A.y. V. M.m.+william Warden (curator Ad Litem)
| Jurisdiction | Scotland |
| Judge | Sheriff Principal R.A. Dunlop, Q.C. |
| Court | Sheriff Court |
| Date | 26 July 2013 |
| Docket Number | F181/09 |
| Published date | 09 August 2013 |
F181/09
JUDGMENT
of
SHERIFF PRINCIPAL R A DUNLOP QC
in the cause
AY
Pursuer and Respondent
against
MM
Defender and Appellant
and
WILLIAM WARDEN, Curator ad Litem
Third Party Minuter and Respondent
__________________________________________
Alt: Mr Sharpe, Advocate, instructed by RSB Macdonald, Solicitors, Dundee
Alt. Mr Jack, Advocate, instructed by Finlay Macrae, Solicitors, Dundee (Third Party Minuter)
DUNDEE, 26 July 2013. The Sheriff Principal, having resumed consideration of the cause, allows the appeal; varies the sheriff's interlocutor of 3 August 2012 complained of (1) by deleting the seventh finding in fact and law and the fourth finding in law and (2) by inserting (at page 14) after the words "direct contact with the defender" the words "each Thursday from 9am to 6pm and"; recalls the said interlocutor insofar as it makes an order in terms of section 11(2)(a) of the Children (Scotland) Act 1995 depriving the defender of the parental responsibilities set out in section 1(1)(a), (b) and (d) of said Act and the parental rights contained in section 2(1)(a), (b) and (d) of said Act; finds no expenses due to or by any party in respect of the appeal.
NOTE:
[1] This is an appeal in a family action in which the pursuer sought declarator that he was the father of a child born to the defender and for an order for residence in respect of that child. The defender had a competing crave for residence which failing contact.
[2] Following a proof the sheriff found and declared the pursuer to be the father of the child and made an order in terms of section 11(2)(c) and (d) of the Children (Scotland) Act 1995 that the child should primarily reside with the pursuer but providing that the child should have contact with the defender. He also made an order in terms of section 11(2)(a) of the 1995 Act depriving the defender of the parental responsibilities in relation to the child set out in section 1(1)(a), (b) and (d) and the parental rights contained in section 2(1)(a), (b) and (d) of the Act.
[3] The defender has appealed against the sheriff's decision in this latter regard and unusually all parties appearing at the appeal, including the Curator on behalf of the child, were at one in submitting that the sheriff had misdirected himself in his construction of the provisions of section 11 of the 1995 Act and that this had vitiated his decision to deprive the defender of certain parental responsibilities and rights. Furthermore, all parties submitted that there was an insufficient evidential basis to support the removal of parental responsibilities and rights as a necessary and proportionate step and that the sheriff's decision in this regard was taken on his own initiative without any party having supported that course of action.
[4] Standing this common position I find it unnecessary to enter into a lengthy exposition of the issue but, recognising the contrary view of the sheriff, it is important that I set out briefly the reasons why I think that common position is well founded, particularly given that the sheriff's view has had some publicity. A key passage from the sheriff's judgment which indicates his approach is as follows:-
"In my opinion courts should consider with care the particular responsibilities and rights which it confers upon litigants, removes from litigants or leaves with litigants with a view to avoiding a situation that can produce conflict. I have never understood, for example, why a parent would need both the right in section 2(1)(a) to have a child residing with him or otherwise have a right to regulate the child's residence, on the one hand, and the right in section 2(1)(c) if the child is not living with him, to maintain personal relations and direct contact with the child on a regular basis. It seems to me that these are alternative rights and I cannot conceive of any circumstances in which anyone with an interest in a child would require to have both of these rights at the same time. The concept therefore of a "full" parental rights and responsibilities order, as they have come to be known, seems to me to be a confusion of conflicting rights especially when these are enjoyed by more than one person, and there is therefore potential for conflict between the parties. That potential for conflict would seem to me prima facie to be contrary to the interests of the child. It is therefore the responsibility of the court to make orders to avoid or remove such a conflict."
[5] In a further passage, referring to a commentary of Professor Joe Thomson...
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