Scottish Court of Session Decisions

JH v. DS [2002] ScotCS 163 (4 July 2002)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Kirkwood Lord Cameron of Lochbroom Lord Macfadyen	XA40/02 OPINION OF THE COURT delivered by LORD MACFADYEN in APPEAL FOR DEFENDER From the Sheriffdom of North Strathclyde at Greenock in the cause J H or S Pursuer and Respondent; against D S Defender and Appellant: _______

 

 

Act: Davies; Drummond Miller (Pursuer and Respondent)

Alt: Party (Defender and Appellant)

4 July 2002

Procedural History

1. This action of divorce was raised in Greenock Sheriff Court in May 1995. In it, the pursuer craved decree of divorce on the ground that the marriage had broken down irretrievably by reason of the defender's behaviour. She also craved custody of the youngest of the three children of the marriage (hereinafter referred to as "J"), who was born on 15 March 1990 and was therefore then five years of age. In addition, she sought various forms of financial provision.
2. Several interim orders were made affecting the custody of, and access to, J. In short, J was in the interim custody of the defender for a period from 28 November 1997 to 20 November 1998, but otherwise in the interim custody of the pursuer. The matter of custody came to proof before Sheriff Donald in September 1999, and the hearing on evidence was concluded in June 2000. At the proof the pursuer was represented by counsel, the defender appeared on his own behalf, and J's curator ad litem, who had been appointed on 8 February 1999, also took part in the proceedings. On 7 September 2000 the Sheriff pronounced an interlocutor finding the pursuer entitled to custody of J, and the defender entitled to access from 11 a.m. to 7 p.m. every Saturday. By then J was ten years of age. No appeal was marked against that interlocutor at that stage.
3. The action came to proof on the outstanding issues, before Sheriff Swanney, in June 2001. Again the pursuer was represented by counsel and the defender appeared on his own behalf. A motion by the defender to discharge the diet of proof was refused, and he then left the court. The proof proceeded. Evidence was led on the pursuer's behalf. Since the defender was no longer present no evidence was tendered on his behalf. On 24 August 2001 the Sheriff pronounced an interlocutor divorcing the pursuer from the defender, awarding the pursuer a capital sum of £13,810, ordering the sale of the former matrimonial home, and ordering transfer to the pursuer of certain insurance policies.
4. While that aspect of the case was at avizandum, a motion for delivery of J by the defender to the pursuer came before Sheriff Herald on 25 July 2001. That arose, according to the Note provided by the Sheriff, because in the course of the previous weekend J had had a dispute with the pursuer over a matter of discipline, and had gone to stay with the defender. According to the submissions made by the pursuer's solicitor to the Sheriff, the defender refused to return J to the pursuer. The motion for delivery was therefore enrolled. After hearing the pursuer's solicitor, and the defender, the Sheriff granted the motion. J, who had been present in court, left with the pursuer.
5. On 7 August 2001 the defender appealed to the Sheriff Principal against Sheriff Herald's interlocutor. On 6 September 2001 he appealed to the Sheriff Principal against Sheriff Swanney's interlocutor. When these appeals were heard by the Sheriff Principal, he treated them as also opening up for review Sheriff Donald's interlocutor of 7 September 2000. At the appeal the pursuer was again represented by counsel, and the defender again appeared on his own behalf. Having conducted a very wide-ranging review of all the matters which the defender sought to raise before him, the Sheriff Principal refused the appeals by interlocutor dated 31 January 2002.
6. Against that interlocutor the defender appealed to this court. Throughout the proceedings in this court he has, as in the Sheriff Court, appeared on his own behalf. He failed to comply with Rule of Court 40.7(2)(a), but on 23 April he was reponed against that failure, the process and appeal prints were received late, and parties were appointed to lodge grounds of appeal within 28 days. The defender lodged grounds of appeal (No. 34 of process) on 16 May 2002. On 20 May 2002 he enrolled a motion to appoint the cause to the summar roll. When that motion was heard on the single bills on 28 May 2002, counsel for the pursuer challenged the validity of the defender's grounds of appeal. The court appointed the defender within three weeks to lodge amended grounds of appeal under reference to Rule of Court 42.14(2) giving, in particular, clear notice of (1) the specific passages of the decisions of the Sheriff and Sheriff Principal with which he wished to take issue and (2) the specific point or points he wished to make in respect of those passages. On 17 June 2002 the defender, in response to the interlocutor of 28 May 2002, tendered a document headed "Appendix 1, Additions and amendments to main grounds of appeal" (No. 35 of process).
7. The matter came before the court again on 20 June 2002, when Mr Davies, who appeared for the pursuer, renewed the submission that the defender's grounds of appeal did not comply with the requirements of Rule 42.14(2).

The Requirement for Grounds of Appeal

8. Rule of Court 40.14 provides inter alia as follows:

"(2) Grounds of appeal shall consist of brief specific numbered propositions stating the grounds on which it is proposed to submit that the appeal should be allowed ...

(5) Where an appellant fails to lodge grounds of appeal in accordance with paragraph (2) within the period prescribed ..., the Inner House may, at its own instance or on the motion of a respondent, refuse the appeal with or without hearing parties as the court thinks fit."

9. In Ferguson v Whitbread & Co plc 1996 SLT 659, the court refused the appeal on the basis that the appellant had failed to lodge proper grounds of appeal. The grounds of appeal lodged contained no more than the bare assertions (1) that the Sheriff Principal had erred in refusing the appeal, and (2) that the Sheriff had erred in dismissing the action. The court made a number of observations about the purpose of the requirement that grounds of appeal be lodged. Lord President Hope, in delivering the opinion of the court said (at 660B):

"... [T]he preparation of the grounds of appeal, which require to be lodged as a step in process, should never be regarded as a mere formality. The purpose of the rule, which is a simple example of case management, is to give notice to the parties and to the court of the points which are to be argued. Specification of the grounds enables the parties to direct their argument, and their preparation for it, to the points which are truly at issue."

10. It cannot, in our view, be said that the grounds of appeal lodged by the defender in the present case comply with the letter of the requirements of Rule 40.14(2). The grounds of appeal (No. 34 of process) extend to some six pages, and the appendix (No. 35 of process) lodged in response to the interlocutor of 28 May 2002 extends to a further 38 pages. Together they cannot be said to consist of "brief specific numbered propositions". Mr Davies accepted, however, in our view rightly, that the court, in considering whether the grounds of appeal complied with the requirements of Rule 40.14(2) and whether, if they did not, the appeal should be refused on that account, should not confine its attention to the form of the grounds of appeal, but should ask itself whether in substance they gave fair notice to the respondent of relevant propositions on the basis of which it was to be contended that the Sheriff Principal and the Sheriffs had erred in making the decisions they did. It is therefore necessary to consider the substance of the documents on which the defender relies as constituting his grounds of appeal. That task is not made easy by the rambling and repetitive form of the documents, but allowance must, in our view, be made for the fact that the defender is conducting the appeal without the benefit of legal representation. Nevertheless a party litigant, as much as a party who is legally represented, requires to conform to the rules which govern an appeal system.

The Substance of the Grounds of Appeal

11. Before attempting to identify the grounds on which the defender seeks to attack the soundness of the decision of the Sheriff Principal, and of the decisions of the Sheriffs which he upheld, it is convenient to narrow the scope of inquiry by identifying certain matters which the defender does not now seek to put in issue in the appeal to this court. In the first place, the defender accepted in the course of the hearing before us that he did not seek to challenge that part of Sheriff Swanney's decision by which she granted decree of divorce. In the second place, as Mr Davies pointed out, Sheriff Herald's decision to order delivery of J to the pursuer on 25 July 2001 was immediately implemented. J returned to the custody of the pursuer. She continues in the pursuer's custody, not by virtue of Sheriff Herald's decision, but by virtue of the award of custody made by Sheriff Donald on 7 September 2000. There can therefore be no live issue in relation to Sheriff Herald's decision. Thirdly, since the Sheriff Principal upheld the decisions of the Sheriffs, and there was nothing in the grounds of appeal directed separately against the Sheriff Principal's reasoning in support of his decision, no separate issue going to the merits of that decision now arises. The only separate point taken by the defender in relation to the Sheriff Principal's decision was the procedural objection to his refusal to allow an audio recording of the appeal proceedings to be made. In our view the Sheriff Principal was clearly entitled so to refuse, and in any event, that complaint cannot, in our view, amount to a relevant ground of appeal against the substance of the Sheriff Principal's decision.
12. It seems to us, having read Nos. 34 and 35 of process with care, and having heard what the defender had to say in response to Mr Davies' challenge to the relevancy of the grounds of appeal, that there are two principal points which he wishes to make in connection with custody of J. The first of these relates to the evidence given about J's wishes in the matter of custody. The proposition, as we understand it, involves a number of components, namely (i) that the existence of a phenomenon called "parental alienation syndrome" has been recognised by the European Court of Human Rights in Elsholz v Germany (Application No. 25735/94, judgment dated 13 July 2000); (ii) that those "professionals" (to use the defender's expression) involved in assessing J's wishes with regard to custody were untrained in recognising that syndrome; and (iii) that accordingly they misrepresented J's wishes to the court, and thereby infringed her and the defender's human rights. In our view the defender makes too much of Elsholz. Although in that case the Court recognised the existence of the syndrome, it does not follow either that the Sheriff was bound on that account to reject the evidence about J's wishes given by persons untrained in recognising the syndrome, or that those involved in assessing J's wishes were in fact unfamiliar with the syndrome. That is particularly so since, as we understand the position from all the material placed before us, the syndrome was not mentioned before Sheriff Donald, no evidence was led to the effect that the witnesses in question were unfamiliar with it or more generally with the phenomenon that a custodial parent may influence a child against the non-custodial parent, and no evidence was tendered to the effect that J was affected by the syndrome. The Sheriff was obliged to reach his decision on the evidence before him, and the defender's references to Elsholz and to the parental alienation syndrome do not involve the contention that he did otherwise. We are satisfied that the element of the defender's grounds of appeal which concentrates on Elsholz and the parental alienation syndrome is properly to be regarded as not disclosing any relevant ground for attack on the decisions of Sheriff Donald and the Sheriff Principal.
13. The second principal contention advanced by the defender is the related one that J's human rights were infringed because the court failed to secure that her views on the issue of custody were properly before it when it reached its conclusion on that issue. In making that point, it seems to us, the defender fails to distinguish between the state of affairs that prevailed at the time of the proof before Sheriff Donald and the state of affairs which he maintains now prevails. At the time of the proof, J was only nine years of age, well below the age at which in terms of section 6(1) of the Children (Scotland) Act 1995 she may be presumed to be of sufficient age and maturity to form a view. In the event, the court took the precaution of appointing a curator ad litem to ensure that J's interests were represented before the court separately from those of each of her parents. The Sheriff acted entirely appropriately in taking that course and his action in doing so cannot form a relevant ground of appeal. The defender seeks to support his contention largely by reference to expressions of view attributed to J much more recently, when she had reached 12 years of age. We say nothing of the weight that would fall to be accorded to those views (as expressed, for example, in a letter of 23 March 2002 which bears to have been written by J to the Chief Constable of Strathclyde Police, and which is attached to No. 34 of process) if the issue of custody were to require to be considered anew at the present time. We are (as the Sheriff Principal was) concerned solely with whether it can be relevantly maintained that the Sheriff erred in the decision he made at the date when he made it on the evidence then before him. Views expressed by J at a later date cannot, in our view, afford relevant grounds of appeal against the decision of Sheriff Donald.
14. The defender's grounds of appeal also contain extensive, but vague, inspecific and unsubstantiated references to some form of conspiracy involving a wide range of persons involved in the civil justice system. All we need say about those allegations is that in the form in which they are presented they cannot be regarded as amounting to a relevant ground of appeal against the judicial decisions which the defender seeks to bring under review.
15. Apart from the points already mentioned, it appears to us that the only other issue that can be detected in the grounds of appeal relates to Sheriff Swanney's treatment of the matrimonial debts. That aspect of Sheriff Swanney's decision was discussed by the Sheriff Principal at pages 12 to 13 of his Note. In No. 35 of process, at the twenty-second page, the defender quotes part of that passage, and makes some observations on it, the precise import of which is difficult to discern. It seems to us that the relevance of that passage in the grounds of appeal must be judged in the context (i) that the defender chose to absent himself from the proof and thus gave up the opportunity to lead evidence about the matrimonial debts and make submissions about how they ought to be taken into account, and (ii) that Sheriff Swanney nevertheless gave very careful consideration to the question of financial provision, taking account, as best she could in his absence, of the defender's productions and pleadings. In that situation, to advance a relevant ground of appeal against the part of Sheriff Swanney's decision by which she awarded a capital sum, the defender would in our opinion have had to identify specifically the error or errors which he wished to submit had been made by Sheriff Swanney, but he has not done so. We are therefore of opinion that the documents lodged by the defender disclose no relevant grounds of appeal against the award of a capital sum made by Sheriff Swanney and upheld by the Sheriff Principal.

Result

16. For these reasons, we are satisfied that Mr Davies' submission that Nos. 34 and 35 of process do not give fair notice of any relevant grounds of appeal against the decision of the Sheriff Principal is well founded. We shall therefore refuse the appeal in terms of Rule of Court 40.14(5).
17. We wish to repeat a point which we sought to make to the defender in the course of the hearing on the Single Bills on 20 June 2002. In an appeal to this court against the Sheriff Principal's interlocutor of 31 January 2002 in respect of the custody of J, just as in the appeal to the Sheriff Principal against Sheriff Donald's interlocutor of 7 September 2000, the court can only concern itself with whether the decisions made were sound in light of the evidence before the Sheriff in the proof which he heard. Even if we were to have been satisfied that a relevant ground of appeal had been advanced to the effect that the Sheriff had erred, this Court, even if satisfied that such a ground of appeal had been made out, would not be able to substitute a different determination as to custody of J. Particularly in light of the passage of time since evidence was heard by Sheriff Donald, the Court could only have remitted the case to the Sheriff Court to enable further, up-to-date evidence to be heard there and a fresh decision to be taken in light of that evidence and any guidance as to the law given in the Court's decision. If, as seems to us to be the case, the defender's position is that there has been a material change of circumstance since the time of Sheriff Donald's decision, if only in the form of J's having attained an age at which she is better able to form her own view on the matter, the proper way in which to invite the court to take account of that change is not by appeal, but by making an application to the Sheriff for variation of the interlocutor dealing with custody. In such an application, some at least of the material appearing in the documents prepared by the defender might properly be laid before the Sheriff in evidence, and the Sheriff could be invited to reconsider where J's best interests lie. The defender must not, of course, suppose that, in pointing out the possibility of his seeking variation of the custody order by application to the Sheriff, we are expressing any view as to whether such an application would be successful.