via video conference. The solicitor attempted to contact the court but was met by a recorded message and was unable to contact Highland Council’s solicitor as she was attending the preliminary hearing.

In his note, the sheriff who conducted the preliminary hearing explained that, although the solicitor for the council was present, there was nothing to indicate there was any intention on the part of any party to oppose the application. He concluded that, in the absence of opposition, it was in the best interests of A to have the order be granted.

It was submitted for the appellant that a clear injustice had resulted which was not the making of the appellant, and she had been denied the opportunity to present her position. As an esto position she challenged the contact orders made as unduly restrictive. In response, the solicitor for the respondent submitted that the appeal was unnecessary, with the appropriate remedy for the appellant being an application in terms of section 98 of the 2007 Act for the revocation of the order.

No procedural irregularity

Delivering the opinion of the court, Sheriff Principal Lewis began by noting: “The respondent submitted that the appellant does not have a right of appeal under the 2007 Act against an order granted in absence. We disagree with the generality of that proposition. Rule 7 provides that an appeal to the Sheriff Appeal Court ‘against an order of the sheriff under these rules’ is to be made in accordance with Chapter 6 of the Act of Sederunt (Sheriff Appeal Court Rules) 2015. Given the timing of the application and the appeal, it is the Act of Sederunt (Sheriff Appeal Court Rules) 2021 which apply. Nothing turns on this.”

Turning to the substance of the appeal, she said: “The note of appeal does not identify any error of law on the part of the sheriff. As the submissions developed the solicitor for the appellant struggled with that issue, eventually suggesting that the decision is flawed because it was made in ignorance of the unsuccessful attempts to enter appearance. We do not find that part of the submission to be persuasive.”

She continued: “The solicitor did not lodge a motion seeking relief and requesting that the Form of response be received although late. Had such a motion been lodged, the sheriff may well have granted it having regard to the appellant’s known learning difficulties and the attempt to lodge electronically. Although the solicitor for the appellant candidly shouldered responsibility for the omissions, these do not amount to a procedural irregularity on the part of the sheriff.”

Sheriff Principal Lewis concluded: “The appellant and those advising her had ample opportunity to enter appearance or to seek relief. The rules make provision for appeals and alternative remedies. There is a recognised need in this process to avoid unnecessary delay in making decisions about future care arrangements of children. The position in respect of accommodation of A and his siblings is at a particularly sensitive stage. To add yet another layer of superfluous intervention will result in an avoidable extended process and generate uncertainty for the child and potentially his siblings.”

The appeal was therefore refused.