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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McGarry v. Dosoo [2003] ScotCS 325 (23 December 2003) URL: http://www.bailii.org/scot/cases/ScotCS/2003/325.html Cite as: [2003] ScotCS 325 |
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
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Lord Hamilton Lord Macfadyen Lord McCluskey
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XA5/03 OPINION OF THE COURT delivered by LORD MACFADYEN in APPEAL in the cause WENDY ELIZABETH McGARRY formerly ANGUS or DOSOO, Pursuer and Respondent; against GEORGE YAO SMALL DOSOO, Defender and Appellant. |
Alt: Party (Defender and Appellant)
23 December 2003
Introduction
[1] The pursuer and the defender were married on 18 October 1980, separated in about July 1998 and were divorced on 12 October 1999. The pursuer is a native of Scotland. The defender is a native of Ghana. There are three children of the marriage, of whom two were at the date of the interlocutor to which this appeal relates under the age of sixteen years, namely Francis Tsatsu Korshive Dosoo, who was born on 30 November 1986, and Besah Kofi George Dosoo, who was born on 1 July 1994. [2] At the time of the decree of divorce, the sheriff (Sheriff Horsburgh), after proof, made a residence order in respect of all three children in favour of the pursuer. Contact orders sought by the defender were refused. [3] In May 2000, the pursuer became acquainted with one Geoffrey Johnstone, of Castlemaine, Victoria, Australia, through communication by way of a Christian internet site. Thereafter they communicated by telephone and by e-mail. They decided to meet in May 2001. Mr Johnstone spent two weeks with the pursuer and her family in Scotland in December 2001 and January 2002. Mr Johnstone proposed marriage to the pursuer. The pursuer, Francis and Besay visited Mr Johnstone in Australia for three weeks in March and April 2002. On 12 April 2002 the pursuer and Mr Johnstone became engaged to be married. [4] The pursuer formed the wish to emigrate to Australia to marry Mr Johnstone, and to take Francis and Besah with her. At the material time the eldest child, Korshi, was spending a gap year in Japan, but he intended to join his mother and brothers in Australia thereafter. In these circumstances, the pursuer presented a minute craving a specific issue order under section 11(2)(e) of the Children (Scotland) Act 1995 ("the Act") granting her leave to take Francis and Besah out of the United Kingdom to live with her permanently in Australia. Francis also presented a minute craving to be sisted as a party to the action, and expressing his wish to emigrate to Australia with the pursuer. The defender had earlier, in February 2002, lodged a minute craving, by way of variation of the interlocutor pronounced on divorce, an order for contact with Besah every Saturday and Sunday between noon and 8.00 p.m. [5] All three minutes came before Sheriff Horsburgh for proof on 28, 29 and 30 October 2002. The pursuer and the defender each appeared as party litigants. Francis was represented by a solicitor, Miss Karlin. Evidence was led from the following witnesses: (1) Mrs Sheila Helm, Besah's child-minder; (2) Francis;(3) Mr Ian Cadell, Francis's guidance teacher; (4) Mr William Wattie, the head teacher of Besah's school; (5) Mr Brian Leslie, a friend of the defender; (6) the pursuer; (7) Dr Hewitt, the family doctor; and (8) Miss Wendy White, Besah's teacher for the academic year 2001-02. The defender did not give evidence. In addition to the oral evidence, the pursuer founded, without objection from the defender, on affidavits from Korshi, Mr Johnstone and her sister, Shona McGarry.
[6] By interlocutor dated 18 November 2002 the Sheriff granted the pursuer leave to take Francis and Besah out of the United Kingdom to live with her permanently in Australia. By the same interlocutor the defender's application for a contact order in respect of Besah was refused. Because the pursuer was at that stage anxious for various reasons to leave for Australia in December 2002, and the defender had indicated that he would appeal to this court against any order granting her leave to do so, the pursuer moved the Sheriff at the bar to grant leave ad interim. The Sheriff granted that motion, and on 16 December 2002 allowed immediate extract of the interim order. In the event, the pursuer, Francis and Besah left for Australia towards the end of January 2003. [7] The defender appealed against the interlocutor of 18 November 2002. A motion made by the defender in this court to suspend the interim order and interdict the removal of the children from Scotland was refused on 22 January 2003. On 19 February 2003 the appeal in so far as it related to Francis was refused of consent. The appeal so far as relating to Besah was in due course heard. The defender conducted the appeal on his own behalf. The pursuer was not represented at the hearing of the appeal. She submitted certain material to the court by fax and by post, and raised by correspondence an issue as to expenses to which we shall refer later.The appellant's grounds of appeal
[8] The defender presented his submissions partly by reference to a document which he had tendered which contained twelve numbered "Points of Appeal". He prefaced his submissions on those points with certain general observations. He emphasised that the issue concerned children in respect of whom he had both parental responsibilities and parental rights. He referred to sections 1 and 2 of the Act. He accepted that in determining the issues in the case, the best interests of the children were paramount. He submitted that, in determining where the best interest of the children lay, the court should apply the criteria which a reasonable person would apply in relation to his own children. He referred to a number of authorities, criticised certain of the Sheriff's findings in fact, and invited us to have regard to the various points in the notes of evidence highlighted in parts 2 and 3 of Appendix IV. It is convenient to group the defender's points together under a number of headings.Preliminary procedural issues
[9] The defender drew attention to the fact that his minute seeking an order for contact with Besah had been lodged in February 2002. It was set down for proof on 28 May 2002, but on 21 May on the pursuer's motion Sheriff Horsburgh discharged the diet. The defender was aggrieved by that decision. He marked an appeal on 22 May. On 23 May the sheriff was asked to write a note to the interlocutor of 21 May. By Note dated 29 May the sheriff pointed out that the interlocutor was of a sort that could be appealed only with leave, and that leave had not been sought and had not been granted within the seven days prescribed by Ordinary Cause Rule 31.2(1). The defender submitted before us that, in fairness, the sheriff, knowing that he wanted to appeal, should have arranged that the need to seek leave to appeal be pointed out to him before the time for seeking leave had expired. Given the date on which the sheriff was asked to write his Note, it is unfortunate that no steps were taken to have the sheriff clerk draw the need to apply for leave to the defender's attention when an application for leave could still have been timeously made. Of course, if that had been done, and an application for leave had been made, it might very probably have been refused. But that would have been a more satisfactory course than to point out the need for leave only when it was too late to apply for it. Be all that as it may, however, nothing now turns on that procedural point. The interlocutor discharging the diet of proof took effect, and it is now impossible to restore the defender to the position in which he would have been if he had sought and obtained leave, and succeeded in an appeal against the discharge of the diet. [10] The defender further submitted that because Sheriff Horsburgh had heard the original proof, and had formed a view about the defender, it was inappropriate that he should have heard the proof that ultimately took place in October 2002. He stated to us that he had lodged a motion to have the case transferred to another sheriff in July 2002. Unfortunately no such motion is present in the process, nor does any interlocutor bear to deal with it. After the conclusion of the hearing on the summar roll, the defender provided to the clerk of court a document which bears to be a copy of a motion dated 4 July 2002 craving the court to remit the case to another sheriff on the ground that Sheriff Horsburgh had a fixed view of the credibility and reliability of the defender and his witnesses. The interlocutor of 4 July, however, makes no reference to that motion. Another motion, No. 7/14 of process, was allowed to be dropped, but that was a motion to remit the cause to this court. It seems likely that, as the defender in the course of his submissions appeared to accept was the case, he either did not lodge, or withdrew, the motion to remit to another sheriff. We are unable to express any view as to whether there was any prospect that that motion would have been granted if it had been pressed. Like the earlier procedural point, however, it is now a mere matter of history, which cannot effectually be opened up in this appeal. Nothing can be done now to put the defender back in the position in which he might have been if that motion had been moved and granted. [11] We should add that in paragraph 12 of his Points of Appeal, in support of the submission that Sheriff Horsburgh should not have heard the proof on the section 11(2)(e) and contact applications, the defender referred to the sheriff's judgment of 12 October 1999 and asserted that the views expressed there in relation to the defender, his race and his culture tended to imply that children of inter-racial and cross-cultural marriages should not be accorded the same rights and protection under the Children (Scotland) Act 1995. In our opinion nothing said by the sheriff in that judgment implies that.The minute of amendment and the private investigator's report
[12] At the beginning of the proof the defender tendered a minute of amendment in which he made a number of calls on the pursuer to produce documents relating to Mr Johnstone and his financial circumstances. He also tendered as a production a report from a firm of private investigators bearing on the domestic, business and financial circumstances of Mr Johnstone. The motion to allow these documents to be lodged was opposed by the pursuer and on behalf of Francis. The sheriff refused to allow them to be lodged. Before us the defender argued (see paragraphs 1 and 2 of his Points of Appeal) that the sheriff had erred in law in taking that course. He maintained that the minute of amendment focused the real issue between the parties, and raised important matters which would assist the court in reaching a view as to the best interests of the children. He maintained that, as a party litigant, he had been unfairly criticised for the lateness of the minute of amendment and the proposed production. The proof date had been set earlier than he wished, in order to accommodate the pursuer's travel plans. He informed us, although it is not evident that this point was put to the sheriff, that the Australian investigator, who had carried out the work described in the report (which was written by a Scottish investigator) was to be in Edinburgh the following week and could have spoken to the report then. [13] The sheriff dealt with the matter at page 5 of the Note attached to his interlocutor of 18 November 2002 in the following terms:"In my view the minute of amendment came far too late. It sought information recovery of which had been attempted by specification before another sheriff the previous week. That ought to have been sought much earlier. There was no sound reason given to explain why that had not been done. I also thought that the investigators' report ought to have been produced much earlier. I did not accept that it had been impossible to trace Mr Johnstone's whereabouts until a very late stage. The pursuer and Francis were keen that the case proceed, since it is planned that they should emigrate in December 2002. On both these matters I formed the clear impression that the defender was simply using these applications as devices to have the hearing put off."
We note that Sheriff Craik had formed a similar view of the defender's motivation on 11 September 2002.
[14] In our view the sheriff was entitled, in the exercise of his discretion, to refuse to allow the minute of amendment to be received. A minute of amendment containing calls upon a party to produce documents is not ordinarily an appropriate means of obtaining such material. As the sheriff pointed out, the proper course would have been a timeous application for commission and diligence. So far as the investigator's report is concerned, the sheriff was again, in our view, entitled to take the view that it was tendered too late. The defender appeared, in any event, to be labouring under the misapprehension that the report - as he put it - spoke for itself. It was only when it was pointed out to him in the course of the hearing on the summar roll that it would have required to be spoken to by an appropriate witness that he mentioned to us that the Australian investigator would have been available in Edinburgh in the week following the proof diet. Although that was mentioned to the sheriff (see Appendix 1(a), page 76C) in the course of the second day of the proof the defender appears not to have returned to the point, and it would be idle to speculate how the sheriff would have dealt with a motion to continue the proof to enable that witness to give evidence, if such a motion had been made by the defender. What the sheriff was doing was dealing with a document tendered as a late production without any indication at that stage that its author would be available as a witness, and we are of opinion he was entitled to refuse to allow it to be lodged.Financial considerations
[15] What underlay the defender's motion to have the minute of amendment received and to lodge the investigators' report was his contention that the pursuer had to vouch Mr Johnstone's financial position in greater detail than was done in the evidence which she tendered. As he put the matter in paragraph 3 of his Points of Appeal:"... the learned Sheriff erred in law in holding that the Defender's request for documentary vouching [was] unreasonable. The Pursuer is seeking to make a permanent move to Australia taking the children with her. She became sponsored in her move by her new partner. His ability to support her and the children was entirely relevant and evidence to establish his financial stability should have been looked into."
The defender's position on that issue did not find favour with the sheriff. At page 7 of his Note the sheriff said:
"I thought the defender's demands for documentary vouching were quite unreasonable, and were designed to pry into the life of Mr Johnstone, or to cause difficulties for the pursuer".
The Sheriff had before him evidence about Mr Johnstone's financial circumstances (see finding-in-fact 9). His building business was in its first twelve months and, as the defender as an accountant must have been aware, a demand for annual accounts could not in these circumstances be met. The sheriff, however, made general findings about Mr Johnstone's ability to support the pursuer and her children as well as his own family. We are satisfied that these were findings which he was entitled to make, notwithstanding the criticisms of the evidence advanced by the defender. As the sheriff pointed out in finding-in-fact 9, Mr Johnstone, as the pursuer's sponsor, required not only to undertake to the Australian immigration authorities that he would support the pursuer and her children for two years, but also to demonstrate to the satisfaction of those authorities that he was able to do so. Before us, the defender sought to suggest that he had been proved correct in his concern that Mr Johnstone could not support the children because they had, since their emigration, applied to him for financial assistance in certain respects, but that point was not in our view well taken. The defender retains his obligation to share in alimenting his children. In our opinion the sheriff was entitled to reach the conclusion that the financial situation of the pursuer and the children in Australia, so far as they were dependent on Mr Johnstone, would be satisfactory.
[16] The defender also argued (part of paragraph 4 of his Points of Appeal) that the pursuer was unable to produce evidence that she would be able to support herself and the children should her relationship with Mr Johnstone fail. The sheriff, however, had before him evidence dealing with the pursuer's own earning capacity, and made findings in that connection (finding-in-fact 11). We do not consider that it is arguable that the sheriff was not entitled on the evidence to reach the conclusion that:"It is probable that [the pursuer] would obtain suitable and well-remunerated employment without difficulty."
Relationships
[17] The defender argued (a) that the sheriff failed to give sufficient weight to the defender's argument that the relationship between the pursuer and Mr Johnstone was very short lived, and that there was no evidence that it would be stable (paragraph 4 of the Points of Appeal), and (b) that the sheriff had attached too much weight to the evidence that the children had a stable relationship with Mr Johnstone, given that it was short lived and that they had only met on two occasions on holiday (paragraph 5 of the Points of Appeal). These were, in our view, matters for the sheriff to assess in the light of the evidence placed before him. He had the evidence of the pursuer and Francis, as well as the affidavits of Korshi, Mr Johnstone and Shona McGarry. While we do not doubt that the argument put forward by the defender on this point was one that required to be carefully considered, it is in our view clear that the sheriff was entitled to reach the conclusion that he could accept that the relationship between Mr Johnstone and the pursuer had good prospects of lasting, and that the attitudes of the children, as reflected in findings-in-fact 7 and 8, were well founded.The interim order and immediate extract.
[18] The defender argued that the sheriff erred in law in granting the interim section 11(2)(e) order when there was no crave for such an interim order (paragraph 6 of the Points of Appeal), and further erred in law in allowing early extract of the interlocutor (paragraph 6, and on a related point paragraph 11, of the Points of Appeal). We prefer to reserve our opinion on these matters. Even if there is force in the defender's contentions, they do not, in our opinion, help him at this stage of the case. The interim order, extracted when it was, permitted the pursuer to take Francis and Besah to Australia. This court declined to suspend the order at that stage or to grant interim interdict against removal of the children from Scotland. The pursuer and the children left Scotland at the end of January 2003. Once they had emigrated, the effect of the interim order was spent. What matters now is not whether the interim order was valid or justified, but whether the defender can make out his case that the full section 11(2)(e) order ought not to have been made.The interim interdict
[19] In paragraph 7 of the Points of Appeal, the defender submitted that the sheriff erred in law in accepting that Francis had on occasions been harassed by the defender. He submitted that Francis accepted in cross-examination that on the occasion in question he had been with a friend and had walked over to speak to the defender, and that accordingly the interim anti-molestation interdict referred to in the sheriff's finding-in-fact 3 had been wrongfully applied for and wrongly granted. Frances's evidence on the point is to be found at page 134E et seq of the transcript of the second day of the proof. It is unnecessary to quote it in full. It does not seem to us, however, that it justifies the retrospective conclusion that the interim interdict was wrongly granted. In any case, the sheriff's main finding on the question of contact is finding-in-fact 16, which is in the following terms:"The defender has not had contact with the children for about four years. Neither Francis nor Besah raise the subject of the defender in conversation. They do not have happy memories of him. They were both positive in their views that they do not wish to have contact with him."
There was in our view evidence before the sheriff which entitled him to make that finding. Francis's evidence under cross-examination about the incident which led to the application for interim interdict does not in our view undermine it.
The significance of the fact that the defender did not give evidence
[20] The defender submitted that the sheriff erred in law in placing reliance on the fact that he did not give evidence. The defender relied, for the purposes of this argument, on White v White 2001 SC 689. He submitted that it supported the proposition that the maintenance by a child of contact with both natural parents was to be judged as a benefit without the need for evidence, and that a contact order could be made without the absent parent having to make an application for contact. In our view the defender has misunderstood the import of White. The case supports the particular points which he takes from it, but not the way in which he seeks to apply those points. At 695F-H (paragraph [14]) Lord President Rodger said:"Parliament could not have intended that courts should hear evidence in all these cases on what in general may be thought best to promote the welfare of a child. ... The point of reference to which [the courts] have regard - and which they take because it represents the consensus of society - is that 'it may normally be assumed that the child will benefit from continued contact with the natural parent'."
At 698D-E (paragraph [21]) his Lordship added:
"When the terms of section 11 of the 1995 Act are examined, they can be seen to be inconsistent with the notion that section 11(7)(a) itself imposes a legal onus on the person who asks for an order regulating contact. ... [Such] orders can be made by the court ex proprio motu without any application."
"As a working hypothesis I assumed that continuing contact with the defender would be of benefit to the children."
That formulation echoes the language of Lord President Rodger in White at 696B (paragraph [15]). The sheriff went on, however, to consider, as he was bound to do, whether the best interests of the children would be better served by their emigrating with their mother or not. If emigration was in their best interests, that was inconsistent with the sort of contact that the defender sought. The sheriff had a balancing exercise to carry out. He noted that the defender did not give evidence, but it was on an assessment of the whole evidence which he did hear, viewed in the context of the working hypothesis in favour of contact, that he came to the conclusion that the defender's application for a contact order should fail. In proceeding in that way he was, in our view, following the guidance given in White rather than failing to follow it.
Convention rights
[22] In paragraph 9 of his Points of Appeal the defender made reference to Article 9.3 of the United Nations Convention on the Rights of the Child, and to Article 8 of the European Convention on Human Rights ("ECHR"), and submitted that the sheriff erred in law in ignoring their impact. [23] Article 9.3 provides that:"State Parties shall respect the rights of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interest."
The defender did not elaborate orally on this aspect of his submissions, and it is sufficient to note that the Article contains an express exception, and the sheriff has found that the circumstances of the case fall within that exception.
[24] Article 8 of the ECHR provides:|
"1. |
Everyone has the right to respect for his private and family life, his home and his correspondence. |
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2. |
There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others." |
The defender submitted that his rights under Article 8 had been infringed. He referred to two cases decided in the European Court of Human Rights, namely B v United Kingdom (1987) 10 EHRR 87 and Kroon v The Netherlands (1994) 19 EHRR 263. These cases illustrate the application of Article 8 in the context of parental rights. B v UK was concerned with a matter of access (contact). The defender argued that his rights and the rights of the children under Article 8 had been infringed because contact had been withheld without justification. In our view this argument raises no separate issue. Aspects of the question whether there was justification for the sheriff's decision granting the pursuer leave to take the children with her when she emigrated, and refusing the defender the contact which he sought, are raised in a number of the defender's submissions. In our view the sheriff was entitled, on the evidence before him, to reach the conclusion which he did as to the course which was in the children's best interests. That decision did not in our opinion infringe the defender's or the children's rights under Article 8. The decision was taken in accordance with the law, and was necessary, on the view which the sheriff took, for the protection of the rights and freedoms of the children (who, as the sheriff held, wanted to emigrate and did not wish contact) and of the pursuer.
[25] Although it is not mentioned in his Points of Appeal, the defender also made reference in his oral argument to Article 14 of the ECHR. Article 14 provides inter alia as follows:"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as ... race, colour ... national or social origin, association with a national minority ... or other status."
As its terms make clear, Article 14 can only be invoked in conjunction with another Article. We took the defender to be invoking Article 14 in the context of his reliance on Article 8. The suggestion appeared to be that in approaching the questions of the section 11(2)(e) order and contact, the sheriff had discriminated against the defender on one or other of the grounds mentioned in the quotation which we have made above from Article 14. The material before us affords no support whatsoever for such a conclusion.
[26] Again without mention of it in his Points of Appeal, the defender also sought to rely on Article 6 of the ECHR which guarantees everyone, inter alia in the determination of his civil rights and obligations, a fair hearing. He mentioned in particular the concept of equality of arms. He submitted that he had been unfairly treated because his attempts to obtain detailed information about Mr Johnstone - whether he had a criminal record, his income and his bank statements - had been refused. In this respect the defender's reliance on Article 6 adds nothing to the submissions already considered. We do not consider that he received unfair or unequal treatment. He also mentioned the number of occasions on which the sheriff had, in the course of the proof, intervened in the course of his cross-examination of witnesses, but we do not consider that there is any merit in that complaint.Miscellaneous submissions
[27] In paragraph 10 of his Points of Appeal, the defender contends that the sheriff erred in not correctly applying the test of the child's best interests. The proposition advanced was that, by granting the pursuer's application "mainly on hearsay evidence" the sheriff was allowing the children to be removed from a safe environment to a potentially damaging one. We do not consider that the sheriff did proceed mainly on hearsay evidence. The contention that in taking the children with her to Australia the pursuer was taking them to a potentially damaging environment is one which is addressed in more detail in other parts of the defender's submissions. In our view it is clear that the sheriff was well aware that he required to consider carefully whether the move to Australia was one which could be undertaken without endangering the children's welfare. He was in our opinion entitled on the evidence before him to conclude that it was. [28] In relation to finding-in-fact 8, which records inter alia the sheriff's conclusion as to Besah's attitude to emigration, the defender referred to section 11(7)(b) of the Act which enjoins the court, in making a section 11 order, to give the child the opportunity to express his views and to have regard to those views, taking account of the child's age and maturity. The defender questioned both the weight which ought to have been given to Besah's views, since he was only eight years old at the time of the proof, and the means adopted of ascertaining his views. In particular, the defender suggested that Besah was too young to distinguish between an enjoyable holiday in Australia and the prospect of moving to live there permanently. He also indicated that he would have preferred someone who had not already dealt with Besah to be the vehicle for transmission of his views to the court. What was done is described by the sheriff at page 6 of his Note. He declined the defender's request that he interview Besah. It was, in our view, within the sheriff's discretion to take that course. Besah had been interviewed by Miss Wendy Sheehan WS in April 2002 and she had reported his views on a form F9 which was lodged in court. The sheriff took the view that it was unnecessary to afford Besah a further opportunity of expressing his views. He was, in our view, entitled to be of that view, especially since, as he pointed out, more up-to-date information about Besah's views was available in the evidence of the pursuer, Francis, Mr Wattie and Miss White. Moreover, we consider that the sheriff was entitled, notwithstanding Besah's age, to take account of his views in the way that he did. [29] The defender invited us to take account of the various passages in the evidence which are identified in the schedules which appear in Appendix IV. We have done so, but do not consider that it is necessary for us to comment further on the individual references.Expenses
[30] The matter of expenses was dealt with by the sheriff by interlocutor dated 6 December 2002. It bears to have been pronounced in the pursuer's absence. The defender was held liable to pay Francis's expenses. As between the pursuer and the defender, no expenses were found due to or by either party. In a written submission presented to this court shortly before the hearing on the summar roll, the pursuer invited us to review that interlocutor, and to find the defender liable to her in expenses. According to the pursuer's submission, she attended court on 6 December, but officials were unable to tell her in which court the hearing would take place. Eventually the defender's solicitor appeared and advised her that the hearing had taken place in her absence. The pursuer indicates in her submission that she did not seek to have the matter re-opened then, because she was advised that to do so might delay the date on which she could leave Scotland. [31] The defender resisted the pursuer's application for review of the finding of no expenses due to or by either party. He referred to D v D (Shared Residence Order) [2001] 1 FLR 495, in which the view was expressed by Hale LJ at paragraph 37 that:"... it is very rare indeed for the courts to make costs orders in cases about children. ... [The] court is reluctant to make a costs order unless one of the parents has behaved totally unreasonably in bringing the proceedings".
The defender submitted that he had not acted unreasonably in seeking a contact order or in opposing the pursuer's section 11(2)(e) application when he was not convinced that the children's welfare would be adequately secured if they emigrated.
[32] We are not persuaded that we should interfere with the sheriff's disposal of the question of expenses. Although the sheriff was critical of certain aspects of the defender's conduct of the procedure, he evidently took the view that the situation did not warrant an award of expenses against him. We are of opinion that it was clearly within the sheriff's discretion to decide to make no award of expenses to or by either party.Result.
[33] In all the circumstances we are of opinion that the defender has not made out any good ground for recalling the sheriff's interlocutor of 18 November 2002 refusing the defender's application for contact and granting the pursuer's application for leave to take the children out of the United Kingdom to live with her permanently in Australia. The appeal is therefore refused.
