Guidance on the "clash" that can take place between court procedure and its policy, and the need for flexibility when dealing with the interests of a child, has been given by the Sheriff Appeal Court in the case of a father attempting to win contact with his six year old daughter, C.

The court held that a sheriff had acted incompetently when, without either party requesting it, he adjourned a proof on the issue of contact in order to hold a child welfare hearing, and meanwhile made an award of six supervised sessions of interim contact, of one hour each, with the contact centre to provide a report.

The father, LRK, was alleged by the mother, AG, to have committed serious incidents of domestic abuse against her, and on his own averment had been imprisoned for 14 months for one such incident. An interdict with a power of arrest was in place and AG was opposed to any form of contact.

A court reporter had concluded "with no hesitation whatsoever" that it would not be in C's best interests for LRK to have contact. LRK's legal aid was then withdrawn and he continued as a party litigant. Eventually two separate days of proof took place and the case was continued to a further date for submissions. On that date the sheriff pronounced two interlocutors stating that he had decided to make an award of interim contact, adjourned the proof part heard and fixed a welfare hearing to take place immediately after the adjourned proof hearing; and making the award of interim contact, continuing the case to a child welfare hearing in about four months' time, and recording that the award "is made on the basis that the pursuer will enrol in an appropriate parenting class and provide written confirmation of same".

AG appealed. No contact had taken place by the time of the appeal hearing. In a note the sheriff acknowledged that in deciding ex proprio motu [on his own initiative] to adjourn the proof as part heard he was “adopting a very unusual course of action”, but had concluded that the procedure he had adopted was rendered necessary by the procedural history of the case, with the welfare of the child being his paramount consideration.

Giving the opinion of the court, Appeal Sheriff William Holligan, who sat with Appeal Sheriffs Sean Murphy QC and Grant McCulloch, said the case "highlights clearly the clash between two competing issues: (a) procedure (and its policy) and; (b) the need for flexibility when dealing with the interests of a child". Whereas the direction of procedure had over the years moved towards expedition and the avoidance of delay, cases involving the interests of children "often do not admit of a single determination".

None of the previous cases had dealt comprehensively with the issues that arose. However, referring to the 2018 case of K v K, the court noted: "It does not follow that because the sheriff has the power to decide a case at a child welfare hearing as an alternative to fixing a proof, he may do so part way through a proof which he has decided is necessary in order to resolve the matters in dispute between the parties." 

In the present case the sheriff had decided that the only way to resolve the issue of whether there should be contact was after proof. However he did not then make findings or issue a judgment. He had deferred a decision on whether there should in principle be contact. "It was not a course he was invited to follow by either party, nor was it a course of action mandated by the rules of procedure. In our opinion, it was not competent for the sheriff to follow the course of action which he did. Proof had been allowed because it was necessary to resolve the case. Issues of principle required to be decided, including decisions upon major issues of fact."

A judgment in conventional terms with findings in fact and law enabled the parties to see what conclusions the sheriff had reached, and his reasons, and to consider whether they wished to appeal – and the appeal court to scrutinise the decision. It did not matter that the award in this case was an interim one. It was also not possible to know whether the sheriff had had proper regard to the statutory tests. The sheriff's interlocutors would be recalled and the sheriff directed to issue a judgment.

In a postscript the court added: "In cases where the issue is whether, in principle, there ought to be contact the procedural problem which this and other similar cases highlight could be avoided by dividing consideration of whether there should be contact from what the mechanics of contact might be...

"The two issues in this case (the principle of contact and its implementation) could be focused with discrete pleas in law supported by specific averments. A proof could be ordered upon the particular plea or pleas and averments. A judgment would follow which on such a fundamental matter would be open to appeal. If not appealed, further interlocutory procedure would be available to the sheriff to give effect to the decision, including child welfare hearings and interim awards of contact...

"The foregoing approach would avoid many of the procedural problems which this and the authorities referred to highlight."

Click here to view the opinion of the court.