No sooner than court proceedings have commenced, those involved generally want to see the process at an end. Litigation is a costly process and is often a source of stress and worry. This is recognised by the courts, who likewise do not wish to see a case continuing on at length unnecessarily.
Very few cases reach the stage of a proof. Often with the assistance of legal representation, through a process of negotiation, agreement is reached. This may occur early on in proceedings, or it may come at the eleventh hour ahead of the proof taking place. Where a case does run to proof, the focus is to bring finality to proceedings. Parties and their legal representation will have carefully prepared their respective cases to present to the court. The aim: to persuade the court to decide in their own favour.
What happens, then, where the stage of a proof is reached, yet the court does not consider it appropriate for a final decision to be made? This situation has occurred in the past, and occurred recently in the case of LRK v AG  SAC (Civ) 33 (2 October 2019), a case which reached the Sheriff Appeal Court due to the approach taken by the sheriff.
This case related to a father, LRK, who was seeking contact with his daughter, C, aged six. C's mother, AG, was opposed to any form of contact taking place between LRK and C. AG alleged a number of very serious domestic abuse incidents of which LRK was the perpetrator. LRK accepted having been found guilty after trial of a domestic assault against AG, for which he was sentenced to 14 months' imprisonment.
A child welfare reporter was tasked with providing an independent report to the court on the matter of LRK's contact with C. The reporter concluded “with no hesitation whatsoever” that it would not be in C's best interests to have contact with LRK, and went on to say that he considered it would be “detrimental” to C to have contact with her father. Following this decision, the Scottish Legal Aid Board withdrew its funding certificate for LRK. LRK continued his case from that point as a party litigant.
The stage of a proof was reached. After two days of evidence, and a further day of submissions, the proof came to a close. The sheriff issued two interlocutors, which read as follows:
- “The sheriff having resumed consideration of the cause, and having heard evidence and the parties' submissions thereon, and having decided to make an award of interim contact in favour of the pursuer, adjourns the proof part heard to a date to be afterwards fixed; fixes a child welfare hearing to take place immediately after the adjourned proof hearing.”
- “The sheriff, having indicated in a separate interlocutor of today's date that an interim award of contact is to be made, and having heard parties further as to the arrangements of interim contact, finds the pursuer entitled to contact ad interim on six separate occasions, each session lasting for one hour, ex proprio motu appoints said interim contact to take place at a contact centre and said contact to be supervised, with the contact centre to provide a report as to the contact sessions; appoints each party to meet one half share of the expenses, if any, of said contact sessions and report in the first instance; continues the case to a date to be afterwards fixed in approximately four months' time to call as a child welfare hearing; said interim award is made on the basis that the pursuer will enrol in an appropriate parenting class and provide written confirmation of same.”
This approach taken by the sheriff was unusual. Following a proof, a sheriff would ordinarily issue a judgment. That judgment would include a detailed note of the evidence heard by the sheriff. It would also include findings in fact, being the aspects of the case found by the sheriff to have been proven on the evidence presented. Judgments also provide clarity to parties in regard to points taken into consideration by a sheriff in making his or her decision. Additionally, and importantly, a judgment provides a record of the decision made, which enables an appeal to be made, if considered appropriate.
In this case, however, following the proof taking place, the sheriff did not issue a judgment. Instead, he decided to treat the proof not as proof, and not as a final hearing, but as an evidential child welfare hearing, following which he sought to fix further procedure. His position was that he wished to enable contact to take place only on a trial basis, and did not therefore consider a final order to be appropriate nor in the best interests of the child. The sheriff wished to continue involvement in overseeing contact as it progressed, if it progressed. The question for the Sheriff Appeal Court was whether this approach was competent.
One can quite readily sympathise with the sheriff in a situation such as this, doing his utmost to make the right decision for the child under the restrictions placed on him by the court procedure.
The Sheriff Appeal Court held, however, that the method adopted by the sheriff was not competent. Neither party in this action had moved the sheriff to proceed in the manner he did. Both parties prepared and presented their case at proof with a view to bringing their case to a close. The particular difficulty with the approach taken by the sheriff was that parties were deprived of the judgment which would ordinarily have followed. This left parties with no feedback as to the points taken into consideration by the sheriff in reaching his decision. Parties were also left with no information as to what findings in fact were drawn, and no information as to how any conclusions made were decided. The Sheriff Appeal Court therefore recalled the two interlocutors issued by the sheriff, and the sheriff was directed to issue a judgment in the usual manner.
Ancillary to that decision of the Sheriff Appeal Court was some additional commentary. The Appeal Court recognised that the issue which arose in this case was a recurrent one. It acknowledged that there is a conflict arising between the requirement to act in the best interests of a child, which inevitably may necessitate some level of ongoing involvement of the court for monitoring purposes and to enable orders to be adjusted as matters progress etc, against the principle of bringing finality to legal proceedings. The Appeal Court gave guidance as to how an issue such as this may be appropriately handled in future cases.
Reference was made to other types of disputes arising in the civil courts, for example a reparation case or a divorce case. In many disputes which reach court, the dispute is seldom limited to just one issue. In a reparation case for instance, the dispute is often categorised into two separate elements, liability and quantum. In the context of a divorce action, parties may be unable to agree, say, on the date on which they separated. In such circumstances, the court would require to consider one particular issue independently of any other dispute that may form part of the case. Where such issues are separated in this manner, it enables the court to address each issue independently, with, if necessary, a proof being run on one specific aspect of the dispute only.
With this in mind, the Sheriff Appeal Court suggested that contact disputes of this nature be broken down into independent issues, with specific written averments and pleas in law to address each issue. For example, in the context of LRK v AG, the two issues would be first, whether contact should take place, and secondly, if so, at what level. Such an approach would enable a sheriff to address the first question independently of the second. The sheriff could allow a proof to take place, a decision and a judgment to be issued, on just the first issue alone. The issuing of such a judgment would not then conclude all procedure on the case as the second issue would still require to be addressed. This approach would have allowed the sheriff to decide first that contact should take place. Thereafter, further procedure would continue in respect of the second issue, namely the level of contact that should be taking place, thus allowing the sheriff to monitor contact as he wished.
This case highlights the conflicts that can arise in our justice system between the aim to resolve cases as swiftly as possible, against the need to allow sufficient time to be taken when handling sensitive matters such as a young child's relationship with her father. Hopefully the guidance given by the Sheriff Appeal Court will assist practitioners going forward to ensure that the interests of the child will remain the paramount consideration, notwithstanding the apparent restrictions of our court procedure.
Natalie Bruce is a solicitor with Harper Macleod LLP