A sheriff was wrong to make a final order at a child welfare hearing bringing a father's contact to an end, when a proof on the issue had not been completed, the Sheriff Appeal Court has ruled.

Sheriff Principal Derek Pyle, Sheriff Principal Duncan Murray and Appeal Sheriff Peter Braid gave the decision in the case of K v K, an appeal from Selkirk Sheriff Court, where the sheriff granted a minute to vary a divorce decree by reducing to nil the father's contact with his two children still under 16, a son H and daughter M.

Divorce was granted in 2012. The father had been violent during the marriage to his wife and to the two older children (H and his older sister A, now 17). Residential contact that he was allowed did not go well, and was suspended in April 2013 after the minute to vary was lodged. After a proof on this and other minutes in 2014, the father was allowed continued contact with H and M. In 2015 the mother lodged a second minute seeking to end contact. A curatrix was appointed (who supported the minute) and two child psychologists instructed. The father's agent withdrew and another was instructed. Proof began in April 2016. Evidence for the mother, and of the father himself, was heard between then and August. A series of procedural diets followed. H was being treated for post-traumatic stress disorder and had told the curatrix he did not want to see his father, if at all, until that was complete. He wanted the proceedings ended.

The decision appealed took place following a child welfare hearing in November 2017. The Appeal Court noted this was "nearly three years since that minute had been lodged, some 30 months since the first day fixed for a hearing and over 15 months after the last day of evidence. From the interlocutors provided in the appeal print, we note that between February 2011 and December 2017 there have been well over 100 orders made by the court of which over 50 have been made since March 2015".

The sheriff's reasons included that H no longer wanted to see his father; he had already made findings about the father; he had previously allowed contact to M because H would be present; issues that the father said required to be determined would make no difference to his decision; the father did not offer to prove that he had turned over a new leaf or some other course that might impact on his character; and it was competent to make a final order even where evidence was only part heard.

Sheriff Principal Pyle, giving the opinion of the court, said the court had "severe doubts" about the competency of the course taken: " the whole thrust of the rules is that the sheriff is to try to secure at an early child welfare hearing the expeditious resolution of the case, by ascertaining what is in dispute, and what the issues are... if a proof is required the sheriff has a panoply of case-management tools open to him... It follows that a proof should be required only where the sheriff has been unable to resolve the case in any other way. The case management powers are there for the very purpose of ensuring that the proof is conducted efficiently. The rules do not cater for the notion of the sheriff both allowing a proof and thereafter deciding the case at a child welfare hearing, because by definition a proof will have been fixed because it is necessary to resolve the case".

He added: "It runs counter to a basic principle of natural justice that an action should be decided after a court has heard evidence from one party, but not the other. While the first branch of the appellant’s appeal is based on competency rather than on an assertion that natural justice has been breached, it is not unreasonable to assume that the ordinary cause rules do proceed on an assumption that a hearing with evidence, once begun, will be concluded in accordance with natural justice and that it is indeed incompetent for a sheriff to bring the proof to an end at his own hand."

Of the 19 matters listed by the father as still requiring decision, some at least might have a bearing on the final outcome of the case. Evidence of H's diagnosis and prospects, and of his views, could and should have been led.

The court further stated: "The final factor which in our view vitiates the sheriff’s decision is that he did not have sufficient material before him to entitle him to reach a final decision without hearing further evidence. Usually where that course is taken at a child welfare hearing, the sheriff will have some extraneous material, normally in the form of a child welfare report. Here, although there were reports the sheriff expressly tells us that he did not have regard to them. All he had were the children’s views, as communicated by the curatrix who was a party to the action and who wished to secure an outcome of no contact. In our view, that was not sufficient material."

Remitting the case to be heard by a different sheriff, the court added: "We would suggest that a case management hearing be heard as soon as possible to identify what further amendment needs to be made to the pleadings; which issues are relevant and which are not; what expert evidence, if any, is to be permitted; and whether any evidence can be given by affidavits."

And in a postscript to the opinion it criticised the delays, including the non-availability of the father's agent on at least three occasions. "Agents should be prioritising family cases where children are involved and be diligent in ensuring that they have the capacity to focus on the expeditious progress of cases. Likewise, sheriffs should be most reluctant to allow delay as a result of the unavailability of an agent.

"It is impossible to avoid the conclusion that, at least in part, the difficulties which arose at the proof would not have arisen had the sheriff engaged in more effective case management from the outset." The rules introducing case mamnagement powers enabled them to be applied to minute proceedings begun after they came into force, though the action itself was raised earlier.

Click here to view the opinion of the court.