A.F. v R.F. [2017] SAC (Civ) 18

http://www.scotcourts.gov.uk/docs/default-source/sheriff-appeal-court-(civil)/2017-sac-(civ)-018.pdf  (Sheriff Appeal Court, 2 March 2017)

Background: S was born in February 2008, and has lived with her mother since her parents separated in July 2010. Litigation concerning the consequences of the separation and S’s welfare began in 2011, and S’s parents divorced in May 2013. During these proceedings, the Sheriff refused a Crave lodged by S’s father, in which he sought a specific issue order entitling contact with S after school on Mondays to take her to see a child psychologist. The father expressed his intention to have a proof, which would have involved calling S as a witness. The Sheriff refused to make an order and dismissed the Crave. S’s father appealed the decision. When the matter came before a single appeal Sheriff at a procedural hearing, neither party was legally represented and an amicus curiae was appointed to assist the court. The matters were determined to be: (a) whether the sheriff, in refusing to allow a proof, erred in law; (b) whether the decision of the Sheriff at a child welfare hearing absent further evidence was in breach of Article 6 of the European Convention on Human Rights and the Human Rights Act 1998; and (c) the extent of discretion open to the court to determine the issue where the giving of evidence by the child may of itself be prejudicial to the child.

Held: The Court noted that the Sheriff was required to decide whether a well-adjusted, happy child who enjoys a good relationship with each of her parents should be required to undergo pre-emptive medical intervention primarily because of the parties’ difficult relationship with each other.

The Court accepted that the Sheriff did not err in refusing to make a specific order, and that the Sheriff’s reasoning was based fairly on the terms of section 11 of the Children (Scotland) Act 1995, which requires that the child’s welfare be the paramount consideration. The Sheriff carefully assessed the material before him, and did not err by concluding that there was no material before him pointing to the necessity for psychological intervention, nor that a lengthy and complicated proof, with S called as a witness, was not in her interest. Furthermore, the fact that the matter was determined at a child welfare hearing is consistent with the parties’ Article 6 rights. Finally, the Court agreed with the Sheriff that a proof should have been refused, given a lengthy and complicated proof would not be in S’s interests, and went further to identify a real risk that the continuation of litigation would be damaging to S’s welfare.