Sheriff Appeal Court refuses appeal against residence order by father who failed to attend peremptory hearing

About this case:

• Citation:
  [2026] SAC (Civ) 10
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal S F Murphy KC

Appellant BWM raised an action at Greenock Sheriff Court in 2022 against LW seeking residential contact, while she sought interdict against the removal of the children from her care and against molestation of her by the appellant. On 12 September 2024, the sheriff dismissed the appellant’s action at a peremptory diet, which the appellant challenged as unfair.

The appeal was heard by Sheriff Principal Sean Murphy KC, with the pursuer and appellant appearing as a party litigant while the defender and respondent was represented by Sheridan, solicitor.

Hostility and bias

The parties’ children, LMM and BBM were born in May 2020 and April 2021, respectively. After the parties separated on an unidentified date in or before October 2021 the children continued to reside with the respondent. In August 2022, the appellant raised an action for residential contact, however his legal representatives withdrew from acting in January 2023 and thereafter he appeared as a party litigant.

After various procedural steps, a peremptory hearing was fixed for 12 September 2024 for the appellant to be personally present and to obtain a “soul and conscience” certificate on account of his health. The appellant lodged a motion to be excused personal attendance but did so without providing medical vouching. When he failed to appear at the hearing, the sheriff granted a motion from the respondent to dismiss the appellant’s case. On 10 December 2024, the appellant attended court in Greenock where the sheriff considered the affidavit evidence and granted to the respondent the residence order and orders for interdict which she had craved.

It was submitted by the appellant that the court had dismissed his motions without proper consideration, and that the sheriff had displayed hostility and bias by silencing him during hearings and issuing decisions favourable to the respondent without fair evaluation. He had been denied effective legal representation because solicitors had refused to accept his explicit instructions and requests to have counsel assigned to represent him were ignored. The result was that his children had been deprived of a meaningful relationship with him, resulting in distress and emotional harm.

For the respondent it was submitted that the appellant had limited involvement with his children and his craves had been dismissed because he had not appeared at the hearing on 12 September 2024. As the appellant’s craves had been dismissed on 12 September 2024, the appellant’s submission that proof should have been assigned on 10 December 2024 is incompetent.

Has to accept responsibility

In his decision, Sheriff Murphy said of the case’s procedural history: “The appellant was repeatedly in default. Having been personally present on 25 April 2024 when the cause was sisted and a review hearing was fixed for 18 July 2024, he failed to appear or be represented at the said review hearing. Subsequently he failed to appear or be represented at the peremptory diet on 22 August, of which he had been given notice. He again failed to appear or be represented at the second peremptory diet on 12 September 2024 of which he had been given notice.”

In respect of the soul and conscience motion, he added: “Tellingly, [the appellant] admitted that he had been reluctant to attend his designated GP because he was aware that there were outstanding criminal warrants for his arrest in existence at the time. He was given repeated opportunities by the court to correct the position which he had repeatedly been advised was likely to place him in default. He failed to take advantage of any of those opportunities. In the circumstances which pertained on 12 September 2024 the sheriff was entitled to refuse the appellant’s motion, for which he had not appeared to present any argument, and to dismiss the appellant’s case.”

Considering the appellant’s submissions in detail, the Sheriff Principal said: “He has provided no adequate explanation for his repeated failures to appear or to obtain the requested medical certificate. Instead, he has reiterated a lengthy list of grievances against various individuals and public authorities which he claims stood in his way while he was trying to pursue this action, much of which was previously submitted in writing when he was seeking to be excused attendance at the hearings in the summer of 2024. Some of these relate to things which are impossible to achieve: for example, one of his complaints, with regard to equality of arms, is that he is unrepresented, and the court has failed to appoint an agent or counsel to act for him; but the court has no power to do so in a case such as the present one.”

He concluded: “Far from exhibiting bias toward the appellant, the court repeatedly allowed him the opportunity to present his case by offering further peremptory diets following his repeated failures to appear. At earlier stages in the proceedings, his motion to discharge the first diet of proof had been granted, as had that for specification to obtain social work department records. It is not unusual for the court to decline to appoint a commissioner when such a motion is granted to save time and expense and that is a matter for the discretion of the sheriff. There are no averments on record that his children have suffered severe emotional or psychological harm or distress. The appellant has to accept responsibility for failing to comply with the orders of court which led to the sheriff’s dismissal of his action.”

The appeal was accordingly refused.