Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH 214
P505/11	OPINION OF LORD STEWART in the cause SHABANA YASMIN SOOFI OR MURTAZA Petitioner; for Suspension and Suspension ad interim of an interlocutor dated 10 February 2011 of the Sheriff at Glasgow etc ­­­­­­­­­­­­­­­­­________________

Petitioner: Mrs J. Scott, Q.C., Burr, advocate; Allan McDougall

Respondent: Wise, Q.C., Innes, advocate; Drummond Miller LLP

22 December 2011

[1] This Petition seeks to set aside a Sheriff Court interlocutor pronounced earlier this year. The interlocutor in question awarded interim contact to the father of a four‑year old boy, in the first instance on three occasions, pending final determination of the father's claim for contact. The order was made after proof but before final judgment. The boy lives with his mother Shabana Yasmin Soofi or Murtaza. Mrs Murtaza opposes the father's claim for contact. She has now brought this Petition for suspension of the interlocutor in question and for interim suspension. Before service of her Petition, the Petitioner applied ex parte for interim suspension. This was granted on 6 May 2011. The matter came before me on 11 November 2011 on the motion of the father, Ghulam Murtaza, Respondent, for recall of the interim suspension.

[2] Having heard submissions from Senior Counsel for the Petitioner and the Respondent respectively and having made avizandum I have formed the Opinion that the Respondent's motion for recall of interim suspension should be granted.

Background and procedural history
[3] The Petitioner was born on 8 December 1982. She is of Pakistani ethnicity. She was brought up in Bradford and Glasgow and completed nursery, primary and secondary schooling in the United Kingdom, leaving school at the age of 18. She cannot speak English. She has a full scale IQ of 57 and is learning disabled [No 6/3 of Process, Clinical Psychology Report by Dr Gary Macpherson, 5 January 2011, 8]. She cannot manage money; and she is unable to cater for herself, cook or prepare a meal. There is a family history of learning disability. The Respondent is the Petitioner's first cousin. He is a Pakistani national. The Petitioner entered into an arranged marriage with the Respondent in Pakistan on 1 December 2005. The Petitioner and the Respondent met for the first time on the day of the ceremony. The Petitioner's three brothers married at the same event.

[4] The Petitioner lived with the Respondent in Pakistan for four weeks after the ceremony. In that time she became pregnant. She then returned to Glasgow with her family. The child, a son, the subject of the claim for contact, was born in Glasgow on 9 October 2006. The Respondent eventually obtained a visa and entered the United Kingdom on 13 March 2007. The parties and the child lived in the Petitioner's family home in Glasgow until 21 November 2007. From 21 November 2007 until 8 January 2008 the parties and the child lived in Dundee with the Respondent's uncle. The parties separated on 8 January 2008 when the Petitioner and the child returned to live in the Petitioner's family home in Glasgow. The Respondent has not had contact with the child since then. There is a suggestion by the Petitioner in the Sheriff Court pleadings that the Respondent is pursuing his contact application to bolster his claim to remain in the United Kingdom. Whether true or not, no submission is made that this is a relevant factor for present purposes. The fact is that the Petitioner and her family did not allow the Respondent any contact with his son after the separation on 8 January 2008. The parties' relationship, when living together, seems to have been volatile; and the two sides of the family are bitterly divided over contact to H.

[5] The Respondent raised an action for contact in Glasgow Sheriff Court. The process has not been transmitted to this Court. I assume that the pre-1 January 2011 version of the Chapter 33 rules applies. The Sheriff Court reference number F1726/08 on the copy interlocutor, Production No 6/2, indicates that the action was raised in 2008. The written submissions for the pursuer in the Sheriff Court action, now the Respondent, state that "proceedings were initiated in December 2008" [Written Submissions on behalf of the Pursuer, 8]. Defences were lodged. At some point the Sheriff ordered a "bar report". The report by Audrey Spowart, solicitor, was apparently submitted on 14 April 2009. I have not been favoured with a copy. The concluding remarks are quoted in the Petition:

"Both parties ... expressed severe concerns about the possibility of violence from the other and the others family. Both also expressed a view that they would either be threatened with or experience violence, no matter what the court said or ordered. In these circumstances and considering the wider issues I consider it would be irresponsible of me to recommend contact at this time. I therefore can see no alternative but for the matter to be decided by way of Proof."

Diets of proof fixed first for December 2009 and secondly for May 2010 were discharged [Written Submissions on behalf of the Pursuer, 6]. The case eventually called for proof before Sheriff Miller on 20 September 2010. Both parties were represented by solicitors. The agent for the pursuer, now the Respondent, stated that his client's application would be restricted to non-residential contact in a contact centre. The agent for the defender, now the Petitioner, stated that his client was opposed to all contact. Evidence was led on 20, 21, 22, 23 and 24 September 2010 and on 11 and 12 January 2011, seven court days. There is controversy about events at the proof on 24 September 2010 and on 11 January 2011. I shall return to that matter below.

[6] Following the hearing on evidence on 13 January 2011 the learned Sheriff again continued the proof. The declared purpose of the continuation was to obtain information about contact centres. The interlocutor states:

"The Sheriff, having heard party's respective averments, Continues the diet of proof to 10 February 2011 at 10.00 am before Sheriff Miller for investigations to [be] made in respect of contact centre availability and for the said information to be lodged with the Court as a report."

On 10 February 2011 copy correspondence about contact centre availability having been tendered by the solicitor for the pursuer, now the Respondent, the learned Sheriff heard submissions on the correspondence. He then gave parties an opportunity to reach agreement in light of the correspondence. No agreement having been reached the learned Sheriff took time for consideration.

[7] When the Sheriff returned to the bench he gave a decision ex tempore and pronounced the following interlocutor of 10 February 2011, ex proprio motu, converting that day's diet into a child welfare hearing, making an order for interim contact and continuing the proof sine die [my underlining]:

"The Sheriff, having heard parties procurators, in the presence of the parties, on the terms of the correspondence from the Renfield Centre Child Contact Centre and from the Family Mediation West Centre on the availability of opportunities for contact visits, and having given parties a further opportunity in light of that correspondence to reach an agreement on the issue of contact, but that not having achieved that purpose, Converts today's proof diet into a Child Welfare Hearing: Makes an order under section 11(2)(d) of the Children (Scotland) Act 1995 whereby the pursuer shall have contact ad interim with his son, the child HM, whose date of birth is 9 October 2006: Requests both parties to inform the court in writing by any appropriate medium that all necessary preliminaries required by the contact centre before a contact visit can take place have been complied with: Directs that each contact visit take place within the Renfield Centre Child Contact Centre, Renfield Church Centre, 260 Bath Street, Glasgow G2 4JP: Directs that the frequency of that contact be once every four weeks and the duration of each contact visit be for a period of two hours; and Directs ex proprio motu that for the first three occasions on which such contact takes place it be supervised by a qualified social worker: Directs that parties attend a Child Welfare Hearing before Sheriff Miller after the first three contact visits on a date to be afterwards assigned dependent upon when the contact visits take place, the purpose of the Child Welfare Hearing being to review in all respects the present order for contact: Requests ex proprio motu that the social worker supervising each of the three contact visits provide to the court a report on each such contact visit. Directs that the Pursuer's solicitor shall be responsible for instructing the social worker to prepare the report called for by the court and that the Pursuer shall be responsible in the first instance for payment of fees and outlays incurred by the social worker in the preparation of such report, but thereafter that the ultimate responsibility of meeting the cost of that report be shared equally between the parties: Continues ex proprio motu the diet of proof sine die: and Reserves meantime the question of the expenses occasioned by today's diet of continued proof."

On 25 March 2011 the Sheriff refused leave to appeal the foregoing interlocutor of 10 February 2011. This interlocutor of 10 February 2011 is the interlocutor which the Petitioner now seeks to have suspended.

[8] When the Petition for suspension was presented a motion was enrolled for orders for intimation and service and for interim suspension. The Glasgow Sheriff Court caveat was honoured but no appearance was entered. On 6 May 2011, having heard Counsel for the Petitioner Lord Matthews ex parte granted the Petitioner's motion for suspension ad interim of the interlocutor of Sheriff Miller pronounced on 10 February 2011. On 16 June 2011, on the unopposed motion of the Petitioner, the cause was sisted until 27 July pending determination of the legal aid applications for the Petitioner and the Respondent. On 27 July the cause was further sisted, this time for a period of six weeks [i.e. until 7 September], for the same purpose. On 22 August 2011 a motion was enrolled on behalf of the Respondent to recall the sist and to recall the interlocutor of Lord Matthews to the extent that it suspended the interlocutor of the Sheriff ad interim. After sundry procedure the continued motion for recall came before Lord Philip on 30 September. His Lordship ordered a Note to be produced by Sheriff Miller and continued consideration of the motion for recall until 3 November. On 3 November consideration of the motion for recall was further continued until 11 November 2011 when it came before me.

[9] I have the benefit of a substantial Note by the learned Sheriff dated 31 October 2011, and of submissions by Ms Wise QC for the Respondent and Mrs Scott QC for the Petitioner. Senior Counsel for the Respondent spoke first in support of her motion. Senior Counsel for the Petitioner, in reply, moved me to refuse the motion for recall. If I were to grant the motion, she moved me to dismiss the Petition on the view, she said, that it would be incompetent to suspend an implemented or partially implemented interlocutor. Senior Counsel's understanding was that, if recall were granted, the Petitioner would cooperate in implementing the learned Sheriff's interlocutor, subject to any Reclaiming Motion. Senior Counsel were agreed that the test for recall of an interim order of this kind pronounced ex parte was the same as for the granting of the order, namely whether there is a prima facie case and whether the balance of convenience favours the making of such an order ad interim. On that basis I think it may be helpful to rehearse the submissions for the Petitioner first. Before doing that I should give some more detail of events at and subsequent to the Proof in the Sheriff Court, as I understand them.

Events at the proof in the Sheriff Court
[10] The Petitioner was called to give evidence, with the assistance of an interpreter, on the fourth day of the proof, 23 September 2010. She gave her evidence, according to the learned Sheriff's Note "briefly and incompletely", answering half a dozen formal questions before the interpreter indicated "a significant problem with interpreting her answers". The learned Sheriff's Note continues: "I was unable to make any finding from her evidence because she gave evidence for a negligible period of time and such questions as she was asked were so limited in scope that there was in reality nothing on which to make an assessment of her evidence".

[11] The Petition avers that the Petitioner became confused and found herself too frightened to speak. According to Senior Counsel for the Petitioner, in oral submissions, the Petitioner "became incoherent" and "collapsed". I think Senior Counsel's understanding is that the interpreter informed the court that the Petitioner was not making sense. According to Senior Counsel for the Petitioner, the solicitor for the Petitioner asked the Sheriff for an adjournment to have the Petitioner medically "assessed". The learned Sheriff refused the adjournment and the matter of the Petitioner's evidence was, according to Senior Counsel, "left open" while other witnesses for the Petitioner were "informally interposed". I do not have the process: but I have to say that, unless the interposition of witnesses is recorded and in the absence of agreement to the contrary, the formal position would be that the Petitioner's evidence was completed, subject to any permitted recall. In the event no attempt was ever made to return the Petitioner to the witness box.

[12] On 24 September the proof was adjourned, part heard, under 11 January 2011. During the adjournment the Petitioner's solicitor instructed Dr Gary Macpherson, consultant forensic clinical psychologist, to examine the Petitioner for the purpose of determining whether the Petitioner was competent to engage in court proceedings, of determining "whether any special measures may enhance [the Petitioner's] participation in proceedings" and of assessing her level of intelligence. Dr Macpherson's conclusions were (1) that the Petitioner's low level of intelligence made the Petitioner a "vulnerable witness"; (2) that the Petitioner had sufficient understanding of the proceedings, etc - Counsel on both sides interpreted this to mean that the Petitioner has sufficient capacity to instruct the defence of her husband's claim, though that is not said in terms; and (3) that the Petitioner "is not capable of providing competent oral evidence to the Court". Dr Macpherson's overall view was "that the Court may best be served by [the Petitioner] providing her evidence by way of a sworn written statement".

[13] At the continued proof on 11 January 2011, the solicitor for the Petitioner made a motion to lodge Dr Macpherson's report - this is admitted by parties in the present proceedings but not referred in the Sheriff's Note, because it seems he was not asked to comment on that matter. On the same occasion the solicitor presented the following motion to the Sheriff:

"The Defender moves the court to grant commission to John Kilcoyne, Solicitor [...] to examine Shabana Yasmin Murtaza [...] a necessary witness for the Defender."

This is referred to in the learned Sheriff's Note [No 16 of Process, Sheriff's Note dated 31 October 2011, § 22]. The wording of the motion was given to me by Senior Counsel for the Petitioner in oral submissions on 11 November 2011. Senior Counsel explained that the intention was to have the Petitioner swear an affidavit and to present the affidavit as her evidence. The learned Sheriff refused both motions (for lodging the psychology report and for evidence on commission). As I understand it, no application was made at that stage for leave to appeal and the Petitioner's solicitor closed his proof.

[14] On 25 March 2011 the learned Sheriff heard the Petitioner's motion for leave to appeal the interlocutor of 10 February 2011 whereby the Sheriff granted interim contact etc. Matters advanced in support of the motion included the fact that the learned Sheriff had refused the motion for the Petitioner's evidence to be taken on affidavit. The Sheriff refused the motion for leave to appeal.

Submissions for the Petitioner
[15] No point is taken about the competency of suspending a Sheriff Court interlocutor other than a decree. Senior Counsel for the Petitioner confirmed that parties are in agreement as to the test for the competency and relevancy of an application for suspension of a Sheriff Court interlocutor: the test is the same as the test for reduction of a Sheriff Court decree. The test for reduction is whether there has been a miscarriage of justice and whether reduction is required to remedy the injustice. If an appeal is available, reduction or as the case may be suspension is not competent. On the authorities cited to me, issues relevant to the question of miscarriage appear to include whether the proceedings in the Sheriff Court were ultra vires in some material respect and whether the party complaining has been "excluded from an active part in the proceedings" without a right of appeal to remedy the situation [Lamb v Thompson (1901) 4F 88; Bain v Hugh LS McConnell Ltd 1991 SLT 691; Ali v Ali (No 2) 2001 SC 618 at § 11; Ali v Ali (No 3) 2003 SLT 641 at 645K ].

[16] According to Senior Counsel for the Petitioner the case has gone off the rails; and the "so-called welfare decision" of 10 February 2011 is vitiated by the fact that it is not soundly based. The primary submission for the Petitioner is that the motion for recall should be refused in order to allow the suspension to remain in place while the best interests of the child are decided in a different forum. In this connection Senior Counsel mentioned that the Petitioner had now raised divorce proceedings in the Court of Session in which she also sought an order in terms of the Children (Scotland) Act 1995 s. 11(2)(a) to deprive the Respondent of his parental rights and responsibilities. The secondary and alternative submission for the Petitioner is that the Sheriff Court proceedings should be properly heard by the learned Sheriff, meaning that he should receive the Petitioner's evidence, and that there should be no "introduction" of the child to his father before the Sheriff is seised of all the relevant evidence. Parties were agreed that this Court should not trouble unduly about "procedural niceties" [Girvan v Girvan 1988 SLT 866].

[17] Senior Counsel referred to Rule 33.22A of the Sheriff Court Ordinary Cause Rules (as amended). She submitted that child welfare hearings as provided for by the Rule are in the nature of preliminary hearings. What the Sheriff had done was to interpose a different procedure into the procedure prescribed by the Ordinary Cause Rules. The Sheriff had power to fix a child welfare hearing before the proof: but he could not do so in the middle of the proof. Rule 29.17 provides that the proof must be taken continuously so far as possible with certain powers of adjournment. The provision is similar to the terms of the Evidence (Scotland) Act 1866 s. 1. In the case of McColl Lord Jauncey had to decide whether the 1866 Act permitted him, in the course of a proof, to send the case to the Procedure Roll for a debate on the relevancy [McColl v Strathclyde Regional Council 1981 SLT (Notes) 70]. In refusing to send the case to Procedure Roll his Lordship said, at page 71:

"To send the cause to procedure roll on the petitioner's motion would not therefore be to 'adjourn' the case for the purposes of s. 1 of the 1866 Act but would be to introduce a new step in procedure designed to interrupt and indeed to prevent the continuity of the proof producing completion. It follows that I could not consistently with the provisions of s. 1 of the 1866 Act send the case to procedure roll ... I am satisfied that I have no overriding power to regulate the conduct of this or any case in a manner which directly conflicts with the statutory provisions."

Rule 29.20 of the Sheriff Court Ordinary Cause Rules (as amended) provides: "At the close of the proof, or at an adjourned diet if for any reason the sheriff has postponed the hearing, the sheriff shall hear parties on the evidence and thereafter shall pronounce judgment with the least possible delay." By failing to abide by the Rule and by failing to issue a final interlocutor "with the least possible delay", the Sheriff had precluded an appeal, without leave, whereby the Petitioner could have re-opened questions about the conduct of the proof [Macphail's Sheriff Court Practice 3^rd edn, Chapter 18].

[18] The interlocutor of 10 February 2011 awarded contact ad interim. An award of interim contact is one of the class of interlocutors appealable only with leave of the Sheriff [Black v Black 1991 SLT (Sh Ct) 5]. On 25 March 2011 the Sheriff refused leave to appeal the interlocutor of 10 February 2011. Senior Counsel submitted that the Petitioner is in the situation where she cannot appeal the order but where she can be jailed for contempt if she fails to obey the order [M v S 2011 SLT 918; AG v JB [2011] CSIH 56 (13 July 2011)]. It is not within the power of this particular Petitioner to comply on her own with what the Sheriff has ordered her to do. She is someone who cannot go out by herself or catch a bus by herself. She requires learning support, advocacy services and an interpreter. Her present position is that "she just could not cope" with interim access. It had been incumbent on the Sheriff to make an informed judgment about the limitations of the Petitioner before making such an order.

[19] Senior Counsel referred to the Children (Scotland) Act 1995 s. 11 subsections (7)(a), (7A), (7B)(a), (b) and (d). In considering whether to make the contact order the Sheriff was bound to have regard to the need to protect the child from abuse, the effect that abuse might have on the child and the effect that any abuse or risk of abuse might have on the Petitioner's ability to comply with the order. It was submitted that the Sheriff could not know what effect any risk of abuse might have on the Petitioner's ability to comply with the order because he had not received her evidence and taken her difficulties into account.

[20] The "bar report" had flagged up the Petitioner's learning difficulties and the issue of the Petitioner's ability to co-operate. The Sheriff should have been alert to the Petitioner's difficulties and should have satisfied himself that all reasonable steps had been taken to allow her case to be put before considering whether to make the contact order. The Petitioner had been deprived of a fair hearing. Senior Counsel referred to W Wade and C Forsyth, Administrative Law, 10^th edn (Oxford, 2009), "Right to a Fair Hearing" at 422 and 433-434:

"Procedural objections are often raised by unmeritorious parties. Judges may then be tempted to refuse relief on the ground that a fair hearing could have made no difference to the result. But in principle it is vital that the procedure and the merits should be kept strictly apart, since otherwise the merits may be prejudged unfairly."

and

"Where an oral hearing is given, it has been laid down that a tribunal must (a) consider all relevant evidence which a party wishes to submit; (b) inform every party of all the evidence to be taken into account, whether derived from another party or independently; (c) allow witnesses to be questioned; (d) allow comment on the evidence and argument on the whole case. Failure to allow the last two rights, which include the right of cross-examination, has led to the quashing of punishments awarded by prison visitors..."

Senior Counsel referred in passing to the prison discipline case R v Board of Visitors of Hull Prison Ex p St Germain (DC) [1979] 1WLR 1401 and to the case of Re Cheung and Minister of Employment and Immigration (1981) 122 DLR (3d) 41, footnoted by Wade and Forsyth, where a deportation order was set aside because an adjudicator had refused to allow a witness to be called.

[21] Senior Counsel submitted that the Article 6 ECHR principle of "equality of arms" implies that each party must be afforded the opportunity to present their case - including their evidence - under conditions that do not place him or her at a substantial disadvantage vis-à-vis their opponent [Dombo Beheer BV v The Netherlands (1994) 18 EHRR 213 at 32-33]. In terms of Article 8 ECHR parents must be involved in children's proceedings or their views and interests must otherwise be made known to, and taken into account, by the decision makers in children's proceedings [W v United Kingdom (1988) 10 EHRR 29 at 32-33].

[22] Senior Counsel for the Petitioner submitted that the learned Sheriff had disabled himself from understanding the Petitioner's position by refusing to receive Dr Gary Macpherson's report. The Sheriff had therefore no idea of the limitations of the woman who appeared before him. The Sheriff was to be criticised because it had been incumbent on him in the circumstances to exercise his powers in terms of the Vulnerable Witnesses (Scotland) Act 2004. The Petitioner was a "vulnerable witness" as defined by section 11 of the 2004 Act, in that there was a significant risk that the quality of her evidence would be significantly reduced by virtue of both "mental disorder" and "fear or distress in connection with giving evidence in the proceedings". In terms of section 13 the learned Sheriff had power, of his own motion, when the problem arose during the proof to authorise special measures as provided for by section 12.

[23] Senior Counsel submitted that the Petitioner had lost confidence in the learned Sheriff. It would be better to bring the question of the child's welfare to the Court of Session in the divorce action. The majority of the evidence given in the Sheriff Court was now over a year old; and the child was now at school and capable of expressing a view, so that it was the duty of the court to give him an opportunity to express his view in terms of the Children (Scotland) Act 1995 s. 11(7)(b). If the matter were to go back to the Sheriff it should do so with instructions in terms of the Court of Session Act 1988 s. 35. Senior Counsel hinted that it might be open to the Sheriff to hear additional evidence in terms of the Civil Evidence (Scotland) Act 1988 s. 4. (This seems unlikely given that there have been closing submissions, unless the proof is to be re-opened.)

Submissions for the Respondent
[24] Senior Counsel for the Respondent submitted that a decree in foro can be suspended only in exceptional circumstances. Suspension is not an appropriate mode of review where there are other remedies. Here, there are other remedies: the Petitioner can apply by motion in the Sheriff Court action for variation of the interim order; and following the final interlocutor, in due course, if dissatisfied she can appeal or she can apply for variation by minute. The prima facie case test for interim suspension is a substantial hurdle and it is not sufficient for the Petitioner to present a "colourable" case [cf. Karl Construction Ltd v Palisade Properties plc [2002] SC 270; Gillespie v Toondale Ltd 2006 SC 304; Cowan v The Royal Bank Of Scotland Plc [2011] CSOH 85 (17 May 2011)].

[25] The substance of what the learned Sheriff has done was authorised by Lord Osborne's similar approach in Perendes v Sim 1998 SLT 1382. In Perendes, Lord Osborne reached the conclusion after proof that in principle an award of access in favour of the father would be in the best interests of the two children concerned. His lordship felt unable to make an award without further information and called for a report from a clinical psychologist as to the conditions and extent of access. His lordship said:

"It is perhaps regrettable that, after a proof of substantial duration, further investigations are being ordered. However, I consider that, in this sensitive and difficult case, the court can proceed safely only with the assistance of the advice of a suitably qualified person, who has been afforded the opportunity to make all of those investigations which they may consider necessary. I wish to make clear that, even though I have reached the conclusion that an award of access would, in principle, be in the best interests of the children, I recognise that the advice which may become available from Mrs Logan may be that access could not be resumed, save with the risk of material psychological damage to the children. If such an opinion were to be expressed, then, of course, whatever might be my conclusions in relation to the other factors involved in the case, such a finding would almost certainly result in my deciding that an award of access should not be made. Finally, I recognise that the course which I am taking is unusual, a proof having occurred in this case; however, after considering the decision in Harris v Martin 1995 SCLR 580, it appears to me to be one which is both competent and essential in the circumstances."

[26] Senior Counsel submitted that the course taken by the learned Sheriff was also within his procedural powers. In this context, the learned Sheriff's interlocutor of 10 February 2011 now requires to be read with the Sheriff's Note. The Petition alleges non-compliance by the Sheriff with Rule 12.2(3) of the Sheriff Court Ordinary Cause Rules. Rule 12.2(3) is the Rule prescribing the form of interlocutor to be issued after evidence has been led i.e. the Rule prescribes that the interlocutor should make findings in fact and law and that there should be appended a note of reasons for the decision. Senior Counsel submitted that there is no requirement to issue a final interlocutor immediately. Rule 29.17 permits adjournment of proofs in the Sheriff Court. The Sheriff's continuation of the proof sine die should be read as an adjournment, given the terms of his Note. Neither solicitor demurred from the proposal to proceed by way of a child welfare hearing to a trial of contact [No 16 of Process, Sheriff's Note dated 31 October 2011, § 15]. The Sheriff is well aware that it is his duty to make avizandum: before issuing the written judgment the Sheriff considered that the best interests of the child called for trial contact on three occasions at a contact centre, after which he intended to review the situation on the basis of an independent report from a social worker [No 16 of Process, Sheriff's Note dated 31 October 2011, §§ 10, 16, 19].

[27] Senior Counsel submitted that the Respondent continues to have parental rights and responsibilities unless and until deprived of them. The contact order sought by the Respondent in the Sheriff Court is an order in terms of the Children (Scotland) Act 1995 s. 11(2)(d) for "regulating" personal relations between the child and his father, the Respondent. Regulating personal relations by court order is a last resort: section 11(7)(a) makes it clear that the court shall not make an order in furtherance of the paramount consideration, namely the child's best interests, unless the court considers that it is better from the child's point of view to make an order than to make no order. In terms of section 11(13), the same tests apply to interim orders. The learned Sheriff applied the proper tests in deciding that interim contact should take place on a trial basis.

[28] Senior Counsel for the Respondent questioned the claim that the Petitioner's "vulnerability" has excluded her from participation in the Sheriff Court proceedings. There are now three court cases in which she is involved as a party, without a curator ad litem. Two of these cases are at the Petitioner's instance, namely the present petition proceedings for suspension and her divorce action which includes a claim to deprive the Respondent of his parental rights. This is inconsistent with "vulnerability". The only reference to the Petitioner's "vulnerability" in the submissions made to the Sheriff was in connection with child welfare in terms of the Children (Scotland) Act 1995 s. 11(7B) [Written Submissions for the Defender, 6; cf. Petition, article 8]: there was no contention that the Petitioner's disability had prevented her from putting her case. There was ample hearsay evidence before the Sheriff from other family members about the parties' allegedly volatile relationship.

[29] In any event, the issue in the present suspension proceedings is not about a final order: it is about interim contact; and there is no requirement for the Sheriff to hear evidence, or any particular evidence, before making a contact order ad interim. The Petition for suspension, according to Senior Counsel, is simply another attempt to thwart contact and to remove the case from the Sheriff who is properly seised of it.

Discussion
[30] The wisdom of Solomon is that ordinary procedures do not apply where children are concerned: but prudence dictates that ordinary decision makers should not be too inventive. Chapter 33 of the Sheriff Court Rules provides a useful extra layer of flexibility for dealing with children cases. In particular Rules 33.21-33.23 give Sheriffs additional ways of obtaining information, resolving disputes and controlling procedure whether by ordering reports, referring to a mediator or holding child welfare hearings. It is stated in terms that Rules 33.21 and 33.22 apply "at any stage" of a family action in which parental rights and responsibilities are in issue. The question about vires raised by Senior Counsel for the Petitioner in the present case is whether Rule 33.23 also authorises the Sheriff to hold a child welfare hearing at any stage or at least after proof. Unlike the two immediately preceding rules, Rule 33.23 does not use the phrase "at any stage"; and various references - to "a notice of intention to defend", to intimating the date of the hearing to parties, to ascertaining whether there are vulnerable witness issues - are suggestive of a preliminary hearing. On the other hand, even if possibly as an afterthought, the Rule does give the Sheriff power to fix a hearing "in any other circumstances". Given the child-welfare objective I am persuaded to construe the provision generously to mean that child welfare hearings may be appointed after evidence has been led at proof.

[31] I am encouraged in this approach by Lord Osborne's decision in Perendes v Sim 1998 SLT 1382 and by two other decisions. In the case of AG v JB [2011] CSIH 56 (13 July 2011), referred to by Senior Counsel for the Petitioner for another purpose, the Sheriff fixed a child welfare hearing after issuing his judgment. The Sheriff had decided that in principle there should be contact; and the purpose of the hearing was to settle the practical arrangements. The Sheriff Principal adhered to the interlocutor on appeal [§§ 10-12]. The matter subsequently passed before the Inner House without adverse comment on the course taken. In the case of Harris v Martin 1995 SCLR 580, not relied on by Counsel (but cited by Lord Osborne in Perendes v Sim 1998 SLT 1382), the competency of continuing the action after proof to settle the practical arrangements for access was challenged on appeal to the Sheriff Principal. The Sheriff Principal adhered to the Sheriff's interlocutor and refused the appeal. After sundry procedure the case was appealed to the Court of Session.

[32] The decision of the First Division in Harris v Martin is the clearest confirmation of the Sheriff's power to continue an action after proof for the purpose of gathering further information about, and making practical arrangements for contact (previously "access"). Indeed the Sheriff may be duty bound to do so. The rubric of the report says: "[t]he court approved of the sheriff's continuing the case in order that he might be satisfied about the practical arrangements for access before he was prepared to grant decree therefor." The First Division even directed the Sheriff to consider a referral for family mediation (involving a further continuation) before pronouncing decree. Mediation does not appear to be an option at this stage in the present case. The learned Sheriff calls the Petitioner's opposition to contact in this case "consistent, persistent and entrenched" [No 16 of Process, Sheriff's Note dated 31 October 2011, § 5]. The situation is a not unfamiliar one: there is determined opposition to contact; a decision is made in principle that there should be contact; and the court has to find ways of making contact work [cf. Harris v Martin 1995 SCLR 580, Perendes v Sim 1998 SLT 1382, M v S 2011 SLT 918 and AG v JB [2011] CSIH 56 (13 July 2011)].

[33] Another way of looking at the matter is to say that the learned Sheriff in the present case is primarily interested in having a report from a social worker based on the empirical evidence of how the proposed contact arrangements work in practice. This is why he decided to have a review hearing after three contact sessions. He clearly has power in terms of Rule 33.21 to call for a report; and the child welfare hearings are arguably no more than a procedural vehicle for ordering and reviewing the report and the working of the contact arrangements. This perspective is subject to the qualification that in the usual situation where a report is ordered, active co-operation by parties would not be enforced by court order. It has to be recognised, of course, that the learned Sheriff has decided in principle, apparently applying the statutory tests, (1) that the best interests of the child require that there should be contact between the child and the Respondent and (2) that it is better that an order for contact should be made than not [Children (Scotland) Act 1995 s. 11(7)(a); No 16 of Process, Sheriff's Note dated 31 October 2011, §§ 11-13]. It is clear that the reason why the Sheriff did not make avizandum at the conclusion of the hearing on evidence was because there was a gap in the information about contact centres: the continuation of the proof for four weeks to obtain such information was in my view entirely appropriate [No 16 of Process, Sheriff's Note dated 31 October 2011, §§ 8-9].

[34] Four weeks later, on 10 February 2011, the learned Sheriff converted the continued diet of proof to a child welfare hearing and made his interim order for contact. If I have a reservation about the interlocutor of 10 February, it is in relation to the Sheriff's "continuation" of the proof "sine die". The statutory power is a power of "adjournment" which literally means suspending the diet to another specified day, though I do not make too much of that. Could the Sheriff have meant there to be open-ended interim contact kept under review indefinitely instead of a final interlocutor? At one point his Note states: "it seemed to me the best way ... was by using the procedural feature of the child welfare hearing which allows for regular reviews of contact if that is in the best interests of the child in question rather than by granting final decree" (I have added the emphasis to this and the other excerpts that follow). Elsewhere the Note states: "the best interests of H require me to keep control of this matter meantime." Later it is stated: "I intended that I would issue a written judgment after making avizandum in the future." Finally, the Note states: "... I was not refusing to make avizandum: I continued the proof expressly pending confirmation of how the first three opportunities had gone and for that reason postponed the date on which I would eventually have to make avizandum." [No 16 of Process, Sheriff's Note dated 31 October 2011, §§ 3, 15/10-12, 19, 25].

[35] The case of Hartnett v Hartnett 1997 SCLR 525, referred to in passing by both sides, illustrates the difficulties that may arise by departing too far from formality in favour of supposedly family-friendly solutions. In Hartnett the Sheriff conducted what was effectively a proof within the setting of a child welfare hearing but without arranging for the evidence to be recorded. The Sheriff then issued a final interlocutor. Without a record of the evidence the Sheriff Principal was precluded from entertaining an appeal against the Sheriff's findings-in-fact - and the interlocutor had to be recalled. The commentary attached to the law report discusses at 532G the unfairness that might arise if a Sheriff, without making a final disposal, were to "set up some arrangement to allow limited contact over a period of time and then to review matters". The scenario envisaged is exactly what has happened in the present case: "[The Sheriff] might, therefore, make an interim award of contact and continue for several months." The unfairness is suggested to lie in the fact that the interlocutor is not technically a final one, appealable without leave: nonetheless the important decision has been made, perhaps practically speaking the final decision, and the decision should be open to appeal.

[36] In the present case it is averred that the learned Sheriff's interlocutor of 10 February 2011 is "incompetent et separatim inappropriate" [Petition as adjusted, articles 12 and 13]. As regards competency, the argument presented for the Petitioner is that the Sheriff has acted beyond his powers by holding a child welfare hearing instead of proceeding to avizandum, judgment and decree. I reject this argument for the reasons given above. Further, although there is an element of ambiguity in the learned Sheriff's Note, I am not persuaded that it can reasonably be argued, certainly not at this time, that the Sheriff has acted beyond his powers by "continuing" the proof "sine die"; and no argument whatsoever has been presented to the effect that it is ultra vires of the Sheriff - supposing the continuation to have been competent - to make an order for contact in the meantime, during the continuation.

[37] In oral submissions Senior Counsel for the Petitioner explained that the averment in the Petition to the effect that the interlocutor of 10 February 2011 is "inappropriate" should be taken to mean that the interlocutor represents a miscarriage of justice. A miscarriage of justice would align this case with the ratio of, for example, Ali v Ali [(No 2) 2001 SC 618, (No 3) 2003 SLT 641]. "Miscarriage" in the present context encompasses incompetency, procedural unfairness by virtue of "exclusion" of the complaining party from participation in the proceedings and substantive injustice. I have already dealt with incompetency.

[38] As regards "exclusion", there are three levels at which exclusion might operate, namely (1) in relation to the direction of and participation in the proceedings; (2) in relation to putting the substance of the claim or defence before the court; and (3) as regards presenting the evidence necessary to support the claim or the defence. I agree with Senior Counsel for the Respondent that the Petitioner has not been "excluded", as a party, from the Sheriff Court proceedings. As I understand matters the Petitioner as a parent has been "involved in the decision-making process, seen as a whole, to a degree sufficient to provide her with the requisite protection of her interests" [W v United Kingdom (1988) 10 EHRR 29]. Dr Macpherson's view is that the Petitioner "is competent to instruct her Solicitor of her wishes with respect to proceedings" [No 6/3 of Process, Clinical Psychology Report by Dr Gary Macpherson, 5 January 2011, 11]. Senior Counsel for the Petitioner tells me that, in Senior Counsel's judgment formed at consultation, the Petitioner is fit to give instructions. I would hope so, given that there are now three court cases in which she is involved without a curator ad litem, including two at her instance. As a rule, I would say, a judge is entitled to presume that a represented party to civil proceedings has the mental capacity to implement court orders made in those proceedings.

[39] Though the Petitioner has difficulties with sustaining attention and with court language if left to her own devices, she is, with family and professional support, on the basis of Dr Gary Macpherson's assessment, able to "participate effectively" in the sense of being able to understand the general thrust of what is said in court, and so on [No 6/3 of Process, Clinical Psychology Report by Dr Gary Macpherson, 5 January 2011, 11-13; SC v United Kingdom (2005) 40 EHRR 10]. Unlike the Petitioner in Ali v Ali, the Petitioner in the present case remains a party to the Sheriff Court proceedings; and it will be open to her to appeal the Sheriff's final interlocutor without leave and, in the course of such an appeal, to seek review of any previous interlocutors which she is not barred by acquiescence from challenging [Williamson v Harris 1981 SLT (Sh Ct) 56].

[40] I also agree with Counsel for the Respondent that the substance of the Petitioner's case has been adequately put before the Sheriff. Her position was recounted to Dr Macpherson as follows [No 6/3 of Process, Clinical Psychology Report by Dr Gary Macpherson, 5 January 2011, 11]:

"[The Respondent] wants to meet [my son H]. But we don't want him to be allowed to do that because he is very violent. I think he will beat my son like he beat me. He was beating me up in front of my mother and son and my son was very scared of him. I want him far from H."

The Petitioner's case is put in Answer 4 of the Sheriff Court Record [No 6/1 of Process, 6]:

"Contact between the [Respondent] and his son would not be in the child's best interest. Explained that the parties' child is fearful of the [Respondent] due to his assaults on the said child. The [Respondent's] conduct towards the [Petitioner] and the said child is such that the child is distressed at the thought of contact with the [Respondent]. Explained the said child would be very distressed of contact were re-stated [sic]."

In closing submissions the Petitioner's solicitor put the following argument under reference to the Children (Scotland) Act 1995 s. 11 (7B):

"It is accepted that the violence between the parties does not necessarily impact upon the child and a violent pursuer may still have a loving and non-violent relationship with the child. However, in this case, the welfare of the child is connected with the welfare of the primary carer who is a very vulnerable lady. If contact was re-commenced this may have a negative impact on the child.

There are allegations in this case of domestic abuse and violence which would mitigate [sic] against contact.

Miss Audrey Spowart, Solicitor also indicated in her bar report any contact would require the co-operation of the parties. In this case it appears from the evidence that the parties cannot co-operate. Miss Audrey Spowart, indicated in her report that the Defender was terrified of the Pursuer."

On my reading of the learned Sheriff's Note, including the terms of the reasoned ex tempore decisions given by him on 13 January and 10 February 2011, the learned Sheriff understood and addressed the defence presented by the Petitioner.

[41] There is then the complaint made on the Petitioner's behalf that her own evidence in support of the defence has not been heard. I am not persuaded there is a case for criticising the learned Sheriff's refusal of the motion to allow the Petitioner's evidence to be received in affidavit form when he did. There was apparently a pre-proof child welfare hearing when the question of the Petitioner's vulnerability was not raised on her behalf. In this connection I note that the Respondent averred on Record in the Sheriff Court that the Petitioner "has certain mental health difficulties". This was denied by the Petitioner [No 6/1 of Process, Record, 5]. A vulnerable witness application as such has never been made; and my understanding would be - though Counsel did not address me on this point - that evidence by way of affidavit is not a special measure authorised by the Vulnerable Witnesses (Scotland) Act 2004 s. 18. The application actually made was framed as one to take the Petitioner's evidence on commission, somewhat unusually with her own solicitor as the commissioner. There is no indication in anything I have read or heard that the Petitioner's solicitor sought leave to appeal the refusal of the application. Instead he appears to have closed his proof and proceeded to make submissions.

[42] Had the Petitioner's evidence been taken on commission, properly so called, something which is a statutory special measure, it is not clear that the Petitioner would have been better able to testify. In a protective interview setting, apparently supported by her father, the Petitioner gave Dr Macpherson an "account of basic details including dates and times" that "was severely lacking"; and Dr Macpherson was "not reassured that she would be able to provide evidence" even if the whole range of statutory special measures were in place [No 6/3 of Process, Clinical Psychology Report by Dr Gary Macpherson, 5 January 2011, 3, 12 and 13]. This is what led Dr Macpherson to the view that the Petitioner's evidence would be best given "by way of a sworn written statement". I was not addressed on the competency of this way of proceeding in a contested proof in the Sheriff Court: but, anyway, no affidavit was tendered. Clearly if the Petitioner's evidence were to have been admitted on affidavit, without more said, the Respondent would have been deprived of the right of cross-examination [R v Board of Visitors of Hull Prison Ex p St Germain (DC) [1979] 1WLR 1401 at 1409H per Geoffrey Lane LJ giving the judgement of the Court of Appeal]. It is not clear what the Petitioner's evidence might have added about events in the family home in Glasgow. The Petitioner's defence was supported by the evidence of five family members, four of whom lived in the family home.

[43] I did wonder whether there was evidence from the Petitioner's side of the family about the seven week period when the parties and their child lived in Dundee with the Respondent's uncle. However, Senior Counsel for the Respondent stated that the Petitioner's own account of matters was introduced as hearsay, acceptable in terms of the Civil Evidence (Scotland) Act 1988 s. 2, through the mouths of those five other members of her side of the family who followed her through the witness box; and this was not controverted by Senior Counsel for the Petitioner. The Petitioner's case is simply not within the ratio of Dombo Beheer BV v The Netherlands (1994) 18 EHRR 213, R v Board of Visitors of Hull Prison Ex p St Germain (DC) [1979] 1WLR 1401 or Re Cheung and Minister of Employment and Immigration (1981) 122 DLR (3d) 41.

[44] Finally, there is the question of substantive justice or injustice. If the complaint comes to be about alleged procedural misjudgement as opposed to a fundamentally ultra vires ruling, I would have thought it incumbent on the party complaining to show substantive prejudice. Nothing in the Petition discloses that if the Sheriff had, for example, allowed an affidavit to be lodged, the outcome would or even could have been different. The only thing that I can see in the Petition that possibly amounts to a claim that the Sheriff's actings represent or threaten a substantive injustice is the averment that the interlocutor of 10 February 2011 is "an irreversible step" [Petition, article 12]. This seems to be because the Petitioner characterises the substantive issue in the Sheriff Court as being, not whether the Respondent should have ongoing contact with his son, but whether the boy should be "reintroduced" to the Respondent. There is actually no averment in the Petition that having contact with his father would be against the child's best interests let alone any explanation as to why that might be the case.

[45] Clearly the remedy of an appeal in due course does not address the Petitioner's real complaint, which is that she objects to the Respondent establishing contact with his son now, or ever; and what an appeal in due course cannot redress is the Sheriff's interim contact order. True though this may be, it does not, at least in and of itself, amount to a reason for suspension; and, as I said above, no argument has been presented to the effect that making an order for contact ad interim is beyond the Sheriff's powers. The terms of Rule 33.63 as read along with Rule 33.65 imply that interim contact orders may be granted at any stage of a depending action. Contact orders ad interim cannot be appealed without leave: but this does not make the situation one in which suspension is justified.

[46] No distinct submission was made by Senior Counsel for the Petitioner on the question of balance of convenience. If there were a prima facie case for suspension, that in itself might amount to a balance of convenience argument in the Petitioner's favour. Presumably it is felt on the Petitioner's side that the status quo, meaning no contact between the child and the Respondent, should be preserved until (and beyond) final judgment. Senior Counsel for the Respondent submitted that the balance of convenience favours recall. A competent determination has been made that it is in the interests of the child for interim contact to take place, if practicable, and, in the interests of the child, this should be allowed to happen. I agree.

[47] Neither party wished me to address the question of the best interests of the child as a substantive issue. The learned Sheriff who is seised of the matter has made an interim determination. Nothing presented to me suggests that the Sheriff's judgment on this matter is erroneous.

Conclusion
[48] My conclusion is that there is no prima facie case for suspension and therefore no case for interim suspension. I shall therefore grant the Respondent's motion for recall of the suspension ad interim granted on 6 May 2011 and, on the Petitioner's motion, I shall dismiss the Petition, reserving in the meantime all questions of expenses. Parties discussed to some extent whether the case might be remitted to the learned Sheriff with instructions in terms of the Court of Session Act 1988 s. 35. I am not convinced that the provision applies. In any event I would not propose to give instructions. I am sure that the learned Sheriff can decide for himself whether the passage of time requires him to have further information. Much may depend whether either party makes an application for variation. The learned Sheriff may wish to consider whether if further information is required it may properly be received in affidavit form. He may also wish to consider whether H should now be given an opportunity to express his views.