Sheriff Appeal Court refuses appeal against decision not to vary non-harassment order in respect of abuser’s partner’s children

About this case:

• Citation:
  [2026] SAC (Crim) 8
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal Aisha Anwar

Appellant MH was convicted in September 2024 of offences under the Domestic Abuse (Scotland) Act 2018 and the Abusive Behaviour and Sexual Harm (Scotland) Act 2016, for which he was sentenced to a community payback order and given a restricted movement requirement, with the Crown moving the court to make a NHO in respect of his former partner BH and her children AH and ZH. The appellant, the biological father of AH but not of ZH, argued that the sheriff had interfered with his right to a family life under Article 8 ECHR and considered irrelevant factors in making her decision.

The appeal was heard by Sheriffs Principal Aisha Anwar and Kate Dowdalls, with Appeal Sheriff Wendy Sheehan. The appellant was represented by Allison, advocate, and the Crown by E Campbell, advocate depute.

Appropriateness and necessity

The charges of which the appellant was convicted libelled that he had physically and verbally abused BH between November 2022 and March 2024, including an incident where he struck a door with his elbow, and seized her by the throat. He also invited her son ZH to call her names and subsequently failed to comply with an undertaking not to contact BH without reasonable excuse. On 24 July 2024, prior to the conviction, he had raised proceedings at Edinburgh Sheriff Court seeking parental rights and responsibilities in respect of ZH, as well as an order for contact with both ZH and AH.

The summary sheriff who granted the NHO had presided over the trial, and she noted that the author of a Pre-Sentence Report prepared by the English Probation Service assessed the appellant as posing a medium risk of serious harm towards children from witnessing domestic abuse. An exception to the prohibition on contact was made in relation to AH but not in relation to ZH, on the basis that he was not the appellant’s biological son and had been exposed to some extent to the appellant’s abuse of the complainer. ZH’s views on contact were not sought in the appellant’s family proceedings due to the terms of the NHO, although the reporter noted that but for the terms of NHO she would have recommended supervised contact.

In March 2025, the appellant invited the sheriff to vary the NHO and create an exception for ZH in the same terms as the one for AH. The sheriff noted that there had been no change of circumstances since the making of the original order in October 2024 and considered that the tests of appropriateness and necessity of the order per section 234AZA of the Criminal Procedure (Scotland) Act 1995 continued to be met.

For the appellant it was submitted that the appellant and ZH had previously lived together as part of a family unit and the sheriff’s refusal to vary the NHO amounted to an interference with his Article 8 rights. Her request to see the report from the child welfare reporter reflected a failure by her to retain focus on the statutory test set out in section 234AZA(3) to (5). That report was of no relevance to the test to be applied by the court.

Proper balancing exercise

Delivering the opinion of the court, Sheriff Principal Anwar began by observing: “We accept that as a step-parent who had resided with ZH for 21 months, the appellant’s Article 8 rights, and those of ZH were engaged. We are mindful that we are considering the sheriff’s refusal of the application to vary and not the sheriff’s decision to make a NHO. Leave to appeal against conviction and sentence, including the making of the NHO was refused. The question before this court is simply whether in refusing the application to vary, the sheriff erred.”

She continued: “Whilst no submission on the appellant’s Article 8 rights were advanced at first instance, it is clear that the sheriff undertook the proper balancing exercise, having regard to the serious nature of the offence, the appellant’s use of ZH in the commission of the offence, the complainer’s views, the vulnerability and additional support needs of the children and the appellant’s lack of remorse or insight. She had been made aware of the family proceedings and of the appellant’s opposition to a NHO insofar as it sought to protect the children at the time the NHO had been imposed. She was correct to conclude that the NHO did not prevent the sheriff in the family proceedings determining whether a contact order would be in ZH’s best interests.”

Considering whether the sheriff erred by asking to see the child welfare report, the Sheriff Principal said: “Counsel for the appellant was unable to point us to any passage in the sheriff’s report that supported the proposition that, by doing so, she had sought to usurp the role of the sheriff in the family proceedings by considering the broader question of ZH’s welfare. Counsel’s submission is entirely unfounded.”

She concluded: “The sheriff took a nuanced and considered approach to the terms of the NHO in relation to each child. She explained why she approached matters differently in relation to each child. In relation to ZH in particular, she took account of the appellant’s instructions to ZH to participate in his behaviour towards the complainer and of ZH’s particular vulnerabilities. This case falls squarely into the category of cases envisaged by the court in GRPW v HM Advocate (2021); where there is more than one child, the issue of the appropriateness and the answer to the statutory question may not be the same for both.”

The appeal was accordingly refused.