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ALLISON ELABY OR McEWEN v. ANGUS DEWSON McEWEN [2000] ScotSC 22 (25th August, 2000)

SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES AND GALLOWAY

D270/00

	JUDGMENT OF SHERIFF PRINCIPAL J C McINNES, QC
	in the cause
	ALLISON ELABY OR McEWEN
	Pursuer and Respondent
	ANGUS DEWSON McEWEN
	Defender and Appellant

Act: Farrell, Messrs Ballantyne & Copland

Alt: Mrs Christie, Messrs Ross Harper & Murphy

HAMILTON: 25 August 2000

The Sheriff Principal having resumed consideration of the appeal recalls the interim residence order and the interim order for delivery contained in the interlocutor of 18 May 2000; dismisses the action; finds the pursuer and respondent liable as an assisted person to the defender and appellant in the expenses of the appeal and of the action; on the motion of the agent for the pursuer and respondent modifies that liability to nil in terms of the Legal Aid (Scotland) Act 1986, section 18(2).

NOTE:

1. Introduction

1.1 The pursuer has raised this action by way of initial writ craving the court to make a residence order in her favour in respect of the daughter of the former marriage between herself and the defender. She also seeks an order for the delivery of their daughter and interdict (a) prohibiting the defender from removing her from the pursuer's care and (b) from interfering in any way with the pursuer's care of her daughter. After hearing agents for both parties on 18 May 2000 the Sheriff granted an interim residence order in favour of the pursuer and ordered the defender to deliver the child to the pursuer within 48 hours. He recalled the interim interdict which had been granted on 16 May interdicting the defender from removing the child from the Sheriffdom and made no further order for interim interdict. Following that order the child was returned to the pursuer and has lived with her since then. The defender has appealed.

1.2 Before the Sheriff, and on appeal, it was argued on behalf of the defender that, having regard to the terms of Ordinary Cause Rule 33.44, the action was incompetent and should be dismissed. The application should have been made by minute lodged in the divorce process.

1.3 Chapter 33, Part VI of the Ordinary Cause Rules ("OCR") deals with: "Applications and orders relating to children in certain actions.".

Rule 33.38 provides: "This part applies to an action of divorce or separation."

Rule 33.44(1) provides: "An application after final decree for, or for the variation or recall of, a section 11 order shall be made by minute in the process of the action to which the application relates."

Rule 33.44(2) provides that where such a minute has been lodged a party may apply by motion for interim orders.

1.4 The learned Sheriff has prepared a lengthy note in which he describes the submissions which were made to him and his reasons for doing what he did. It is not necessary to attempt to summarise the terms of that note here.

2. Submissions for the appellant

2.1 It was submitted that the present action was incompetent having regard to the terms of OCR 33.44 which was clear in its terms. The application should have been made by minute lodged in the divorce process, see Macphail: Sheriff Court Practice Second Edition at paragraph 22.58. The agent for the pursuer had not sought to persuade the Sheriff to exercise the dispensing power set out in OCR 2.1. The Sheriff did not require to consider whether to exercise that power because he had rejected the submission that the action was incompetent. It was apparent from his note that he felt that that power should have been exercised. If that had been an issue before the Sheriff it would have been submitted that the exercise of that power was inappropriate in this case. If the agent for the pursuer were to invite the court to exercise the dispensing power at this stage that would be opposed. The power should only be exercised in exceptional circumstances: see Macphail at paragraph 5.98. There was no need to exercise that power in the interests of justice in the present case. These proceedings had only just commenced. The competency point had been taken at the first opportunity. There would be no prejudice to either party nor to the child concerned if the competency point were to be upheld. It would be open to the pursuer to lodge a minute in the original process. A minute on behalf of the defender had been prepared the day before the motion was heard by the Sheriff. That minute could not be lodged because the present initial writ had been served on the defender. The defender wished to prevent the pursuer from removing his daughter from him. The pursuer could have obtained immediate legal aid to lodge a minute in the divorce action. Any delay would have been very slight. In any event there was no real urgency for this matter to have been dealt with in the way in which it was.

2.2 It was not reasonable to grant an interim residence order in favour of the pursuer on the basis of the competing allegations as to what was in the best interests of the child concerned. The Sheriff should not have made an interim residence order until he had sufficient material before him to enable him to make a proper assessment of where the child's best interests lay. He should have ordered a proof on that point.

2.3 If the action were to be dismissed as incompetent the residence order would fall but the pursuer would retain de facto custody of the child. In these circumstances the defender would seek an order for interim contact in terms of the minute which had been prepared on his behalf. The defender had had contact, albeit somewhat erratically, until 25 July 2000. Prior to that date the pursuer had insisted that such contact took place in her presence. For these reasons the action should be dismissed as incompetent.

3. Submissions for the respondent

3.1 No order in terms of the Children (Scotland) Act 1995 had been sought during the course of the divorce action. No such order was made on divorce. The pursuer had all along been the principal carer of the child. She was now aged five. Following upon divorce there had been contact by the defender. The present action had been raised following the failure of the defender to return the child after a period of contact. He had refused to return her, notwithstanding police involvement. In these circumstances the initial writ had been prepared as a matter of urgency and had been accepted by the Sheriff Clerk's office without any question of competency being raised. The Sheriff Clerk's staff were aware that this was a matter in relation to which divorce had been granted because a copy extract decree of divorce had been lodged as a production along with the initial writ. As the agent for the pursuer understood it, if no order in terms of section 11 of the Act had been made in the course of the divorce process, the practice of the court was to deal with any later applications for residence orders or contact orders by way of a new action. This was not an application to vary or to recall an existing order. It was an application for the first time for such an order. If it had been an application for variation or recall of an existing order it was accepted that such an application should be by way of minute lodged in the original process. It was accepted that that procedure would probably also be appropriate if the application was either for a specific issue order or for an interdict in terms of section 11(2)(f) of the Act. However, as the agent understood it, where the application would not involve displacing an existing order by variation or recall, it was open to either party to apply to the court by raising a new action. In any event one of the orders sought in the present action was for delivery of the child. Delivery was not covered by any part of section 11(2) of the Act.

3.2 There was prejudice to the pursuer and to the child in this case. The status quo had been that the child had lived with the pursuer from a time before the parties separated until shortly before this writ was lodged in court. The welfare of the child was referred to in the affidavits, letters and reports which had been lodged in process on behalf of the pursuer. These showed that, contrary to what had been suggested on the part of the defender, the child was well cared for by the pursuer. There was no competing evidence. The defender had compromised the child's nursery place by failing to take her there on days following overnight contact. The defender had retained his daughter until the Sheriff had made an order that he return her to the pursuer. The pursuer was now unwilling to allow unsupervised contact between the defender and his daughter because of the risk that he would retain her pending disposal of the appeal. On one occasion during a period of contact he had refused to leave the house. The child was crying. The police were called.

3.3 If need be the court should adopt the approach set out in Girvan v Girvan 1988 SCLR 493. The welfare of the child was the paramount consideration. Procedural and legal niceties should give way to common sense and reality. The present action should be allowed to proceed. If the court felt it appropriate to do so it should exercise the dispensing power in terms of OCR 2.1 to allow this action to proceed. The appeal should be refused.

4. Decision

4.1 The main issue is whether the court could competently make the orders sought by the pursuer in this action. If it cannot competently do so that is because, in accordance with our procedure, the application should have been made by minute lodged in the divorce action. Part I of the Family Law Act 1986 makes provision as to the jurisdiction of the courts in relation to "Part I orders", which include residence orders and orders for contact with a child: see section 1(1)(b). Section 11 of that Act provides that the jurisdiction of the court to entertain an application for a Part I order with respect to a child is excluded "if, on the date of the application, matrimonial proceedings are continuing in a court in any part of the United Kingdom in respect of the marriage of the parents of the child." Section 42(3) of the 1986 Act provides that for the purposes of Part I "matrimonial proceedings in a court in Scotland which has jurisdiction in those proceedings to make a Part I order with respect to a child shall, unless they have been dismissed or decree of absolvitor has been granted therein, be treated as continuing until the child concerned attains the age of 16". That is the statutory basis upon which OCR 33.44 has been enacted.

4.2 OCR 33.44 provides (see 1.3 above) that an application after final decree for a section 11 order shall be made by minute in the process of the action to which the application relates. That rule is in mandatory terms. It is clear from the wording of the rule that it relates not only to variation and recall of such orders but also to applications for such orders. It is implicit in the terminology of that rule that it applies to the situation where no order has been made in the course of an action of divorce. There is no proviso to that rule allowing exceptions from it. OCR 33.60 deals with applications for section 11 orders in family actions other than actions of divorce or separation. That rule and the following rules have no application to this case.

4.3 The next question is whether, as a consequence of decisions in other cases, the apparently mandatory terms of that rule have been modified with the result that the present application can nonetheless proceed. It may seem odd that if an application is incompetent it can be considered further, but on at least one view of some of the authorities that appears to be the position. The basis frequently cited for this logical curiosity is the case of Girvan v Girvan 1988 SLT 866, 1988 SCLR 493. In that case a mother was awarded custody of the child of her marriage in 1985 but on divorce in 1986 no order was made for either custody or access. Subsequently the father raised a new action by way of initial writ seeking an award of residential access to the child. Both parties were content for that issue to be decided in the context of that action. However, after some procedure had taken place, the Sheriff raised the issue whether the proceedings were competent and later decided that they were not and dismissed the action. The court, on appeal, took the view that the Sheriff should not have taken a technical, procedural view of the matter and should have dealt with the application on its merits. In short he should not have insisted that the only means whereby the merits could be determined was by a minute lodged in an earlier process. The opinion of the court delivered by Lord Grieve was that:

"The important point however is not the correct interpretation of rule 129, (the predecessor of Ordinary Cause Rule 33.44) but the welfare of the child, Ryan. In a case such as this, when the welfare of the child is the paramount consideration, procedural and legal niceties must give way to common sense and reality."

He went on to point out that both parties had been content to have the question of access to Ryan regulated in that process. He considered that the Sheriff should have acceded to their wishes in Ryan's interests. That case has been subject to criticism on a number of occasions: see e.g. Wilson v Hislop 1992 SCLR 185, Fisher v Fisher 1993 SCLR 39 and the commentary thereon and Sangeelee v Smith 1997 SCLR 977. The opinion of the court in Girvan has been relied upon by appellants in many subsequent cases in an attempt to persuade the court to ignore the fact that what has happened is technically incompetent. There are circumstances in which the interests of children should have priority over the prescribed procedure which has not been followed. That will particularly be so in circumstances in which there is an emergency or where an action has been in progress for a considerable time and interim orders have been made without any objection to the competency of the procedure thus far: see Fisher supra at page 42. But as Sheriff Principal Maguire put it in McCulloch v Riach & Sumpter 1999 SCLR 159 at 162,

"That case (Girvan) is not an authority for disregarding procedural matters but rather that at the end of the day a court has to take a common sense and pragmatic approach in dealing with the welfare of children."

In Wilson v Hislop, supra Sheriff Smith said:

"I cannot think that the Court of Session intended that, if a point of competency was properly pleaded and argued in debate, the judge should disregard the point "as a procedural or legal nicety"."

4.4 Most of the cases which have been referred to, apart from Girvan, involved an application to vary an order which had been made earlier. The reason for that, in part, is that Rule 129 of the old Ordinary Cause Rules required that the application be by minute whether it was for variation or for recall of such an order. That Rule did not apply to the situation where there had been no order made on divorce. OCR 33.44 applies not only to applications for variation or recall but to applications for an order where none has been made previously. The new Rule does not distinguish procedurally between applications for orders and applications to vary or recall existing orders. This action has been raised in the same court as the action in which the parties were divorced. There is no inherent difficulty for the pursuer in lodging a minute in the divorce action. It was said that, if need be, her agent could obtain self-certified legal aid for that purpose. Lodging a minute need not cause significant delay. The parties both reside within the jurisdiction of this court. The competency point has been taken at the earliest possible moment. In my opinion the circumstances to which the approach in the case of Girvan might be applied do not arise in this case. Accordingly in my opinion this action appears prima facie to be incompetent insofar as the pursuer seeks orders in terms of section 11 of the Children (Scotland) Act 1995.

4.5 The remaining question is whether this action is nonetheless competent because it is necessary to raise an action in this form by reason of the other orders which are sought.

4.6 The pursuer asks the court to ordain the defender to deliver their daughter to her. Section 17 of the Family Law Act 1986 makes provision as regards jurisdiction in respect of orders for delivery of a child in circumstances in which the order is not sought to implement a Part I order. It is implicit that, where such an order is sought to implement a Part I order the basis of jurisdiction, so far as delivery is concerned, would be the same as the basis of jurisdiction for a Part I order, such as an order for residence or contact. That approach is, in my opinion, echoed in section 11(2) of the Children (Scotland) Act 1995. Section 11(2) provides, in part, as follows:

"The court may ... make any of the following orders -

an order regulating the arrangments as to -

(i) with whom; or

(ii) if with different persons alternatively or periodically, with whom during what periods, a child under the age of sixteen is to live ... ;

(e) an order regulating any specific question which has arisen, or may arise in connection with any of the matters mentioned in paragraphs (a) to (d) of sub-section (1) of this section ... ;

(f) an interdict prohibiting the taking of any step of a kind specified in the interdict in the fulfilment of parental responsibilities or the exercise of parental rights relating to a child ... :"

Section 11(1), so far as relevant to this case, provides that an order may be made under that sub-section in relation to parental responsibilities and parental rights. That section should not be construed narrowly if the effect of such a construction would lead to undue complexity or avoidable delay and expense in the determination of issues affecting the care of children.

4.7 In my opinion section 11(2)(c) permits the court to regulate the arrangements as to the person with whom a child is to live by, for example, making an order for delivery of that child by one person having parental rights and responsibilities to another such person. Such an order may specify the time of delivery. If I am wrong about that section 11(2)(e) entitles the court to make specific issue orders. In my opinion that sub-section is sufficiently widely drafted to enable the court to make an order for delivery or to give directions as to the travel arrangements which are to be made to enable delivery to take place: see Wilkinson and Norrie: Parent and Child, second edition par 9.65. If section 11 is not wide enough to include orders as to the arrangeents for the delivery of children from one party to the other, OCR 33.44 would not apply to delivery. That issue would require to be determined separately, in the context of a new ordinary action in the court having jurisdiction to deal with that matter. It is obvious that that possibility should be avoided if it can be. So far as the interdicts sought by the pursuer in this action are concerned it was more or less accepted that they would fall within the terms of section 11(2)(f). In these circumstances, in my opinion, the orders which the pursuer seeks in this action are all properly to be regarded as section 11 orders. That being so: (a) the provisions of OCR 33.44 apply to all the orders sought by her; (b) the present action and the interim orders made so far are incompetent; (c) the principles enunciated in the case of Girvan do not apply to this case; and (d) the pursuer must seek such orders by way of a minute lodged in the divorce process.

4.8 For these reasons I am of opinion that the Sheriff should not have made the interim orders which he did on 18 May 2000. I have accordingly recalled those orders. The agent for the defender moved the court to dismiss the action as incompetent. After discussion it was accepted by the agent for the pursuer that that would be the appropriate course of action if the appeal were to succeed on the basis that the action and the interim orders were incompetent.

4.9 In the course of the appeal the agent for the defender briefly argued that the learned Sheriff had arrived at the wrong conclusion on the merits of the motion for an interim residence order. In view of the foregoing decision it is neither necessary nor proper to consider that aspect of the case. Had it been necessary to consider that matter my only comment is that there was before the Sheriff a great deal of material which had been lodged on behalf of the pursuer. That material appears to support the conclusion at which the Sheriff arrived. It would have been difficult, in the absence of contrary material from the defender, to conclude that his decision, made in the exercise of his discretion, was wrong and should be overturned.

5. Expenses

5.1 The agent for the defender moved the court to find the pursuer liable in the expenses of both the appeal and the action itself. The motion for the pursuer to have her liability for expenses modified to nil was not opposed.