Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2014] CSIH 88

XA90/14

Lady Smith

Lord Brodie

Lady Clark of Calton

 

 

OPINION OF THE COURT

delivered by LADY SMITH

in the appeal

by

JOHN DONALDSON

Defender and Appellant:

against

SILVIA ERICA ARABIA or DONALDSON

Pursuer and Respondent:

and

FIONA McKINNON, Curatrix ad Litem on behalf of LD

 

Act:  Scott QC; Drummond Miller LLP (for AJ Gordon, Glasgow)

Alt:  Dowdalls QC; Simpson & Marwick; Hajducki QC; BLM LLP

28 October 2014

Introduction

[1]        This appeal concerns LD, who is five years old.  Her parents, the appellant and respondent, separated in June 2010, when she was aged 11 months.  She remained and remains with her mother, the respondent, who is and always has been, her main carer.  Her father, the appellant, has had regular contact with her since then including residential contact until July this year, when LD went to live in San Francisco with the respondent; since then contact has taken place by other means such as Skype.   

[2]        The respondent’s parents both live in San Francisco; she is a US citizen and has no family in Scotland.  Her return to the US was with the permission of the court in terms of an interlocutor of the sheriff sitting at Glasgow, dated 20 December 2013;  the appellant’s attempt to have the relocation order suspended by this court was unsuccessful.  The appellant did not want her to go to live in the US.  He opposed the respondent’s application for permission to relocate.  He was, at that time, completing a PhD at Glasgow University and working part time as an assistant warden, tutor and lecturer. 

[3]        The appellant’s written pleadings did not include any crave for contact.  However, the court had appointed a curatrix ad litem for LD and her written pleadings not only supported the respondent’s application for permission to relocate but included craves for continuing contact, to include residential contact so long as LD remained in Scotland and, after relocation, by phone/Skype, by holiday contact during school holidays and indirectly by the respondent emailing weekly progress reports to the appellant.

[4]        Sheriff Miller heard evidence over four days and his findings included, in addition to what is referred to above, the following:

• LD has a strong bond with both of her parents;
• The appellant has no tie to Glasgow beyond the completion of his PhD;
• The appellant’s father lives in Boston, Massachussets;
• The appellant would be prepared to relocate to the USA if offered employment there;
• The appellant would wish to relocate to wherever LD is living;
• The respondent had offered to apply for a spousal green card to assist the appellant in seeking employment in the US;
• The respondent had wished to relocate to San Francisco for two years by the time of the hearing - she lacked personal support in Scotland and was finding her situation very stressful;
• The respondent and LD would be able to live with the respondent’s mother until she was able to obtain her own accommodation.  LD would, in that area, be able to attend the same school as the respondent had attended when a child;
• The respondent has a Master’s degree in public health and intends to pursue a career in nursing;
• LD was due to start formal education in August 2014;  and
• Refusal of the respondent’s application for relocation would be liable to have a significantly detrimental effect on her emotional and mental health from which she would probably not be able to shield LD and that impact would adversely affect her capacity to parent LD. 

 

The sheriff’s interlocutor of 20 December 2013

[5]        The sheriff’s interlocutor of 20 December 2013 is central to the issue raised in the appeal; the appellant is asking this court to recall it because he is concerned that he will not be able to afford to exercise contact.  It was in the following terms:

“1)  Finds the pursuer entitled to a residence order in terms of Section 11(2)( c) of the Children (Scotland) Act 1995 whereby the child LD …resides with the pursuer;

 

2)  Grants a specific issue order in terms of Section 11(2)(e) of the Children (Scotland) Act 1995 authorising the pursuer to relocate with the child to the United States of America no later than 31 July 2014;

 

3)  Grants a contact order in terms of Section 11(2)(d) of the Children (Scotland) Act 1995 allowing contact to operate between the defender and the child

A. while the child has her primary residence in Scotland:-

 

(a)  from 1pm on 25 December 2013 in Glasgow to 2pm on 30 December in Aberdeen and from 5pm on 2 January 2014 to 5pm on 3 January 2014, and thereafter:-

 

(b)  every Wednesday after nursery, overnight to Thursday morning for nursery;

 

(c)  in a four- weekly cycle: in weeks 1 and 3 from Saturday at 12 noon until Sunday at 12 noon; in week 2 from Saturday at 12 noon until Monday at 9am; and in week 4 from Sunday at 1.15pm until Monday at 9am;

 

(d)  residential holiday contact for 7 days in the second week of LD’s Easter holidays and for 14 days in July 2014;

 

B.  following relocation, orders that the defender shall have regular contact by phone or Skype, regular indirect contact in the form of progress reports, and extensive holiday residential contact, the precise terms of the order to be determined at a hearing after service fixed for the purpose at Glasgow sheriff Court on Tuesday 1 April 2014 at 9.30 am;

 

finds no expenses due to or by either party.”

 

[6]        The sheriff gave his decision orally, on 20 December 2013.  He gave reasons for his decision and they were transcribed.  He explained:

“…I will fix a hearing after service to call at 9.30 on Tuesday 1 April 2014, when I will be presiding over the family court.  That timescale should give parties a reasonable opportunity to discuss and agree practical arrangements, while allowing time for a further child welfare hearing to be fixed thereafter if required.  I very much hope, however, that will not be required.”

 

It is worth noting that, whilst the permission to relocate was expressed so as to expire on 31 July 2014, once the order was made – on 20 December 2013 – the respondent could lawfully have relocated with LD at any time between then and 31 July 2014.  She could, for instance, have relocated to the US, lawfully, the following day.

[7]        It is also important to note that this is an appeal against a later interlocutor, not against the interlocutor of 20 December 2013.  That, of itself, gives rise to difficulties which are discussed below.

 

Procedure in the sheriff court after 20 December 2013

[8]        The appellant did not appeal against the sheriff’s interlocutor within fourteen days of 20 December 2013.  On 14 February 2014, he sought leave to appeal from the sheriff.  The motion was heard by Sheriff Miller who refused the application on the basis that his interlocutor of 20 December was a final interlocutor and leave was not, accordingly, required.  In the note attached to his interlocutor of 14 February 2014, he records that the appellant’s position was that the interlocutor of 20 December was not a final one because a further child welfare hearing had been assigned.  Sheriff Miller then explains:

“I agree, however, with the pursuer and the curator that the decision of 20 December should be viewed as final.  It definitively disposed of the matters in conflict between the parties, namely the craves for relocation and for residence.  It dealt conclusively with contact up to the point of relocation.

 

It also set out a clear framework for the operation of contact post-relocation; in my view, the purpose of the further hearing is simply to fine tune the details of that framework.  It should be noted that there was no dispute between the parties on the shape of future contact if relocation was permitted.  I fixed the further hearing simply to ensure there was clarity about how such contact would operate, at least for the first year or so post-relocation.

 

And, finally, the decision dealt with expenses.”

 

The appellant then applied to the sheriff principal to be allowed to lodge a late notice of appeal.  The motion was refused by the sheriff principal, by interlocutor dated 13 March 2014.  He was not persuaded that the lateness of the appeal could be excused on the basis that it was – as was argued - unclear whether or not the interlocutor of 20 December 2013 was a final interlocutor.  In his judgment, he said:

 

“[9]      In order to determine the merits of the motion, I have required to consider what amounts to a ‘final judgment’.  The answer is to be found at page 639 in the third edition of Macphail.  The 1907 Act defines final judgment as an interlocutor which by itself, or taken along with previous interlocutors, disposes of the subject matter of the cause, notwithstanding that judgment may not have ben pronounced on every question raised, and that the expenses found due may not have been modified, taxed or decerned for.  (See paragraph 18.33 in Macphail)

 

[10]      It is, in my view, plain from a reading of the sheriff’s interlocutor dated 20 December 2013 that it disposed of the subject matter of the cause.  It dealt with a residence order, a specific issue order and a contact order.  Those three orders reflected disposals covering the real issues in controversy.  The fact that judgment may not have been pronounced on ‘every question raised’ was, in my opinion, neither here nor there as was the assignation of a hearing on 1 April this year.  As the sheriff explained in the note to his interlocutor dated 14 February 2014, the further hearing was simply designed to ‘fine tune’ the details of the post-relocation framework in regard to the operation of contact.”

 

[9]        The appellant lodged a motion for leave to appeal the sheriff principal’s decision to this court but on 30 April 2014, it was dropped as the appeal was no longer insisted on. 

[10]      The sheriff principal, in an interlocutor of that date, assigned 10 June 2014 as a hearing before Sheriff Miller “to determine further procedure”.   

 

The sheriff’s interlocutor of 10 June 2014

[11]      The purpose of the hearing on 10 June, as explained by the sheriff in his note, was to consider whether or not any order to regulate post relocation contact was required.  No motion for any such order was, however, made.  In particular, the solicitor for the appellant made no motion for any form of order in relation to post relocation contact.  What he did do was assert that both parties’ employment hopes had been “somewhat dashed” since December 2013.  He asked the sheriff to “suspend the order”; no minute for variation was, however, presented.  That motion was, as the sheriff rightly observes, “manifestly incompetent”.  The appellant’s solicitor sought “leave to appeal” but it is not at all clear what he was seeking leave to appeal against; it was, possibly, a renewed but inept attempt to appeal against the interlocutor of 20 December 2013. 

[12]      On 10 June 2014, the sheriff pronounced the following interlocutor:

“The sheriff, having heard parties’ procurators and the curator ad litem in the presence of both parties, in respect that the pursuer has offered post-relocation contact and that the defender made no motion for an order for post-relocation contact, finds it unnecessary to make any further order for post-relocation contact; on defender’s motion seeking to (sic) leave to appeal, refuses same.”

 

The appeal

Submissions for the appellant

[13]      The appellant does not criticise the sheriff’s interlocutor of 10 June 2014.  There is, unsurprisingly, nothing about its terms to which he objects; he is in no position to do so since he did not seek any order for contact and none was, accordingly, refused.  The motion for leave to appeal which he made at the time did not make sense - it begged the question: leave to appeal against what? In any event, it was no part of the submissions for the appellant that the sheriff erred in refusing leave to appeal.

[14]      In fact, the appellant’s purpose is, as became clear, to use the appeal as a vehicle to challenge the sheriff’s interlocutor of 20 December 2013.  It was not, according to the submissions made on his behalf, a final interlocutor; the attempt to lodge a late appeal was erroneous.  The matters covered by the proof had not been finally determined until 10 June and there could be no appeal until then.  Contact was an integral part of the decision and the June and December interlocutors had to be read together: Sheriff Courts (Scotland) Act 1907 ss 28 and 29.  The interlocutor of 20 December 2013 did not leave over a matter that was purely executorial.  It was not an interlocutor of the type identified in Malcolm v McIntyre (1877) 5R 22.  Also, having appealed against the interlocutor of 10 June 2014, all the prior interlocutors, including the interlocutor of 20 December 2013, were open to review: McCue v Scottish Daily Record & anr 1998 SC 811 at p 820 and 824.

[15]      The appellant’s challenge to the interlocutor of 20 December 2013 is, essentially, that the sheriff ought not to have granted the relocation order without first being satisfied that contact between LD and him would be affordable.  Consideration of contact was integral to any relocation decision.  The sheriff failed in that regard and, accordingly, failed to take account of a relevant matter when determining an issue regarding LD’s welfare.  Welfare is not a matter of discretion: Osborne v Matthan 1998 SC 682 at p. 688H – 689B.  There now requires to be a further proof before a different sheriff, to reconsider the whole relocation issue of new.  The appellant is evidently seeking an opportunity to lead evidence of his current financial position with a view to demonstrating that he cannot afford residential contact now that LD is living in the US and, thereby, to seek to persuade a different sheriff not to grant a relocation order. 

 

Submissions for the respondent

[16]      The respondent’s position is that the interlocutor of 20 December was a final interlocutor and that the appeal against the subsequent interlocutor of 10 June 2014 does not open it up to review.  The 20 December interlocutor disposed of parties’ craves and all that was left was for parties to fine tune the contact arrangements; the sheriff gave them an opportunity to reach agreement about that.  That was entirely reasonable.  In any event, the sheriff’s decision of 20 December 2013 was not vitiated by any error or failing on his part.  He had regarded LD’s welfare as the paramount consideration, he took account of all relevant factors in an approach which was, appropriately, presumption free: M v M 2011 CSIH 65 , and he carried out the requisite balancing exercise carefully on the basis of the evidence, much of which was a matter of agreement.  The appellant did not raise affordability as an issue.  To the contrary, his position was that he was determined to seek employment close to wherever LD was living and would himself relocate there. 

 

Submissions for the Curatrix ad Litem

[17]      In common with the respondent, the curatrix ad litem submits that the interlocutor of 20 December was a final one and is not susceptible to review by reason of the appeal against the interlocutor of 10 June.  The latter is the only interlocutor with which the present appeal is concerned and followed a hearing at which the appellant had made no motion for contact.  Further, at a subsequent hearing on 4 July 2014, it had been stated on behalf of the appellant that he was in no position to put forward any proposals for contact.  At no time has he made any application to the court for post-relocation contact. 

[18]      In any event, the curatrix ad litem submits that the interlocutor of 20 December is not susceptible to challenge, for the same reasons as advanced by the respondent.       

 

Discussion and decision

Preliminary observations

[19]      The appellant’s objective is to have another sheriff consider the relocation issue, of new.  That would provide him with an opportunity to give and lead evidence about his current financial circumstances ; he would, it seems, now present a new case to the effect that he cannot afford the costs that post relocation contact may involve and that, therefore, the relocation order should be set aside.  He seeks to proceed in this way in circumstances where, in the half year or so that elapsed between the date of the relocation order and LD’s departure, he made no attempt to lodge a minute for variation - something which he could have done if his position is that a material change of circumstances arose at some point after 20 December 2013.  No explanation was given to the sheriff or to us for him not having done so.  If his position truly is that there is now a real funding problem which will not be resolved for the foreseeable future, it is very puzzling that he did not proceed by using the minute for variation procedure before LD left Scotland.  That procedure would, of course, have been likely to be presided over by the same sheriff whereas the appellant’s chosen route would, in effect, enable him to have a second bite not simply at the same cherry but at a new one.  That is, in all the circumstances, a course of action which the court should be slow to sanction.

[20]      If successful in opposing the grant of a relocation order in fresh proceedings, the appellant would then, no doubt, argue that LD was being wrongfully retained in the US if the respondent did not return to Scotland with her; the success of that argument would depend, amongst other things, on whether or not, in the meantime, LD had become habitually resident in the US.  LD could, accordingly, have to leave her new home and/or become the subject of further potentially extensive litigation.  One way or the other, her position as regards her home – a fundamental aspect of the stability of the life of any five year old child – would be rendered uncertain.  That would be highly undesirable and is, we consider, a matter which this court is bound to bear in mind when considering this appeal, in implement of its duty to have regard to LD’s welfare. 

 

Whether the interlocutor of 20 December 2013 was a final interlocutor

[21]      It is, we consider, clear that the interlocutor of 20 December was a final one.  It disposed of the subject matter of the cause.  It determined residence, it determined a specific issue order in relation to relocation, it determined that there should be contact between LD and the appellant both before and after relocation, and it determined the issue of expenses.  The craves of the respondent and the curatrix were responded to (the appellant had no craves).  No pleas in law were left outstanding.  There was no need for any further interlocutor in relation to post relocation contact albeit that the sheriff allowed for parties to return to court for the fine tuning of those arrangements if they could not reach agreement about that amongst themselves.  It was clear from the outset that the sheriff hoped that they would be able to do so and that there would in fact be no need for any further hearing.  The reasons which he gave orally, on 20 December 2013, made that clear: see the passage from those reasons set out in paragraph 6 above.

[22]      The hearing of 1 April was, in the event, postponed until 10 June 2014.  The interlocutor of 20 December was not, however, one in respect of which there was procedure still to be worked through before it could become finally operative.  Even if the possibility of the sheriff having to determine the precise details of post relocation contact was enough to cause it to be regarded in that light, that would not have prevented it being a final interlocutor: Malcolm v McIntyre at p.24, per Lord Deas.  The respondent could, lawfully and legitimately, in terms of the interlocutor of 20 December, have left Scotland and gone to the US with LD at any time after 20 December 2013, albeit she would have been wise to wait until the time limit for appealing had expired; in the event, she waited much longer than that.  Overall, we consider that the interlocutor of 20 December 2013 bore all the hallmarks of finality.

Whether the interlocutor of 20 December 2013 is susceptible to review in the appeal against the interlocutor of 10 June 2014

[23]      It is, we consider, important to recognise that this is an appeal against the sheriff’s interlocutor of 10 June 2014.  It can only be set aside on a point of law.  Then, reviewing the interlocutor of 20 December 2013 only arises if the need to consider doing so is consequential on the setting aside of the interlocutor of 10 June 2014.  The mere fact of marking an appeal against the interlocutor of 10 June 2014 did not, we consider, render the interlocutor of 20 December 2013 susceptible to review, particularly since (a) for the reasons we have explained, the two interlocutors did not require to be read together to produce the final interlocutor, and (b) nothing in the grounds of appeal whether as originally presented or as amended, seeks to criticise the interlocutor of 10 June.

[24]      The appellant’s arguments run into two further insurmountable difficulties.  The first is that the interlocutor of 10 June can only be set aside at the behest of the appellant if he has both title and interest to challenge it.  He cannot, we consider, demonstrate that he has the necessary title and interest.  Senior counsel’s response to being asked about this matter was that “doing nothing” was a decision and the appellant had, accordingly, title and interest to challenge it.  That might be correct in a case where a party made a motion to which a judge declined to respond.  That, however, is not what happened here.  The hearing was fixed to enable parties to make any motions about post relocation contact that were required.  The appellant made no motion for contact at all.  Nor did the respondent or the curatrix ad litem.  Whilst it is recorded in the sheriff’s note that the appellant’s solicitor said that he was instructed to ask the sheriff to suspend the relocation order, it was no part of the appeal to this court that the sheriff erred in failing to do so.  Rather, it seems to have been accepted that it would not have been competent for the sheriff to suspend the order in the absence of a minute for variation. 

[25]      We conclude that the appellant does not have title and interest to challenge the interlocutor of 10 June.  In any event, there was nothing advanced in the appeal to show that the sheriff erred in doing as he did.  Accordingly, even if we are wrong and the appellant did have title and interest, we have no hesitation in concluding that there is no basis on which we could set aside the interlocutor of 10 June.  The appellant’s wish to open up what he sees as a flawed interlocutor, namely that of 20 December cannot, of itself - whatever the arguments about it - amount to a good ground of appeal in relation to the interlocutor of 10 June.  That is ultimately, however, what the appellant was, we think, really trying to assert.

 

The relocation order

[26]      In the event, the issue of whether or not the sheriff erred in law in granting the relocation order that was sought, does not arise.  We should, however, in the circumstances, say something about that matter. 

[27]      Since the decision of this court in the case of M v M, it has been clear that, on an issue of relocation, it is no part of our law that a judge requires to regard any particular factor as having greater weight than any other.  It would, for instance, be wrong to proceed on the basis that there is a rule that the most crucial assessment required is as to the effect that a refusal of the relocation application will have on the applicant.  This is often conveniently described as a “presumption free” approach; it accords with the court’s duty to regard the welfare of the child as the paramount consideration.  That is not to say that, in an individual case, there may not be features which are of particular importance when considering the welfare of the individual child concerned.  The availability in each jurisdiction of some particular medical treatment or educational provision that the child requires would be an example.  Much will depend on the facts of each case. 

[28]      On the matter of post relocation contact, the appellant’s approach was to say that in a case where there is an ongoing relationship between the relocating child and the other parent, the judge always requires to satisfy himself that post relocation contact with that other parent is achievable.  The sheriff was said to have failed to do so; an earlier ground of appeal that the sheriff had wrongly treated the respondent’s likely distress if relocation was refused as being a priority was not insisted on.  The argument seemed to be that being satisfied about post relocation contact meant not only being satisfied at a broad and general level; rather, it was necessary for the judge to be satisfied as to the minutiae, including precisely how, in detail, the arrangements would work and be paid for.  M v M was relied on as being authority for these propositions.  Certainly, in that case, at p.441C – D of the opinion of the court, the sheriff was criticised for having failed to satisfy himself that a satisfactory and sufficient level of continuing contact would realistically be achievable.  But, as ever, context is all and the context of those remarks was that M v M  was a case in which the sheriff was severely critical of the mother’s conduct and attitude and had specifically found that she would do all that she could to frustrate contact and try to remove their father from the children’s lives.  In those particular circumstances, he needed to address post relocation contact in more detail than he had done.  M v M is not, however, authority for the proposition that that is required in every case. 

[29]      In the present case, the sheriff appreciated that there was a close bond between LD and her father.  Contact had been taking place on a regular and residential basis and when the respondent had been on extended holidays with her mother in the US and sometimes in Europe, she had been “assiduous in ensuring that the defender could keep in contact with LD by Skype, phone calls and emails” (finding in fact 15).  The respondent’s approach to contact was the antithesis of that of the mother in the case of M v M.  Contact had been working and there was no cause for criticism of the relocating parent.  Further, nothing said to the sheriff by the appellant or by his solicitor on his behalf indicated that he considered there would be any financial bar to engaging in post relocation contact. 

[30]      The sheriff recognised that post relocation contact was an anxious issue (see paragraphs 56 - 59 of his note) but was evidently reassured by the appellant having no strong long term ties to Glasgow once his studies were completed and, importantly, having expressed a determination to seek employment wherever his daughter was living.  Put shortly, his position at the hearing was that he would follow his daughter if relocation were to be allowed.  So far as post relocation contact for any period prior to the appellant achieving that objective was concerned, it was not suggested to the sheriff that that would not be affordable.  He did not fail to have regard to the issue of post relocation contact and it is not fair to him to suggest that he did.  It is clear from the sheriff’s note that he considered all the facts relevant to the circumstances of this particular case and did so all in the context of determining whether or not LD’s welfare would best be served by permitting relocation.  In all these circumstances, it cannot be said that the sheriff erred.

 

Disposal

[31]      We will, accordingly, pronounce an interlocutor refusing this appeal.