MN v ON [2019] SAC (Civ) 35

https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2019sacciv35.pdf (Sheriff Appeal Court, 8 November 2019)

Regarding the exercise of case management by a sheriff at Child Welfare Hearings  

The Sheriff Appeal Court has concluded, inter alia, that a sheriff had acted in error in relation to a note she had appended to an interlocutor following a child welfare hearing. The interlocutor stated that a proof should be fixed and an interim contact order was made in favour of the child’s father. The primary purpose of the appended note appeared to be to explain how this decision was reached. However, the Sheriff Appeal Court found that the explanatory note went beyond an explanation of the sheriff’s decisions and the contents had "the plain appearance of pre-judging the outcome of the proof".   

The proof concerned allegations of sexual abuse by the child against her father. In the note appended to the interlocutor the sheriff noted that she was of the view that contact between the father and the child should continue and that she was not persuaded that “any untoward behaviour of the defender” had occurred. Despite the sheriff’s doubts, she granted a fixing of a proof. 

While the Sheriff Appeal Court found this action to be in error, it did note that it did “not wish to be seen as discouraging robust case management and challenge in such a case” [31]. In acknowledging the difficulties of such cases the Court noted that: 

Decisions on interim awards are often made against a background of allegations by one parent against another which later have to be determined as true or otherwise at proof. When making such interim decisions the sheriff is often weighing up the allegations made, the experience of the parties and the children since the date of any alleged misconduct and, if appropriate, assessing the need for protective measures such as supervised contact. However in such a situation the sheriff must take care not to express a concluded view on what may be hotly contested allegations of misconduct, without hearing evidence” [32]. 

The Sheriff Appeal Court found that a letter the sheriff had prepared to be sent to the child communicating that she was believed was not an appropriate way of communicating the sheriff’s decision to the child: "We consider that the sheriff does adequately explain her decision to believe both the child and the respondent in her judgment, but that is a matter which requires much more careful consideration if converted into a letter to a child. Moreover, we do not consider that the offer to answer questions or to meet was one which was appropriate. Whether a letter should be sent by the sheriff to the child in due course is a matter which will depend to some extent on future procedure, but we would urge a degree of caution" [47]. 

Read the judgment here