DAVID CRAIG v. IRINA GLASER, 07 December 2004, Sheriff Principal Sir Stephen S.T. Young
SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT ABERDEEN

F561/04

Act: Mrs Rowena McIntosh, solicitor, McIntosh McTaggart, Aberdeen
Alt: Mr Gareth Masson, solicitor, Adam Cochran, Aberdeen

 

Aberdeen: December 2004

The sheriff principal, having resumed consideration of the cause, refuses the appeal and adheres to the interlocutor of the sheriff dated 27 August 2004 under deletion where they twice appear of the words and figures "by 8 October 2004" and under deletion also of the words "on joint motion, sists the cause for the reports to become available"; reserves meantime the question of the expenses of the appeal and appoints parties to be heard thereon at Aberdeen Sheriff Court on 9th December 2004 at 2.15 pm.

 
 
 
 
 
Note

[1] The parties in this case are the parents of a child Cameron who was born in England on 30 August 2002. They are not married. In terms of crave 1 the pursuer and respondent seeks to have the defender and appellant interdicted from removing the child from his care and control or furth of this sheriffdom without his express written permission or by further order of the court. In terms of craves 2 and 3 he asks the court to find and declare that he is the father of the child and to find that he is entitled to parental rights and responsibilities in relation to him. And in terms of crave 4 he asks the court to make an order to the effect that the child should be required to reside with him.

[2] In article 2 of the condescendence it is averred that the habitual residence of the child is with the defender at an address in Dorset. This at once raises two questions, namely (1) what jurisdiction this court has to grant the interdict sought or to make a residence order in relation to the child (both of which would be Part I orders within the meaning of the Family Law Act 1986), and (2) how it comes about that the pursuer, whose address is in Aberdeen, is seeking to have the defender interdicted from removing the child from his care and control or furth of this sheriffdom.

[3] Neither of these questions is satisfactorily addressed in the pursuer's pleadings. In particular, although they are replete with allegations about how unfit the defender is to care for the child, the pursuer's averments do not explain the history of the parties' relationship since the birth of the child or how it comes about that, despite the averment about his habitual residence, he is apparently in the care of the pursuer at his home in Aberdeen. But it was explained during the hearing of the appeal, and I did not understand there to be any dispute, that after the birth of the child the parties had lived together as a family in England until March 2004. They had then separated and the child had remained in the care of the defender, the pursuer thereafter having contact with him on a regular basis. In particular, on 28 July 2004 (or so I have noted it, although I think the correct date may have been about 21 July 2004)) the pursuer had contact with the child overnight. But, instead of returning him to the defender the next day, he took him from Dorset to Aberdeen without the defender's consent. It was said that there had previously been a discussion between the parties in the course of which they had agreed in principle that the pursuer should have residential contact with the child. In light of the pursuer's removal of the child to Aberdeen, the defender indicated that she would collect the child in a week's time and treat that week as a period of residential contact. On 9 August 2004 she went to the pursuer's home in Aberdeen, removed the child and took him back to her own home in Dorset. But she brought him back to Scotland to attend a child welfare hearing at this court on 27 August 2004 and since then the child has been in the care of the pursuer at his home in Aberdeen.

[4] In the defences it is admitted that the child's habitual residence is with the defender at her home in Dorset. Even if this had not been admitted, it seems to me that the effect of section 41 of the Family Law Act 1986 would have been that the child would be treated as continuing to be habitually resident in England for a period of one year after he was removed by the pursuer from the care of the defender without her consent and taken to his home in Aberdeen.

[5] In answer 2 it is admitted that this court has jurisdiction and, when he came to address me, the defender's solicitor drew attention to section 6(e) of the Sheriff Courts (Scotland) Act 1907. This provides that any action competent in the sheriff court may be brought within the jurisdiction of the sheriff where the action is for interdict against an alleged wrong being committed or threatened to be committed within the jurisdiction. But this provision is expressly stated to be subject to Chapter III of Part I of the 1986 Act which includes section 8 to 12 inclusive of the Act. In its application to the sheriff court, section 12 provides that, notwithstanding that any other court, whether within or outside Scotland, has jurisdiction to entertain an application for a Part I order, the sheriff shall have jurisdiction to entertain such an application if the child concerned is in the sheriffdom on the date of the application and the sheriff considers that, for the protection of the child, it is necessary to make such an order immediately. The defender's solicitor accepted that both the interdict sought in terms of crave 1 and the residence order sought in terms of crave 4 were Part I orders within the meaning of the 1986 Act and further, as I understood him, that there was sufficient material in the pursuer's averments, in particular in relation to the likelihood of the child's sustaining injury in the event of his return to the defender's home, to entitle this court to assert its emergency jurisdiction under section 12. (In this context reference was also made to section 14(3) of the Children (Scotland) Act 1995).
[6] As already indicated, the pursuer's averments are replete with allegations about the defender's unfitness to care for the child. These are to be found in particular in articles 4, 5 and 6. (In passing, I observe that the author of these pleadings appears to have overlooked the wise advice in Macphail's Sheriff Court Practice (2nd Edn) at paragraph 9.46 to keep the articles of condescendence brief). Reference is made to a whole series of incidents in which the child was allegedly neglected by the defender in one way or another while in her care. It is said, for example, that on a number of occasions she left the child, while still a baby, unattended on a bed with the result that the child fell off and hurt himself. On another occasion it is said that she left the child unsupervised at the top of a flight of stairs and that the child fell all the way down these stairs. It is said that she left the child unsupervised beside her car by the road, that she allowed him to crawl and walk about upon kitchen work surfaces and sit next to open flames on a gas cooker, that he has frequently been covered in large bruises and on two occasions has sustained bad cuts, that she frequently transported him in a completely broken car seat, that she refused to purchase necessary medication for him, that she left him unattended in a high chair without fitting his safety harness onto him, that she permitted him to swallow stones and so on and so forth. The pursuer avers that he has constantly pointed out to the defender how seriously she puts the health and physical and mental well-being of the child at risk and that she has refused to receive any such advice from him. And he says that the child is at risk of serious physical injury due to her neglect of him and that in all the circumstances the interdict sought is necessary for the protection of the child.

[7] The action was raised on 27 July 2004 when Sheriff Harris granted a warrant to cite the defender and ad interim interdicted her from removing the child from the pursuer's care and control or furth of the sheriffdom without his express written permission or by further order of court. On 3 August 2004, on the motion of the pursuer and in the absence of the defender, the sheriff continued the interim interdict previously granted until further order of the court.

[8] On 10 August 2004 a motion was enrolled on behalf of the pursuer in terms of which he moved the court, inter alia, to ordain the defender to appear personally before the court to explain her failure to obtemper the interlocutors pronounced on 27 July and 3 August 2004 in respect that she had removed the child from the care and control of the pursuer and furth of the sheriffdom without his express written permission or by further order of court and to grant an interim residence order to the effect that the child should reside with the pursuer. On the same date, having heard the pursuer's agent on this motion, the sheriff dispensed with the requirement of intimation and induciae in respect of the motion and ordained the defender to appear personally before the court on 13 August 2004 to explain her failure to obtemper the earlier interlocutors. The sheriff continued consideration of that part of the motion which related to the granting of an interim residence order.

[9] On 13 August 2004 both parties were represented before Sheriff Cowan. Her interlocutor records that, on the motion of the defender, she continued the child welfare hearing until 27 August 2004, the defender having given an undertaking to appear at that hearing and to bring the child to Aberdeen. (The basis upon which the hearing before Sheriff Cowan fell to be treated as a child welfare hearing is not apparent from the papers in the case).

[10] On 27 August 2004 both parties appeared with their respective solicitors before Sheriff Cusine. The outcome of this hearing was that the sheriff pronounced an interlocutor in the following terms:

The Sheriff, Having heard parties' procurators on the Pursuer's motion made at the Bar to have the Defender found in contempt in respect of her failure to obtemper the Interlocutors dated 27 July and 4 August 2004 in respect that she removed the child, Cameron Ashley Bobby Craig, born 30 August 2002 from the care and control of the Pursuer, without the Pursuer's express written permission, or by further order of the Court; Continues consideration of the same; instructs the Sheriff Clerk to request the Process Server, Harold John Shore, 34 Nursery Road, Moordown, Bournemouth, Dorset, to identify those documents which were served by him on the Defender, she personally having admitted receiving service of the Initial Writ, and Forms F15 and F26 but not the Interlocutor dated 27 July; ad interim Makes a Residence Order whereby the said child shall reside with the Pursuer; Makes no Orders in relation to contact meantime; ex proprio motu Appoints Mr Richard Ward, Solicitor, Aberdeen to report to the Court by 8 October 2004 on all the circumstances and proposed arrangements for the care and upbringing of the said child Cameron Ashley Bobby Craig; Appoints the Director of Children and Families, Borough of Poole, to report to the Court by 8 October 2004 on the background, circumstances and proposed arrangements for the care and upbringing of the said child Cameron Ashley Bobby Craig; Ordains the Defender to instruct said reports and be responsible for payment of same in the first instance; on Joint Motion, Sists the cause for the reports to become available.

It is this interlocutor which is the subject of the present appeal.

[11] On 10 September 2004 a note of appeal was lodged on behalf of the defender. The material part of this reads as follows:

At a Child Welfare Hearing on 27 August 2004 the Sheriff made an Interim Residence Order in favour of the Pursuer. This involved the child Cameron Craig born 30 August 2002 being removed from the care of the Defender and placed in the care of the Pursuer. The Defender respectfully appeals against said judgement on the following grounds:-

• • In reaching his decision the Sheriff failed to give any reason for his finding other than that the Defender had breached an Interim Interdict, a copy of the which (sic) the Defender claimed not to have received.

• • That the Sheriff failed to exercise his discretion reasonably in so far as there was no independent evidence other than allegations by the Pursuer that the child was in any danger whilst in the care of the Defender. The sheriff failed to have regard to the independent evidence contained in the Defender's First Inventory of Productions which tended to suggest said child was in no danger whilst in the Defender's care.