The minute to vary procedure in a family action applies to the refusal of an order relating to a child, as well as the grant of such an order, the Sheriff Appeal Court has ruled.
Sheriff Principal Aisha Anwar, with Appeal Sheriffs William Holligan and Andrew Cubie, so held in refusing an appeal, which was no longer insisted on, by AND, the mother of a seven year old boy, who was seeking a specific issue order to relocate her son to Istanbul.
AND and the child's father, KWL, were divorced in March 2019, with no order then being sought in relation to the boy. In May 2020 AND was made redundant from her job in the oil and gas industry, but in December she got a new job working in Istanbul. She sought a specific issue order which was refused after proof, the sheriff being concerned that her proposals for accommodation and schooling were rushed and not properly thought through, as she had not yet visited either building, nor was he satisfied of arrangements for childcare.
On appeal AND sought to have the case remitted to the sheriff for further evidence regarding a subsequent change of circumstances, in that she had now moved to Istanbul and proposed different accommodation and school arrangements. On the court questioning whether a minute to vary would be more appropriate, it was submitted that as no order had been made by the sheriff, there was nothing capable of variation or recall so as to come within OCR, rule 33.65. Courts were known to refuse to accept minutes to vary in such circumstances. Following an adjournment the court was advised that AND agreed to proceed by minute to vary.
In a statement of reasons issued by the court, Sheriff Principal Anwar said that while a strict interpretation of rule 33.65 might lead to the conclusion that applications for a minute to vary could only be made when an order under s 11 of the Children (Scotland) Act 1995 had been granted in the sheriff court, such a narrow and literal interpretation was unwarranted.
"It must be borne in mind that the court rules are designed to provide the machinery by which orders in terms of s 11 may be sougtheless an order made 'in relation to' parental rights and responsibilities. A refusal has the effect of regulating the arrangements or the specific question which were the subject of the application...
"The minute to vary process is an expeditious means by which to seek orders upon... a change of circumstances. Were OCR 33.65 to be read such as to exclude the possibility of a minute in proceedings where a court had considered and refused an application for a s 11 order, parties would be left with the expense and delay which would inevitably result from a new, separate action. Such an outcome would be undesirable, unduly cumbersome and inimical to the expeditious resolution of cases involving children. Moreover, it cannot reasonably be maintained that the legislature intended those who are granted an order under s 11 should have access to the minute procedure, but those who are refused an order under s 11 should not. The courts should be slow to take a legalistic or mechanical approach to procedural rules in issues involving the welfare of a child.”
She observed that the present proceedings could have been presented as a minute to vary in the divorce action.
Further, "Where a change of circumstances is asserted during an appeal, the proper course of action is to proceed by way of a minute to vary and not to invite an appellate court to engage in an academic exercise and thereafter remit the matter back to the sheriff to hear evidence based on out of date pleadings... An appeal in such circumstances represents delay and expense which must be avoided.”