Unrepresented father’s application to appeal adoption order refused after ‘default’ ruling

A judge refused the application after rejected get the party litigant’s argument that his failure as an “unrepresentative individual” to comply with the “onerous procedural requirements” amounted to a “compelling reason” for the Court of Session to their the appeal.

Adoption order

Lady Paton heard that the applicant “AW”, the natural father of the three-year-old child “C”, had opposed a petition for adoption raised by the prospective adoptive parents (the respondents).

But following a proof at Paisley Sheriff Court in June 2017 at which the applicant was legally represented Sheriff McCartney decided to dispense with his consent to the making of an adoption order and made the order with no post-adoption contact.

The applicant appealed to the Sheriff Appeal Court as a party litigant, to seek indirect or “letterbox” contact, but contact of any description was opposed by the adoptive parents as likely to have a “marked detrimental effect” on the child and possibly “undermining” the placement.

In the early stages of the appeal procedure, the court granted the applicant certain indulgences, including allowing him to lodge his note of argument late, continuing the appeal to a later date, and extending by six weeks the date upon which he was required to lodge the appeal prints and appendix.

Then, by interlocutor dated 5 October 2017, no appeal print or appendix having been lodged, the Sheriff Appeal Court continued the respondents’ motion that the appeal be refused on the grounds of the applicant’s default and appointed the applicant to lodge (prior to a procedural hearing fixed for 30 October 2017) an appeal print and appendix, a letter from the shorthand writer relating to the timescale and cost of producing a transcript of the evidence, and a letter from the applicant confirming that he could meet the cost of any transcript.

Default

The interlocutor further notified the appellant that if he failed to adhere to the timetable, he may be found in default, and the appeal may be refused.

When dealing with the case on 5 October 2017, the appeal sheriff explained clearly to the applicant the importance of lodging the necessary documents, warning him of the consequences if he failed to comply.

When the case called on 30 October 2017 the necessary documents had not been lodged and having heard submissions from the applicant and the opposing solicitor, the appeal sheriff found the appellant in default, refused the appeal, and found no expenses due to or by any party.

The applicant applied for permission to appeal to the Court of Session but the appeal sheriff refused the application, following which the applicant applied to the Court of Session.

Section 113(2) of the Courts Reform (Scotland) Act 2014 provides that the Court of Session may grant permission to appeal against a final judgment of the Sheriff Appeal Court only if the court considers that the appeal would raise “an important point of principle or practice”, or there is “some other compelling reason” for the Court of Session to hear the appeal.

Compelling reason

The application, which set out three proposed grounds of appeal, stated that the appeal did not raise an important point of principle or practice, but there was “some other compelling reason” for the court to hear the appeal because of the “circumstances of the case”.

It continued: “The subject matter of the case at first instance concerns the most invasive and draconian power available to the state, namely, the granting of an adoption order with no provision for contact, which, accordingly, has the practical effect of ending both the legal parent and child relationship and established family life between the said parent and child.

“The decision to find the applicant in default arises as a consequence of the applicant’s failure to comply with the onerous procedural requirements provided for within the Sheriff Appeal Court Rules 2015. There is a wider public interest and clarification about how those rules ought to be treated as applying to an unrepresented individual (for example, the rules appear at face value to lack the flexibility to allow the court to require the legally represented individual to prepare the documents that would otherwise be lodged by the applicant).

“The combination of the nature of the underlying case, together with that wider interest justifies the Court of Session considering matters. In the alternative for the reasons given in proposed ground of appeal c) the matter is one which is easily capable of resolution on a pragmatic basis, and the granting of leave to appeal would facilitate same.”

Fair balance

Refusing the application, the judge considered that it would be unfair to allow a party litigant greater indulgence in complying with the court rules.

In a written opinion Lady Paton said: “I am unable to accept the applicant’s submission that this case satisfies the test set out in section 113(2) of the 2014 Act in that there is some compelling reason for the Court of Session to hear the appeal.”

Clarification as to how the rules of court ought to be treated as applying to an unrepresented individual was given by the UK Supreme Court in the recent case of Barton v Wright Hassall LLP 1 WLR 1119, in which it was said that while a lack of representation “will often justify making allowances” in making case management decisions and in conducting hearings, it will not usually justify applying to litigants in person “a lower standard of compliance” with court rules or orders of the court.

Lady Paton added: “I do not therefore accept that there is a wider public interest arising from this case requiring the Court of Session to hear the appeal. Nor am I persuaded that the pragmatic solution referred to by the applicant, namely the late lodging of an appeal print and an appendix, but without necessarily any resolution of the question of transcription of the shorthand notes, resolves matters, or absolves anyone from the requirements of the rules of court.

“Following the guidance given in Barton v Wright Hassall LLP, the fair balance achieved by the rules of court will inevitably be disturbed if an unrepresented litigant is entitled to greater indulgence in complying with them than his represented opponent.“