Note by Sheriff Principal A Y Anwar in the cause JC v MN [2020] SAC (Civ) 17 AYR-F298-19

https://scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2020-sacciv-017.pdf?sfvrsn=0 (Sheriff Appeal Court, 10 November 2020)

Background & Procedural History

This case considers contact in relation to a 6-year-old child.

On 27th July 2020 a decision was made by the Sheriff to make an interim award of contact in favour of the Pursuer and now Appellant in this case, JC, for fortnightly supervised contact at a contact centre. The Pursuer had had no contact with the child, from birth until 26th October 2019, when thereafter contact commenced in a contact centre.

Contact had taken place 7 times but ceased due to the Covid-19 pandemic.

At the hearing dated 27th July, the Pursuer also sought indirect contact through video call with the child. This was refused by the Sheriff whose position was that face to face contact should be re-established first.

Appeal

The appellant sought to appeal that decision to refuse interim indirect contact.

The Respondent’s answers to the appeal noted that the appellant’s appeal was prima facie incompetent as the appellant had not sought permission from the Sheriff to make the appeal.

Upon being invited to provide a written Note of Argument the appellant set out his position in relation to the question of the competency of his appeal. 

He submitted that s110 (1) of the Courts Reform (Scotland) Act 2014, allowed an appeal to be taken to a Sheriff Appeal Court without need for permission.

His second argument was made on the basis that to deny him the right of appeal given the circumstances would be in breach of Article 8 of the ECHR.

Appeal found to be Incompetent

The court found the appeal to be incompetent.

Section 110 (1) makes several references to circumstances where ‘an appeal may be taken to the Sheriff Appeal Court without the need for permission’. The appellant’s circumstances did not fall within these circumstances. Section 110(2) makes clear that in respect of "any other decision of a sheriff in civil proceedings" not expressly referred to in section 110(1), permission to appeal is necessary.

Sheriff Principal Anwar in this case explained the policy reasons surrounding section 110, by referring to the case of  Finlayson v Munro [2019] SAC (CIV) 27, paragraph 7 (MacPhail, Sheriff Court Practice, 3rd edit, para 18.31.)

Policy considerations included the importance of judicial hierarchy and the need for expedition, especially where disputes involve children.

Sheriff Anwar went on to explain that “were there to exist a right of appeal, without permission, of all interlocutors of an interim nature refusing or granting interim orders in terms of section 11 of the Children (Scotland) Act 1995, the child at the centre of such proceedings could become trapped on a carousel of endless appeals” (para 9).

In respect of the appellant's second point regarding Article 8 ECHR, Sheriff Anwar explained that an appellant was not denied the right of appeal, noting that section 110 of the 2014 Act does not deny the right of appeal but regulates when that right can be exercised and when permission is required to do so.

The appeal was refused as incompetent.   


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