Scottish Sheriff Court Decisions

Ref A701/93

JUDGMENT OF SHERIFF A.L. STEWART, Q.C.

in causa

GRAEME ALAN ROBERTSON

against

PATRICIA HELEN HONEYMAN BAXTER

_______________________________

Act: S.J. Brand of Thorntons, W.S. Dundee

Alt: I.M. MacRae of Finlay MacRae, Solicitors, Dundee

Following a proof the pursuer was, on 3 November 1994, granted declarator of paternity of the parties' child, B. He was also granted custody of B. The defender appealed to the sheriff principal against the sheriff's interlocutor, and the appeal was refused on 18 August 1995. Meanwhile, on 24 November 1994 the sheriff had made an order in terms of Ordinary Cause Rule 95 (the equivalent under the 1983 Rules of the present Ordinary Cause Rule 31.10) finding the pursuer entitled to custody of B ad interim. The defender marked an appeal to the Court of Session from the sheriff principal's interlocutor. This appeal was sisted in November 1995 and has remained sisted since then. The process appears no longer to be with the Court of Session. There is a suggestion that it was returned to the sheriff clerk in Dundee, but there is no trace of it in the sheriff clerk's office. The defender has no intention of persisting with the appeal.

There has been a change in B's circumstances. She is now living with the defender. The pursuer is content that she should remain there. The defender now seeks to have the status quo given formal legal recognition. She has lodged a minute craving variation of the sheriff's interlocutor of 3 November 1994 by the making of a residence order in her favour. The pursuer has lodged answers to that minute. In his answers the pursuer does not seek to argue against B's remaining with the defender. He does, however, challenge the competency of the minute and questions the necessity of any residence order.

The case came before me today in order to determine further procedure. For the defender Mr Brand moved me to make an interim residence order and then to sist the case in order that the appeal in the Court of Session could be disposed of.

For the pursuer Mr MacRae submitted that, as the minute was incompetent I should not grant the defender's motion. He submitted further that, in any event, I had no power to make any order. Looking to the terms of the relevant Ordinary Cause Rule, any interim order should be made not by the sheriff but by the sheriff principal. In any event, there was no need to make any order as the pursuer had no intention of interfering with the status quo.

In my opinion, there is a good deal of force in Mr MacRae's submission that the defender's minute is incompetent. There is still an appeal pending before the Court of Session, albeit that the defender has no intention of pursuing that appeal. According to the strict rules of procedure as I understand them, the proper step for the defender to take would be to lodge a motion in the original process seeking an interim order under Rule 95. [Parties addressed me on the basis that the applicable rule was Rule 31.10 but that was erroneous as this is an "old rules" action, having been raised before the coming into force of the 1995 Rules. The matter is, however, academic as the wording of the relevant part of the two rules is identical.] This difficulty can, I think, be surmounted as Mr Brand did in fact orally make the motion for interim variation. In any event, I should be reluctant to be unduly constrained by the strict rules of procedure in a case involving a child's welfare. I was therefore prepared to treat Mr Brand's motion as competent notwithstanding the dubious status of his minute.

The relevant part of Rule 95 (and of Rule 31.10) reads:-

There is clear authority for the proposition that this includes questions of interim custody (Ellis v Macdonald 1980 S.L.T. 11). By analogy this must, in my opinion, apply also to questions of interim residence, the latter concept having, in broad terms, replaced custody. Mr MacRae argued forcefully that a correct reading of the rule meant that where a case had been appealed to the sheriff principal and thence to the Court of Session, any interim question had to be decided by the sheriff principal and not by the sheriff. Mr Brand submitted that the rule should not be so narrowly applied and that either the sheriff or the sheriff principal could rule on the question. While in Ellis the Court of Session had decided that the sheriff principal was the appropriate decision-maker, that case could be distinguished. In Ellis the sheriff principal had allowed the appeal against the sheriff's interlocutor. He had then granted interim custody. In the present case the sheriff principal had adhered to the sheriff's interlocutor. He invited me to decide the question.

In my opinion, the terms of Rule 95 (and hence of Rule 31.10) are sufficiently flexible to allow me to decide on the question of interim residence, notwithstanding that there is pending an appeal from the sheriff principal to the Court of Session. Although the appeal to the Court of Session is directly an appeal from the sheriff principal, it is indirectly an appeal from the sheriff. In this case the order sought to be varied ad interim was made by the sheriff and not by the sheriff principal. The sheriff principal made no order other than to refuse the appeal. While I accept that an application to the sheriff principal for interim variation would have been competent under Rule 95, I consider that the present motion to the sheriff is also competent and should be considered on its merits.

So far as the merits are concerned, Mr MacRae argued that there was no need for any interim variation. He prayed in aid section 11(7)(a) of the Children (Scotland) Act, which provides that a court should not make any order relating to inter alia residence unless it considers that it would be better for the child that the order be made than that none should be made. Mr MacRae pointed out that the pursuer accepted the status quo and had no intention of interfering with it. Mr Brand submitted that to leave the existing order for interim custody in force would be to continue giving legal effect to a position which no longer existed. In any event, there were still certain problems between the parties in respect of the pursuer's contact with B.

While I can see a certain force in Mr MacRae's submission, I consider that it is not appropriate to leave unchanged a court order which clearly does not reflect the true state of affairs. Had there been no order for interim custody in existence I should have been much more inclined to accept Mr MacRae's proposition that an interim residence order was unnecessary. However, there is an order for interim custody still extant and it would be illogical to let it remain. At this stage of proceedings and looking to the possible existence of problems about contact, I consider that an interim residence order is in the best interests of the child. Whether a residence order will at the end of the day require to be made could be a question to which a different answer may be given.

I have accordingly granted Mr Brand's motion for an interim residence order. As my interlocutor also sists proceedings as Mr Brand requested, there is no need for me to grant leave to appeal. However, I think it appropriate to state that, had leave been required, I should have granted it.