Scottish Sheriff Court Decisions

JUDGMENT OF SHERIFF PRINCIPAL

R A DUNLOP QC

in the cause

RONALD THOMAS ROBB

against

KATHLEEN ELIZABETH CORD GILLAN

__________________

Act: Mr Macrae, Solicitor, Dundee

Alt: Ms Fraser, Solicitor, Dundee

DUNDEE, 20 September 2004. The Sheriff Principal, having resumed consideration of the cause, refuses the appeal and adheres to the sheriff's interlocutor of 11 May 2004 complained of; finds the defender and appellant liable to the pursuer and respondent in the expenses of the appeal; allows an account thereof to be given in and remits the same, when lodged, to the auditor of court to tax and report.

[1] This is an appeal against the sheriff's refusal of a minute lodged in a family action on the grounds that it was incompetent. The initial writ in that action sought a declarator of paternity of two children, a residence order in respect of each child and an order imposing upon the pursuer all parental responsibilities and giving to him all parental rights as provided for in sections 1, 2 and 11 of the Children (Scotland) Act 1995 (hereinafter referred to as "the 1995 Act"). The pursuer's claim for residence proceeded upon the narrative that the parties were formerly in a relationship and that that relationship ended on 23 May 2003 since which time the children had resided with the pursuer.

[2] A notice of intention to defend was lodged whereupon the usual timetable for defences, adjustment and an options hearing was set. On 10 June 2003 the pursuer was granted an interim residence order and it seems that an arrangement for contact by the defender was then in operation. By interlocutor of 1 August 2003 the court dispensed with the requirement to lodge defences meantime and sisted the cause to enable the defender to apply for legal aid.

[3] On 16 September 2003 the solicitor for the defender withdrew from acting and by interlocutor of 24 September 2003 a peremptory diet was fixed for 28 October 2003. On that date the defender failed to appear or be represented and accordingly the sheriff allowed the cause to proceed as undefended and allowed proof by way of affidavit evidence. He clearly did so in reliance upon OCR 33.37(2)(a), which makes special provision for actions of this nature in circumstances in which a party is in default.

[4] Thereafter nothing apparently happened until a minute for decree was lodged on 23 April 2004 craving decree in terms of craves 1, 2 and 3 of the initial writ. On 6 May 2004, before any consideration had been given to the minute for decree, the defender lodged a minute (no 10 of process) in which she sought an order allowing her "to re-enter the process as defender" and to fix dates for the lodging of defences, an options hearing and a child welfare hearing. In her statement of facts the defender avers that she did not appear at the peremptory diet on 28 October 2003 because at that time the parties had reconciled, but that on 24 April 2004 the parties had again separated. There is then the bald and uninformative statement that the "minuter now requires to seek orders in connection with the parties' children."

[5] When the minute was considered by the sheriff on 11 May 2004 the solicitor for the minuter explained that what the minuter intended to seek was an order for contact. However there appears to have been no further elaboration of the statement of facts.

[6] The sheriff took the view that the minute was incompetent standing the interlocutor of
28 October 2003, which had allowed the cause to proceed as undefended and which had not been appealed. He observed that no authority had been offered for the proposition that, once a defended action had become undefended, nonetheless a defender could seek to re-enter the process at any time prior to decree being granted. Accordingly he refused the minute and it is against that interlocutor that this appeal is now brought.

[7] I regret to say that in certain respects the arguments set out in the note of appeal are not easy to follow. One such argument is the suggestion that the sheriff ought to have exercised his discretion in terms of OCR 33.37(4), a suggestion which seems to me wholly misconceived in a situation in which an interlocutor in reliance upon OCR 33.37(2) had already been pronounced. Of more fundamental significance is the fact that it fails to address at all the basis upon which the minute was refused. It argues that the sheriff exercised his discretion wrongly but, as the sheriff points out, it is clear that he was determining the issue on the grounds of competency and accordingly never got to the stage of exercising any discretion.

[8] Notwithstanding this omission, the solicitor for the appellant sought to persuade me that the sheriff was wrong on the question of competency. The solicitor for the respondent also addressed that issue. It is not entirely clear whether she was taking her stand on the absence of notice in the note of appeal, but in light of my decision that is perhaps no longer of significance.

[9] The argument on behalf of the appellant was founded upon the assumption that, if the minute was incompetent, there were no means by which the defender could seek an order in relation to the children. It was submitted that there had been a change of circumstances since October 2003 and there ought to be some means of allowing the defender a remedy in such circumstances. Reference was made to Horton v Horton 1992 SCLR 197, which in turn made reference to Milne v Milne 1987 SLT 45. In the latter case the issue was whether a party could withdraw unilaterally from a joint minute as regards financial provision. In holding that he could not Lord Kincraig nevertheless expressed the view that the position was different where the court had a duty in relation to the interests of other parties, such as children of the marriage. In such circumstances no agreement between the parties could relieve the court of its obligation to be satisfied as to the arrangements for their care and upbringing. It was submitted that there was no difference between a case that was allowed to proceed as undefended because of the terms of a joint minute and one in which the action was proceeding as undefended because the defender was in default. Accordingly the approach taken in Milne was one which should apply in the present case. For the sake of completeness reference was also made to Anderson v Anderson 1989 SCLR 475 which in my view added nothing to this argument.

[10] In reply the solicitor for the respondent submitted that there was a remedy open to the defender and that was to be found in the provisions of OCR 33.63. The fundamental premise of the appellant's argument was accordingly false.

[11] In approaching this issue I recognise at once that the court is here dealing with a process in which the welfare of the children in question is the paramount consideration. Throughout the proceedings, whether defended or not, the court has a duty to decide what is conducive to the welfare of the children and may make an order in terms of section 11 of the 1995 Act whether or not an application has been made by any party for such an order (see 1995 Act s.11(3)(a) and White v White 2001 SC 689). I have no difficulty therefore with the notion that there ought to be some means by which a party can bring to the attention of the court changed circumstances that are relevant to the best interests of a child. It does not follow however that the court should in such circumstances permit the clock to be wound back to a time before the defender was found to be in default and that is more obviously so in those actions in which there are other craves in addition to those relating to parental rights and responsibilities.

[12] The appellant's argument seems to me wholly dependant upon the absence of any means of bringing to the attention of the court the change of circumstances alleged to exist in relation to the position of the children. In my view however the provisions of OCR 33.63 provide such means in relation to an action of this type still depending before the court and OCR 33.65 the means once decree has been granted. OCR 33.63 provides as follows:

1. by a party to the action, by motion; or
2. by a person who is not a party to the action, by minute."

[13] It is not directly relevant to this appeal to consider whether or not the appellant is to be seen as a party to the action. I am inclined to think however that, in the context of an action which has been allowed to proceed as undefended, she no longer is a party to the action and should proceed by way of minute. It should be noted of course that an application under OCR 33.63 relates to an interim order only and it might be said that this remedy falls somewhat short of being able to participate fully in an action. It nevertheless serves to bring to the attention of the court any circumstances relevant to the best interests of the children and, as I have already noted, the court has a duty to decide what is conducive to the children's welfare regardless of whether a section 11 order has been sought by any party. It will be for the sheriff to decide what information he or she requires in order to carry out that duty and how that information is to be obtained.

[14] In the present case the appellant's minute is not of this character. It says nothing about why it is in the best interests of the children that any order should be made in relation to them. Instead it is directed to seeking an order allowing the defender back into the action as a defender and to lodge defences. It is plain that, had he allowed such a course of action, the sheriff would effectively have been reviewing the interlocutor of 28 October 2003, thereby assuming powers which are properly available only to an appellate court in an appeal against the granting of the decree by default that was implicit in that interlocutor. In my view the sheriff was correct in thinking that that was incompetent.

[15] The sheriff has alluded to the fact that the solicitor for the defender/minuter had been unable to advance any authority in support of his proposition that once a defended action had been ordered by the court to become undefended, whether by agreement or by default, nonetheless a defender could seek to re-enter the process so that it became again a defended action. In my view neither Horton v Horton or Milne v Milne make good that deficiency. At best for the appellant they endorse the relevance of the sort of considerations that I have referred to in paragraph [11], but they do not address the procedural means by which effect is given to such considerations nor the relationship of such means to the provisions of OCR 33.37 and the fact that the defender has been found to be in default. If in his discretion the sheriff considers that the appellant has information relevant to the welfare of the children it is not a pre-requisite for the investigation of that information that the appellant be allowed to re-enter the process as defender or that the action should be restored to the position in which it was prior to the default. While no other authority was referred to, I am comforted to discover that the conclusion that I have reached in support of the sheriff's reasoning is substantially in line with Black v Black, an unreported decision of Sheriff Principal Nicholson dated 21 August 1995 (referred to in 1995 GWD 33-1713).

[16] The difficulty that has confronted the defender in this case is largely attributable to the extended period of time that has elapsed between the interlocutor allowing the action to proceed as undefended and the lodging of the minute for decree. That may distinguish the circumstances of this case from those which might ordinarily be expected to exist, but it does not in my view undermine the applicability of the general principles that I have set out above. In these circumstances I shall refuse the appeal. It will be for the appellant to consider whether to rely now on the provisions of OCR 33.63 or whether to lodge a minute in terms of OCR 33.65 once decree has been granted, if it is.

[17] Parties were agreed that expenses should follow success and that the legally aided position of the parties could be considered in a motion for modification of those expenses if appropriate.