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Cite as: [2005] ScotSC 4

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SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT KIRKWALL

A56/00

		JUDGEMENT of SHERIFF PRINCIPAL SIR STEPHEN S T YOUNG Bt QC
		in the cause
		NEIL GRAHAM THAIN
		Pursuer and Respondent
		against
		ALISON GAIL McCAFFERTY or THAIN
		Defender and Appellant

Act: Miss Georgette Herd, solicitor, Kirkwall

Alt: Mr W G Sutherland, solicitor, Kirkwall

Kirkwall: 18 January 2005

The sheriff principal, having resumed consideration of the cause, remits the same to Sheriff Colin Scott Mackenzie to prepare within four weeks of today's date a supplementary note (a) making findings in fact and law in support of that part of his interlocutor of 8 October 2004 which is quoted in paragraph [10] of the ensuing note, and (b) appending to these findings a note setting out the reasons for his decision; appoints parties to be heard further on the appeal on a date to be hereafter fixed; finds no expenses due to or by either party in respect of the hearing of the appeal on 21 December 2004.

Note

[1] In this case the parties were formerly married. They have two children, namely Callum who was born on 30 May 1992 and Julia who was born on 15 May 1998. On 31 May 2000 the pursuer (and respondent in this appeal) raised an action of divorce against the defender (and appellant). He also sought certain orders in relation to the two children. The action was defended and the appellant likewise sought orders in relation to the children. Eventually, by interlocutor dated 24 October 2001, the sheriff interponed authority to a joint minute for the parties and in terms thereof granted residence orders to the effect that Callum should live with the pursuer and Julia should live with the defender. The sheriff also ordered that the pursuer should have contact with Julia at certain specified times and that the defender should likewise have contact with Callum at certain specified times. Thereafter the sheriff allowed the cause to proceed as undefended by way of affidavit evidence, and by interlocutor dated 17 January 2002 he granted decree of divorce in favour of the pursuer.

[2] On 22 November 2002 a minute of variation was lodged in court on behalf of the pursuer in terms of which he sought, inter alia, a residence order to the effect that Julia should thereafter live with him. On 16 December 2002 answers were lodged on behalf of the defender in terms of which she opposed the residence order sought by the pursuer and asked the court to restrict the contact which he then had with Julia.

[3] By interlocutor dated 14 January 2003 Sheriff Mackenzie, inter alia, appointed the pursuer to obtain a social work report and assigned 6 May 2003 as a child welfare hearing. This hearing duly took place before Sheriff McSherry who, in addition to dealing with various matters which are not now of concern, on the motion of the pursuer continued the cause to what is described in the interlocutor as "an evidential child welfare hearing" on 12 August 2003. It appears that this expression simply means a proof, which of course the sheriff had power to order in terms of rule 33.22A(4) of the Ordinary Cause Rules.

[4] On 12 August 2003 (and at all subsequent hearings with which this appeal is concerned) Sheriff Mackenzie presided. There was evidently insufficient time available to deal with this particular case and the sheriff ex proprio motu discharged the hearing and assigned 23 September 2003 as a fresh diet.

[5] On 9 September 2003 on the motion of the pursuer the sheriff discharged the evidential child welfare hearing which had been fixed for 23 September 2003 and in place of it assigned 4 November 2003. But on 23 October 2003, again on the motion of the pursuer (which was opposed) the diet assigned for 4 November 2003 was discharged and in place of this the sheriff assigned 16 December 2003 as a diet for the evidential child welfare hearing.

[6] At this point it should be noted that Sheriff Mackenzie was due to retire on 31 December 2003. According to the note which he subsequently wrote on 14 October 2004, the sheriff had asked the parties if they could provide him with sufficient information to allow him to conduct the child welfare hearing but the appellant demanded that parole evidence should be heard in the first place. Referring to the hearing on 16 December 2003, the sheriff records in his note that he made it quite clear that he was retiring at the end of that month and that all parole evidence would have to be concluded at that sitting. In the event the hearing did not conclude until 7.00 pm that day by which time evidence had been heard from both parties and various other witnesses. It was apparently indicated to the sheriff that, in addition to the evidence which had already been led, the pursuer wished to lodge affidavits from various social workers. According to his note, the sheriff understood that the defender " perhaps also intended to lodge further affidavit evidence by way of response". The sheriff continues: "I therefore asked both parties if they would consider lodging written submissions so that I could as soon as the affidavits were lodged come to a conclusion in this long drawn out matter. I rose from the bench under the belief that that had been agreed after the parole evidence had been concluded, all in accord with the intention expressed before we commenced the hearing".

[7] Among the interlocutors there is an unsigned interlocutor dated 16 December 2003 which records that the parties had agreed to lodge further evidence by way of affidavits and in addition written submissions on all the evidence led, and concludes:

Ordains parties to lodge their affidavits and written submissions as soon as is practicably possible, and when received, the affidavits, written submissions and the whole process are to be sent to the sheriff for his consideration and determination.

[8] I am unable to say from the papers before me whether an interlocutor in these terms was ever actually signed by the sheriff. It may be said that the procedure which had been adopted to bring the matter to a conclusion was, to say the least, unorthodox. At all events, many months appear to have gone by without any further movement in the court towards a resolution of the matter. Eventually affidavits by the pursuer's present wife and three social workers were lodged along with written submissions for the pursuer. Unfortunately the date upon this was done has not been recorded either on the documents themselves or in the inventory of process. But there is a letter in the process from the pursuer's solicitor to the sheriff clerk which bears to have enclosed these documents and which is stamped as having been received by the sheriff clerk on 7 July 2004. This letter is dated 6 July 2004 and with it there are a letter to the sheriff clerk from the defender's solicitor dated 8 July 2004 and a further letter from the pursuer's solicitor to the sheriff clerk dated 3 August 2004. Of these three letters all that needs to be said now is that it is evident that by that stage there was a good deal of confusion in the minds of all concerned as to how the matter was to be brought to a conclusion. All three letters are now attached to a motion on behalf of the pursuer (no. 36 of process) which was dated 3 August 2004 and which invited the court to fix a child welfare hearing. The date of receipt of this motion by the court has not been recorded, but it was evidently not opposed and by interlocutor dated 26 August 2004 the court assigned 15 September 2004 as a child welfare hearing.

[9] Sheriff Mackenzie duly presided at the hearing on 15 September 2004. According to his note, there was evidently a difference among the parties as to what should happen next. The upshot was that, on the motion of the defender, the sheriff pronounced an interlocutor continuing the cause to an evidential child welfare hearing on 8 October 2004. This interlocutor concludes with the words: "On joint motion, dispenses with the presence of a shorthand writer for the evidential hearing". (This is the first reference in the interlocutors to the court dispensing with the recording of evidence. The significance of this will become apparent shortly).

[10] The hearing on 8 October 2004 duly took place. According to the sheriff's note, three social workers were all cross-examined at length and re-examined on the contents of their reports. The pursuer's solicitor apparently did not want to add much to her written submissions and the sheriff then heard from the defender's solicitor. He thereafter proceeded at once to pronounce a final interlocutor disposing of the matter. For present purposes the material part of this interlocutor reads as follows:

The sheriff, having heard further evidence, makes a residential order in respect of the child Julia Catherine Thain a child of the marriage between the parties under the age of 16 years whereby the child is to live with the pursuer/minuter, the changeover to take place on Saturday 16 October 2004 at a time suitable to parties; makes a contact order in respect of said child whereby the defender/respondent is to have contact with the said child each alternate weekend from Friday at 6.00 pm until Sunday at 4.00 pm and on alternate Sundays from 2.00 pm to 8.00 pm and for residential contact each year for a total of six weeks on such times and dates to be agreed between the parties, such contact to include Christmas Day each alternate year commencing this year.

[11] It should perhaps be explained that the sheriff had been appointed a part-time sheriff following his retirement as the resident sheriff at this court. He had evidently made it clear to parties that, if the evidence and submissions were not concluded by 8 October 2004, he would not be available for any continuation until January 2005 (since he was about to leave for an extended break in the Antipodes). It was no doubt with his forthcoming departure in mind that the sheriff, it may be said commendably, thought it appropriate to give a decision in this matter at the conclusion of the hearing on 8 October 2004. But in so doing he appears to have overlooked the provisions of rule 12.2(3) of the Ordinary Cause Rules which provides:

(3) In any cause, other than a family action within the meaning of rule 33.1(1) which has proceeded as undefended, where at any stage evidence has been led, the sheriff shall -

(a) in the interlocutor, make findings in fact and law; and

(b) append to that interlocutor a note setting out the reasons for his decision.

Notwithstanding that evidence had been led on 16 December 2003 and again on 8 October 2004, the sheriff's interlocutor dated 8 October 2004 contains no findings in fact or in law, nor does it have appended to it a note setting out the reasons for his decision. (It is true of course that the cause had proceeded as undefended at an earlier stage in the proceedings, but that stage had been completed when decree of divorce was pronounced on 17 January 2002).

[12] The defender was evidently dissatisfied with that part of the sheriff's interlocutor which I have just quoted in terms of which, in particular, he ordered that Julia should thereafter live with the pursuer. On 14 October 2004 a note of appeal by the defender was lodged in court. The grounds of appeal were stated as follows:

That the sheriff erred in fact by agreeing to grant the first crave of the Pursuer/Minuter's Minute to Vary (altering Julia Catherine Thain's place of residence) without adequate reason, without attaching sufficient weight to the evidence led by the Defender/Respondent from Gill Cooke, Health Visitor, and Hilary Morrell, Head Teacher, and by attaching undue weight to the evidence of Anthony Jervis, Social Worker, and Alistair Muir, Social Worker, despite it having been admitted on record that some of the evidence of said Anthony Jervis was hearsay evidence, the accuracy of which had not been investigated by Mr Jervis and despite the said Alistair Muir, by his own admission, having had no involvement with the parties or their children since 2002, that no proper account was taken of the likely effect on the said Julia Catherine Thain of such a variation being granted, which considerations jointly and severally render the sheriff's decision to grant the variation aforesaid as unsound.

[13] In response to this note of appeal the sheriff, on the eve of his departure, was good enough to prepare his note dated 14 October 2004 to which I have already referred. It appears from what he says that he was handicapped in preparing it, not only by the lack of time available to him before his departure, but also by his not having had to hand a copy of the Ordinary Cause Rules. The note speaks for itself, and it is unnecessary to set it out at length here. For reasons that will become apparent shortly, I think that I ought not to say too much about it at the moment.

[14] For the sake of completeness, I should record that on 15 October 2004 a motion was lodged on behalf of the defender in which she invited the court to suspend obedience to the interlocutor pronounced on 8 October 2004 with immediate effect pending the outcome of the appeal. In Sheriff Mackenzie's absence, this motion was heard, and refused, by Sheriff Napier on 2 November 2004. No appeal has been taken against this decision.

[15] Opening the appeal, the defender's solicitor stated that he did not maintain that the sheriff had not had authority on 8 October 2004 to reach a final decision in relation to the pursuer's minute of variation. But he indicated that the defender was in difficulty in challenging the sheriff's decision in the absence of any record of the evidence which had been led on 16 December 2003 and again on 8 October 2004. He referred to Hartnett v Hartnett 1997 SCLR 525 and submitted, as I understood him, that the sheriff's interlocutor of 8 October 2004 should be recalled upon the basis that the evidence had not been recorded. He acknowledged that, when the pursuer had originally asked for an evidential child welfare hearing in relation to his minute of variation, a motion had been made on his behalf that the attendance of a shorthand writer at the hearing should be excused. He conceded that he had not objected to this motion at the time. He referred here to the terms of article 3 of the pursuer's minute of variation which he said was in short compass and alleged that there had been difficulties over the defender's contact with the children and further that she had materially neglected Julia. The defender's solicitor explained that, when the motion had been made on behalf of the pursuer to dispense with the attendance of a shorthand writer, he had indicated that he would have no difficulty with this since he had anticipated that the evidence would be confined to the matters raised in article 3 of the minute of variation and would not involve a rehearsal of the parties' lengthy history. When the case had been called on 12 August 2003 for the first evidential child welfare hearing the pursuer had been present but no other witnesses had been cited to attend on his behalf. At some stage between 4 November 2003 and 16 December 2003 the pursuer's solicitor had intimated a witness list which contained two additional witnesses to those named on her original list. It had then become apparent to him (the defender's solicitor) that the scope of the evidence which the pursuer was likely to lead was wider than that which might have been anticipated in light of the terms of article 3 of his minute of variation. He recollected having indicated to the sheriff at one of the hearings prior to 16 December 2003 that he felt that it would be more appropriate to proceed by way of a proof and that the pursuer was attempting to take a short cut in asking for a child welfare hearing. In retrospect this had been a matter which had required two days of proof and submissions and had not been what he (the defender's solicitor) had anticipated prior to August 2003 when the original evidential child welfare hearing had been fixed. The effect of hearing the evidence in the absence of a shorthand writer was that the defender had been deprived of any right of appeal in relation to the facts found by the sheriff. Accordingly the sheriff's interlocutor should be recalled and the cause remitted to another sheriff to proceed as accords (by which I understood the defender's solicitor to mean that the evidence should be heard all over again).

[16] In response, the pursuer's solicitor proposed that this first submission on behalf of the defender should be rejected, the matter having proceeded, without objection from the defender's solicitor, upon the basis that the recording of evidence should be dispensed with. There had been a number of child welfare hearings in this case and, had it been felt at any stage that the procedure was no longer appropriate, the defender could have asked that the evidence should be recorded. But this point had never been taken.

[17] It is interesting to notice that there is no hint in the defender's note of appeal that it was to be suggested on her behalf that the sheriff's interlocutor of 8 October 2004 should be recalled upon the basis that no record had been made of the evidence heard by the sheriff. Had this point been taken by the pursuer's solicitor at the appeal, I should have had no difficulty in rejecting without further ado the defender's complaint that the evidence had not been recorded. As it is, it is to be observed that the sheriff recorded on the second page of his note that at some stage before the hearing on 16 December 2003: "I made it quite clear that I was retiring at the end of that month and that all parole evidence would have to be concluded at that sitting. The parties both asked that the recording of the evidence be dispensed with ....." The defender's solicitor did not seek to challenge this passage in the sheriff's note in the course of his submissions, and in the circumstances I think that I must proceed upon the basis that what the sheriff said here was correct. In any event, as already indicated, the defender's solicitor conceded that he had not objected to the pursuer's motion that the attendance of a shorthand writer should be excused and had stated that he would have no difficulty with there being no formal record of the evidence. Against this background, he cannot in my opinion now be heard to complain that no record was made of the evidence led on 16 December 2003. As for the hearing on 8 October 2004, I have already noted (in paragraph [9] above) that the interlocutor of the sheriff dated 15 September 2004 concluded with the words: "On joint motion, dispenses with the presence of a shorthand writer for the evidential hearing." At no stage during his submissions did the defender's solicitor challenge this part of the sheriff's interlocutor, and so once again he cannot in my opinion be heard to complain that no record was made of the evidence led on 8 October 2004.

[18] In expressing these conclusions I do not feel myself embarrassed by anything that was said by my predecessor, Sheriff Principal Risk QC, in Hartnett v Hartnett since in that case, in contrast to the present case, it is clear that there was no agreement among the parties to dispense with the recording of evidence. Thus at page 531A Sheriff Principal Risk noted: "Had the sheriff raised the matter in the presence of both parties, they might have agreed to dispense with the recording of evidence, in which case they would impliedly have agreed to a restriction on the scope of any appeal. That, however, did not happen." In the present case, by agreeing to dispense with the recording of evidence, the defender did indeed impliedly agree to a restriction on the scope of any appeal against the interlocutor of the sheriff dated 8 October 2004.

[19] The defender's solicitor proceeded in the second place to challenge the manner in which the sheriff had reached his decision on 8 October 2004. In fairness to the sheriff, he acknowledged that he had been attempting to bring the case to a conclusion. But in so doing he had given his decision orally at the end of the hearing and had stated that the case had been a long drawn out one and that many factors had had to be taken into consideration which he did not intend to go into there and then as he did not wish his decision to be delayed any further. He had then pronounced his decision which had been incorporated in his interlocutor dated 8 October 2004. This had been unhelpful in that it had not incorporated any findings in fact. This compounded his (the defender's solicitor's) difficulty in composing an intelligible appeal on behalf of the defender. For this reason too the sheriff's interlocutor of 8 October 2004 should be recalled and the cause remitted to another sheriff to proceed as accords.

[20] I had anticipated that the defender's solicitor would found upon the terms of rule 12.2(3) which I have quoted in paragraph [11] above. When it appeared from his submissions that he had overlooked this rule, I thought it right in the circumstances to draw his attention to it. He then relied upon it to reinforce his submission as to the deficiencies in the sheriff's interlocutor of 8 October 2004.

[21] In response, the pursuer's solicitor drew attention to the terms of the sheriff's note dated 14 October 2004 in which he had made certain findings in fact. She submitted that there was enough in this note, when read in conjunction with his interlocutor, to demonstrate that the sheriff had properly addressed the provisions of section 11 of the Children (Scotland) Act 1995, and in particular section 11(7), had properly considered too the evidence which he had heard and had applied the correct legal tests. There was nothing to indicate that he had erred in law in reaching his decision or that his decision had been one which he had not been entitled to reach or had been one that no reasonable sheriff could have reached in light of the evidence which had been led. In these circumstances the appeal should be refused and the sheriff's interlocutor allowed to stand. At the same time it had to be acknowledged that the sheriff's interlocutor did contain defects in light of rule 12.2(3) and an alternative course therefore would be to remit the cause to the sheriff to prepare a fresh interlocutor and note in terms of rule 12.2(3).

[22] If I had thought that the cumulative effect of the sheriff's interlocutor of 8 October 2004 and his note of 14 October 2004 had been to satisfy the substance of rule 12.2(3), if not in the precise form stipulated by this rule, then I think that I should have been prepared to overlook the sheriff's failure to adhere to this rule. But it is I think plain that his interlocutor and note have not had this effect. In particular, while it is true that there are some findings in fact in the note, on their own these do not in my opinion explain in sufficient detail the factual background against which the sheriff came to conclude that he should make an order that Julia should henceforth reside with the pursuer. Nor of course are there any findings in law which would demonstrate the legal basis of his decision.

[23] Plainly one solution to the difficulty created by the sheriff's failure to satisfy rule 12.2(3) would be to recall his interlocutor of 8 October 2004 and remit the cause to another sheriff to consider the matter afresh. But I scarcely think that this would be a very satisfactory manner of proceeding, involving as it probably would the rehearing of much, if not all, of the evidence which has already been heard. Besides, it may be that, once he has produced an explanation of it in proper form - that is, in compliance with the substance of rule 12.2(3) - it will become apparent that the decision made by the sheriff on 8 October 2004 was perfectly correct, or at least is unassailable on appeal (as to which see Osborne v Matthan (No 2) 1998 SC 682 at page 689B/C). By the same token of course it may then become apparent that he did indeed err in reaching his decision, in which case it might then be appropriate to substitute some other conclusion or else remit the cause to another sheriff to be considered afresh.

[24] In all the circumstances I have concluded that the most appropriate course would be to remit the cause to Sheriff Mackenzie subject to a direction that he should prepare a supplementary note (a) making findings in fact and law in support of that part of his interlocutor of 8 October 2004 which I have quoted in paragraph [10] above, and (b) appending to these findings a note setting out the reasons for his decision. I have allowed him four weeks for this purpose which I hope will be sufficient. Once the note becomes available, I shall fix a further diet of hearing in the appeal (unless of course parties are able, having considered the note, to agree upon the disposal of the appeal - in which event a joint minute and motion should be lodged in appropriate terms).

[25] I understood it to be agreed that no expenses should be found due to or by either party in respect of the hearing of the appeal on 21December 2004 in the event that I remitted the cause to Sheriff Mackenzie to prepare a supplementary note.