Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2016] CSIH 2

XA2/15

 

Lady Clark of Calton

Lord Malcolm

Lord McGhie

 

OPINION OF THE COURT

delivered by LADY CLARK OF CALTON

in the Appeal

by

EM

Pursuer and appellant;

against

AM

Defender and Respondent:

Act:  Scott QC, Wild;  Digby Brown LLP

Alt:  Hajducki QC, Ardrey;  Allan McDougall (for Hann & Co, solicitors, Annan)

13 January 2016

Summary
[1]        This appeal, and cross‑appeal from the decision of the sheriff principal, relate to an action commenced in the sheriff court between the parents of a child in which the main dispute was whether the father should have contact with his child and to what extent, if any, he should be deprived of his parental rights and responsibilities.

 

History of court proceedings
[2]        The pursuer and appellant (“the pursuer”) is the mother of K born June 2010.  The defender and respondent (“the defender”) was in a relationship with the pursuer and they lived together for about 2 years until they separated in August 2010.  The defender is the father of K and is so registered on the birth certificate of K. 

[3]        In 2012, the pursuer raised an action seeking an order depriving the defender of all his parental rights and responsibilities in relation to K under section 11(2)(a) of the Children (Scotland) Act 1995 (“the 1995 Act”).  The defender opposed such an order, defended the action and also sought a contact order in respect of K.  The pursuer was successful in her application and the defender was refused contact by the sheriff as recorded in the sheriff’s interlocutor of 13 February 2014. 

[4]        The defender appealed to the sheriff principal.  The sheriff principal allowed the appeal;  recalled the interlocutor of the sheriff which he wrongly described as dated 13 April 2014;  found that there should be contact (under supervision) by the defender to K as directed by the court and suspended (instead of depriving) the defender’s parental rights and responsibilities.  The defender’s right to maintain personal relations and direct contact with K was suspended subject to such order as the court may make from time to time regarding contact.  The sheriff principal remitted the cause to the sheriff:

“to decide the nature and extent of such an order, having carried out such investigations and obtaining such reports as he considers necessary, on the understanding that, at least in the first instance, contact will be under supervision.”

 

[5]        The pursuer appealed to this court from the decision of the sheriff principal.  The defender opposed the appeal and sought to support the decision of the sheriff principal in relation to contact.  The defender cross‑appealed in relation to the decision to suspend the defender’s parental rights and responsibilities and sought a decision upholding the defender’s parental rights and responsibilities in relation to K.

 

The sheriff court proof and the judgment of the sheriff
[6]        A proof was heard in Dumfries Sheriff Court on 23 April, 15 July and 7 October 2013.  By agreement of the parties, the sheriff confined himself to the evidence heard on 23 April and 7 October 2013.  In the pursuer’s proof, evidence was led from the pursuer, the pursuer’s mother (SM), and the pursuer’s aunt (ML).  For the defender, evidence was led from the defender, the defender’s sister (FN) and the defender’s nephew (KL).  The sheriff accepted the pursuer as a truthful witness and “discounted as untrue any claims made by the defender which were not accepted by the pursuer or were contradicted by her evidence” (paragraph 113).  He found the defender “to be a thoroughly dishonest witness – if indeed he had any concept of truth at all” (paragraph 114).  The sheriff found that no issues arose in relation to the credibility of the other witnesses (paragraph 125).

[7]        Having heard the evidence, the sheriff issued his judgment on 21 January 2014 with a draft interlocutor in respect of which he invited further submissions on behalf of parties.  The sheriff made the following findings in fact:

“1.       The pursuer is E who resides in Scotland.

 

2.         The defender is AM who resides in London.

 

3.         The defender’s nationality is Ugandan.

 

4.         The parties met in Manchester in or around 2007.

 

5.         The defender and pursuer were in a cohabiting relationship between 2008 and 2010.  They separated on 25 August 2010.

 

6.         The pursuer and the defender are not registered as a married couple in the United Kingdom.

7.         The ceremony known as Nikah was undertaken by the pursuer and defender.  This ceremony forms part of an Islamic marriage.  This form of Islamic marriage is not recognised in the United Kingdom

 

8.         There is one child of the relationship namely K, born …June 2010.  The child’s sex is male.

 

9.         The defender is registered on the birth certificate of K as the father.

 

10.       The pursuer’s pregnancy with K was an unplanned pregnancy.

 

11.       The defender was arrested on 25 August 2010 for breaches of immigration laws and was held on remand.  While on remand, the pursuer visited the defender with K in prison on one occasion.

 

12.       The defender has been convicted on two occasions in respect of breaches of immigration laws.  On the … April 2011, he was convicted at … Crown Court for conspiracy to facilitate a breach of immigration law and sentenced to 3 years imprisonment.  On … January 2012, he was convicted of conspiracy to breach the UK immigration laws and sentenced to 30 months.

 

13.       Whilst in prison, the defender sent cheques to the pursuer in order to provide something to K’s upkeep.

 

14.       Whilst in prison, the defender recorded a story book for K which was sent to the pursuer in order for K to hear his father’s voice.  The defender also sent a card to K.

 

15.       The defender was released from prison on … August 2012, but was detained albeit at an Immigration Removal Centre by the UK Border Agency.

 

16.       The parties moved together from Manchester to Scotland in August or September 2009 where they lived together until their separation in August 2010. During this period the defender frequently spent time away from the pursuer in England where he falsely told her he had a freight business.

 

17.       In reality, he was engaged in the unlawful activity of arranging sham marriages in the United Kingdom, for which he was convicted and sentenced as recorded in finding in fact 12.

 

18.       The pursuer knew the defender by the first name of D until she became aware at the time of his arrest for immigration offences in England his first name was A.

 

19.       The defender told the pursuer that he was younger than he now claims to be.  She believed he was born in 1980 whereas he claims to have been born in 1975.

 

20.       The parties lived together in Scotland from after K’s birth until the defender was arrested in London on 25 August 2010.  During this time, the defender assisted with K’s care.

 

21.       The pursuer visited the defender on two occasions while he was in prison in late 2010.  On the first occasion she took K with her to visit the defender.  This was the last occasion the defender had direct contact with K.

 

22.       K has extended family in London, including his aunt FN and nephew KL, both of whom would be supportive of the defender exercising contact with K in London”.

 

[8]        Findings in fact 1 to 15 were made by the sheriff on the basis of facts agreed in a joint minute on behalf of the parties.  On the basis of all the findings in fact and for the reasons explained in his note, the sheriff found in fact and law that:

“It is not appropriate and not in K’s best interests that any contact order is made in favour of the defender…”.

 

For the reasons set out in his judgment, the sheriff refused the defender’s application for a contact order. 

[9]        He explained that he saw little benefit to K in the defender continuing to exercise parental responsibilities and rights in relation to K at this stage in his life and allowed parties to consider his judgment and draft interlocutor and to make further representations.  On 13 February 2014, the sheriff in a supplementary note to his judgment set out his further consideration of the issues in relation to the crave by the pursuer for deprivation of the defender’s parental responsibilities and rights.  The sheriff stated:

“14.     I considered that a deprivation order did not terminate these responsibilities and rights for all time.  It would do so for as long as the order was in force and may be reviewed at any time until K is 16 (actually as will be noted infra in relation to a particular parental responsibility only until he is 18).

 

15.       The extent to which such order should be made was in my opinion a matter of debate at that stage.  Mrs Guthrie raised the possibility of suspending any or all of these rights and responsibilities in her written submissions.

 

16.       Having regard to the Lord President’s comments in T v T 2000 SLT 1442 at paragraphs [58] and [59] as to the making of a deprivation order, I appointed parties to be heard on the terms of the proposed final interlocutor, a draft of a possible order which I append to my Judgment.

 

17.       I had thus already decided in principle for the reasons in my Judgment the court should restrict the defender’s parental responsibilities and rights;  as Mr Hann correctly observed the purpose of the further hearing was to allow parties to make further submissions of the terms of the final interlocutor, as in T v T 2000 SLT 1442 the practice of making a ‘blanket’ order was disapproved.

 

18.       Mr Hann did not object to competency of an order suspending parental responsibilities and rights, a possibility mooted by Mrs Guthrie in her written submissions.  This would be an unusual order, but a competent one.  I considered it would be of benefit to the court to have the parties’ further submissions on this point”.

 

[10]      For reasons which he set out in respect of each parental right and responsibility, the sheriff concluded that the defender be deprived of all parental responsibilities and rights in relation to K as set out in his interlocutor dated 13 February 2014.

 

The appeal by the defender to the sheriff principal
[11]      There were twelve grounds of appeal advanced on behalf of the defender and the defender proposed 17 new findings in fact.  The sheriff principal dealt with the appeal under the following heads:

“(A)     whether the sheriff erred in making finding in fact 18 (ground of appeal I);

 (B)      whether the sheriff erred in refusing to make a number of proposed findings in fact (ground of appeal 2);

 (C)      the approach of the court to discretionary decisions by the sheriff;

 (D)     the legal test for making a contact order and depriving a party of his or her parental rights and responsibilities (grounds of appeal 4, 5 and 6);

 (E)      whether the sheriff erred in refusing to make a contact order (grounds of appeal 9, 11 and 12);

 (F)      whether the sheriff erred in depriving the defender of all his parental rights and responsibilities (grounds of appeal 7, 8 and 10);

 (G)      whether the findings in fact and law should be amended (ground of appeal 3)”.

 

The sheriff principal’s decision and the reasons which he gave for allowing the appeal are set out in his judgment of 10 December 2014.

[12]      In relation to the findings in fact, the sheriff principal concluded that the sheriff erred in making finding in fact 18 and deleted the words “until she became aware at the time of his arrest for immigration offences in England his first name was A”.  The sheriff principal refused to make the 17 new findings in fact proposed on behalf of the defender.  He did however make some additional findings in fact.  These were to the effect that the defender was pleased about the pregnancy;  present at the birth of K; after the birth the defender was co-operative and helped the pursuer most of the time to look after K; and the defender interacted with K by playing and cuddling him and changing him.  The sheriff principal also found that prior to the birth, the defender was home about half the time.  The sheriff principal explained that these new additional findings in fact related to evidence given by the pursuer which the sheriff stated that he had accepted.

 

The appeal and cross‑appeal to this court
[13]      The pursuer appealed the decision of the sheriff principal on the basis that the sheriff principal was not entitled to substitute his own judgment about contact and parental responsibilities and parental rights in substitution for the judgment of the sheriff, that he failed to take account of relevant considerations in doing so and in any event the effect of his decision and order was to remit to the sheriff to consider contact in a way which unlawfully fettered the sheriff’s judgment. 

[14]      The defender opposed the appeal and supported the decision of the sheriff principal in relation to his decision-making about contact;  the sheriff principal applied the correct legal test in concluding that the sheriff must have exercised his discretion wrongly;  took into account the correct considerations and did not fetter any new decision by the sheriff about contact.  In the cross-appeal the main issue raised was that the sheriff principal erred in his order suspending the respondent’s parental rights and responsibilities by failing to sustain the respondent’s second plea-in-law which stated “The defender having a loving relationship towards the said child should not be deprived of parental rights”.  The cross‑appeal also challenged the decision of the sheriff as unreliable in various ways including, under citation of Hoekstra v HM Advocate [No.2] 2000 JC 391, that the sheriff was not objectively impartial and should have recused himself.

 

Submissions by counsel for the pursuer
[15]      Counsel adopted her written note of argument.  The additional findings in fact made by the sheriff principal were not challenged by the pursuer but made no difference to the outcome.  Under reference to the Children (Scotland) Act 1995 (“the 1995 Act”), counsel set out the statutory structure, in particular sections 1, 2, 3, 6 and 11.  She drew attention to section 11(7)(D)(b) which directs the court, in considering making an order in relation to parental responsibilities and parental rights, to consider that:

“(b) in pursuance of the order two or more relevant persons would have to cooperate with one another as respects matters affecting the child”.

 

The task for the sheriff was to consider and weigh all the relevant circumstances and apply the test in section 11(7)(a) which directs that the decision maker have regard to the welfare of the child as its paramount consideration.

[16]      Counsel submitted that an appellate court is not entitled to interfere with the decision of a judge of first instance unless that judge’s exercise of judgment is wrong in the sense that it exceeds “the generous ambit within which reasonable disagreement is possible”.  The sheriff took advantage of seeing and hearing the witnesses and formed views about the witnesses including their credibility and reliability.  The scrutiny by the sheriff principal of a transcript of the evidence could not replicate the advantages enjoyed by the sheriff.  The sheriff principal was not entitled to embark upon his own balancing exercise, and because he reached a different conclusion from the sheriff, to conclude that he was entitled to overturn the sheriff.  Counsel prayed in aid G v G [1985] 1 WLR Reports 647; B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, paragraphs 38-42.  Counsel noted that in Henderson v Foxworth Investments Ltd [2014] UKSC 41, Lord Reed reviewed the authorities in paragraphs 58-68 and cited B (A Child) with approval.  He identified the issue to be determined by the Appeal Court as whether the trial judge was “plainly wrong” in the sense of “whether the decision under appeal is one that no reasonable judge could have reached”.  Reference was also made to Sanderson v McManus 1997 SC (HL) 55, Lord Hope p57H-58;  and Osborne v Matthan (No.2) 1998 SC 682, Lord President (Rodger) p688H-689C. 

[17]      Counsel noted that the sheriff principal founded on a short passage in Macphail on Sheriff Court Practice in support of his conclusion that the sheriff’s decision was vitiated by an error in weighing the relevant considerations.  The sheriff principal did not address the issue as to whether the sheriff’s determination was outside the generous ambit of reasonable disagreement or plainly wrong in the sense explained by Lord Reed in Henderson.  Counsel submitted that it was not suggested that the sheriff had applied the wrong legal test.  The sheriff carried out a balancing exercise and weighed factors both for and against contact and concluded that it was not in the best interests of K to make a contact order.  Uncertainty over the defender’s immigration status was characterised as “an additional reason” by the sheriff.  Counsel submitted that the sheriff principal in considering the reasoning of the sheriff in his note at paragraph 26 made only partial reference to the considerations canvassed by the sheriff.  The factors considered important by the sheriff principal such as the parent/child link, the child’s mixed ethnicity and the support provided by the defender to the child in the first few months of his life were all considered by the sheriff in the balancing exercise.  The factors which weighed heavily with the sheriff such as the total untrustworthiness of the defender were factors which the sheriff was entitled to take into account. 

[18]      Counsel also submitted that the sheriff principal substituted suspension, instead of deprivation, of parental rights and responsibilities, but his reasons for that are not clear.  His approach appeared to follow from his decision about contact.  In any event it is not clear what the practical difference is in the context of this case where the period of suspension is not limited in time or tied to any particular event in the future.

[19]      In relation to the cross-appeal by the defender that there was doubt as to whether an independent observer would view the sheriff’s judgment as reliable, counsel submitted that this was misconceived.  The sheriff merely gave parties a further opportunity to address him in the light of his findings in fact and note about the issue of principle as to whether deprivation or suspension was appropriate.

 

Submissions by counsel for the defender

[20]      Counsel adopted the written note of argument in respect of the cross-appeal.  But in the course of his oral submissions, he made it plain that the real issue of concern to the defender was contact.  We understand that counsel considered there was no effective difference between suspension and deprivation, and he was content to focus and limit the disputed issues to contact and the parental right and responsibility relative to that.  We understood that he did not seek to rely on the cross-appeal except in so far as relevant to these connected issues.  He did not seek to insist that the defender should retain all the other parental rights and responsibilities.  Counsel also sought to argue that in the event the sheriff principal’s decision was overturned, this court could not rely on the decision of the sheriff as it was wrong and unreliable.

[21]      Counsel accepted the statutory structure and general principles of law as set out by counsel for the pursuer.  He accepted that the sheriff principal was not entitled to interfere with the decision of the sheriff unless the sheriff was plainly wrong and submitted that the sheriff was plainly wrong in this case.  He referred to the limited findings in fact made by the sheriff;  the absence in the findings in fact of any findings pointing to the likelihood of the defender causing any harm to K;  the positive findings in fact added by the sheriff principal such as the defender’s pleasure in the birth of K and the support given to the pursuer and K by the defender;  the absence of findings in fact that the defender’s interest in K was manufactured because of his immigration status;  and the irrelevance of the defender’s immigration status.  The findings in fact of the sheriff did not justify his conclusions.  In these circumstances, the sheriff principal was entitled to take into account the new findings in fact and to carry out a new balancing exercise as he considered that the sheriff had not done the balancing exercise properly and had given the wrong weight to important factors.  In particular the sheriff had given too much weight to the criminal convictions of the defender.

[22]      Counsel submitted that the sheriff principal was correct to conclude that there should in principle be contact, albeit under supervision, and that the details of that contact required to be considered and addressed in a hearing before the sheriff.  He submitted that the sheriff principal was not attempting to restrict the discretion of the sheriff but merely setting out the parameters for reconsideration of the case.  He accepted that any court considering the case would be bound by the statutory test in section 11(7)(a) of the 1995 Act and would require to have regard to the welfare of K as the paramount consideration. 

[23]      Counsel submitted that if the decision of the sheriff principal about contact was not upheld there was a problem because this court could not rely on the decision of the sheriff.  For the reasons submitted the sheriff was wrong and unreliable in his approach and the case should be remitted to a new sheriff for a new hearing.  Further the sheriff had shown an apparent bias.  Counsel was critical of the two-stage approach adopted by the sheriff in relation to his draft interlocutor.  He submitted that it was plain to a fair minded and informed observer that there was a real possibility that the sheriff was biased.  This was on the basis that the sheriff’s final interlocutor reflected his draft interlocutor thus the sheriff had, it would appear, made up his mind that the defender’s parental rights and responsibilities would be removed before the second hearing when parties were invited to make further submissions about parental rights.

 

The statutory framework under the 1995 Act
[24]      “1.-      Parental responsibilities

(1) Subject to section 3(1)(b) and (d) and (3) of this Act, a parent has in relation to his child the responsibility –

(a)        to safeguard and promote the child’s health, development and welfare;

(b)        to provide, in a manner appropriate to the stage of development of the child –

(i)         direction;

(ii)        guidance,

to the child;

(c)        if the child is not living with the parent, to maintain personal relations and direct contact with the child on a regular basis; and

(d)       to act as the child’s legal representative,

but only in so far as compliance with this Section is practicable and in the interests of the child”.

 

“2.-      Parental rights

(1) Subject to section 3(1)(b) and (d) and (3) of this Act, a parent, in order to enable him to fulfil his parental responsibilities in relation to his child, has the right –

 

(a)        to have the child living with him or otherwise to regulate the child’s residence;

(b)        to control, direct or guide, in a manner appropriate to the stage of development of the child, the child’s upbringing;

(c)        if the child is not living with him, to maintain personal relations and direct contact with the child on a regular basis; and

(d)       to act as the child’s legal representative.

(2) Subject to Subsection (3) below, where two or more persons have a parental right as respects a child, each of them may exercise that right without the consent of the other or, as the case may be, of any of the others, unless any decree or deed conferring the right, or regulating its exercise, otherwise provides.

(3) Without prejudice to any court order, no person shall be entitled to remove a child habitually resident in Scotland from, or to retain any such child outwith, the United Kingdom without the consent of a person described in Subsection (8) below.

….”.

 

[25]      Section 11 of the 1995 Act gives wide powers to the court to make orders in relation to parental responsibilities and parental rights.  Specific reference is made in section 11(2)(a) to an order depriving a person of some or all of his parental responsibilities or parental rights in relation to a child.  Section 11(2)(d) refers to an order regulating the arrangement for maintaining personal relations and direct contact between a child and a person with whom the child is not living.  This is commonly referred to as a contact order.  Section 11(7) provides:

“Subject to subsection (8) below, in considering whether or not to make an order under subsection (1) above and what order to make, the court –

(a)        shall regard the welfare of the child concerned as its paramount consideration and shall not make any such order unless it considers that it would be better for the child that the order be made than that none should be made at all…”.

 

Provision is also made for the taking into account of the child’s view.  In this case, having regard to the age and maturity of K, it was not submitted that the sheriff required to have consideration to the views of the child. 

 

Discussion
The appeal
[26]      In this case there was no dispute about the legal principles properly to be applied by the sheriff and the sheriff principal. 

[27]      We consider that it is important and useful to bear in mind the different functions carried out by the sheriff and the sheriff principal.  The sheriff had the task of making a decision about parental rights and responsibilities and contact within the framework of the 1995 Act.  He heard disputed evidence from witnesses and formed important views about the pursuer and defender and their credibility and reliability which influenced his determination of the issues.  The sheriff made findings of fact based on the evidence in the case.  In the appeal process we note that the sheriff principal had read the notes of evidence, but that exercise gave him none of the advantages which the sheriff who saw and heard the witnesses enjoyed.  Although the sheriff principal chose to make additional findings in fact, we consider that these covered points of detail.  We note, for example, that the sheriff acknowledged in finding in fact 20 that after K’s birth until the defender was arrested on 25 August 2010, the defender assisted with K’s care.  In addition it is plain from the decision of the sheriff that he accepted the evidence of the pursuer on the basis of which the additional findings favourable to the defender were made by the sheriff principal.  In our opinion there is nothing in the additional findings in fact made by the sheriff principal which would entitle the sheriff principal to interfere with the decision of the sheriff. 

[28]      We agree with the observations of Lord President (Rodger) in Osborne v Matthan (No 2) 1998 SC 682 at pages 688I-689B:

“…it appears to me, however that the decision which a trial judge reaches on custody may perhaps be better described not as a matter of discretion but as a matter of judgment exercised on consideration of the relevant factors.  The court must consider all the relevant circumstances and decide what the welfare of the child requires.  Once the court has identified that, it has no discretion:  the court must do what the welfare of the child requires.

 

Even though the decision may therefore not be truly one depending on the discretion of the judge, I none the less consider that counsel for the defender were right to acknowledge that, in a case like the present where the sheriff has seen and heard the witnesses, it would be unusual for an appeal court to interfere with the sheriff’s judgment on the issue of custody.  The sheriff will obviously have advantages which no scrutiny of the transcript of the evidence by an appeal court, however careful, can hope to replicate.  That is a real factor of importance in this case where it is plain from the terms of his judgment that the sheriff formed certain views about the defender’s possible conduct on her return to Jamaica as a result of the impression which she made on him when she gave evidence in the witness box”.

 

[29]      It is well settled that there are limitations to the circumstances in which the sheriff principal, acting as an appellate court, may interfere with the decision making of the fact finder at first instance.  In Thomas v Thomas 1947 SC (HL) 45, Lord Thankerton at page 54 said that in the absence of a misdirection, the appellate court should not come to a different conclusion on the evidence “unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial judge’s conclusion”.  In a recent consideration of Thomas v Thomas and subsequent decisions, Lord Reed in Henderson v Foxworth Investments Ltd [2014] UKSC 41 stated:

“[66]    These dicta are couched in different language, but they are to the same general effect, and assist in understanding what Lord Macmillian is likely to have intended when he said that the trial judge might be shown ‘otherwise to have gone plainly wrong’.  Consistently with the approach adopted by Lord Thankerton in particular, the phrase can be understood as signifying that the decision of the trial judge cannot reasonably be explained or justified. 

 

[67]      It follows that, in the absence of some other identifiable error, such as (without attempting an exhaustive account) a material error of law, or the making of a critical finding in fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot reasonably be explained or justified. 

 

[68]      The approach is consistent, as I have explained, with the Scottish authorities, and also with more recent authority in this court and in the Judicial Committee of the Privy Council (see, eg Re B (A child) (Care Proceedings:  Threshold Criteria), per Lord Neuberger, paras 52, 53).  ...” 

 

The approach set out by Lord Reed is, by implication, relevant to welfare decisions in child care proceedings. 

[30]      We turn now to consider the approach of the sheriff principal.  In paragraph 11, the sheriff principal described his task in this way:

“at appeal I have to consider whether the sheriff erred in refusing to make a contact order.  If I support the sheriff’s decision regarding contact, the separate issue then arises as to whether the sheriff erred in depriving the defender of all his parental rights and responsibilities…”.

 

The sheriff principal considered the matter further and in more detail under his heading (c) entitled “The approach of the Court to discretionary decisions by the sheriff”.  He described the decision of the sheriff as discretionary.  He appeared to accept that the sheriff had not erred in law, misapprehended the facts, considered any irrelevant matter, or left out of account any relevant matter.  He considered whether the conclusion of the sheriff was vitiated by an error in weighing the relevant considerations by giving too little or too much weight to one or more of them.  He stated:

“I require, in considering this appeal, to adopt that approach to the balancing exercise that the sheriff carried out in light of the amended findings in fact”. 

 

The sheriff principal then carried out his own balancing exercise applying the same statutory test which the sheriff applied under reference to section 11(7) of the 1995 Act.   The sheriff principal concluded that the sheriff attached too little weight to the parent/child relationship and too much weight to the defender’s two convictions.  He also concluded that there was no evidence to indicate that the defender would be other than a supportive father.  He said that the sheriff proceeded solely on considerations such as “the defender is dishonest or a convicted criminal” (paragraph 27). 

[31]      In our opinion this assessment by the sheriff principal does not fairly describe the reasoning of the sheriff.  The sheriff acknowledged, in paragraph 131, that there are a number of considerations in favour of contact by the defender with K.  The sheriff considered that the environment of K with his mother was a secure and loving environment, and that the defender could not be trusted and that the pursuer did not trust him.  The sheriff was concerned about disruption to K’s stability, security and continuity by contact with the defender.  That is against the background of the very young age of K, his stage of life, the absence of the defender since K was three months old and the sheriff’s assessment that the defender was not to be trusted.  We consider that the weight to be given to the relevant factors was primarily a matter for the sheriff.  If the sheriff took into account all the relevant factors, in our opinion it would be very difficult to conclude, in the context of a case such as this, that the decision is one that no reasonable judge could have reached.  We note that the sheriff principal did not consider the case by reference to such a test.  In our opinion, the sheriff formed an impression of the pursuer and the defender and made an assessment of both of them which coloured his approach to the case and his conclusions.  We consider that the sheriff was entitled to do that.  The sheriff, having assessed the pursuer and defender, decided that contact with such a young child by the defender was in all the circumstances, at the time of his decision, not in the best interests of K.  In our view the sheriff principal was not entitled to conclude that such a decision about contact was one which no reasonable judge could make.

[32]      The sheriff principal did not give any reasons, separate from his conclusions about contact, for interfering with the decision by the sheriff to deprive the defender of his parental rights and responsibilities.  We note that he accepted that the sheriff was entitled to conclude that the defender’s rights and responsibilities should not be left extant.  He considered that the suspension order was justified by the principles in section 11 and the statutory test set out therein.  As we do not support the sheriff principal’s decision about contact, we are not satisfied he was entitled to substitute suspension for deprivation of the defender’s parental rights and responsibilities.

[33]      Although it is unnecessary for us to determine the matter, we consider that there is some justification in the criticism made by counsel for the pursuer that the sheriff principal was not entitled in the circumstances of this case to refer the matter to a sheriff for a hearing which was limited to further details of contact.  We take into account that there had been a significant passage of time since evidence was heard and that, in the circumstances of this case, the practicalities of contact may be intertwined with the principle of contact.  In our opinion had the sheriff principal been entitled to overturn the decision of the sheriff in relation to contact, he should have referred the issue of contact to a sheriff to be reheard of new. 

 

The cross‑appeal
[34]      The scope of the cross‑appeal was limited by counsel for the defender to focus on the parental rights and responsibilities associated with contact.  The sheriff considered the parental responsibility and right of the defender to maintain personal relations and direct contact with the child on a regular basis in paragraphs 39 to 43.  In paragraph 41 he stated:

“… when [K] is older and perhaps inquisitive about his roots, and the defender is perhaps deported from the United Kingdom, there may be the possibility of indirect contact, such as letters or Skype.

 

[42]      But these were unknown factors at this stage and best addressed in the light of future circumstances.  I consider the pursuer would be willing, from her evidence, to look at matters anew when K was older.  Meantime I saw no benefit to K in preserving this parental responsibility and right of the defender”

 

[35]      We are of the opinion that the sheriff was entitled, for the reasons he gave, so to conclude at the time of his decision.  We note however that a significant period of time has passed since the sheriff heard evidence in 2013.  K is older and now at school.  There is no information before this court about whether K understands some of his history and his father’s desire to maintain contact.  We have no up‑to‑date information about the personal circumstances of the parties and K.  The deprivation of the parental rights and responsibilities of the defender in this case is not to be compared with the deprivation of such rights and responsibilities in other cases where, for example, a third party obtains parental rights and responsibilities because a parent has caused significant harm to a child.  The sheriff accepted that there were some positive benefits which K might obtain from contact with the defender.  The deprivation of parental rights and responsibilities and refusal of contact was not intended to be permanent.  He acknowledged that both contact and the issue of parental rights and responsibilities were subject to review by the court if, for example, there was a change of circumstances.

[36]      We agree with the sheriff that the issue of contact may require to be re‑addressed during the childhood of K and we note that a long period of time has passed since the decision of the sheriff.  We have some concerns that the issue of deprivation of the parental right and responsibility relating to contact in this case, may deflect from the real issue in the case which we consider to be contact by the defender with K.  We consider that parties in this case should not be deflected in the future from the issue of contact by diversionary arguments about whether the relevant parental right and responsibility should be restored to facilitate contact.   We were not addressed by parties about the implications of section 11(3)(a)(b) of the 1995 Act which has been the source of some uncertainty in relation to the right of a parent, deprived of parental rights, to apply for a contact order.  We understand that Scottish Ministers intend soon to finalise an order which will confirm such a right to apply for contact.

[37]      It will be apparent from what we have said that we consider that there is no merit in the general submission by counsel for the defender that the decision of the sheriff is in some way unreliable.  For the reasons we have explained, we accept that the decision of the sheriff on the findings made and for the reasons he gave was a decision which fell well within the band of reasonable decision making. 

[38]      We consider it necessary however to deal specifically with the submission made by counsel for the defender that the sheriff’s decision displayed “apparent basis”.  Counsel stated that he did not suggest that there was any actual bias on the part of the sheriff. 

[39]      We note that this was a case in which the issues to be determined by the sheriff included the issue raised by the pursuer as to whether the defender should be deprived of his parental rights and responsibilities.  Obviously the sheriff required to apply his mind to that issue after he heard the evidence and submissions.  No justifiable criticism could have been made if the sheriff had merely determined all the issues and issued his judgment and note.  Instead, the sheriff gave both parties the opportunity to consider his findings in facts and his reasoning for concluding that there should be restriction of the defender’s parental responsibilities and rights and allowed parties to make further submissions as to whether the restriction should be by deprivation or suspension.  The issue of suspension had been raised in written submissions.  We do not consider that the sheriff was obliged to give the parties such an opportunity to make further submissions orally, but he was entitled to do so if he considered that would assist him.  The sheriff having heard further oral submissions then set out in a further note his reasons for deprivation rather than suspension of parental rights and responsibilities.  We note that there was no objection made to the sheriff on behalf of the defender that the procedure adopted was unfair or that the sheriff should recuse himself.  We are unable to find any reference to a submission of bias being made to the sheriff principal.  The case of Hoekstra cited on behalf of the defender is so far removed from the circumstances of the present case that we struggle to see its relevance.  We are in no doubt that this submission on behalf of the defender is entirely without merit.

 

Decision
[39]      In disposing of this case, we allow the appeal by the pursuer.  We recall the interlocutor of the Sheriff Principal dated 10 December 2014, affirm the interlocutor of the sheriff dated 13 February 2014 and refuse the cross-appeal by the defender and respondent.

[40]      Both parties, having the benefit of legal aid, were agreed that no award of expenses shall be made due or by either party and this will be reflected in our interlocutor.