Appeal in the cause JM against KB and EH (Sheriff Appeal Court Civil) [2024] SACCIV 36 (01 August 2024)

SHERIFF APPEAL COURT

[2024] SAC (Civ) 36

Sheriff Principal A Y Anwar

OPINION OF THE COURT

delivered by SHERIFF PRINCIPAL A Y ANWAR

in the appeal in the cause

Pursuer and First Respondent

against

Defender and Appellant

and

Third Party Minuter and Second Respondent

Pursuer and First Respondent: Anderson, sol adv: Lesley Anderson Law Ltd

Defender and Appellant: Party

Third Party Minuter and Second Respondent: Allison, adv: Millard Law LLP

1 August 2024

Introduction

[1]

Annie (a pseudonym) was born in 2008. The appellant, KB, is her mother. The first

respondent, JM, is her father. The appellant and the first respondent separated shortly after

Annie was born. The appellant was Annie's primary carer; however, her relationship with

Annie deteriorated significantly in 2020. In September 2020, Annie moved to reside with the

first respondent. She refused to have contact with the appellant.

[2]

The first respondent raised proceedings seeking: (i) a residence order for Annie to

live with him; and (ii) a specific issue order for Annie to continue to be enrolled at her

school. The appellant counterclaimed and sought: (i) a residence order for Annie to live

with her; failing which (ii) an order allowing for contact between her and Annie. The

second respondent was appointed as curator ad litem for Annie. Annie's views throughout

the proceedings remained consistent; she did not want to reside with the appellant nor have

any contact with her. The matter proceeded to a diet of proof. By the time it began, Annie

was 15 years and 3 months old.

The sheriff's judgment

[3]

The sheriff made: (i) a residence order in favour of the first respondent in respect of

Annie; and (ii) a specific issue order providing that Annie shall continue to be enrolled at

her school for the remainder of her secondary education. She refused the appellant's craves

for residence and contact.

[4]

The sheriff noted that during the proceedings, a number of unsuccessful attempts

had been made to arrange contact between the appellant and Annie. The second respondent

was appointed in December 2020. At various times during the proceedings, the second

respondent, a social worker, and a psychologist met with Annie and sought to facilitate

contact. The first respondent and family members sought to persuade Annie to have

contact. Family mediation was attempted. A forensic and clinical psychologist was

appointed by the court in January 2022 who did not recommend the granting of a contact

order in favour of the appellant. By the time of the diet of proof, the appellant had not had

any contact with Annie for 3 years. The sheriff considered that she no longer had any

insight into Annie's needs. Annie had been clear and consistent in her view that she no

longer wished to live with her mother, nor have any contact with her. Annie had made

repeated allegations of being assaulted by the appellant. The appellant had made many

serious and false allegations against the first respondent and had sent emails and messages

to Annie, the first respondent's former partner, his family, friends and his employer in

highly derogatory terms. Annie reacted badly to the appellant's conduct and was protective

of the first respondent. The sheriff concluded that Annie's rejection of the appellant was as a

direct result of the appellant's behaviour towards Annie and that the appellant had no

insight into the inappropriateness of her behaviour. The sheriff considered there was a risk

of abusive behaviour towards Annie if she granted the appellant's craves for residence and

contact. Annie's needs were met while she was in the first respondent's care. Annie's

views, in light of her age, required to be accorded due weight.

Competency of appeal

[5]

The sheriff issued her interlocutor on 6 November 2023. Following further

procedure, she issued an interlocutor dealing with the expenses of process on 29 May 2024.

The appellant subsequently lodged this appeal on 31 May 2024. Annie turned 16 a few days

later in June 2024.

[6]

Both respondents referred a question about the competency of the appeal in terms of

Rule 6.9 of the Act of Sederunt (Sheriff Appeal Court Rules) 2021.

Submissions for the appellant

[7]

The appellant was assisted by the court to articulate her position on the competency

of the appeal and to clarify what orders she sought. Within her Note of Appeal, the

appellant invited this court to "order that additional proof be taken" for further evidence to

be heard and thereafter for the appeal to be considered. In oral submissions during the

hearing on competency, her position changed; she asked for the appeal to be allowed and

for the action to be remitted to a different sheriff for a new diet of proof.

[8]

The appellant did not accept that her parental rights and responsibilities expired on

Annie's 16th birthday. She submitted, without reference to any authority, that parental

rights and responsibilities could continue to be held by a parent in respect of an individual

between the age of 16 and 18 if the individual in question suffered from a disability. The

appellant contended that Annie had autism and was neurodivergent. She asserted that this

was supported by the evidence of three expert witnesses during the diet of proof.

Submissions for the first respondent

[9]

An order to regulate where a child is to live can only be made in respect of a child

who is under the age of 16 years: section 11(2)(c) of the 1995 Act. An order regulating the

arrangements for maintaining personal relations between a child and a person with whom

the child is not living can only be made in respect of a child under the age of 16 years:

section 11(2)(d) of the 1995 Act. Annie turned 16 in June 2024. The parental rights and

responsibilities of both parents were extinguished upon her 16th birthday.

[10]

Even if the appeal were to be allowed, no interlocutor could now be issued

regulating Annie's residence or with whom she had contact. She was of the age of legal

capacity. There was no matter existing which was a live issue between the parties. There

being no order that the sheriff could now grant, the appeal should be dismissed: Ainsbury v

Millington [1987] 1 WLR 379.

Submissions for the second respondent

[11]

The second respondent adopted the first respondent's submission; the sheriff's

interlocutor ceased to have effect on Annie's 16th birthday.

[12]

To engage an appellate jurisdiction, an appeal must involve an issue in controversy

which is a live issue between the parties: Sun Life Assurance Co. of Canada v Jervis

[1944] AC 111. The parties must have an interest which is affected by the outcome: Ainsbury

(supra). Appeals which are academic between the parties should not be heard unless there is

a good reason in the public interest for doing so: R v Secretary of State for the Home

Department, ex p Salem [1999] 1 AC 450.

[13]

There is no longer any live issue. The orders made have lapsed. No new order can

be made in respect of Annie as she has attained the age of legal capacity. The appeal was,

accordingly, incompetent.

Decision

[14]

The orders made by the sheriff on 6 November 2023 are no longer extant; they are

unenforceable and ceased to have effect when Annie reached 16 years of age.

[15]

Parental responsibilities and rights enjoyed and exercised by parents in relation to a

child are set out in sections 1(1) and 2(1) of the Children (Scotland) Act 1995 ("the Act").

The effect of sections 1(2) and 2(7) which each define a "child" by reference to age, is that

save for the parental responsibility to provide guidance in terms of section 1(1)(b)(ii),

parental rights and responsibilities are extinguished when a child reaches the age of 16.

[16]

Orders may be sought in terms of section 11 of the Act in relation to parental rights

and responsibilities. The orders specified in section 11(2) generally either confer parental

rights and responsibilities upon those who do not hold them or restrict the exercise of those

rights and responsibilities by those who do hold them. In terms of section 11(2)(c) the court

may make a residence order regulating with whom a child "under the age of sixteen years is

to live". In terms of section 11(2)(d), the court may make a contact order regulating the

arrangements for maintaining personal relations and direct contact "between a child under

that age" and a person with whom a child is not, or will not be living. Plainly, any residence

or contact orders granted by the court expire when a child reaches the age of 16. The court

cannot competently grant such orders after a child reaches 16. A specific issue order granted

in terms of section 11((2)(e) regulating a child's attendance at school, is an order restricting

the exercise by one parent of his or her parental right in terms of section 2(1)(d). It too is

exercisable only until a child reaches the age of 16 (section 2(7)).

[17]

This appeal was lodged a matter of days before Annie turned 16. The appeal was

competent when it was lodged. However, the appellant invites this court to allow her

appeal and either hear further evidence or remit the cause to a different sheriff for a new

diet of proof; she wishes to insist upon her craves for a residence and a contact order. The

orders the appellant seeks can no longer be competently granted by this court or by the

sheriff court. As Annie is now 16, neither the appellant, nor the first respondent have the

parental rights or responsibilities which the appellant seeks to assert or restrain.

Accordingly, this appeal falls to be dismissed, the orders sought being incompetent.

[18]

At one stage in her submissions, the appellant indicated that she merely sought recall

of the sheriff's interlocutor of 6 November 2023 and dismissal of the action. She later

changed her position. Recall and dismissal are orders which this court could competently

grant if satisfied that the sheriff had erred. However, having regard to Annie's age, there

can no longer be any live issue between the parties; it would be an improper use of judicial

time and parties' resources for this appeal to be entertained when there is no longer any

dispute to be resolved between the parties (Ainsbury v Millington (Note) [1987] 1 WLR 397;

Sun Life Assurance Co. of Canada v Jervis [1944] AC 111). As observed by Lord Brodie in JM v

Taylor 2015 SC 71 (at paragraph 36), "Litigation should have a purpose". Here, that purpose

ought to be to obtain orders which are necessary and in Annie's best interests. It is clear that

during the proceedings before the sheriff and before this court, the appellant had lost sight

of that purpose.

[19]

The action was raised in November 2020. Within a month of raising proceedings,

Annie had completed a Form 9 expressing her views, a curator ad litem and a psychologist

had been appointed. Various unsuccessful attempts at contact with the appellant were

made. The appellant's agent withdrew from acting in August 2021. A diet of proof was

assigned. That was discharged on the appellant's motion. The appellant insisted that Annie

should give evidence at the proof. The court ordered evidence on commission. That was

assigned for November 2022. The appellant then decided she did not wish Annie to give

evidence. The commission was discharged. By then the first respondent's circumstances

had changed and he had separated from his partner. Further enquiries into the

arrangements for Annie's care were considered necessary. The second diet of proof was

discharged. A diet of proof was then assigned for September 2023. The appellant found

conducting the proof as a party litigant challenging. She lodged 120 inventories of

productions. She sent over 7000 emails and messages to the clinical psychologist. She sent

thousands of messages to the respondents' agents and to the court staff. She requested

numerous reasonable adjustments and claimed she suffered from ADHD, was possibly

autistic and that she suffered from anxiety and PTSD. No medical vouching was provided.

Her behaviour towards those representing the respondents was such that they requested the

proof be conducted by remote means. The appellant opposed this on the basis that she had

issues with internet connectivity. A hybrid proof required to be arranged with the appellant

sitting in a separate room within the court building accompanied by a lay supporter, only

entering the court room to put questions to witnesses or make submissions. The appellant

insisted on calling witnesses and then either failed to elicit any evidence from them or asked

few questions of them.

[20]

The sheriff issued her decision in November 2023. A hearing on expenses was

assigned for 25 January 2024. The appellant lodged a medical certificate on 18 January 2024

stating that she was unfit to attend court. The hearing on expenses was discharged. The

first respondent indicated that he was prepared for the issue of expenses to be considered on

written submissions. The appellant sought a hearing but stated she was unable to attend

court for 3 months. She enrolled a motion for access to the recorded evidence of the hybrid

proof and insisted that the motion be determined before the hearing on expenses. She then

dropped her motion days before it was due to be heard. A hearing on expenses finally

proceeded on 2 May 2024. The sheriff issued a written decision on 29 May 2024 finding the

appellant liable to the first respondent in the expenses of the action. By the time of the

appeal, the appellant was subject to bail conditions not to approach or contact the curator ad

litem and various professionals involved in the proceedings.

[21]

Rather than seek the expeditious resolution of the sheriff court proceedings while

Annie was under the age of 16 by focussing on what was in Annie's best interests, the

appellant caused repeated unnecessary delays and unnecessary procedure. She used the

proceedings to make irrelevant accusations and allegations. She has behaved

inappropriately towards the professionals involved in these proceedings and has repeatedly

lodged unfounded complaints. She delayed a decision on the question of expenses by some

6 months during which no appeal could be lodged. She has sought to pursue an appeal, the

outcome of which will be of no moment and the pursuit of which is futile. The appellant

bears a large measure of responsibility for the protracted nature of the first instance

proceedings and the late stage at which this appeal has been presented. The court has an

inherent power to prevent misuse of its procedure (Hunter v Chief Constable of the West

Midlands [1982] AC 529, per Lord Diplock at p536; Shetland Sea Farms Ltd v

Assuranceforeningen Skuld 2004 SLT 30). Such a power must be used sparingly; every litigant

must be afforded the opportunity to prosecute his or her case. Had the appellant insisted

only on recall and dismissal, having regard to the delays caused by her conduct of

proceedings at first instance and the futility of the appellate proceedings, the court, in

exercise of its inherent power to prevent misuse of its procedure, would have dismissed the

appeal.

[22]

The court was invited to grant the expenses of the appeal in favour of the

respondents. As a general principle, in certain family actions, questions of expenses do not

arise. The sheriff departed from that general principle in light of the appellant's conduct.

She had been correct to do so. As observed by Appeal Sheriff Cubie (as he then was) the

same considerations do not apply on appeal: F v M 2023 SCLR 630, at paragraph 40. The

appellant chose to appeal. She had been informed by those acting for the respondents that if

she insisted on her appeal, they would seek an award of expenses against her. The appellant

was aware of the futility of her appeal, having regard to Annie's age. The respondents are

entitled to their expenses.

Disposal

[23]

I shall refuse the appeal, the disposal sought by the appellant being incompetent.

The appellant is found liable to both respondents in the expenses of the appeal. The appeal

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