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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McKerrow v. C (a child) [2005] ScotCS CSIH_91 (22 December 2005) URL: http://www.bailii.org/scot/cases/ScotCS/2005/CSIH_91.html Cite as: [2005] ScotCS CSIH_91, [2005] CSIH 91 |
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McKerrow v. C (a child) [2005] ScotCS CSIH_91 (22 December 2005)
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FIRST DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord President Lady Cosgrove Sir David Edward, Q.C.
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[2205CSIH91] XA17/04 OPINION OF THE COURT delivered by THE LORD PRESIDENT in APPEAL From the Sheriffdom of Glasgow and Strathkelvin at Glasgow in the cause BRIAN JUNIOR McKERROW Pursuer and Appellant; against C (a child) Defender and Respondent: _______ |
Act: J.M. Scott; Allan McDougall (Harold W. Joseph, Glasgow) (Pursuer and Appellant)
Alt: Dowdalls; Balfour & Manson (Defender and Respondent)
15 December 2005
[1] This is an appeal from a decision of the sheriff principal dated 6 January 2004, refusing an appeal from the sheriff at Glasgow dated 14 March 2003. These determinations were made in respect of an application, for certain orders in relation to contact, made by the natural father of a young girl. The girl in question was born on 6 September 1999. She was accordingly some 31/2 years of age at the time when the sheriff determined the matter in March 2003. She was a few months over the age of 4 when the sheriff principal determined the matter in January 2004. She is now significantly over the age of 6 years. It is plain that for a number of reasons, some of them wholly unsatisfactory, this appeal has been outstanding for an excessive period of time. [2] The decision of the sheriff was to refuse the specific contact order sought by the father, namely, contact with the child between the hours of 12 noon and 6 p.m. each Saturday. There is some uncertainty as to what precisely was the effect of his disposal of a more generally framed crave bearing on contact. [3] On any view of the matter, whether or not the sheriff was well-founded and justified in law in reaching the decision which he did on the basis of the evidence before him, his decision can for present purposes be regarded as academic. There is no real dispute that between the parties a live issue remains in relation to contact. There seems to be no doubt that, unless that issue can be resolved by agreement, it will required to be determined by a court in the light of current circumstances, not the circumstances as they existed in March 2003. Accordingly, the only question which arises here is one of mechanics, namely, whether the appeal should simply to be refused, leaving it to the father to make a fresh application in the light of the change of circumstances inevitably in this case occasioned by the elapse of time, or a different course adopted, namely, to set aside the decision of the sheriff principal and the sheriff and to remit the matter to the Sheriff Court for a determination afresh, in the light of current circumstances, of the outstanding issue. [4] It is not disputed between the parties that there are some valid criticisms that can be made to be made of the sheriff's reasoning. We have in particular in mind whether the sheriff appropriately addressed, as a matter for his own determination, the best interests of the child. The way he expresses himself in the course of his Note may be open to the interpretation that he was leaving that issue, at that point of time, essentially to a decision by the mother. There is also an issue as to what the sheriff made of a report, obtained in the course of proceedings, of which the sheriff says "For what it would be worth, it is adopted here in its entirety". This court is left with a measure of uncertainty as to precisely that means in relation to the acceptance, of fact or of evaluation, of particular matters referred to in the report. [5] It is appropriate that whoever determines this issue should do so on the basis of looking at the matter wholly afresh. We have come in these circumstances to the view that the better course is that urged on us by Mrs. Scott, namely, to recall the two interlocutors and to remit the matter to the Sheriff Court at Glasgow for a new sheriff to look at the matters afresh. No doubt it will be necessary in the course of such procedure for a fresh minute and answers to be put in and inquiry into the current facts made. This should be done as quickly as possible.