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Appeal in the cause JM against KB and EH (Sheriff Appeal Court Civil) [2024] SACCIV 36 (01 August 2024)
URL: http://www.bailii.org/scot/cases/ScotSAC/Civ/2024/2024sacciv36.html
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[2024] SACCIV 36
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SHERIFF APPEAL COURT
[2024] SAC (Civ) 36
Sheriff Principal A Y Anwar
OPINION OF THE COURT
delivered by SHERIFF PRINCIPAL A Y ANWAR
in the appeal in the cause
JM
Pursuer and First Respondent
against
KB
Defender and Appellant
and
EH
Third Party Minuter and Second Respondent
Pursuer and First Respondent: Anderson, sol adv: Lesley Anderson Law Ltd
Defender and Appellant: Party
Third Party Minuter and Second Respondent: Allison, adv: Millard Law LLP
1 August 2024
Introduction
[1]
Annie (a pseudonym) was born in 2008. The appellant, KB, is her mother. The first
respondent, JM, is her father. The appellant and the first respondent separated shortly after
Annie was born. The appellant was Annie's primary carer; however, her relationship with
Annie deteriorated significantly in 2020. In September 2020, Annie moved to reside with the
first respondent. She refused to have contact with the appellant.
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[2]
The first respondent raised proceedings seeking: (i) a residence order for Annie to
live with him; and (ii) a specific issue order for Annie to continue to be enrolled at her
school. The appellant counterclaimed and sought: (i) a residence order for Annie to live
with her; failing which (ii) an order allowing for contact between her and Annie. The
second respondent was appointed as curator ad litem for Annie. Annie's views throughout
the proceedings remained consistent; she did not want to reside with the appellant nor have
any contact with her. The matter proceeded to a diet of proof. By the time it began, Annie
was 15 years and 3 months old.
The sheriff's judgment
[3]
The sheriff made: (i) a residence order in favour of the first respondent in respect of
Annie; and (ii) a specific issue order providing that Annie shall continue to be enrolled at
her school for the remainder of her secondary education. She refused the appellant's craves
for residence and contact.
[4]
The sheriff noted that during the proceedings, a number of unsuccessful attempts
had been made to arrange contact between the appellant and Annie. The second respondent
was appointed in December 2020. At various times during the proceedings, the second
respondent, a social worker, and a psychologist met with Annie and sought to facilitate
contact. The first respondent and family members sought to persuade Annie to have
contact. Family mediation was attempted. A forensic and clinical psychologist was
appointed by the court in January 2022 who did not recommend the granting of a contact
order in favour of the appellant. By the time of the diet of proof, the appellant had not had
any contact with Annie for 3 years. The sheriff considered that she no longer had any
insight into Annie's needs. Annie had been clear and consistent in her view that she no
3
longer wished to live with her mother, nor have any contact with her. Annie had made
repeated allegations of being assaulted by the appellant. The appellant had made many
serious and false allegations against the first respondent and had sent emails and messages
to Annie, the first respondent's former partner, his family, friends and his employer in
highly derogatory terms. Annie reacted badly to the appellant's conduct and was protective
of the first respondent. The sheriff concluded that Annie's rejection of the appellant was as a
direct result of the appellant's behaviour towards Annie and that the appellant had no
insight into the inappropriateness of her behaviour. The sheriff considered there was a risk
of abusive behaviour towards Annie if she granted the appellant's craves for residence and
contact. Annie's needs were met while she was in the first respondent's care. Annie's
views, in light of her age, required to be accorded due weight.
Competency of appeal
[5]
The sheriff issued her interlocutor on 6 November 2023. Following further
procedure, she issued an interlocutor dealing with the expenses of process on 29 May 2024.
The appellant subsequently lodged this appeal on 31 May 2024. Annie turned 16 a few days
later in June 2024.
[6]
Both respondents referred a question about the competency of the appeal in terms of
Rule 6.9 of the Act of Sederunt (Sheriff Appeal Court Rules) 2021.
Submissions for the appellant
[7]
The appellant was assisted by the court to articulate her position on the competency
of the appeal and to clarify what orders she sought. Within her Note of Appeal, the
appellant invited this court to "order that additional proof be taken" for further evidence to
4
be heard and thereafter for the appeal to be considered. In oral submissions during the
hearing on competency, her position changed; she asked for the appeal to be allowed and
for the action to be remitted to a different sheriff for a new diet of proof.
[8]
The appellant did not accept that her parental rights and responsibilities expired on
Annie's 16th birthday. She submitted, without reference to any authority, that parental
rights and responsibilities could continue to be held by a parent in respect of an individual
between the age of 16 and 18 if the individual in question suffered from a disability. The
appellant contended that Annie had autism and was neurodivergent. She asserted that this
was supported by the evidence of three expert witnesses during the diet of proof.
Submissions for the first respondent
[9]
An order to regulate where a child is to live can only be made in respect of a child
who is under the age of 16 years: section 11(2)(c) of the 1995 Act. An order regulating the
arrangements for maintaining personal relations between a child and a person with whom
the child is not living can only be made in respect of a child under the age of 16 years:
section 11(2)(d) of the 1995 Act. Annie turned 16 in June 2024. The parental rights and
responsibilities of both parents were extinguished upon her 16th birthday.
[10]
Even if the appeal were to be allowed, no interlocutor could now be issued
regulating Annie's residence or with whom she had contact. She was of the age of legal
capacity. There was no matter existing which was a live issue between the parties. There
being no order that the sheriff could now grant, the appeal should be dismissed: Ainsbury v
Millington [1987] 1 WLR 379.
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Submissions for the second respondent
[11]
The second respondent adopted the first respondent's submission; the sheriff's
interlocutor ceased to have effect on Annie's 16th birthday.
[12]
To engage an appellate jurisdiction, an appeal must involve an issue in controversy
which is a live issue between the parties: Sun Life Assurance Co. of Canada v Jervis
[1944] AC 111. The parties must have an interest which is affected by the outcome: Ainsbury
(supra). Appeals which are academic between the parties should not be heard unless there is
a good reason in the public interest for doing so: R v Secretary of State for the Home
[13]
There is no longer any live issue. The orders made have lapsed. No new order can
be made in respect of Annie as she has attained the age of legal capacity. The appeal was,
accordingly, incompetent.
Decision
[14]
The orders made by the sheriff on 6 November 2023 are no longer extant; they are
unenforceable and ceased to have effect when Annie reached 16 years of age.
[15]
Parental responsibilities and rights enjoyed and exercised by parents in relation to a
child are set out in sections 1(1) and 2(1) of the Children (Scotland) Act 1995 ("the Act").
The effect of sections 1(2) and 2(7) which each define a "child" by reference to age, is that
save for the parental responsibility to provide guidance in terms of section 1(1)(b)(ii),
parental rights and responsibilities are extinguished when a child reaches the age of 16.
[16]
Orders may be sought in terms of section 11 of the Act in relation to parental rights
and responsibilities. The orders specified in section 11(2) generally either confer parental
rights and responsibilities upon those who do not hold them or restrict the exercise of those
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rights and responsibilities by those who do hold them. In terms of section 11(2)(c) the court
may make a residence order regulating with whom a child "under the age of sixteen years is
to live". In terms of section 11(2)(d), the court may make a contact order regulating the
arrangements for maintaining personal relations and direct contact "between a child under
that age" and a person with whom a child is not, or will not be living. Plainly, any residence
or contact orders granted by the court expire when a child reaches the age of 16. The court
cannot competently grant such orders after a child reaches 16. A specific issue order granted
in terms of section 11((2)(e) regulating a child's attendance at school, is an order restricting
the exercise by one parent of his or her parental right in terms of section 2(1)(d). It too is
exercisable only until a child reaches the age of 16 (section 2(7)).
[17]
This appeal was lodged a matter of days before Annie turned 16. The appeal was
competent when it was lodged. However, the appellant invites this court to allow her
appeal and either hear further evidence or remit the cause to a different sheriff for a new
diet of proof; she wishes to insist upon her craves for a residence and a contact order. The
orders the appellant seeks can no longer be competently granted by this court or by the
sheriff court. As Annie is now 16, neither the appellant, nor the first respondent have the
parental rights or responsibilities which the appellant seeks to assert or restrain.
Accordingly, this appeal falls to be dismissed, the orders sought being incompetent.
[18]
At one stage in her submissions, the appellant indicated that she merely sought recall
of the sheriff's interlocutor of 6 November 2023 and dismissal of the action. She later
changed her position. Recall and dismissal are orders which this court could competently
grant if satisfied that the sheriff had erred. However, having regard to Annie's age, there
can no longer be any live issue between the parties; it would be an improper use of judicial
time and parties' resources for this appeal to be entertained when there is no longer any
7
dispute to be resolved between the parties (Ainsbury v Millington (Note) [1987] 1 WLR 397;
Sun Life Assurance Co. of Canada v Jervis [1944] AC 111). As observed by Lord Brodie in JM v
Taylor 2015 SC 71 (at paragraph 36), "Litigation should have a purpose". Here, that purpose
ought to be to obtain orders which are necessary and in Annie's best interests. It is clear that
during the proceedings before the sheriff and before this court, the appellant had lost sight
of that purpose.
[19]
The action was raised in November 2020. Within a month of raising proceedings,
Annie had completed a Form 9 expressing her views, a curator ad litem and a psychologist
had been appointed. Various unsuccessful attempts at contact with the appellant were
made. The appellant's agent withdrew from acting in August 2021. A diet of proof was
assigned. That was discharged on the appellant's motion. The appellant insisted that Annie
should give evidence at the proof. The court ordered evidence on commission. That was
assigned for November 2022. The appellant then decided she did not wish Annie to give
evidence. The commission was discharged. By then the first respondent's circumstances
had changed and he had separated from his partner. Further enquiries into the
arrangements for Annie's care were considered necessary. The second diet of proof was
discharged. A diet of proof was then assigned for September 2023. The appellant found
conducting the proof as a party litigant challenging. She lodged 120 inventories of
productions. She sent over 7000 emails and messages to the clinical psychologist. She sent
thousands of messages to the respondents' agents and to the court staff. She requested
numerous reasonable adjustments and claimed she suffered from ADHD, was possibly
autistic and that she suffered from anxiety and PTSD. No medical vouching was provided.
Her behaviour towards those representing the respondents was such that they requested the
proof be conducted by remote means. The appellant opposed this on the basis that she had
8
issues with internet connectivity. A hybrid proof required to be arranged with the appellant
sitting in a separate room within the court building accompanied by a lay supporter, only
entering the court room to put questions to witnesses or make submissions. The appellant
insisted on calling witnesses and then either failed to elicit any evidence from them or asked
few questions of them.
[20]
The sheriff issued her decision in November 2023. A hearing on expenses was
assigned for 25 January 2024. The appellant lodged a medical certificate on 18 January 2024
stating that she was unfit to attend court. The hearing on expenses was discharged. The
first respondent indicated that he was prepared for the issue of expenses to be considered on
written submissions. The appellant sought a hearing but stated she was unable to attend
court for 3 months. She enrolled a motion for access to the recorded evidence of the hybrid
proof and insisted that the motion be determined before the hearing on expenses. She then
dropped her motion days before it was due to be heard. A hearing on expenses finally
proceeded on 2 May 2024. The sheriff issued a written decision on 29 May 2024 finding the
appellant liable to the first respondent in the expenses of the action. By the time of the
appeal, the appellant was subject to bail conditions not to approach or contact the curator ad
litem and various professionals involved in the proceedings.
[21]
Rather than seek the expeditious resolution of the sheriff court proceedings while
Annie was under the age of 16 by focussing on what was in Annie's best interests, the
appellant caused repeated unnecessary delays and unnecessary procedure. She used the
proceedings to make irrelevant accusations and allegations. She has behaved
inappropriately towards the professionals involved in these proceedings and has repeatedly
lodged unfounded complaints. She delayed a decision on the question of expenses by some
6 months during which no appeal could be lodged. She has sought to pursue an appeal, the
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outcome of which will be of no moment and the pursuit of which is futile. The appellant
bears a large measure of responsibility for the protracted nature of the first instance
proceedings and the late stage at which this appeal has been presented. The court has an
inherent power to prevent misuse of its procedure (Hunter v Chief Constable of the West
Midlands [1982] AC 529, per Lord Diplock at p536; Shetland Sea Farms Ltd v
Assuranceforeningen Skuld 2004 SLT 30). Such a power must be used sparingly; every litigant
must be afforded the opportunity to prosecute his or her case. Had the appellant insisted
only on recall and dismissal, having regard to the delays caused by her conduct of
proceedings at first instance and the futility of the appellate proceedings, the court, in
exercise of its inherent power to prevent misuse of its procedure, would have dismissed the
appeal.
[22]
The court was invited to grant the expenses of the appeal in favour of the
respondents. As a general principle, in certain family actions, questions of expenses do not
arise. The sheriff departed from that general principle in light of the appellant's conduct.
She had been correct to do so. As observed by Appeal Sheriff Cubie (as he then was) the
same considerations do not apply on appeal: F v M 2023 SCLR 630, at paragraph 40. The
appellant chose to appeal. She had been informed by those acting for the respondents that if
she insisted on her appeal, they would seek an award of expenses against her. The appellant
was aware of the futility of her appeal, having regard to Annie's age. The respondents are
entitled to their expenses.
Disposal
[23]
I shall refuse the appeal, the disposal sought by the appellant being incompetent.
The appellant is found liable to both respondents in the expenses of the appeal. The appeal
10
is sanctioned as suitable for the employment of the first respondent's solicitor advocate and
the second respondent's counsel.
