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H-v-H [2015] CSIH 10

The recent Appeal to the Inner House of the Court of Session in this case clarified the steps which a party who is disgruntled with a Sheriff’s decision of a Sheriff at first instance regarding matters concerning how often each parent sees their child and where the children live can and should take.
In this case, the Sheriff had decided that three of the four children should reside with their mother, with the remaining child to reside with their father. The Sheriff indicated that it was appropriate for that decision regarding the residence of the children to be considered to be “final”. The father appealed against this decision and it was decided that for procedural reasons an appeal against the decision was not competent without leave of the Sheriff.  However, the decision is also instructive for the consideration which it gave to the merits of an appeal against the Sheriff at first instance’s decision in any matter concerning contact and residence.
The Opinion of Lord President Hope in the earlier case of Sanderson v McManus was commented on approvingly.  In that case, it was said that the length of time which appeals take make it extremely unlikely that the decision of a Sheriff at first instance in relation to contact or residence matters will be overturned on appeal.  It was said that the Sheriff at first instance, having had the benefit of hearing evidence from witnesses first hand would in almost every case be preferred.
It was suggested that the correct approach, rather than appeal, is to make a fresh application to the Court of first instance if and when circumstances arise which would justify a change to the existing orders.  The significant point to bear in mind from this for parties is that while they may be unhappy with how a hearing has gone, that does not mean that there will be no opportunity for them to have that decision reviewed at the same Sheriff Court in the future and, if they are able to show that the circumstances which led to the decision which they are unhappy with being made have changed, it may be that that decision can be reviewed and at a later date and changed. Such a change would require to be justified by that change of circumstances, and it would not be deemed to be a recognition that the Sheriff was wrong in the first instance.
It was also commented by Lady Paton, who delivered the decision of the Court, that the welfare of the child will always be the paramount consideration in any matter concerning children. As such, Her Ladyship observed that if there were exceptional circumstances which justified it, procedural rules would not stand in the way of the Court considering an appeal if it was necessary for the welfare and safety of the child to do so.
This case emphasises to clients that the fact that one decision does not go their way does not mean that it is an end to the matter in relation to contact and residence with children.  However, the remarks made latterly by Lady Paton also serve to demonstrate that the important thing as far as the court is concerned is to endeavour to get things right for the child. That should always be the consideration which is at the forefront of the Court’s mind when considering such issues and rules of procedure should not be enforced blindly if doing so will prevent the court achieving that goal.