Under review: when to challenge

The Sheriff Appeal Court decision in F v M [2023] SAC (Civ) 29 considers taking the views of an older child (“H”) in a contentious case where an order for delivery was sought and granted at a pre-service hearing. H was 12 at the time that the orders appealed were granted, and 13 by the time the appeal was heard.

The pre-service hearing

At the time of their divorce in 2021, the father/appellant (“F”) and mother/respondent (“M”) entered into a joint minute which regulated residential contact between F and H. H thereafter exercised regular residential contact with F. H was neurodivergent and required support with schooling and other day-to-day activities. The relationship between F and M was contentious.

In early 2023, difficulties arose. After a period of residential contact with F, H did not return to M. F reported that H stated more than once that he did not want to return and could not be persuaded otherwise. M’s position was that F was simply refusing to return H and was influencing him.

M commenced minute procedure in February 2023 seeking delivery of H within 48 hours, interdict to prevent H’s removal from her and the reduction of contact between F and H to nil. A pre-service hearing was fixed at which only M was represented. There was no submission that H’s welfare would be immediately prejudiced if he remained in F’s care for a short time. The sheriff ordered delivery of H within 48 hours and granted interim interdict. No order was made to ascertain H’s views.

A post-service hearing was fixed to call a week later.

In granting the pre-service orders the sheriff had, without any representation from F or knowledge of H’s views, determined that H should be returned to M, even if only temporarily. The sheriff did not have the benefit of submissions on how such a decision would impact this 12 year old with additional support needs, who had (per F’s position) clearly stated and firmly held views.

Sheriff officers attended at F’s home.

H declined to leave and remained in F’s care.

The post-service hearings

At the first post-service hearing, the sheriff ordered delivery and authorised the opening of lockfast places for H’s removal. He considered that F had purposely failed to obtemper the previous order. A child welfare report was ordered so that H’s views could be taken, and a child welfare hearing fixed.

H again declined to return to M.

A further motion was enrolled for delivery and suspension of contact between H and F. Another post-service hearing was fixed for the next day. The sheriff ordered delivery and suspended contact ad interim. H returned to M’s care.

Subsequently the child welfare reporter took H’s views, which were that he wanted to have extensive residential contact with both F and M. Notwithstanding this, M refused to allow any contact, whether direct or indirect, from the suspension of the order. By the time of the appeal, H had had no contact with F for approximately six months.

Appeal submissions for F

H’s views

F submitted that the sheriff had not allowed H any opportunity to express his views about returning to M, despite being told that H had a clear view and there having been a number of hearings on the issue of delivery. Nor had he fully considered the impact on H of suspending contact with F, even if only for a short period.

In the circumstances the sheriff had a duty to investigate H’s views before making such important decisions. There was no suggestion that H was at risk in F’s care, and there was no pressing urgency that required the sheriff to take immediate steps. H’s views would be a determinative factor in the orders to be made.

Pre-service hearing/article 8 rights

Granting an order for delivery pre-service was exceptional. Respect for article 8 rights required those whose rights were or might be affected by decisions in a particular case to be sufficiently engaged in the decision making process. A decision based on ex parte submissions by M without affording F the right to be heard should only have been made if there were significant and compelling reasons in the sense of article 8(2). No such reasons were provided at the pre-service hearing; this constituted a breach of s 6 of the Human Rights Act 1998.

The sheriff’s actions at the pre-service hearing created a presumption in advance of the later hearings on other child welfare decisions. He had made a determination when there was insufficient information available for him to be satisfied that it was in H’s best interests.

Suspension of contact – punitive?

The sheriff had erred in suspending contact between F and H. His decision

to suspend contact was, on the face of it, carried out as a penalty against F, as the sheriff considered he had not obtempered the earlier orders for delivery (F maintained that it was H who had declined to return to M with the sheriff officers, in accordance with his expressed views).

Appeal submissions for M

M argued that the status quo was that she was H’s main carer. The sheriff had to deal with a situation where F had already failed to comply with court orders – immediate steps were therefore necessary to re-establish that status quo, which had been unilaterally altered by F.

It was reasonable and practical for the sheriff to issue the interlocutors challenged without taking H’s views. The sheriff had sufficient information. F had failed to cooperate in returning H to M. Suspending contact between F and H served to remove H from the dispute between his parents and was only for a short period. Any suggestion that a child’s views must be taken in every instance was unsound. The real issue was F’s conduct, and the appeal was about F “vindicating himself”.

Decision

Section 11 engaged?

The Appeal Court was not necessarily persuaded that an order for delivery would fall within the definition of a s 11 order. It proceeded however on the basis that s 11 was engaged. It is hard to see how an order for delivery would not engage s 11, as it necessarily involves deciding with whom a child is to live (or spend the majority of their time), even if only on a temporary or emergency basis.

Suspension of contact also engaged s 11 because it regulated arrangements for contact between H and F.

The Appeal Court proceeded on the basis that because the parties had agreed, and had obtained an order based on a joint minute, that F was to have residential contact with H, it logically followed that there was an agreement that H’s principal place of residence was with M. The sharing of parental rights and responsibilities in relation to H did not entitle either party to take any action unilaterally in respect of the arrangements for H.

H’s views

The court accepted that H’s views would be an essential component before a court could make a substantive order. Cases referred to in the appeal related to decisions made after proof and arose in circumstances where the court either did not take the views of the child or applied the wrong test. The current case could be distinguished as it involved steps taken at a very early stage. There was no requirement to take the child’s views in relation to “every decision, hearing, or step in procedure in a s 11 action. The requirement is to take the view during proceedings”.

Under the practicability test, the taking of views was mandatory but the timing was an exercise of discretion.

It was unfair to criticise the sheriff for not “articulating the complete thought process in electing not to take the views of H before making any order”. He had “competently and intelligibly” acted to reinstate the status quo by ordering delivery to M. That order was not a substantive, conclusive or determinative decision of the competing interests of the parties and preserved their right to advance their positions in the context of the minute procedure.

Issues of welfare and urgency rendered the immediate taking of H’s views impracticable. In any event, the sheriff had fixed a child welfare hearing and arranged for H’s views to be taken.

Failure to allow F to be represented

The sheriff was faced with an application based on a failure to obtemper an order which had been maintained over a number of days, with no application being made by F to vary. Therefore, his decision was not taken in a vacuum but informed by the existing decree and M’s wish to reinstate the status quo. These were cogent and compelling reasons for the sheriff’s decision to proceed in F’s absence and created no presumption about where H’s best interests would lie in the future.

Suspension of contact

M’s argument that the suspension of contact was “protective” rather than punitive was preferred. This was based on the fact that there was a court order reflecting arrangements agreed between the parties and in spite of that, F did not return H to M when he should have done, did not return H despite an order for delivery, and the sheriff officers reported him as being, in their view, unhelpful.

Suspension was a “holding exercise” pending more information and it gave no rise to a presumption against contact being reinstated. In that context, the Appeal Court held that the sheriff was entitled to suspend contact.

Court’s postscript

It was observed that a consequence of the appeal was that F was precluded from reinstating contact with H, as the first instance proceedings were put on hold pending determination.

Per the decision in JM v Taylor 2015 SC 71; 2015 SCLR 143, “litigation should have a purpose”. The Appeal Court considered that this appeal did not have a purpose. The allocation of resources, financial and otherwise, was “entirely futile”.

If F had chosen not to appeal, there would have been a child welfare hearing informed by a report which included H’s views. As it stood, M had refused to consider any contact between H and F and a significant number of months had passed. Whatever the outcome of the appeal, it could not have advanced F’s “quest” for residence or contact, as the suspension of contact could only properly be regulated at first instance.

The privately funded appellant was found liable in expenses to the legally aided respondent. F had elected to appeal and was unsuccessful, and therefore was liable in expenses.

Observations and considerations for practitioners

Practitioners should note the court’s view that the appeal was “entirely futile”. It should serve for those representing parties in either position as a decision to reflect on, but perhaps also to rely on only with care.

A significant consequence of appealing was that the issue of contact between F and H was effectively halted. By the time the appeal was heard, H had been delivered to M, was resident with her and had provided his views to a child welfare reporter. Despite the report reflecting that the parties should work to share H’s residence in accordance with his views, M continued to refuse to allow any contact whatsoever.

It is at least arguable that determination of the appeal issues would not have prevented an interim decision about contact being made at first instance. This would have prevented the disruption of the close and loving bond that H had with F (apparent by the care arrangements that had been agreed by the parties and in place for a number of years). H was instead isolated entirely from one parent.

It is appropriate that appeals which are purely academic are discouraged. The issue of whether this appeal was in fact academic is worth consideration. Appeals have both private and public functions. It is a function of an appeal court to provide guidance for future cases by reviewing the conduct of cases in the lower courts. Privately, appeals provide accountability to individual litigants (and the children who are the subject of litigation). Their public function serves to enhance citizens’ confidence in the justice system.

From H’s perspective, the decision to remove him from F’s care without consulting him and to suspend his contact with F (no matter how short lived) would have been far from “academic”. The orders made will undoubtedly have had a significant impact on the lives of H, F and M.

It is imperative that we continually monitor and review processes, procedures, and judicial approaches in child law cases to ensure that the best outcomes possible are delivered. The legal profession is becoming increasingly aware of the (potentially lifelong) negative impact of contentious litigation on children. The positive outcomes for children in being engaged in major decisions about their lives are recognised as a mitigating factor. All cases will still turn on their individual facts and circumstances – including whether there is any potential harm to the child in a short period being allowed for their views to be taken.

For practitioners making or opposing such applications, the requirement to resolve matters expeditiously must almost always be balanced by the importance of ensuring that the views of children, particularly older children, are taken appropriately and at the right time.

Those seeking review of decisions made at first instance run the risk of significant delay in determining ongoing welfare issues. A process for assessing first instance decisions without halting the overall consideration of a child’s welfare is something that is worthy of consideration. Scotland is celebrated for its approach to the promotion and protection of the rights of children – particularly those whose lives intersect with the application of public law. The approach that we take to children involved in private law disputes between their parents must be subject to a similarly robust and rights-based approach – failure to do so risks their wellbeing in a fundamental way.