Attempt to speed up child case was flawed: Appeal Court
The Sheriff Appeal Court has criticised a sheriff’s attempt to expedite the conclusion of a longrunning childcare dispute, which in the result had the effect of prolonging the proceedings.
Sheriff Principal Anwar, Sheriff Principal Ross and Appeal Sheriff MacFadyen gave the decision in the case of M v M, which concerned the care arrangements for three girls now aged 10, eight and six. Proceedings had continued for about five years, with the mother seeking a residence order and the father a residence order which failing contact and the ability to take the girls on holiday.
After proof in May and July 2021 the mother was found entitled to residence and the father to contact with the two younger girls only. The findings in fact included instances of violence by the father towards the mother and of difficulties in the operation of previous contact arrangements, including lack of support by the mother and reluctance by the younger girls.
The sheriff’s decision was an extempore one at the conclusion of proof. Delivering the opinion of the Appeal Court, Sheriff Principal Anwar said the sheriff had misdirected himself over OCR, rule 12.3, which covers extempore judgments. He had equiparated the decision given under rule 12.3(2) and a subsequent note at the request of a party under rule 12.3(3) as the same thing, which they were not. It was not enough in the latter case to give the oral decision in written form; it had to be “an adequately explained decision, complete with findings in fact, findings in law and the reasons for the decision”.
Further concern was expressed at the sheriff’s course of sending his note in draft to the parties, inviting comments and then making adjustments to it. This had no basis in the rules: unlike a stated case, the note had no procedural status and there was no mechanism for resolving any dispute as to what it should contain.
The note itself was “brief to the point of obscuring [the sheriff’s] reasoning”. It failed to deal with the substantive issues. He had not explained how he had considered and applied s 11 of the Children (Scotland) Act 1995.
While parties invited the court to make numerous additional findings, the court did not consider itself in a position to do so. The father’s appeal and the mother’s cross-appeal would both be allowed, both being based on the sheriff’s erroneous approach to rule 12.3. Regrettably, the case had to be remitted to another sheriff to proceed as accords.