Appeal By Em Against Am
| Jurisdiction | Scotland |
| Judge | Lord Malcolm,Lord McGhie,Lady Clark Of Calton |
| Neutral Citation | [2016] CSIH 2 |
| Court | Court of Session |
| Published date | 13 January 2016 |
| Year | 2016 |
| Docket Number | XA2/15 |
| Date | 13 January 2016 |
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2016] CSIH 2
XA2/15
Lady Clark of Calton
Lord Malcolm
Lord McGhie
OPINION OF THE COURT
delivered by LADY CLARK OF CALTON
in the Appeal
by
EM
Pursuer and appellant;
against
AM
Defender and Respondent:
Act: Scott QC, Wild; Digby Brown LLP
Alt: Hajducki QC, Ardrey; Allan McDougall (for Hann & Co, solicitors, Annan)
13 January 2016
Summary
[1] This appeal, and cross‑appeal from the decision of the sheriff principal, relate to an action commenced in the sheriff court between the parents of a child in which the main dispute was whether the father should have contact with his child and to what extent, if any, he should be deprived of his parental rights and responsibilities.
History of court proceedings
[2] The pursuer and appellant (“the pursuer”) is the mother of K born June 2010. The defender and respondent (“the defender”) was in a relationship with the pursuer and they lived together for about 2 years until they separated in August 2010. The defender is the father of K and is so registered on the birth certificate of K.
[3] In 2012, the pursuer raised an action seeking an order depriving the defender of all his parental rights and responsibilities in relation to K under section 11(2)(a) of the Children (Scotland) Act 1995 (“the 1995 Act”). The defender opposed such an order, defended the action and also sought a contact order in respect of K. The pursuer was successful in her application and the defender was refused contact by the sheriff as recorded in the sheriff’s interlocutor of 13 February 2014.
[4] The defender appealed to the sheriff principal. The sheriff principal allowed the appeal; recalled the interlocutor of the sheriff which he wrongly described as dated 13 April 2014; found that there should be contact (under supervision) by the defender to K as directed by the court and suspended (instead of depriving) the defender’s parental rights and responsibilities. The defender’s right to maintain personal relations and direct contact with K was suspended subject to such order as the court may make from time to time regarding contact. The sheriff principal remitted the cause to the sheriff:
“to decide the nature and extent of such an order, having carried out such investigations and obtaining such reports as he considers necessary, on the understanding that, at least in the first instance, contact will be under supervision.”
[5] The pursuer appealed to this court from the decision of the sheriff principal. The defender opposed the appeal and sought to support the decision of the sheriff principal in relation to contact. The defender cross‑appealed in relation to the decision to suspend the defender’s parental rights and responsibilities and sought a decision upholding the defender’s parental rights and responsibilities in relation to K.
The sheriff court proof and the judgment of the sheriff
[6] A proof was heard in Dumfries Sheriff Court on 23 April, 15 July and 7 October 2013. By agreement of the parties, the sheriff confined himself to the evidence heard on 23 April and 7 October 2013. In the pursuer’s proof, evidence was led from the pursuer, the pursuer’s mother (SM), and the pursuer’s aunt (ML). For the defender, evidence was led from the defender, the defender’s sister (FN) and the defender’s nephew (KL). The sheriff accepted the pursuer as a truthful witness and “discounted as untrue any claims made by the defender which were not accepted by the pursuer or were contradicted by her evidence” (paragraph 113). He found the defender “to be a thoroughly dishonest witness – if indeed he had any concept of truth at all” (paragraph 114). The sheriff found that no issues arose in relation to the credibility of the other witnesses (paragraph 125).
[7] Having heard the evidence, the sheriff issued his judgment on 21 January 2014 with a draft interlocutor in respect of which he invited further submissions on behalf of parties. The sheriff made the following findings in fact:
“1. The pursuer is E who resides in Scotland.
2. The defender is AM who resides in London.
3. The defender’s nationality is Ugandan.
4. The parties met in Manchester in or around 2007.
5. The defender and pursuer were in a cohabiting relationship between 2008 and 2010. They separated on 25 August 2010.
6. The pursuer and the defender are not registered as a married couple in the United Kingdom.
7. The ceremony known as Nikah was undertaken by the pursuer and defender. This ceremony forms part of an Islamic marriage. This form of Islamic marriage is not recognised in the United Kingdom
8. There is one child of the relationship namely K, born …June 2010. The child’s sex is male.
9. The defender is registered on the birth certificate of K as the father.
10. The pursuer’s pregnancy with K was an unplanned pregnancy.
11. The defender was arrested on 25 August 2010 for breaches of immigration laws and was held on remand. While on remand, the pursuer visited the defender with K in prison on one occasion.
12. The defender has been convicted on two occasions in respect of breaches of immigration laws. On the … April 2011, he was convicted at … Crown Court for conspiracy to facilitate a breach of immigration law and sentenced to 3 years imprisonment. On … January 2012, he was convicted of conspiracy to breach the UK immigration laws and sentenced to 30 months.
13. Whilst in prison, the defender sent cheques to the pursuer in order to provide something to K’s upkeep.
14. Whilst in prison, the defender recorded a story book for K which was sent to the pursuer in order for K to hear his father’s voice. The defender also sent a card to K.
15. The defender was released from prison on … August 2012, but was detained albeit at an Immigration Removal Centre by the UK Border Agency.
16. The parties moved together from Manchester to Scotland in August or September 2009 where they lived together until their separation in August 2010. During this period the defender frequently spent time away from the pursuer in England where he falsely told her he had a freight business.
17. In reality, he was engaged in the unlawful activity of arranging sham marriages in the United Kingdom, for which he was convicted and sentenced as recorded in finding in fact 12.
18. The pursuer knew the defender by the first name of D until she became aware at the time of his arrest for immigration offences in England his first name was A.
19. The defender told the pursuer that he was younger than he now claims to be. She believed he was born in 1980 whereas he claims to have been born in 1975.
20. The parties lived together in Scotland from after K’s birth until the defender was arrested in London on 25 August 2010. During this time, the defender assisted with K’s care.
21. The pursuer visited the defender on two occasions while he was in prison in late 2010. On the first occasion she took K with her to visit the defender. This was the last occasion the defender had direct contact with K.
22. K has extended family in London, including his aunt FN and nephew KL, both of whom would be supportive of the defender exercising contact with K in London”.
[8] Findings in fact 1 to 15 were made by the sheriff on the basis of facts agreed in a joint minute on behalf of the parties. On the basis of all the findings in fact and for the reasons explained in his note, the sheriff found in fact and law that:
“It is not appropriate and not in K’s best interests that any contact order is made in favour of the defender…”.
For the reasons set out in his judgment, the sheriff refused the defender’s application for a contact order.
[9] He explained that he saw little benefit to K in the defender continuing to exercise parental responsibilities and rights in relation to K at this stage in his life and allowed parties to consider his judgment and draft interlocutor and to make further representations. On 13 February 2014, the sheriff in a supplementary note to his judgment set out his further consideration of the issues in relation to the crave by the pursuer for deprivation of the defender’s parental responsibilities and rights. The sheriff stated:
“14. I considered that a deprivation order did not terminate these responsibilities and rights for all time. It would do so for as long as the order was in force and may be reviewed at any time until K is 16 (actually as will be noted infra in relation to a particular parental responsibility only until he is 18).
15. The extent to which such order should be made was in my opinion a matter of debate at that stage. Mrs Guthrie raised the possibility of suspending any or all of these rights and responsibilities in her written submissions.
16. Having regard to the Lord President’s comments in T v T 2000 SLT 1442 at paragraphs [58] and [59] as to the making of a deprivation order, I appointed parties to be heard on the terms of the proposed final interlocutor, a draft of a possible order which I append to my Judgment.
17. I had thus already decided in principle for the reasons in my Judgment the court should restrict the defender’s parental responsibilities and rights; as Mr Hann correctly observed the purpose of the further hearing was to allow parties to make further submissions of the terms of the final interlocutor, as in T v T 2000 SLT 1442 the practice of making a ‘blanket’ order was disapproved.
18. Mr Hann did not object to competency of an order suspending parental responsibilities and rights, a possibility mooted by Mrs Guthrie in her written submissions. This would be an unusual order, but a competent one. I considered it would be of benefit to the court to have the parties’ further submissions on this point”.
[10] For reasons which he set out in respect of each parental right and responsibility, the sheriff concluded that the defender be deprived of all parental responsibilities and rights in relation to K as set out in his...
To continue reading
Request your trial
-
Appeal By Sy Against Fa Or Y
...by an appeal court, however careful, can hope to replicate”… This general approach was recently confirmed by this court in EM v AM [[2016] CSIH 2], and was the subject of a careful review of the case law by Professor Norrie (“Appellate Deference in Scottish Child Protection Cases” [(2016) 2......
-
J Against M
...enables them to claim that he misdirected himself”. (page 1372) This general approach was recently confirmed by this court in EM v AM [2016] CSIH 2, and was the subject of a careful review of the case law by Professor Norrie (Edinburgh Law Review, Volume 20 (2016) 147). Is there a separate ......