NJDB v JEG and another (Scotland)
| Jurisdiction | Scotland |
| Judge | LORD REED,LADY HALE,LORD CLARKE,LORD WILSON,LORD HOPE,AND |
| Judgment Date | 23 May 2012 |
| Neutral Citation | [2012] UKSC 21 |
| Date | 23 May 2012 |
| Court | Supreme Court (Scotland) |
| Docket Number | No 12 |
[2012] UKSC 21
Lord Hope, Deputy President
Lady Hale
Lord Clarke
Lord Wilson
Lord Reed
Appellant
Andrew Smith QC
John Halley
(Instructed by Jardine Donaldson Solicitors)
Respondent
Simon di Rollo QC
Stuart Buchanan
(Instructed by Virgil Crawford & Co Solicitors)
Respondent
Andrew Hajducki QC
Maggie Hughes
(Instructed by Campbell Smith WS LLP)
Heard on 13 and 14 March 2012
LORD REED (WITH WHOM LADY HALE, LORD CLARKEANDLORD WILSONAGREE)
This appeal concerns a child, S, who was born on 1 April 2000. His father is the appellant, and his mother is the first respondent. The second respondent is a solicitor who was appointed as curator ad litem to S in respect of these proceedings. The issue between the parties is whether the appellant should have contact with S.
The appellant and the first respondent began a relationship in 1997. It ended a few months after S's birth. The first respondent subsequently married BG. She has a daughter, Z, by a prior relationship. She also has a son, A, by her marriage to BG.
After the relationship between the appellant and the first respondent ended, the appellant had residential contact with both Z and S for some time. In October 2003 the appellant began proceedings in Alloa Sheriff Court in which he sought an order finding that he had parental rights and responsibilities in relation to both Z and S. He also sought a residence order in respect of each of them, or alternatively an order for residential contact with each of them. On 20 January 2004 the sheriff found the appellant entitled to parental rights and responsibilities in respect of both children, made no order meantime regarding contact with Z, and found the appellant entitled to interim residential contact with S. A diet of proof was fixed for July 2004. The proof did not however proceed: following negotiations, the appellant and the first respondent entered into a joint minute of agreement, to which the court gave effect in terms of an interlocutor dated 7 July 2004. That interlocutor granted the appellant parental rights and responsibilities in respect of S, made provision for the appellant to have residential and non-residential contact with S, and provided that the appellant was to be consulted by the first respondent on matters of importance relating to S's health, welfare, education and upbringing. The interlocutor failed however to specify when the contact was to begin.
Disputes began almost immediately over the implementation of the interlocutor. Residential contact nevertheless continued to take place. In December 2004 the appellant lodged a minute seeking the variation of the interlocutor of 7 July 2004 so as to grant him a residence order in respect of S. That minute initiated the proceedings with which this appeal is concerned. In response, the first respondent sought the recall of the interlocutor of 7 July 2004 and the withdrawal of all contact between the appellant and S. The appellant also lodged a second minute, in which he sought to have the first respondent found in contempt of court by reason of her failure to comply with the interlocutor of 7 July 2004.
Protracted procedure then took place, during the course of which the sheriff made a number of orders regulating contact ad interim. He also appointed the second respondent as curator ad litem to S, and directed him to investigate and report to the court on the arrangements for contact. The second respondent carried out investigations and reported. He also entered the process as a party. In doing so, he conducted his own case. Pleadings were prepared on behalf of all three parties. In their final form, they were extensive, and covered in detail the history of the parties' dealings with each other in relation to S and Z. They contained a wide variety of allegations, including allegations relating to Z and A, which were said to cast light upon the characters and personalities of the appellant and the first respondent, and the suitability of the appellant to have contact with S. Allegations were also made concerning BG. The pleadings on behalf of the second respondent set out the history of his dealings with the other parties and with S, and his position in relation to the matters averred on behalf of the other parties. Unsurprisingly, given their scope, the pleadings took a considerable time to prepare and underwent frequent adjustment and amendment as incidents occurred during the course of the proceedings on which the parties wished to found. In October 2005 the sheriff eventually ordered that an open record be made up and intimated to BG.
Later in October 2005 the sheriff allowed BG to be sisted as a party to the proceedings, and suspended all contact between the appellant and S. The sheriff also at that stage allowed a proof on both the minute for variation and the minute for contempt. A diet was fixed for January 2006 but was discharged in December 2005 on the joint motion of the parties. BG withdrew from the proceedings at that stage. The minute for contempt of court was subsequently dismissed on the appellant's motion. On 2 February 2007, the sheriff allowed the parties a proof before answer on the pleadings as they then stood. No date was however fixed on which the proof was to proceed. Contact between the appellant and S continued from April 2006 until August 2007, since when it has not taken place.
In January 2008 the proceedings were transferred to Stirling Sheriff Court. Eventually, following further amendment of the pleadings, on 5 June 2008 the sheriff allowed parties a proof of their averments. By that stage, more than three years had passed since the proceedings had begun. An eight day diet of proof was fixed to begin on 10 September 2008. In the event, the proof ran to 52 days of evidence and took more than a year to complete. The appellant gave evidence for seven days. The evidence of the first respondent lasted for eighteen days. Evidence was also given by a number of other witnesses, including several expert (or supposedly expert) witnesses. The proof was eventually concluded on 23 November 2009. The sheriff issued his decision on 22 January 2010, more than five years after the proceedings had begun. His judgment ran to 173 pages, of which 35 comprised his findings of fact (163 in number) and the remainder comprised his note.
In his interlocutor of 22 January 2010, the sheriff recalled the interlocutor of 7 July 2004 and withdrew all contact between the appellant and S. Following an appeal to the Court of Session, the Inner House varied the sheriff's interlocutor so as to restore the appellant's parental rights and responsibilities (which the sheriff, by recalling rather than varying the interlocutor of 7 July 2004, had inadvertently withdrawn), but otherwise refused the appeal. In the opinion of the court (reported at 2011 SC 191, 2010 Fam LR 134), delivered by the Lord President, it was noted that the cost of the proceedings, excluding judicial costs, had been estimated at about £1 million, of which by far the larger proportion had been borne by the Scottish Legal Aid Board. The present appeal is brought against the decision of the Inner House.
It is important to note at the outset the limited nature of the jurisdiction exercised by this court in an appeal of the present kind. Where an appeal is taken to the Court of Session from the judgment of a sheriff or sheriff principal proceeding on a proof, the judgment of the Court of Session on any such appeal is appealable to the Supreme Court only on matters of law: Court of Session Act 1988, section 32(5). Counsel for the appellant accordingly accepted on the appellant's behalf the findings of fact which were made by the sheriff, and confined his submissions to three points. First, it was argued that the sheriff had failed to address his mind to the appropriate legal framework. In that regard, counsel founded upon the sheriff's failure to refer to the relevant statutory provision, namely section 11 of the Children (Scotland) Act 1995 as amended, or to the case law providing guidance as to its application. Secondly, it was argued that the sheriff's findings could not reasonably warrant the conclusion which he reached. In that regard, counsel submitted that most of the sheriff's findings, and most of his note, were concerned with matters whose relevance to the real issue was at best peripheral. Thirdly, it was argued that the sheriff had failed to act judicially, and that his decision should not therefore be allowed to stand. In that regard, counsel founded upon remarks made by the sheriff about the appellant and the counsel who represented him at the proof, which were said to betray a lack of objectivity and impartiality. Each of these arguments had been presented to the Inner House, which was said to have erred in law in rejecting them.
In relation to the first argument, it is common ground that the test which the sheriff required to apply in the circumstances of this case is set out in section 11(7)(a) of the 1995 Act:
"…in considering whether or not to make an order under subsection (1) above [viz an order in relation to parental responsibilities, parental rights, guardianship or the administration of a child's property] and what order to make, the court—
(a) shall regard the welfare of the child concerned as its paramount consideration and shall not make any such order unless it considers that it would be better for the child that the order be made than that none should be made at all…"
As Lord President Rodger observed in White v White 2001 SC 689, para 14, this is merely the latest in a long line of similar provisions going back to the Guardianship of Infants Act 1925.
In the present case, it is apparent that the sheriff...
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