2014SCABE36

SHERIFFDOM OF GRAMPIAN, HIGHLAND and ISLANDS AT ABERDEEN

A1454/03

                                                                               JUDGMENT

by

SHERIFF PRINCIPAL DEREK C W PYLE

in causa

LESLIE WILLIAM HALL

Appellant

against

KRISTINA ELEANOR HALL

Respondent

Aberdeen,     23^rd May 2014

The Sheriff Principal, having resumed consideration of the cause, Refuses the appeal; Remits the cause to the sheriff to proceed as accords; Reserves the question of expenses.

Introduction

[1] This is an appeal from the interlocutor of the sheriff who granted final orders for three of the children of the parties to reside with the respondent and the other child to reside with the appellant.  He appeals against the first part of the order.  The sheriff also continued the cause on the procedure roll to determine further procedure.  The outstanding issues in the cause, in so far as material, were the appellant’s craves for divorce and interdict preventing the respondent from removing the children outwith the jurisdiction, as indeed was the question of expenses.

Competency of the Appeal

[2] It was plain to me on sight of the sheriff’s interlocutor that a question arose about whether leave to appeal of the sheriff was required.  But in the light of the considerable delay in the action over many years and the effect which that must be having on the children, I decided albeit with considerable hesitation to allow the appeal to be continued. The respondent’s solicitor did not raise the question.

[3] After making avisandum I have had an opportunity to consider the authorities on the matter in more detail.  There is a role for a court, particularly an appellate court, in ignoring technical rules which might prevent justice being delivered for children.  But I have now reached the conclusion that my earlier approach was incorrect.  On no view could the sheriff’s interlocutor be regarded as a final judgment as defined by Section 27 of the Sheriff Courts (Scotland) Act 1907.  The fact that neither party sought to take the point cannot confer on an appellate court the jurisdiction to entertain an incompetent appeal. (See the cases cited in Macphail Sheriff Court Practice (3rd edition) para 18.48.) Nor can want of leave be remedied by the appellate court supplying it (Mags of Leith v Lennon (1875) 3R 152).

[4] I have also decided that it is not open to me to remit the cause to the sheriff to consider whether leave should be granted.  In any event, even if that were competent, it is now far too late in the appeal for such a course to be prudent.

[5] For present purposes, therefore, it is sufficient for me to refuse the appeal as incompetent. But I still must have regard to the interests of the children.  Accordingly, I shall set out the reasons why even if leave had been granted I would have refused the appeal on the merits. This is particularly critical given the conduct and approach of the appellant, as I discuss below.

Competency of the final orders

[6] On the first day of the appeal, I invited parties to address me on whether it was competent for a sheriff to make a final order at the end of a child welfare hearing.  Neither party was able to assist.  That was understandable for the appellant who is a party litigant, but not for the respondent’s solicitor.  I adjourned the hearing to consider the question myself and subsequently came to the view that the orders which the sheriff made were competent.  The relevant rule (Ordinary Cause Rules, r 33.22A) is very wide in its terms.  I agree with the other sheriffs principal who have reached the same conclusion – Hartnett v Hartnett 1997 SCLR 525; Morgan v Morgan 1998 SCLR 681; McCulloch v McCulloch 1999 SCLR 159.

The Procedural History of the Action

[7] For the benefit of the appellant, it is useful to set out the now well-known passage in Lord Reed’s judgment in the Supreme Court case of NJDB v JEG [2012] UKSC 21 (para 22)

“There is no need for a dispute over contact to take so long to resolve… The duty to avoid undue delay in the determination of disputes of this nature, in order to comply with the obligations imposed by Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, has been made clear many times by the European Court of Human Rights. As the European Court has explained, undue delay in such proceedings may have irreversible effects upon the child… and may in any event bring about the de facto determination of the issue.”

[8] These comments equally apply to a case in which the issue of residence is to be resolved. Sadly, this action has all of the common characteristics of a family action which has been allowed to proceed at a glacial pace, such that the only issue which really matters, the welfare of the children, is lost under the sheer weight of procedure, much of which was quite unnecessary.  Those characteristics include (1) two parties who are at each other’s throat; (2) one party (the appellant) who sees the issue as one of principle; (3) numerous child welfare hearings before different sheriffs; and (4) children who are left to suffer the consequences, not least because their opinions on what they want are asked often and in circumstances where they could never be expected to cope.

[9] The sheriff plainly decided that enough was enough. As he says in the comprehensive note to his interlocutor (para [12]),

“[the children] need to know their situation to the extent of being told that they will reside with one parent or the other and that they will have contact [with] their non-resident parent. They need to be made to feel that they are valued children of each parent, not mere pawns in a parental chess match.”

The Appellant’s Grounds of Appeal

[10] The appellant had eight written grounds of appeal, but he did not argue them all. Instead, during both days of the appeal, particularly during the second, he argued his case as he saw it in such a discursive manner that I frequently had to interrupt him to ask him to explain the individual points he wished to make and to invite him to focus on the written grounds.  Such interruptions did not have the desired effect – instead they merely encouraged him to digress to other points which were equally lacking in any sense or reason.  Near the end, however, I managed to have him agree with me that he simply disagreed with the sheriff that for three of his children they should be solely resident with the respondent and not under a shared residence between the parties.  He also eventually accepted that his view on that was a matter of principle, from which he was never to be diverted.  That point was identified by the sheriff who thought that at times the appellant argued it eloquently.  That might well be so, but I do not consider that he did the same before me.  The reporter, Mr Ward, in his second report found the appellant in his meetings with him to be “measured, open minded and reasonably objective in his approach to the situation in which he finds himself”.  I cannot gainsay that; but where I depart from Mr Ward is in applying the same description to the appellant in the manner in which he has conducted himself during the rest of the proceedings, including before me.  I accept that the appellant is a man of intellect; but with all due respect I do not consider that he is a man of judgment at least in so far as this action is concerned.  The sheriff was not slow in levelling criticisms at the respondent, but his main complaints were against the appellant.  I entirely agree with the sheriff.

[11] At least the appellant had considered the well-known dicta in Thomas v Thomas (1947) AC 484 and G v G (1985) 1 WLR 647.  These cases were in the context of a decision by the court below after evidence had been led, but they apply equally to a decision made by a sheriff at a child welfare hearing.  The dicta in Thomas v Thomas were recently reaffirmed by the Supreme Court in McGraddie v McGraddie [2013] UKSC 58.  Despite that consideration, the appellant was unable to address his grounds of appeal in the context of the limited role which I have as the appellate court.  Instead, he repeatedly returned to his favoured ground which was that as a matter of principle there should be shared residence.  This was despite the fact, as the sheriff records and as all the numerous reports in the process disclose, that a previous interim shared residence order simply did not work.

[12] In these circumstances, it is simply not open to me to reach a different conclusion than the sheriff. As it happens, I agree entirely with him and for the reasons he gives.

[13] Notwithstanding that the appellant departed from the written grounds of appeal, it would be as well that I comment, albeit briefly, on them.

1. This ground concerned certain remarks which the appellant attributed to the sheriff at the outset of the proceedings. The appellant did not mention it during his submissions. If he had done so, I would have requested a note from the sheriff, although in saying that I do not wish to give the impression that prima facie the remarks were such as to call into question the sheriff’s role.
2. The appellant maintained that the sheriff erred in finding that the appellant’s son, Z, was being manipulated by the appellant and was a “Trojan Horse” in the respondent’s household “without having discussed the matter”. I simply do not understand this ground. The sheriff was entitled to come to many conclusions without having already raised them with the parties at the hearing. That is the nature of judgments in which reasons for the decision are given. It is true that I have been unable to find any reference to Z allegedly adopting such a role in any of the reports or other papers in the process and that the sheriff in his note does not explain why he reached that conclusion. But, in my opinion, whether or not that is a fair assessment of Z’s behaviour it is essentially peripheral to the issue which the sheriff had to determine. Under the same ground the appellant complained that the sheriff refused to hear evidence from Z who was present in court and who had instructed an agent to inform the sheriff that he was willing and competent to give evidence. In my opinion, the sheriff was well entitled to reach that conclusion if he did. Z was not a party to the proceedings and therefore had no right to be heard at a child welfare hearing. More importantly, the sheriff would have had to be satisfied that it was in the interests of Z himself, who is aged only 12, that he should be a witness. It is difficult to see that to be in such a role would be conducive to his welfare, particularly when the appellant does not offer an explanation why Z’s evidence, whatever it might be, would be of such importance in determining whether his brother and two sisters should reside with his mother or be under a shared residence order of both parents. In terms of Section 11(7)(b) of the Children (Scotland) Act 1995, the court is required to give a child the opportunity to express his views, but that is in the context of an application for an order relating to that child. There was no dispute between the parties that Z should reside with the appellant; the dispute was about the arrangements for the other children. There was no obligation upon the sheriff to listen to Z’s views on that dispute. I understand that this was not the first time that the appellant told a sheriff that Z was present within the court building with his lawyer and ready and willing to speak. Indeed, on an earlier occasion a different sheriff entered the court room for a continued child welfare hearing only to find Z sitting in court. The sheriff correctly decided that Z be removed from the court and arrangements made for him to be looked after during the hearing. This is a very clear example of the appellant’s lack of judgment in considering the welfare of one of his children, rather than asserting at whatever cost his deeply held principles about the appropriate legal basis for his children’s care arrangements.
3. This ground was not argued in terms, although it was obvious that the appellant was far from happy with what the sheriff said to him during the hearing and what he wrote about him in the note. As he did not specify what remarks of the sheriff he was unhappy about (subject to the seventh ground of appeal as discussed below), I say no more about it.I am however satisfied that the sheriff was well justified in the conclusions he reached about the appellant from the materials before him.
4. The appellant complained that the sheriff did not give due weight to the actions of the respondent in removing the children from the jurisdiction of the court and in changing their schools without his knowledge or agreement. In fact, the sheriff in his note makes specific reference to these two matters and is critical of the respondent in that context. The fact that he did not agree with the appellant’s view of the significance of these events is not of itself a reason for me to interfere with the sheriff’s decision. I am satisfied that the sheriff properly took into account all of the relevant considerations.
5. In similar vein, this ground of appeal criticises the sheriff for not giving due weight to all of the materials before him, not least previous decisions of sheriffs. It is true that the sheriff had previously varied the interim shared residence order, but he was entitled on the evidence before him to do so and, in any event, the circumstances had changed since the original order had been made. It is also true that the sheriff did not agree with Mr Ward’s conclusion in his second report, but the sheriff gives a reasoned basis for reaching his view. There is no basis upon which I would be entitled to interfere with his decision on this ground.
6. This ground overlaps with the previous ground, in that it mentions specifically that the sheriff failed to give due weight to Mr Ward’s second report and the views of the children. As regards the latter, it is clear from the history of the proceedings that the views of the children have been sought on many occasions, arguably too often. The sheriff records that he had particular regard to Mr Ward’s reports as well as reports from Aberdeen City Council Social Work Department. The views of the children are given on more than one occasion in these reports. Thus the sheriff must have taken them into account. That is confirmed by his conclusion that the appellant has “placed each of his children under enormous pressure” and that he “repeatedly questions them about their wishes with regard to the parent with whom they want to reside.” (para [7]) It is scarcely surprising then that the sheriff disregards the opinions expressed by some of the children. There is no proper basis for criticism of this approach.
7. This ground is that the sheriff made an unreasonable and pre-judgmental comment that “if I granted a shared residency order, you two would be back in court arguing about what cereal the children should have for breakfast”. It was not conceded by the respondent that the sheriff did in fact make this remark. If I had regarded it as material I would have requested the sheriff for a note. But I do not consider that there is any basis for criticising the sheriff if he did say it. It should be noted that the remark was addressed to both parties, not just the appellant. A judge should always be measured in comments made during the course of proceedings, but that point should not be taken too far. One of the advantages of child welfare hearings is that it allows the sheriff to engage directly with the parties. That often can facilitate a settlement of the action. Each sheriff will approach the task in a manner which suits his or her own personality – some will prefer a formal approach, while others less so. Humour or a lightness of touch in tone can on occasion be a very effective tool to get across to parties the serious point which the sheriff wishes to make. If the remark was made I can well understand why the sheriff made it. The history of this action provides ample evidence of the inability of the parties to agree on anything. The remark is no more than a means of making that point.
8. The appellant did not argue this ground. It is in any event dealt with in the sheriff’s note. I say no more about it.

[14] It therefore follows that even if this appeal was competent I would have had no hesitation in refusing it on its merits.

Future Progress of the Proceedings

[15] It is not lost on me that the appellant might well have already decided that whatever the result of this appeal he will appeal the final decree of the sheriff whenever that is granted.  I must not prejudge that, but I cannot emphasise enough that the appellant, perhaps for the first time, needs to think carefully what is the effect on his children of his attitude to the break-up of his marriage and the arrangements for their care.  I doubt that anyone is going to change his view on what is right and wrong, but he also has to understand the limitations of court proceedings.  It is not a sheriff or a sheriff principal who takes care of his children; that is the responsibility of him and the respondent.  All that a sheriff can do is to encourage the parents to reach a sensible compromise or, if that is impossible, reach a decision on what is best for the children.  It is only rarely that the sheriff’s decision will be overturned on appeal.  The time which these proceedings have taken has not served his children well. Doubtless, the appellant thinks that everyone else caused that.  He would be quite wrong in doing so, but it scarcely matters.  The appellant needs to accept that three of his children are to reside with his wife and that he should now negotiate generous contact.  As I said to him during the hearing, the arrangements for contact will soon be dictated by the children themselves as they develop their own interests and activities.  There is no decision of any court which will provide the flexibility required for the welfare of a child wishing to grow up in a healthy and normal way.  Only the parents can provide that.

[16] The present practice in Aberdeen is that family cases are dealt with by the same sheriff throughout.  Doubtless the sheriff clerk will be at pains to ensure that this action is put before him for further procedure at the earliest opportunity.

[17] I have reserved the question of expenses.