Sheriff Appeal Court refuses challenge by man seeking to prevent ex-partner and daughter’s return to Poland

About this case:

• Citation:
  [2023] SAC (Civ) 12
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal N A Ross

The appellant argued that the sheriff’s decision was plainly wrong, relying on 12 aspects of the judgment to establish that he had wrongly exercised her discretion. It was not disputed that the child should reside with the respondent, however he maintained that he should keep a level of physical contact with her that would not be possible if she returned to Poland.

The appeal was heard by Sheriff Principal Nigel Ross. The pursuer and appellant was represented by BCKM, solicitors, and the defender and respondent by Thorley Stephenson Ltd, solicitors.

Insufficient weight

The parties were in a relationship between October 2017 and February 2020. After they got together the respondent quickly fell pregnant and their daughter was born in September 2018. Since the birth of their daughter the respondent had not worked, and following the end of the relationship she wished to return to employment. She sought to return to Poland due to a lack of support in child care preventing her return to the workforce. It was noted that, aside from her mother, the respondent was socially isolated in Scotland, but had a large network of extended family and friends in Lublin.

In January 2021, the appellant was convicted of behaving in a threatening and abusive manner against the respondent, aggravated by domestic abuse. Their relationship was described as being characterised by such abuse, with a Non-Harassment Order in place until early 2025. He had not assisted with childcare during the relationship but it was found that a bond of affection did exist between him and the child, with contact supported by the respondent and her family.

In a lengthy judgment, the sheriff found that it was in the best interests of the child for her to return to Poland with the respondent. Provision was made for contact to take place in Poland, however the appellant argued that this would be impractical for him given his income and work arrangements. No issue was taken with the test applied by the sheriff under section 11 of the Children (Scotland) Act 1995.

The appellant’s 12 grounds of appeal included that the sheriff had given insufficient weight to the reduction in contact with the appellant and took no account of the harmful effect the drastic reduction in contact would have. Additionally, too much weight had been placed on his conviction and historical allegations of domestic abuse.

Alternative suggestions

Delivering the opinion of the court, Sheriff Principal Ross said of the grounds of appeal: “It is immediately apparent that none of these is more than assertion. Each is meaningless in is isolation. The formulae of ‘too much’ or ‘too little’ are comparatives, and only make sense when directly contrasted to the whole of the evidence. An appeal will not succeed simply because some factual challenges are raised.”

He continued: “The twelve grounds of appeal amount only to alternative suggestions. They fail to explain, and not merely assert, why the sheriff could not properly reach the conclusions she did, on the evidence she saw and heard.”

Addressing whether sufficient weight had been given to the child’s settled status in Scotland, the Sheriff Principal said: “The principal question is the best interests of the child. The sheriff explained, at considerable length and detail, why those interests are best met by allowing the relocation to Poland. It is difficult to summarise these without repeating the bulk of the lengthy judgment. None of it is challenged. The child’s life in Poland will be fully supported, financed and offers the best future for her.”

He concluded: “The starting point for an appeal based on a wrongful approach by the judge, must be to examine what the judge actually did. Merely mentioning the result is not sufficient. An appeal must explain why the judge reached the wrong conclusion on the evidence led. Otherwise an appeal is not justified. This applies in the present case.”

The appeal was therefore refused on all grounds.