Father of four’s residence order appeal without leave refused as ‘incompetent’

Judges in the Inner House of the Court of Session agreed with the Sheriff Principal’s conclusion that the appeal fell to be dismissed as “incompetent”.

Lady Paton (pictured), Lord Malcolm and Lord McGhie heard that the pursuer “H” and defender “H” were married in March 1999 and had four children: a son A, born on 18 March 2001; a daughter B, born on 23 October 2002; a son C, born on 15 November 2003; and a daughter D, born on 3 December 2006.

However, the parties’ relationship deteriorated and, following several separations and reconciliations, the pursuer raised an action in February 2010 in Aberdeen Sheriff Court seeking divorce, a residence providing that the four children live with him, and a specific issue order that the children attend a particular primary school.

In February 2011 Sheriff Harris granted an interim shared residence order, whereby the children were to live with the pursuer and then with the defender for alternate weeks.

However, in September 2011 the order was recalled by Sheriff Garden and an interim order awarding residence of all four children to the defender was pronounced, but at some stage in early or mid-2012, A moved to live with his father.

The interim order remained in place until 11 September 2013 when, following a lengthy hearing, Sheriff Garden awarded residence relating to A to the pursuer in Milltimber and residence relating to the three younger children to the defender in Banchory.

In the note to his interlocutor, the sheriff recorded his view that the children needed “stability and certainty” about their future and that the residence orders “should now be made final”, observing that “interim orders have simply fuelled the levels of uncertainty which have clearly damaged the children”.

The pursuer marked an appeal to the Sheriff Principal against the part of the interlocutor relating to the three younger children.

When dealing with the matter the Sheriff Principal noted that the pursuer had not sought leave to appeal, but as the welfare of children was involved he heard submissions from the pursuer in person and from the defender’s solicitor.

Refusing the appeal, the Sheriff Principal explained that, on reconsidering the authorities, it was clear that an appeal without leave was incompetent.

He also dealt with the grounds of appeal presented by the pursuer, but found “no merit” in the grounds.

The pursuer appealed to the Court of Session, but the judges refused the appeal for the same reasons.

Delivering the opinion of the court, Lady Paton said: “Sheriff Garden was, in our view, entitled to describe his order of 11 September 2013 relating to residence as ‘final’. In so doing, he indicated that he had dealt with the question of residence on a final (rather than an interim) basis, and was unlikely to be persuaded to vary that order unless there was a change of circumstances. Nevertheless the fact that the sheriff described his order as ‘final’ did not, in our view, result in its qualifying as a ‘final judgment or interlocutor’…as the subject-matter of the cause has not been disposed of. In particular, issues of divorce and contact remain outstanding.

“It is clear therefore that the pursuer required leave from the sheriff to appeal against his interlocutor of 11 September 2013. Without such leave, the appeal was incompetent. No leave was in fact sought from or granted by the sheriff. Accordingly we agree with the Sheriff Principal’s conclusion that the appeal fell to be dismissed as incompetent. We refuse the appeal to the Court of Session for that reason.

“As already noted, the Sheriff Principal, despite his conclusion that the appeal was incompetent, nevertheless dealt with each of the pursuer’s grounds of appeal, taking the view that the welfare of the children was involved. Given the observations of Lord President Hope in Sanderson v McManus, we do not consider it appropriate for this court to enter into the merits of the Sheriff Principal’s responses to the pursuer’s grounds of appeal, although we would observe that we have been unable to detect any error on his part. In the result, we refuse the appeal before us for these reasons also.”

The judges made one further observation.

“We agree with the Sheriff Principal that, where the welfare and safety of children are at issue, there may be very exceptional circumstances where it would be inappropriate to allow procedural matters to stand in the way of essential decision-making. However this, in our opinion, is not such a case,” Lady Paton added.