Scottish Sheriff Court Decisions

Act: P Gostelow, Solicitor, Blantyre

Alt: Ms M O'Reilly, Solicitor, Glasgow

Curator ad Litem: M Higgins

HAMILTON: 30 July 2013
The Sheriff Principal refuses the appeal as incompetent in view of the fact that leave of the sheriff to appeal has not been obtained; accordingly adheres to the sheriffs interlocutor of 10 May 2013 complained of; finds no expenses due to or by any party in respect of the appeal; remits the cause to the sheriff to assign a five day diet of proof; assigns 31 July 2013 at 10 am as a Procedural Hearing before the sheriff to assign said diet of proof.

NOTE
Background
[1] In this case the sheriff pronounced an interlocutor on 10 May 2013 following a child welfare hearing wherein he granted the defender, on an interim basis, contact with the child CC on a two weekly cycle as follows week 1 (a) Friday after school until Sunday at 2.30pm (b) Monday after school until 8pm (c) Wednesday after school until 8pm; week 2 (a) Monday after school until 8pm (b) Wednesday after school until 8pm. For the remainder of the time the child was to reside with the pursuer. Prior to that interlocutor the child had resided with the defender and the pursuer had enjoyed contact with the child as follows: (a) every weekend from Friday at 5pm until Sunday at 5pm (b) every Monday at 5pm until 8pm (c) every Wednesday from 5pm until 8pm. The sheriff continued the matter to a further child welfare hearing on 2 July 2013 to monitor progress.

[2] On 23 May 2013 a note of appeal was lodged on behalf of the defender with the sheriff clerk. This was within the 14 day time limit prescribed by the rules. The sheriff clerk subsequently returned the note of appeal on the basis that leave was required. A motion was lodged on behalf of the defender and appellant for leave to appeal although late on 10 June 2013. This motion was heard by the sheriff on 24 June 2013. At that hearing it was argued by the defender and appellant that the sheriff's interlocutor, properly construed, was an order ad factum praestandum as it required the child to be delivered to the primary care of the pursuer. Reference was made to the case of B v B 2009 Fam L.R.129. The solicitors for the pursuer and respondent and the curator ad litem argued that leave was necessary. On that date sheriff found that there was no necessity for a motion for leave to appeal the interlocutor of 10 May 2013. He discharged the Child Welfare Hearing previously assigned for 2 July 2013 pending the appeal. The sheriff then prepared a Note explaining his decision to grant interim contact to the defender as set out in para 1 of this Note.

[3] Parties lodged detailed written submissions and the appeal was heard by me in Hamilton Sheriff Court on 30 July 2013.

[4] I take the view that the interlocutor, which granted the defender and appellant interim contact on the basis set out in para 1 of this Note, requires leave to appeal. Accordingly the appeal is incompetent and falls to be refused.

[5] In my opinion the sheriff's interlocutor of 10 May 2013 was an order for interim contact. It did not contain anything which could be regarded as an order ad factum praestandum. In the case of Hendry v Marshall 1875 5R.687 it is stated that an order ad factum praestandum "...must be on an ordinary decree...ordering performance of some specified act, and so a decree which can be obeyed by some specific act done on the part of the defender." That is not the situation with this interlocutor. The interlocutor merely stipulates interim contact at specific times. There is nowhere in the interlocutor any order requiring performance of some specific act on the part of the pursuer.

[6] I understand that reference was made at the hearing on 24 June 2013 before the sheriff to my decision in the case of B v B 2009 Fam LR 129. In that case the sheriff had issued an interlocutor in the following terms;-

"the sheriff...makes a residence order in respect of the children..., requires that they live with the pursuer and minuter ad interim; orders the defender and respondent to deliver the said children to the pursuer and minuter within 48 hours; failing such delivery orders sheriff officers or their English equivalents to uplift the said children and deliver them to the pursuer and minuter..."

In my Note at para 5 in B v B I said:-

"A point of competency was taken by solicitor for the pursuer and respondent. He submitted that in terms of section 27 of the Sheriff Court.(Scotland) Act 1907 an appeal to the Sheriff Principal was not competent in respect of an interim residence order. He conceded that an appeal was competent in respect of an order for delivery as it was an order ad factum praestandum. I was referred to the case of Black v Black 1991SLT Sh.Ct.(5) which dealt with an award of interim access, and the case of Fergus v Eadie and others 2005 SCLR 176 which dealt with an interim contact order. The Sheriff Principal in both cases opined that an appeal was not competent without leave. These cases in my opinion fall to be distinguished from the case of Thomson v Thomson 1979 SLT (Sh.Ct) 11 where in an action of custody interim access to certain children was granted and, in implement of that right, the pursuer was ordained by the sheriff to deliver the children to the defender. It was held in that case that leave to appeal was not necessary. Sheriff Principal Reed stated at page 12; "The interlocutor is one which grants the defender a right of access to the children of the parties' marriage and, in implement of that right of access, ordains the pursuer to deliver the children to the defender at a prescribed place. I do not think it doubtful that the interlocutor is an order ad factum praestandum. It is an order upon the pursuer to carry out a specific act..." I take the view that this interlocutor, properly construed as a whole, is an order ad factum praestandum in that, in implement residence order granted, the defender is ordered to deliver the children. Accordingly, appeal is competent in this case without leave."

[7] In my opinion the present case falls to be distinguished from the case of B v B. In the case of B v B there was an interim residence order and an order for the defender and respondent to deliver the children to the pursuer and minuter within 48 hours. I was accordingly able to say that the sheriff's interlocutor in the case of B v B, properly construed as a whole, was an order ad factum praestandum in that, in implement of the interim residence order granted, the defender was ordered to deliver the children. However, in this case there is no order for delivery. There is only an order for interim contact.

[8] I particularly refer to the decision of Sheriff Principal Nicholson in Black v Black supra where he said "...there can be no question of the award of right of access carrying with it an obligation of the other party to perform any specified act. In my opinion an award of access is no more than an award of an entitlement to one party which does not itself involve any specific requirement that the other party should do anything in particular in relation to it."

I also refer to the dicta of Sheriff Principal MacPhail (as he then was) in Fergus v Eadie and others (supra) where he described an order ad factum praestandum as " one which requires the defender to perform an act other than the payment of money; and it must specify exactly what the defender has to do."

In both these cases the Sheriffs Principal opined that an appeal was not competent without leave in cases of access (as it then was) and contact.

[9] The sheriff's interlocutor of 10 May 2013 does not, in terms of Hendry v Marshall (supra) order performance of some specified act nor, in terms of Fergus v Eadie and others (supra), does it specify exactly what the defender has to do. In my opinion the interlocutor cannot be construed as an order ad factum praestandum. I am accordingly of the view that the sheriff's interlocutor of 10 May 2013 was one which required leave. This has not been obtained. The appeal is accordingly incompetent and falls to be refused.

[10] There have already been some thirteen hearings before the sheriff where awards of contact had been made. There have been five discharged diets of proof, principally because of the delay in obtaining the report from the child psychologist, but on one occasion because of lack of court time.

[11] Parties were agreed what was urgently required was an early diet of proof in order that the various statements of the child psychologist could be subject to examination and evidence heard about the issues between the parties.

[12] It was accordingly agreed that I should remit the cause to the sheriff for a procedural hearing the following day in order that an early five day diet of proof could be fixed. Steps would be taken to identify dates at this stage which were convenient to parties and to the child psychologist. My interlocutor reflects that position.

[13] Parties were agreed that there should be no expenses due to or by any party in respect of this appeal.