SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES AND GALLOWAY

 

F147/01

	JUDGMENT OF SHERIFF PRINCIPAL B A LOCKHART
	in causa
	A.B.
	Pursuer and Respondent
	against
	C.D.
	Defender, Minuter and Appellant

 

For Defender Minuter and Appellant :Mr W Renfrew, Solicitor, Glasgow

Pursuer and Respondent :Mrs J Young, Solicitor, Airdrie

 

 

AIRDRIE 22 March 2012

The Sheriff Principal, having resumed consideration of the cause, refuses the appeal and adheres to the Sheriff's interlocutor of 2 February 2012 complained of; finds the defender, minuter and appellant liable to the pursuer and respondent in the expenses of the appeal and allows an account thereof to be given in and remits same when lodged to the auditor of court to tax and to report.

 

NOTE:

 

Background to the appeal

 

1.          The background to the appeal and the reasons which the Sheriff gave for her decision on 2 February 2012 wherein she reduced the defender's contact to his son, X to nil, and found the defender and appellant liable in expenses as taxed are clearly set out in the Note which the Sheriff prepared following the lodging of this appeal. I accordingly set out the terms of the Sheriff's Note as follows:-

"1. The parties were divorced in 2002. X is the only child of their relationship. He is now aged 12. This is an appeal to the Sheriff Principal against my Interlocutor of 2 February 2012 where at a by-order hearing I refused the defender and minuter's motion to continue the cause three weeks for his "consideration". I acceded to the pursuer and respondent's motion to dismiss the defender and minuter's Minute to Vary (number 15 of process), and to grant the pursuer and respondent's counterclaim and answers (number 17 of process). In the event I reduced the defender's contact to his son, X, to nil, and found the defender and minuter liable in expenses as taxed.

2.     At the time of the parties' divorce the defender and minuter (hereinafter the defender) was awarded residential contact to X. By Interlocutor of 11 August 2005 that contact was varied to non-residential contact, being each Wednesday from 5pm until 7pm and every second Saturday from 10am until 7.30pm. The cause was thereafter sisted.

3. The defender relocated to Eire in 2006. I understood that thereafter contact operated sporadically. Some five years later, in April 2011, the defender lodged the Minute to Vary contact to X. (The Minute to Vary in its terms ignores the Interlocutor of 11 August 2005.) The defender cites his move to Eire in 2006 as the "material change in circumstances" prompting the Minute to Vary in 2011.

4. A hearing was fixed on the Minute to Vary for 26 May 2011. At that hearing 14 days were allowed for answers and a proof fixed for 23 June 2011. That proof was discharged on the unopposed motion of the defender, and a proof before answer assigned for 5 December 2011.

5. In the meantime, on the unopposed motion of the pursuer and respondent (hereinafter "the pursuer") a procedural hearing was assigned for 1 December 2011 to consider X's views. X had apparently expressed disquiet about why his views had neither been considered by the Court nor the defender. On 1 December 2011 it was intimated that the defender's agent had withdrawn from acting. The matter was continued to the proof diet of 5 December 2011. On that date the defender did not appear.

6. A peremptory diet was fixed for 22 December 2011. The defender was represented. The Sheriff (Sheriff Pieri) ex proprio motu fixed a Child Welfare Hearing for 10 January 2012 to take X's views.

7. At the Child Welfare Hearing on 10 January 2012 Sheriff Pieri noted X's views. As I understood it, Sheriff Pieri then conveyed X's view that he did not wish any contact with the defender, to those present. The defender was not present at the Child Welfare Hearing. Sheriff Pieri varied contact to nil, ad interim, and thereafter continued the cause to 2 February 2012 for the defender's solicitor to obtain full instructions.

8. When the matter called before me on 2 February 2012 the defender was represented by a local agent, Mrs. Brown. I understood from Mrs. Brown that she had also represented the defender at the Child Welfare Hearing on 10 January 2012, when he was not present. I understood from Mrs. Brown that in so far as instructions from the defender were concerned she was not much further forward than she had been on 10 January 2012. She asked me to continue the cause three weeks for "consideration" by the defender.

9. That motion was opposed by the pursuer. Contact had not operated in terms of the Interlocutor of 11 August 2005 since early 2006. The pursuer feared the defender had lost interest in X. The defender had formed a new relationship with a new lady in Eire. X had formed pretty strong views about not wanting to see his father. He had sent a letter to his father's lawyer in June 2011 expressing those views.

10. Parties' agents had no objection to me considering X's views, as noted by Sheriff Pieri. X has not spoken to the defender since the Summer of 2010. He has no desire to see him anymore. He gives considered reasons for that view. He has made his views clear to the defender in person, and to the defender and the defender's solicitor by letter in 2011. X wrote to the Court in October 2011 to express his views. He ends that letter "Please can you stop this", in relation to the defender's actions re contact.

11. I considered the issues before me. The welfare of 12 year old X is the paramount consideration. His views are clear, reasoned and trenchantly expressed. He does not want any contact with the defender. Moreover, contact in fact has not been operating consistently or regularly. X's contact with the defender has not operated in accordance with the Court's Interlocutor of 11 August 2005 since early 2006. What contact X has had with the defender thereafter has been sporadic. His last contact with the defender was about one and a half years ago. The history of the case, including the recent history of the case, does not suggest that the defender has been pursuing contact to his son with any great vigour. In recent times, two proof diets have required to be aborted - the first on the defender's unopposed motion, and the second because the defender failed to appear at the diet of proof on 5 December 2011. Following X expressing his views to the Court at the Child Welfare Hearing on 10 January 2012, at which the defender did not appear, the defender was given between then and 2 February 2012 to consider what he wanted to do in so far as this action was concerned. In my view that was a reasonable length of time in these days of e-mail contact. Moreover, on the information available to me, it appeared that X's view that he didn't want to see the defender would not have come as a surprise to the defender. X had already alerted the defender to that view. In the whole circumstances before me I felt that it was in X's best interests that the outstanding issue of contact to his father be resolved as expeditiously as possible, one way or the other. It was not in X's best interests for the matter to be drawn out whilst the defender considered matters further. Accordingly, I made the order complained of. "

 

2.          Defender and minuter lodged an appeal against the Sheriff's interlocutor of 2 February 2012 on 15 February 2012. It was in the following terms:-

"(1) The Sheriff erred in dismissing the defender's Minute to Vary at the By Order Hearing of 2 February 2012 and depriving the Defender and Minuter of the opportunity to participate in the Proof and provide evidence in support of his said Minute.

(2) Following a Child Welfare Hearing on 10 January 2012, the Child X spoke with Sheriff Pieri. The learned Sheriff indicated X felt that he did not want further contact with the Defender and Minuter. A Motion was made to have a further Child Welfare Hearing assigned but the Sheriff continued the case to the By Order Roll of 2 February to allow the Defender and Minuter's instructions on whether he wished to proceed with the action, The Defender and Minuter resides in Eire. Correspondence is by e-mail. A lengthy e mail of 17 January was sent to the Defender and Minuter explaining what happened at the Child Welfare Hearing of 10 January, the comments made by X explaining the options available to him. The Defender and Minuter was inevitably distressed at hearing the comments of his son. He took time to consider his position, discussing matters with his family and considering what he believed to be in X's best interests. He replied to his agents by e-mail of 26 January confirming the distress and upset at the Report of X view, had caused. A detailed response was sent to the Defender and Minuter by his agents. On 1 February the Defender and Minuter's principal agents instructed local agents to appear at the By Order Hearing on 2 February advising of their client's position and seeking a three week continuation. Notification of this was also intimated to the Pursuer and Respondent's agents. In the late afternoon of 1 February 2012 the Defender and Minuter e-mailed his principal agent. The said e-mail was not seen by the Defender and Minuter's principal agent until the morning of 2 February. To ensure his understanding that the Defender and Minuter wished to proceed to a Proof given the importance of such a decision on all parties and in particular X, sought categorical confirmation that the Defender and Minuter wished a Proof to be assigned, this was confirmed in the afternoon of 2 February.

(3) It is believed that the Sheriff erred in dismissing the Defender and Minuter's Minute of Variation. It is believed that he did so given the views of X at the Child Welfare Hearing of 10 January. However, it is submitted that it was reasonable to assume and expect the upset the reporting of the Child Welfare Hearing would cause to the Defender and Minuter and that he should be allowed a reasonable period to consider his position in light of X's comments. It is submitted that he did not unnecessarily or purposely delay in conveying his instructions to his agents to an extent for his application for Variation to be dismissed. By doing so the Sheriff has deprived the Defender and Minuter of presenting evidence to demonstrate that X's views have been prejudiced and are based on incorrect and distorted information."

 

3.      The appeal hearing took place before me in Airdrie Sheriff Court on 14 March 2012.

 

DISCUSSION

 

4.          The decision which the Sheriff made was a discretionary one. There was agreement between the parties that I required to be satisfied that the Sheriff was wholly wrong in the decision in which she took before I could interfere.

 

5.          The Sheriff sets out very clearly the history of this case. This was essentially accepted by both parties. The following matters were also drawn to my attention:-

(i)                 The proof fixed for 23 June 2011 was discharged on the unopposed motion of the defender to enable his legal aid application to be processed.

(ii)               On 2 November 2011 the defender's solicitor wrote to the defender advising that legal aid had been obtained and seeking instructions for the proof which was fixed to take place on 5 December 2011.

(iii)             On 30 November 2011 the defender's solicitors sent an e-mail to the defender indicating that, in the absence of instructions, he was withdrawing from the agency. He advised him of hearings fixed to take place on 1 December 2011 (the procedural hearing) and the proof on 5 December 2011.

(iv)              On 1 December 2011 defender e-mailed his solicitor apologising for the delay in giving instructions, he stated;

"In light of the further information (his son's letter to the court of October 2011 which ended "please can you stop this") I require the hearing postponed until the New Year as I intend to proceed with this action..."

(v)                For some reason this e-mail was not brought to the personal attention of the defender's solicitor until 22 December 2011. However, a peremptory diet, namely the proof on 5 December 2011, had been fixed in respect of the defenders minute to vary which had been lodged in April 2011. In the absence of instructions to the contrary, there was a requirement for the defender to attend court on 5 December 2011. There had been no intimation to the defender from his solicitor that his attendance was not required on 5 December 2011. At that time he was aware of his son's letter to his solicitor of June 2011 stating that he did not wish to see his father. He was aware of a letter sent to the court in October 2011 confirming these views.

(vi)              A Child Welfare Hearing was fixed for 10 January 2012 for the specific purpose of taking the child's views. The defender was aware of the pursuers motion (7/5 of process) which he had not opposed, in terms of which the court was invited to determine how best to consider the views expressed by the child, the child having expressed disquiet as to why these views have neither been considered by the court nor the defender and minuter. Notwithstanding the background of failure to appear at the proof diet on 5 December 2011 his knowledge of the motion and the fact that court would be seeking the views of the child at the hearing on 10 January 2012, the defender did not appear. It could be of no surprise to the defender, standing the letters of which he had notice of June and October 2011, that the child indicated to the Sheriff that he did not want to see his father. The Child Welfare Hearing was the opportunity for the defender to give evidence and/or submissions to the Sheriff on his son's evidence to allow the case to be dealt with expeditiously. He did not take that opportunity.

(vii)            On 10 January 2012 the Sheriff continued the case to a procedural hearing on 2 February 2012 to obtain the defender's instructions on his son's evidence. Notwithstanding the background which has been outlined, defender failed to give instructions to his solicitor on his attitude to what his son had said to the Sheriff. A motion was made on his behalf to continue the matter for a further three weeks to obtain these instructions. The defender ought to have been in a position to present his case on 10 January 2011.

(viii)          The defender's failure to attend court on 5 December 2011, 10 January 2012 and his failure to give instructions to his solicitor by 2 February 2012 indicated a lack of concern on the part of the defender for his son's welfare. It was said that his son had been distressed by the failure of the court to take into account his written views expressed in June and October 2011, and was again distressed by the fact that his oral views on 10 January 2012 were not receiving the attention they deserved from the defender.

(ix)              It was submitted that the defender, in view of the written views previously expressed by his son, could not have been surprised at the nature of the evidence given by his son, to the Sheriff on 10 January 2012. While he may have been distressed at hearing of the evidence, it was consistent with his son's position since June 2011. He had an obligation to pursue his minute to vary expeditiously. He had not done so and this had caused upset and distress to his son.

 

6.          As the Sheriff has reported, at the child welfare hearing on 10 January 2012 Sheriff Pieri noted X's views. Sheriff Pieri conveyed X's views that he did not wish any contact with the defender to those present. The Sheriff varied contact to nil ad interim and thereafter continued the cause to 2 February 2012 for the defender's solicitor to obtain full instructions.

 

7.          Solicitor for the defender was in the position that, prior to the procedural hearing which the Sheriff had fixed for 2 February 2012 to allow the defender's instructions to be obtained, he was without instructions. He instructed a local agent to have the case continued for three weeks for instructions to be obtained. This was intimated to the pursuer's solicitor by the defender's solicitor on 1 February 2012. At 14.10 hours on 1 February 2012 pursuer's solicitor responded by e-mail as follows:-

"Further to your fax of earlier today, we are instructed to oppose your motion to further continue matters and to move that the minute is dismissed with expenses and contact remains varied to nil. Your client has been aware since last June of the child's views. You will recall that the child sent to your firm a letter setting out his views at that time. The child is prejudiced by matters continuing without conclusion. There was a proof fixed for some time ago and your client did not attend. Your firm withdrew from acting given his lack of instructions and then re-entered appearance. Neither you nor your client attended the recent Child Welfare Hearing. Our client is prejudiced financially by increasing expenses."

 

8.          It was submitted by solicitor for the pursuer that the continued delays in having the question of contact resolved and the fact that the child's views were not being seen to be taken into account by the court, was proving upsetting for the child. There had been no contact for some one and a half years, and before then contact had not operated consistently or regularly. It was in the interests and welfare of the child that contact be officially terminated at this stage.

 

9.             Solicitor for the defender referred me to the case of McCulloch v Riach and Sumpter 1999 SCLR 159. In that case there was a report from the curator to the effect that the children were afraid of the pursuer and it was not in the interests that he had contact with them. The Sheriff gave the pursuer's agent an opportunity to state what he would be seeking to establish by way of evidence. In reply the agent had said that he would put the two children into the witness box to establish that they were not happy and that he would endeavour to show them that the pursuer meant no harm to them. On that basis alone the Sheriff Principal held that it seemed to him that the Sheriff was entitled to hold that no purpose would be served by holding a proof. However, solicitor for the defender submitted question of hearing evidence should have been considered by the Sheriff.

 

10.      It is perhaps significant to point out that Sheriff Principal JJ McGuire QC stated at 164A

"On the whole matter I consider that to postpone a decision by allowing a proof would be pointless. Nothing which was not already known would be established by a proof. The children would be subjected to unnecessary stress. There was ample material before the Sheriff justifying his decision... I am of the view that on the material before him the Sheriff came to the correct decision."

It was submitted that in the circumstances of this case, the Sheriff did not have sufficient material before her to make the decision she did.

 

11.      It was also submitted that there had been no fair notice to the defender by the Sheriff on 10 January 2012 that the case might be dismissed at the procedural hearing fixed for 2 February 2012. It was further submitted there was no opportunity given to the defender to indicate what type of evidence he would hope to lead at any proof which might persuade the Sheriff to decide the case in his favour. I was asked to recall the Sheriff's interlocutor and assign a proof.

 

 

DECISION

12.      In my opinion, on the basis of the material set out in her report, the Sheriff was entitled, in the exercise of her discretion, to refuse the defender's motion to continue the cause for three weeks to allow the defender to give instructions and to accede to the pursuer's motion to dismiss the defenders minute to Vary (No 15 of process) and to grant the pursuer's counter claim and answers (No 17 of process). The welfare of the son, X, in the circumstances, demanded that contact with the defender be reduced to nil. I have also to say that a consideration of the material which was placed before me, which I have set out in paragraph 5 hereof, which is additional to the material before the Sheriff, does not cause me to reach the conclusion that the decision reached by the Sheriff in the exercise of her discretion was wholly wrong.

 

13.      It is obvious to me that the whole ongoing court progress which I have described in this note must have caused acute distress to his son. The motion (7/5 of process) which was lodged on 21 November 2011 indicates the child's disquiet as to why his views had not been considered by the court or the defender. There was an obligation on the defender to do all that he could to have his minute resolved as expeditiously as possible and to cooperate with the court in achieving such a resolution. However, having had brought to his attention in June and October 2011 letters from his son that he did not wish to see him, the defender failed to give instructions requested by his solicitor on 2 November 2011 when legal aid had been granted, causing his solicitor to withdraw from the agency. He failed to attend the diet of proof fixed from 5 December 2011 which had been fixed since 23 June 2011. He had been given no indication that he was not required to attend. He failed to attend the Child Welfare Hearing on 10 January 2011 when he knew the Sheriff would be taking the views of the child. He would have had the opportunity at that hearing of giving his own evidence and/or making submissions. When the case was continued until 2 February 2012 to obtain his instructions, he failed to give instructions to his solicitor. His whole conduct of this litigation, in my opinion, demonstrates a total disregard for the welfare of his son who has been caused continuing distress by his actions. The suggestion in the grounds of appeal that the defender was distressed at hearing of the comments of his son after the Child Welfare Hearing on 10 January 2012, and as a result of this distress did not give instructions, standing the contents of the letters he had received in 2011, does not hold water. His son's evidence can have been of no surprise to him.

 

14.      With regard to the case of McCulloch v Riach and Sumpter supra, that case concerned an initial action and not a Minute to Vary. However it seems to me it could be properly said, as Sheriff Principal McGuire concluded in that case, that to postpone a decision by allowing a proof would be pointless. He stated at 164A

"On the whole matter I consider that to postpone a decision by allowing a proof would be pointless. Nothing which was not already known would be established by a proof. The children would be subjected to unnecessary stress. There was ample material before the Sheriff justifying his decision...I am of the view that on the material before him the Sheriff came to the correct decision."

In any event, there is no obligation on the Sheriff in dealing with a minute to hear evidence.

Rule 14.11 (2) of the Ordinary Court Rules 1993 provides;-

"At the hearing, the sheriff shall hear parties on the minute and any answers lodged and may determine the minute or may appoint such further procedure as he considers necessary."

The defender had, but did not take, the opportunities to give his side of the case on 5 December 2011 and 10 January 2012. He failed to give instructions for 2 February 2011. In my opinion, it was open to the Sheriff to determine the minute on the information before her. The additional material available to me which I have recorded in paragraph 5 hereof does not cause me to alter that conclusion.

 

15.        In these circumstances the appeal fails. As the pursuer has been successful in the appeal, I have awarded her the expenses occasioned thereby.