Scottish children appeal echoes our own

If there was anyone foolish enough to be a regular reader of my posts here they may have gathered that I like occasionally to look at judgments from other jurisdictions within the UK and Ireland (i.e., Scotland, Northern Ireland and the Republic of Ireland). I think that it can be quite enlightening to see how things are done in other jurisdictions, particularly those with links or similarities to our own here in England and Wales.

Take, for example, the recent Scottish Court of Session decision H v H. This concerned a father’s appeal against an order granting residence of the youngest three of his four children to their mother. I don’t think that there is anything profound in the judgment, or that it will necessarily be used as a precedent for future cases. Nevertheless, there were a couple of points that I found of interest, and that I think are of universal application in cases regarding children (indeed, both points have been mentioned on a number of occasions by English courts).

Briefly, the relevant facts in H v H were that the parties married in 1999 and had four children, now aged 13, 12, 11 and 8. The marriage broke down and the parties separated. The father then issued proceedings, seeking a divorce and a residence order in respect of all four children.

Various arrangements for residence and contact were then attempted, including an interim shared residence order made in February 2011, under which the children would spend alternate weeks with each parent. However, the court did not consider that arrangement to be a success and in September 2011 another interim order was made, this time awarding residence of all four children to the mother.

At some point in 2012 the oldest child moved to live with his father. Then in August 2013 a full hearing took place, at the end of which the court awarded residence of the oldest child to the father and residence of the three younger children to the mother. The father sought to appeal against the part of the order relating to the three younger children.

The Sheriff Principal refused the appeal and the father appealed to the Court of Session.

The father had not sought leave to appeal against the order. Under Scottish law leave is not required against final orders, but is against orders that are not final. The question therefore arose as to whether the order was final.

When making the order the judge had described it as “final”. However, the Court of Session did not consider that it was a final order. For one thing, issues of divorce and (in particular, I think) contact remained outstanding. Further, and in any event, “no decision about parental rights [save for an adoption order] is a final decision, because the child’s welfare remains open to further consideration by the court throughout his childhood.”

As a result, the father’s appeal was ‘incompetent’* and was therefore refused.

The Court of Session made it clear that in exceptional circumstances it would be inappropriate to allow procedural matters to stand in the way of essential decision-making where the welfare and safety of children are at issue. However, this was not one of those cases. Even if it was, the appeal court should be slow to interfere with the decision of the court below, which had been made after seeing and hearing witnesses. Further, where children are involved, circumstances may change and the matter may have to be looked at afresh, rather than an order simply overturned by the appeal court.

Here, the Sheriff Principal had actually considered the merits of the appeal, as the welfare of children was involved. He found that the appeal did not have any merit, and the Court of Session agreed. The Court of Session therefore refused the appeal for those reasons also.

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[*As an aside, I find it interesting that the Scottish legal system appears to have resisted calls to modernise its language, unlike the system south of the border (assuming that there have been such calls in Scotland). Perhaps it is just my familiarity with English legal ‘jargon’, but Scottish judgments seem to me to include words and expressions that we might consider archaic (‘pursuer’ = applicant, ‘interlocutor’ = order, ‘interdict’ = injunction), and also Latin phrases (‘quam primum’, ‘ex proprio motu’), which have (for the most part) disappeared from English judgments. Maybe I am just getting old, and maybe my impression of the Scottish system is completely wrong, but I rather like to see these things, and I particularly like the idea of a system believing in itself sufficiently to resist calls for unnecessary change.]

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