Sheriff Appeal Court remits interlocutor based on sheriff’s inadequate reasoning to new sheriff for reconsideration

Sheriff Appeal Court remits interlocutor based on sheriff’s inadequate reasoning to new sheriff for reconsideration

The Sheriff Appeal Court has set aside orders made by a sheriff under the Children (Scotland) Act 1995 in respect of a dispute between two divorced parents both seeking residence orders for their three daughters after finding that the sheriff had given inadequate reasoning for his decisions.

The sheriff initially granted the mother, who was the pursuer in the original case, residence orders in respect of all three children, aged between 6 and 10, and contact orders in respect of two of them were granted to the defender, their father. An appeal and cross-appeal were lodged against these decisions, which were reached after five years of litigation between the parties.

The appeal was heard by Sheriffs Principal Aisha Anwar and Nigel Ross, along with Appeal Sheriff Alasdair MacFadyen. Ms Colledge, solicitor, appeared for the defender and appellant and Dewar QC and Ms Cartwright, advocate, for the pursuer and cross-appellant.

Violent conduct

Decree of divorce was granted to the parties in February 2019. There were three children from the relationship, AM, BM, and CM, who were 10, 8, and 6 respectively. The pursuer was granted a residence order in respect of all three children in 2021, with the defender granted contact with only BM and CM. It was recorded in the sheriff’s findings that AM had witnessed the defender being violent to the pursuer on at least one occasion and had expressed great reluctance to contact.

It was the defender’s case that the sheriff’s decision was irrational and that he had failed to give proper consideration to AM’s welfare and benefit to her of contact with the defender. Further, his decision represented an unwarranted interference with his article 8 right to a family life, and he had erred by treating AM’s views as determinative of the question of contact between them.

In her cross-appeal, the pursuer appealed on the ground that the sheriff had failed to have regard to the ability of the parties to cooperate in light of his findings relating to the defender’s violent conduct. He had further failed to provide any reasoning as to why contact handovers could take place at the pursuer’s home.

During the proof, a joint expert witness, Dr Edward, expressed the opinion that contact between the children and the defender would not be successful while AM and BM held the view that he was a negative presence in their lives. It was the pursuer’s submission that the sheriff had failed to adequately explain why he had rejected this evidence.

Erroneous approach

Delivering the opinion of the court, Sheriff Principal Anwar began: “It is clear that the appeals must be allowed. While the appeal and the cross appeal consist of distinct grounds of appeal, properly understood each has its genesis in the sheriff’s erroneous approach to Ordinary Cause Rules which has led in turn to a decision which is inadequately reasoned and which fails to deal with the substantive issues.”

Analysing the sufficiency of the sheriff’s reasoning, she said: “The terse style in which the sheriff has expressed his decision gives rise to both concern and challenges for this court. It has left the parties and this court questioning why the sheriff made the orders he did. The sheriff heard evidence from eight witnesses including the pursuer, the defender and an expert witness. In addition, several affidavits were lodged by both parties. The proof lasted five days. The sheriff’s note consists of five pages, two of which set out his findings in fact.”

She continued: “In cases involving craves for orders in terms of section 11 of the 1995 Act, it is incumbent upon the sheriff to identify and resolve the relevant material issues of fact, provide a clear and intelligible explanation as to what facts have been found to be established and why, and thereafter to explain how the law has been applied to the facts. Importantly, it is incumbent upon the sheriff to consider and apply the terms of section 11(7) and (7A) to (7D) of the 1995 Act. Viewed in light of these considerations, the sheriff’s decision falls short.”

Highlighting the sheriff’s handling of the findings concerning the defender’s violence to the pursuer being witnessed by AM, Sheriff Principal Anwar explained further: “There is no qualitative or quantitative analysis of the incident or incidents referred to. Nor is there any discussion as to whether the sheriff accepts that this finding amounts to ‘abuse’ in terms of section 11(7C). There is no link with the effect this may have on the parties’ ability to co-operate with each other in terms of section 11(7D). That omission is striking when considered in light of the sheriff’s decision to order contact handovers to take place at the pursuer’s home.”

On the appropriate disposal, she concluded: “Reading the transcripts is unlikely to assist this court in making findings in fact in relation to highly contentious matters such as the extent and nature of the allegations of abuse, its effect or lack thereof upon the pursuer and the children and the underlying reasons for the children’s reluctance to attend for contact with the defender. Regrettably, the most sensible way forward is for this court to recall the sheriff’s interlocutor of 16 July 2021 and remit the cause to another sheriff to proceed as accords.”

Both the appeal and the cross-appeal were therefore allowed, and the interlocutor of the sheriff recalled.

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