Variation in a vacuum?

The appeal by and against KWL [2021] SAC (Civ) 28 recently considered whether or not it is competent to use the minute to vary procedure in circumstances where the original application for an order under s 11 of the Children (Scotland) Act 1995 was refused, meaning there is technically no order to vary. 

Background to the appeal

The appellant was the child’s mother and the respondent the father. 

In March 2021 the mother sought a specific issue order permitting her to remove the child from Scotland to live with her in Istanbul. The mother was a petroleum engineer working in the oil and gas industry who was made redundant from her job in Scotland in May 2020 and did not find alternative employment until December of that year. Her new job was based in Istanbul, and she had to relocate there. 

The mother’s initial application for a specific issue order to permit relocation, under s 11 of the 1995 Act was refused. The sheriff was concerned that the mother’s proposals for the child’s day to day care in Istanbul were not particularly feasible. There were concerns in relation to the school that the child would attend, what the accommodation in Istanbul would be like and how the mother would be able to combine her professional life with childcare responsibilities. 

Overall, the sheriff considered that the mother’s plans to relocate had been “hastily assembled” and he was not convinced that she would be able to execute them. The s 11 order was refused as not being in the best interests of the child.

The mother sought to appeal that decision. 

Before the Appeal Court

When the appeal called, senior counsel for the mother submitted that circumstances had changed since the appeal had been lodged. If the appeal were successful, the mother would simply be seeking to have the case remitted back to the sheriff to hear further evidence regarding this change of circumstances. 

In particular, the mother had by this time actually moved to Istanbul to begin work and her plans had become more established. She had decided not to move to the accommodation initially identified (which the sheriff had been concerned about), and this had the knock-on effect of changing the school chosen to enrol the child in if relocation were permitted. 

This left the Sheriff Appeal Court in the position of being moved to delete the sheriff’s original findings in fact and law, only to then remit the cause to the sheriff to hear new evidence on these updated circumstances. 

Appeal, or vary?

The Appeal Court understandably focused on whether what was being proposed by the appellant was the appropriate way forward. Was the correct procedure a minute to vary or an appeal?

Senior counsel for the mother submitted that it was not appropriate to proceed with a minute to vary and that appeal was necessary. The specific issue order sought, being an order under s 11, was subject to chapter 33 of the Ordinary Cause Rules. OCR, rule 33.65 set out the basis on which a minute to vary could be lodged, and it presupposed the existence of an ongoing s 11 order. As the sheriff had refused to make a s 11 order, there was nothing to be varied or recalled. Thus, appeal was the correct procedure. Senior counsel also observed that her instructing agents had experience of courts refusing to accept a minute to vary in similar circumstances. The procedure proposed had been followed by the Inner House in M v M 2012 SLT 428. If the appeal were unsuccessful the appellant would simply raise a new action. 

Counsel for the father argued that the appeal served no practical purpose due to the change in circumstances. The issue of whether the sheriff had been correct to refuse to grant the s 11 order was now academic because the factual matrix was very different and some of the sheriff’s concerns might have been addressed. It was not appropriate for the Appeal Court to make a decision based on what was effectively a hypothetical question. Because of the change in circumstances it was inevitable that the pleadings would have to be amended and further evidence heard. The correct mechanism for this was either a minute to vary or a fresh action. It was conceded that there was a material change in circumstances that would justify a minute to vary. 

After an adjournment, the appellant instructed that the appeal should no longer be insisted on, and counsel advised the court that she would in fact proceed via a minute to vary. 

Guidance from the Appeal Court 

Given the issues raised in the appeal, in particular the reference by senior counsel to minutes to vary being refused by courts if there was no existing s 11 order in place, the Appeal Court considered it important to set out its own views on the matter.

It considered that the terms of rule 33.65 could either be interpreted strictly or more purposively. Strict interpretation of the rule could lead to the conclusion that an application by minute to vary can only be made when an order under s 11 has previously been granted (and presumably on this logic, remains in operation). The court considered that that type of interpretation was a “narrow and literal” one, which was unwarranted.

The Ordinary Cause Rules provide the “machinery” by means of which orders in terms of s 11 can be sought. A refusal to grant a s 11 order is still an order made in relation to the exercise of parental rights and responsibilities by one or both parents, as it regulates the exercise of rights in relation to the specific question which was the subject of the application. 

The purpose of a minute to vary is to allow actions which have at their heart the welfare of a child to be dealt with in one court process. The purpose of varying within that one process is to allow the sheriff to consider previous decisions, previous procedure, why decisions were made and what if anything has changed in the child or parties’ circumstances that might warrant further involvement of the court. 

If the minute to vary procedure could not be used where an application for a s 11 order was refused, parties would be left with the expense and delay of a separate action, which would be both cumbersome and slow, and that is the opposite of the required focus on expeditious resolution of disputes involving children. The court could not see any reasonable way to maintain that the intention of the law is that those who were granted s 11 orders could access variation by minute, but those who were refused them were denied such access. 

The terms of OCR, rule 33.44 (which deals with applications for a s 11 order after final decree in divorce, separation or declarator of nullity of marriage) fortified the court's approach. This rule refers to “an application after final decree for, or for the variation or recall” (emphasis added). The court did not consider there was any intention to provide parties to a divorce with a more expeditious route to variation than parties who sought only resolution of a s 11 dispute. This rule provided for the reality that in many actions of divorce, no s 11 orders are initially sought as the parties agree childcare arrangements, but they may need to subsequently revisit those. In fact, this couple had been divorced in March 2019 and it was not clear why the mother had not sought to follow a minute procedure in those proceedings to determine the issue. 

Variation in a vacuum

This helpful guidance from the Appeal Court assists practitioners who have clients seeking to “vary in a vacuum”, where there has been a refusal of s 11 order and therefore no existing order to vary. So long as there is a material change in circumstances to present to the court, variation is the correct procedure. 

If it is asserted in an appeal that there has been a change of circumstances, then the correct course is a minute to vary. It is not the role of the appellate court to engage in an academic exercise and thereafter remit the matter back to the sheriff to hear evidence based on pleadings which are now out of date and need to be amended. The court highlighted the expense and time this approach takes, and that it must be avoided.

This case provides a useful reminder that the courts should be slow to take a legalistic or mechanical approach to procedural rules in issues involving the welfare of children.