Sheriff Appeal Court remits contact order application by abusive ex-partner for reconsideration

The appellant, AG, who was the defender in the original application raised by the father, LRK, for an order for contact, argued that the sheriff’s approach to the relevant legislation was flawed and that the views of the child had not been obtained.

The appeal was heard by Sheriff Principal Derek Pyle, sitting with Appeal Sheriffs Andrew McCulloch and Lorna Drummond.

Threatened with fire 

The relationship between the appellant mother and the respondent father was found to be characterised by incidents of domestic violence and abuse on the part of the respondent, including trying to make the appellant eat dog faeces and threatening to set fire to the house while she and the child were in residence. He was sentenced to twelve months’ imprisonment following one instance of assault, and a further five months’ imprisonment for subsequently breaching a non-harassment order. 

The original proof took place in the spring of 2019, at which the respondent was unrepresented. At the end of the proof the sheriff pronounced an interlocutor adjourning the proof to another date in order for interim contact to take place. That interlocutor was itself appealed to the Sheriff Appeal Court, which held that the course the sheriff adopted was incompetent and that he should issue a judgment. 

The sheriff’s judgment was that the respondent should be awarded supervised contact to the child on a very restricted basis, having previously not seen the child for five years. He said that, while there was no doubt that the respondent’s behaviour had affected the child, there was no risk of further domestic abuse as the parties had separated and the historic abuse was not sufficient to prevent an order for contact being made. 

In her evidence, the appellant said that the respondent had never taken responsibility for the child previously, that the child did not need to see him, and could not face seeing him either. The sheriff did not comment on her evidence, nor on the evidence of the social worker led by her. Regarding the views of the child, who was 6 years old at the time of the proof, the sheriff noted that the child was too young to really express any views and that it was not known what memories she had of the respondent. 

It was submitted for the appellant that the sheriff had taken the wrong approach to sections 11(7A) to (7E) of the Children (Scotland) Act 1995, which required the court to have regard to the need to protect the child from the risk of abuse and the ability of a person who has carried out abuse to meet the child’s needs when considering whether to make an order for contract. 

Counsel also submitted that the sheriff had misunderstood the duty to take the child’s views into account, and that he was bound to ascertain them unless as a matter of practicability it was impossible to do so. 

Take all matters into account 

The opinion of the court was delivered by Sheriff Principal Pyle. Addressing the statutory arguments, he said: “While we acknowledge that the sheriff’s task was not helped by the respondent being unrepresented at the proof, it was still incumbent upon him to take into account all the matters set out in section 11(7B), including in particular paragraphs (c) and(d), as well as the need for the parties to co-operate in terms of section 11(7D).” 

He continued: “On the latter, the sheriff is silent other than to require that the contact be supervised at a contact centre, that the respondent makes it a priority to attend and that the appellant ensures that the child is taken for the visits and is encouraged to go. In these circumstances the sheriff has failed to take into account relevant considerations, which entitles this court to interfere.” 

Turning to the views of the child, he said: “[The sheriff] does not address the test of impracticability and does not explain what the difficulty in obtaining the child’s views is. The child was aged 6 years at the time and of an age where an opportunity to take views could, on the face of it, be given.” 

Noting that the law in this area will change when section 11ZB, added to the 1995 Act by the Children (Scotland) Act 2020, comes into force, requiring a court to give the child concerned an opportunity to express their views, he said: “The test of impracticability has been swept away. Indeed, the only qualification is the capability of the child forming a view, which is more in line with article 6 of the [UN Convention on the Rights of the Child]. It is difficult to see how the overriding best interests test could be engaged to avoid the child’s views being obtained.” 

For these reasons, the appeal was allowed, and the sheriff’s interlocutor recalled. Sheriff Principal Pyle concluded: “We [do not] consider that we are in a position to come to a conclusion ourselves on the merits. It therefore follows, unfortunately, that the cause should be remitted to another sheriff. Parties helpfully agreed that we should simply remit the cause to that sheriff to proceed as accords and leave it open for any procedure which is identified as in the best interests of the child and in the interests of justice, including, if considered appropriate, proceeding by way of a child welfare hearing.”