LRK v AG [2019] SAC (Civ) 33 (Sheriff Appeal Court, 2 October 2019)

Sheriff Appeal Court decision on whether it was competent for a sheriff—after hearing evidence and submissions from parties at proof— to treat the proof as an evidential child welfare hearing, adjourn the proof, fix an immediate child welfare hearing

The Sheriff Appeal Court has determined that a sheriff’s decision to adjourn a proof part heard while granting interim contact to the Pursuer in a contact dispute was not competent. The sheriff had chosen this admittedly “unusual course of action” in light of the protracted history of the case and with the intention that it would allow the pursuer an opportunity to demonstrate that contact would be in the child’s best interests.

The Sheriff Appeal Court noted that the case “…highlight[ed] clearly the clash between two competing issues: (i) procedure (and its policy) and; (b) the need for flexibility when dealing with the interests of a child”. In finding the course of action outwith the competence of the sheriff, the Appeal Court made reference to the fact that a proof requires a judgment to be set out in conventional terms with findings in fact and findings in fact and law. Failure to provide a judgment prevents parties from scrutinising the decisions of the Court and impedes their ability to consider appealing such decisions.

In a postscript to the judgment, the Sheriff Appeal Court suggested that the problem that arose in this case could be avoided in future by “dividing consideration of whether there should be contact from what the mechanics of contact might be”. As such, “[t]he two issues in this case (the principle of contact and its implementation) could be focused with discrete pleas in law supported by specific averments”. This would allow a proof to be set on a specific averment, rather than dealing with contact as a monolithic consideration.

Read the decision here

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