Appeal Dismissed in Scottish Family Law Civil Procedure

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In the recent case of B v G, the Supreme Court deliberated about reforming the system for dealing with child law disputes within Scotland. The court questioned whether the existing pleadings were the best ways of identifying issues, reviewed the structure of a sheriff’s judgment proceeding on a proof and made recommendations that the court could implement to improve case management.

In this case, the appellant father (B) appealed in contradiction of a decision by which all contact had been stopped between him and his child (S).

When the child (S) was three years old, B commenced proceedings against S’s mother, the respondent, for issues including the residence of S. Protracted procedure and an extensive pleadings period then followed. Three years after the issue of the proceedings the case eventually came before the Sheriff Court. The proof period ran for 52 days of evidence and it took more than twelve months to complete. More than five years after the proceedings had begun, the sheriff issued his decision. When the appeal reached the Inner House of the Court of Session, the estimated cost of these proceedings was approximately £1 million.

B submitted that (1) the sheriff had not addressed suitable legal framework in that he failed to take the Children (Scotland) Act 1995 s.11 into consideration, (2) the sheriff’s findings could not judiciously warrant the conclusion he reached; (3) the sheriff had acted inappropriately by making serious comments about B and his legal counsel by using unbecoming language.

The court held that: (1) It was apparent from the sheriff’s findings that the welfare of the child (S) was his primary consideration and that he had fully considered whether an order for contact was in the best interests of the child. Furthermore it was of no consequence that the sheriff did not make specific reference to s.11 of the Act, or to authorities. (2) While most of the sheriff’s findings dealt with the adults, it showed that the evidence was led on the basis of the pleadings. Given the sheriff’s findings regarding the impact of contact on S, the sheriff did have reasonable basis for concluding that contact would not be in the best interests of the child in this case. (3) As is the case in many other family and divorce law procedures, the attitude, personality and character of the people involved was relevant to some extent in this case. It was appropriate for the sheriff to pronounce his findings in that regard. There was no doubt that the judge was authorised to comment on the conduct of counsel appearing in his court. It is only in very rare situations that any such comments could become a legal issue. (4) It was noted that there was no need to spend five years resolving a contact dispute. This occurred in this particular civil case as the court permitted the parties to determine the rate of progress. It was understood that in order to conform to European Convention on Human Rights 1950 art.8, there was a duty to evade unnecessary delays in these types of disputes. (5) It was observed that the cost of the proceedings, especially before the sheriff, was solely inconsistent with the complex nature of the numerous issues to be addresses and ruled upon. These costs could only occur in cases where the parties involved were publicly funded. (6). It was observed that the court questioned if the existing pleadings procedures were the most efficient way of recognising the issues to be discovered at a proof in these types of cases. It was also observed that deliberation is required regarding the structure of a sheriff’s proof judgment proceedings, which document was to be divided into findings of fact and law, together with a note in which the findings were explained. This form of judgment had certain shortcomings, particularly important in a case such as the instant one. With this form of judgment there was a danger that the sheriff might be side-tracked from what should be the principal centre of the judge’s attention. (8) (Per curiam) Subject to upcoming recommendations from a team set-up by the Sheriff Court Rules Council in August 2011 to consider more productive procedural rules that could be implemented to accelerate child welfare proceedings, and to permit the courts to undertake specified measures themselves. The sheriffs could use existing powers to safeguard that proceedings are managed reasonably quickly. These powers may include time restrictions for lodging and adjusting pleadings, allowing amendments, fixing proofs and evidence leading. At a proof the sheriff has the power to intercede and to fend off prolixity, to prevent parties from repeating details and presenting information that is deemed unhelpful to the court in reaching a decision. The sheriff could promote using affidavits and documentation instead of evidence provided in person. These were only examples of criteria which could be implemented.

The appeal was dismissed.

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Gill Carr

About Gill Carr

Gill Carr is an Associate Solicitor within the Family department at Forbes Solicitors. Gill’s blogs cover his specialisms of child protection, acting for both parents and children together with family members. Gill also advises and comments upon forced marriage, divorce, separation, child arrangements and financial matters. Gill writes about current legislation and case law relating to family law.
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