Sheriff Appeal Court reverses decision awarding sole guardianship of autistic man to his mother without a proof

About this case:

• Citation:
  [2024] SAC (Civ) 20
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Brian A Mohan

Colin Boyle, the father of the adult “Andrew” appealed against the order granted in favour of Andrew’s mother Molly Denton on the basis that a proof ought to have been fixed, and that the sheriff’s decision did not contain satisfactory reasoning. The appellant, who moved to Ireland following the parties’ separation, had changed his position over the course of proceedings to seek joint guardianship of his son.

The appeal was heard by Sheriff Principal Aisha Anwar, with Appeal Sheriffs Fiona Tait and Brian Mohan. D Anderson, advocate, appeared for the appellant and Leighton, advocate, for the respondent.

No findings in fact

On 4 September 2017, the parties became joint guardians of Andrew. They later separated, with joint guardianship due to expire on 27 February 2023. Both lodged Minutes for Renewal under the Adults with Incapacity (Scotland) Act 2000 seeking to be appointed as Andrew’s sole guardian.

A hearing on the competing Minutes was fixed for 25 Apil 2023 at which a safeguarder was appointed to report. During this time, the appellant relocated to Ireland, and changed his position to seeking an order for a continuation of the joint guardianship. The safeguarder’s report was issued on 2 October 2023, and the case called again before the sheriff the next day.

A mental health officer’s report which was also before the sheriff, prepared before the appellant’s move to Ireland, supported the continuation of joint guardianship, while the safeguarder concluded that the respondent should be sole guardian. On the basis of these reports and two others, the sheriff issued an ex tempore judgment in favour of the respondent. A note explaining the decision issued following the lodging of the appeal explained his reasoning, but the note did not contain any findings in fact or fact and law.

For the appellant it was submitted that, while he had impliedly conceded in seeking joint guardianship that the respondent was suitable to be Andrew’s guardian, at no point had he conceded she was suitable to be sole guardian. There was a clear dispute between the parties which required evidence to determine.

Delegated the task

Delivering the opinion of the court, Sheriff Principal Mohan said of the procedural history: “It is clear that, at the hearing on 3 October 2023, the sheriff was confronted with a position advanced by the appellant which did not accord with his Minute. The pleadings were out of date, and neither party took advantage of the flexibility provided by the summary application rules to adjust more accurately to reflect their positions following changes in circumstances.”

He continued: “There was plainly a live dispute between the parties about who should be appointed as guardian and on what terms (sole or joint). That was at the heart of the issue the sheriff was asked to resolve. The sheriff had two conflicting applications. It is also clear that there were identified areas of factual dispute which were relevant to his determination.”

Noting the sheriff’s reliance on the safeguarder’s conclusions, Sheriff Principal Mohan said: “In these circumstances, and in accordance with the comments made by Lady Dorrian in Aberdeenshire Council v JM (2018), we consider that the sheriff ought to have assigned an evidential hearing to resolve the disputed issues of fact. It was not sufficient to state that he had enough material before him to reach a decision, because significant elements of that material were based on factual assertions which the appellant sought to challenge.”

He concluded: “Undoubtedly, the sheriff was mindful of the need to deal expeditiously with applications of this nature. However any proof, properly managed, would have been short and narrowly focussed on the issue of suitability with scope for the agreement of evidence and the use of affidavits. By refusing to assign a diet of proof, regrettably, the sheriff’s decision allows room for the impression that he ostensibly delegated the task to the safeguarder.”

The appeal was therefore sustained, and the matter remitted to a different sheriff to proceed as accords.