NJDB v JEG and another (Scotland)

When deciding whether to make an order concerning parental responsibilities or contact under section 11 of the Children (Scotland) Act 1995, the court must treat the child’s welfare as paramount. It must make an order only if that would be better for the child than making none.

A judgment need not cite the provision expressly where its findings and reasons demonstrate that the correct test was applied. Criticism expressed in forceful language will vitiate a decision only exceptionally, such as where the judgment gives rise to reasonable concern about judicial impartiality.

The father sought restoration of contact with his son. After proceedings lasting more than five years and a 52-day proof, the sheriff recalled the earlier contact order and withdrew contact. The Inner House, in [2010] CSIH 83, restored the father’s parental rights and responsibilities, which had inadvertently been withdrawn, but otherwise refused his appeal.

Before the Supreme Court, the father argued that the sheriff had failed to apply the statutory welfare test, that the findings could not reasonably support the result, and that intemperate criticism of the father and his counsel showed a failure to act judicially. The appeal was confined by section 32(5) of the Court of Session Act 1988 to matters of law.

1. Disposition. The appeal was dismissed unanimously. Lord Reed gave the principal judgment, with which Lady Hale, Lord Clarke and Lord Wilson agreed. Lord Hope agreed with Lord Reed’s reasons and added observations about the form of sheriff court judgments.
2. The sheriff had applied the correct test under section 11(7)(a) of the Children (Scotland) Act 1995. His findings and reasons showed that he treated the child’s welfare as paramount and asked whether contact was in the child’s best interests. His failure expressly to cite the section or White v White was immaterial. The findings that contact would expose the child to parental conflict, distress him, conflict with his wishes and provide no benefit gave a reasonable, indeed compelling, basis for the conclusion.
3. Forceful criticism of a party or counsel raises an issue of law only exceptionally, for example where the tone creates a reasonable concern about impartiality. The sheriff’s criticism of the parties was robust but even-handed, and disclosed no error of law. Concerns about counsel receiving no warning or opportunity to respond did not fall within the Supreme Court’s limited jurisdiction, although fair-minded judges and third parties should bear that procedural concern in mind.
4. Delay and case management. Lord Reed observed that the protracted proceedings were inimical to the child’s interests. Article 8 of the Convention requires undue delay in child-contact disputes to be avoided because delay can have irreversible effects and determine the issue in practice. Courts should actively control pleadings, amendments, proof dates and evidence, discourage repetition and marginal evidence, and use affidavits and reports where appropriate.
5. A judgment on a section 11 application should focus directly on the factors bearing on the child’s welfare and show the connection between those factors and the findings of fact. Lord Hope agreed that reasons must be clear and readily understood. He considered the traditional requirement for extensive separate findings of fact ill-suited to a case of this kind and deserving urgent review.
6. A curator ad litem is an officer of the court appointed to protect the ward’s interests in the litigation. It was inappropriate for the curator personally to conduct a proof concerning events in which he had participated and about which he might testify. The case demonstrated a need for clarity about curators’ functions, representation and remuneration.

1. United Kingdom Supreme Court: Dismissed the father’s appeal and affirmed the Inner House’s disposal: [2012] UKSC 21.
2. Inner House of the Court of Session: Varied the sheriff’s interlocutor to restore the father’s parental rights and responsibilities, but otherwise refused the appeal: [2010] CSIH 83; 2011 SC 191; 2010 Fam LR 134.
3. Sheriff Court: Recalled the earlier interlocutor and withdrew all contact between the father and child.