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Supreme Court upholds judgment denying contact in Scottish children case

Court makes recommendations about the future conduct of such proceedings

In NJDB v JEG and another (Scotland) [2012] UKSC 21, the Supreme Court – comprising Lord Reed, who delivered the lead judgment, Lord Hope, who gave a brief, concurring judgment, Lady Hale, Lord Clarke and Lord Wilson – dismissed a father's appeal against an order denying him contact with his son, S.

The mother was the first respondent and the second respondent was a solicitor who was appointed as curator ad litem to S in respect of these proceedings.

Following the end of their relationship, the appellant and first respondent engaged in protracted family proceedings to determine the issue of contact with S. The order giving rise to the appeal was set out in an interlocutor of Stirling Sheriff Court. In a previous interlocutor the appellant had been granted parental rights and responsibilities with respect to S, as well as contact. The sheriff recalled the previous interlocutor and withdrew all contact between the appellant and S. 

On appeal to the Court of Session, the Inner House varied the sheriff's interlocutor so as to restore the appellant's parental rights and responsibilities, but otherwise refused the appeal. The present appeal is brought against the decision of the Inner House.

The appellant's submissions were confined to three points. First, it was argued that the sheriff had failed to address his mind to the appropriate legal framework, specifically section 11 of the Children (Scotland) Act 1995 and the case law providing guidance as to its application. Secondly, it was argued that the sheriff's findings could not reasonably warrant the conclusion which he reached. Thirdly, it was argued that the sheriff had failed to act judicially, and that his decision should not therefore be allowed to stand. In that regard, counsel contended that remarks made by the sheriff betrayed a lack of objectivity and impartiality.

The Court said that it was apparent that the sheriff had in mind the correct test. His findings demonstrate that he treated the welfare of the child as the paramount consideration, and considered whether it was in the child's best interests that an order for contact should be made. The Court also concluded that, in the light of his his findings, the sheriff had a reasonable basis for his conclusion that contact would not be in the child's best interests.

In support of his third argument, counsel submitted that the sheriff had made critical remarks about the appellant and the counsel who represented him, which were expressed in inappropriate language.

The Court believed that the characters of the parties were however relevant, to some extent at least, to determining whether the order sought would be in the best interests of the child. They were also the subject of a great deal of evidence. It was therefore appropriate for the sheriff to make findings in that regard.

Although a judge must be careful, Lord Reed said, to strike the appropriate balance between plain speaking and appropriate restraint, it is only exceptionally that the language used by a judge can give rise to an issue of law which might vitiate his decision. In the present case, the Supreme Court could not detect an error of law in relation to this matter.

The Supreme Court commented on the duration of the proceedings and the costs incurred, observing that: