Pet Shabana Yasmin Soofi Or Murtaza (fe) For Suspension Ad Interim
| Jurisdiction | Scotland |
| Judge | Lord Stewart |
| Neutral Citation | [2011] CSOH 214 |
| Year | 2011 |
| Published date | 22 December 2011 |
| Date | 22 December 2011 |
| Court | Court of Session |
| Docket Number | P505/11 |
| OUTER HOUSE, COURT OF SESSION [2011] CSOH 214 | |
| P505/11 | OPINION OF LORD STEWART in the cause SHABANA YASMIN SOOFI OR MURTAZA Petitioner; for Suspension and Suspension ad interim of an interlocutor dated 10 February 2011 of the Sheriff at Glasgow etc ________________ |
Petitioner: Mrs J. Scott, Q.C., Burr, advocate; Allan McDougall
Respondent: Wise, Q.C., Innes, advocate; Drummond Miller LLP
22 December 2011
[1] This Petition seeks to set aside a Sheriff Court interlocutor pronounced earlier this year. The interlocutor in question awarded interim contact to the father of a four‑year old boy, in the first instance on three occasions, pending final determination of the father's claim for contact. The order was made after proof but before final judgment. The boy lives with his mother Shabana Yasmin Soofi or Murtaza. Mrs Murtaza opposes the father's claim for contact. She has now brought this Petition for suspension of the interlocutor in question and for interim suspension. Before service of her Petition, the Petitioner applied ex parte for interim suspension. This was granted on 6 May 2011. The matter came before me on 11 November 2011 on the motion of the father, Ghulam Murtaza, Respondent, for recall of the interim suspension.
[2] Having heard submissions from Senior Counsel for the Petitioner and the Respondent respectively and having made avizandum I have formed the Opinion that the Respondent's motion for recall of interim suspension should be granted.
Background and procedural history
[3] The Petitioner was born on 8 December 1982. She is of Pakistani ethnicity. She was brought up in Bradford and Glasgow and completed nursery, primary and secondary schooling in the United Kingdom, leaving school at the age of 18. She cannot speak English. She has a full scale IQ of 57 and is learning disabled [No 6/3 of Process, Clinical Psychology Report by Dr Gary Macpherson, 5 January 2011, 8]. She cannot manage money; and she is unable to cater for herself, cook or prepare a meal. There is a family history of learning disability. The Respondent is the Petitioner's first cousin. He is a Pakistani national. The Petitioner entered into an arranged marriage with the Respondent in Pakistan on 1 December 2005. The Petitioner and the Respondent met for the first time on the day of the ceremony. The Petitioner's three brothers married at the same event.
[4] The Petitioner lived with the Respondent in Pakistan for four weeks after the ceremony. In that time she became pregnant. She then returned to Glasgow with her family. The child, a son, the subject of the claim for contact, was born in Glasgow on 9 October 2006. The Respondent eventually obtained a visa and entered the United Kingdom on 13 March 2007. The parties and the child lived in the Petitioner's family home in Glasgow until 21 November 2007. From 21 November 2007 until 8 January 2008 the parties and the child lived in Dundee with the Respondent's uncle. The parties separated on 8 January 2008 when the Petitioner and the child returned to live in the Petitioner's family home in Glasgow. The Respondent has not had contact with the child since then. There is a suggestion by the Petitioner in the Sheriff Court pleadings that the Respondent is pursuing his contact application to bolster his claim to remain in the United Kingdom. Whether true or not, no submission is made that this is a relevant factor for present purposes. The fact is that the Petitioner and her family did not allow the Respondent any contact with his son after the separation on 8 January 2008. The parties' relationship, when living together, seems to have been volatile; and the two sides of the family are bitterly divided over contact to H.
[5] The Respondent raised an action for contact in Glasgow Sheriff Court. The process has not been transmitted to this Court. I assume that the pre-1 January 2011 version of the Chapter 33 rules applies. The Sheriff Court reference number F1726/08 on the copy interlocutor, Production No 6/2, indicates that the action was raised in 2008. The written submissions for the pursuer in the Sheriff Court action, now the Respondent, state that "proceedings were initiated in December 2008" [Written Submissions on behalf of the Pursuer, 8]. Defences were lodged. At some point the Sheriff ordered a "bar report". The report by Audrey Spowart, solicitor, was apparently submitted on 14 April 2009. I have not been favoured with a copy. The concluding remarks are quoted in the Petition:
"Both parties ... expressed severe concerns about the possibility of violence from the other and the others family. Both also expressed a view that they would either be threatened with or experience violence, no matter what the court said or ordered. In these circumstances and considering the wider issues I consider it would be irresponsible of me to recommend contact at this time. I therefore can see no alternative but for the matter to be decided by way of Proof."
Diets of proof fixed first for December 2009 and secondly for May 2010 were discharged [Written Submissions on behalf of the Pursuer, 6]. The case eventually called for proof before Sheriff Miller on 20 September 2010. Both parties were represented by solicitors. The agent for the pursuer, now the Respondent, stated that his client's application would be restricted to non-residential contact in a contact centre. The agent for the defender, now the Petitioner, stated that his client was opposed to all contact. Evidence was led on 20, 21, 22, 23 and 24 September 2010 and on 11 and 12 January 2011, seven court days. There is controversy about events at the proof on 24 September 2010 and on 11 January 2011. I shall return to that matter below.
[6] Following the hearing on evidence on 13 January 2011 the learned Sheriff again continued the proof. The declared purpose of the continuation was to obtain information about contact centres. The interlocutor states:
"The Sheriff, having heard party's respective averments, Continues the diet of proof to 10 February 2011 at 10.00 am before Sheriff Miller for investigations to [be] made in respect of contact centre availability and for the said information to be lodged with the Court as a report."
On 10 February 2011 copy correspondence about contact centre availability having been tendered by the solicitor for the pursuer, now the Respondent, the learned Sheriff heard submissions on the correspondence. He then gave parties an opportunity to reach agreement in light of the correspondence. No agreement having been reached the learned Sheriff took time for consideration.
[7] When the Sheriff returned to the bench he gave a decision ex tempore and pronounced the following interlocutor of 10 February 2011, ex proprio motu, converting that day's diet into a child welfare hearing, making an order for interim contact and continuing the proof sine die [my underlining]:
"The Sheriff, having heard parties procurators, in the presence of the parties, on the terms of the correspondence from the Renfield Centre Child Contact Centre and from the Family Mediation West Centre on the availability of opportunities for contact visits, and having given parties a further opportunity in light of that correspondence to reach an agreement on the issue of contact, but that not having achieved that purpose, Converts today's proof diet into a Child Welfare Hearing: Makes an order under section 11(2)(d) of the Children (Scotland) Act 1995 whereby the pursuer shall have contact ad interim with his son, the child HM, whose date of birth is 9 October 2006: Requests both parties to inform the court in writing by any appropriate medium that all necessary preliminaries required by the contact centre before a contact visit can take place have been complied with: Directs that each contact visit take place within the Renfield Centre Child Contact Centre, Renfield Church Centre, 260 Bath Street, Glasgow G2 4JP: Directs that the frequency of that contact be once every four weeks and the duration of each contact visit be for a period of two hours; and Directs ex proprio motu that for the first three occasions on which such contact takes place it be supervised by a qualified social worker: Directs that parties attend a Child Welfare Hearing before Sheriff Miller after the first three contact visits on a date to be afterwards assigned dependent upon when the contact visits take place, the purpose of the Child Welfare Hearing being to review in all respects the present order for contact: Requests ex proprio motu that the social worker supervising each of the three contact visits provide to the court a report on each such contact visit. Directs that the Pursuer's solicitor shall be responsible for instructing the social worker to prepare the report called for by the court and that the Pursuer shall be responsible in the first instance for payment of fees and outlays incurred by the social worker in the preparation of such report, but thereafter that the ultimate responsibility of meeting the cost of that report be shared equally between the parties: Continues ex proprio motu the diet of proof sine die: and Reserves meantime the question of the expenses occasioned by today's diet of continued proof."
On 25 March 2011 the Sheriff refused leave to appeal the foregoing interlocutor of 10 February 2011. This interlocutor of 10 February 2011 is the interlocutor which the Petitioner now seeks to have suspended.
[8] When the Petition for suspension was presented a motion was enrolled for orders for intimation and service and for interim suspension. The Glasgow Sheriff Court caveat was honoured but no appearance was entered. On 6 May 2011, having heard Counsel for the Petitioner Lord Matthews ex parte granted the Petitioner's motion for suspension ad interim of the interlocutor of Sheriff Miller pronounced on 10 February 2011. On 16 June 2011, on the unopposed motion of the Petitioner, the cause was sisted until 27 July...
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M.s. (ap) V. L.j. (ap)
...it was competent to make an interim order even after proof was vouched by the opinion of Lord Stewart in Soofi or Murtaza Petitioner, [2011] CSOH 214, according to counsel. [140] If the allegations of TL and JG were not established, then it would be appropriate to grant at least the parenta......
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Gm Against Mb And As
...There is passing mention of s.11 in paragraph [22], and of s.18 in paragraph [41], of the opinion of Lord Stewart in Murtaza Petitioner [2011] CSOH 214. There is also mention of s.12 in paragraph [11] of the judgment of Sheriff Sheehan in City of Edinburgh Council v S 2015 SLT (Sh.Ct.) 69, ......