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Advocates
- Appellant Andrew Smith QC John Halley (Instructed by Jardine Donaldson Solicitors)
- Respondent Simon di Rollo QC Stuart Buchanan (Instructed by Virgil Crawford & Co Solicitors)
- Respondent Andrew Hajducki QC Maggie Hughes (Instructed by Campbell Smith WS LLP)
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NJDB v. JEG & Anor (Scotland)
Smart Summary
Factual and Procedural Background
The appeal concerns whether the Appellant (the father) should have contact with his son, “S,” born 1 April 2000. The Appellant’s relationship with the First Respondent (the mother) ended shortly after the child’s birth. Initial litigation in 2003–2004 produced an interlocutor granting the Appellant parental rights and a detailed contact regime, but implementation became contentious almost immediately.
In December 2004 the Appellant sought a residence order; the First Respondent counter-applied to withdraw all contact. Lengthy, heavily amended pleadings followed, and the Second Respondent (a court-appointed curator ad litem) was joined as a party. Interim contact orders were made, suspended and varied while proof dates were repeatedly fixed then discharged. The proof eventually ran for 52 days (September 2008 – November 2009) and generated a 173-page judgment.
On 22 January 2010 the sheriff recalled the 2004 interlocutor and withdrew contact. The Inner House restored the Appellant’s parental responsibilities (inadvertently lost through recall) but otherwise affirmed the decision. The present appeal to the Supreme Court challenges the Inner House’s judgment on points of law only.
Legal Issues Presented
- Whether the sheriff failed to apply the correct legal framework under section 11(7)(a) of the Children (Scotland) Act 1995 and relevant case law when refusing contact.
- Whether the sheriff’s factual findings could reasonably sustain the conclusion that contact was contrary to S’s welfare.
- Whether the sheriff’s intemperate language towards the Appellant and counsel demonstrated a failure to act judicially, vitiating the decision.
Arguments of the Parties
Appellant’s Arguments
- The sheriff did not refer to section 11(7)(a) or guiding authorities, showing he applied the wrong legal test.
- The bulk of the sheriff’s findings addressed peripheral adult disputes; those findings could not reasonably justify terminating contact.
- Derogatory remarks about the Appellant and his counsel evidenced bias and a failure to act judicially.
Respondents’ Arguments
- The sheriff clearly applied the welfare test—even if not expressly cited—and made specific findings that contact would harm S.
- The evidence supported the sheriff’s conclusions: S would be exposed to parental conflict, was unwilling to attend contact and would not benefit from it.
- Robust language did not equate to legal error; criticisms were even-handed and did not show partiality.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| White v White (2001 SC 689) |
Guidance on applying section 11 of the 1995 Act—child’s welfare as paramount. |
Used to confirm that the sheriff adopted the long-established welfare test. |
| Bronda v Italy (2001) 33 EHRR 4 |
European Court authority stressing that delay in child cases may cause irreversible harm. |
Cited to criticise the “glacial” six-year duration of the proceedings. |
| H v United Kingdom (1988) 10 EHRR 95 |
Delay can lead to a de facto determination of contact disputes. |
Relied on when observing that prolonged litigation effectively decided the issue for S. |
| B v Authority Reporter for Edinburgh (2011 SLT 1194; 2011 Fam LR 96) |
Inner House comments on excessive length and cost of contact proofs and the need for case management and legal-aid discipline. |
Endorsed to advocate procedural reform and tighter control of publicly funded litigation. |
| Pirie v Collie (1851) 13 D 841 |
Entitlement of a curator ad litem to professional remuneration. |
Referenced when questioning the propriety of the Second Respondent’s self-representation. |
| Little v Stevenson & Co (1896) 23 R (HL) 12 |
Requirement that judgments contain all material findings of fact. |
Discussed in Lord Hope’s analysis of the historical judgment format. |
| Calderwood v Magistrates of Dundee (1944 SC 24) |
Practice of numbering findings in interlocutors for appellate convenience. |
Cited in explaining current Scottish judgment conventions. |
| Robb v Salamis (M & D) Ltd [2006] UKHL 56; 2007 SC (HL) 71 |
Example of appeals progressing on numbered sheriff-court findings. |
Illustrated the benefits—and limits—of the traditional format. |
| Glasgow Gas-Light Co v Working Men’s Total Abstinence Society (1866) 4 M 1041 |
Necessity for findings of fact to appear in the interlocutor. |
Part of historical discussion on judgment structure. |
| Lai Wee Lian v Singapore Bus Service (1978) Ltd [1984] AC 729 |
Duty on judges to state clearly the reasons for their decision. |
Cited to underscore the importance of accessible reasoning, which was lacking here. |
Court's Reasoning and Analysis
The Supreme Court’s jurisdiction was confined to matters of law under section 32(5) of the Court of Session Act 1988. Accepting the sheriff’s factual findings, the Court addressed each legal complaint:
- Application of the legal test – Although the sheriff did not explicitly cite section 11(7)(a), his findings and narrative showed he treated S’s welfare as paramount and considered whether an order would benefit the child. Omission of statutory references therefore caused no legal error.
- Reasonableness of conclusions – Findings that contact would expose S to entrenched conflict, distress him and provide no benefit afforded a rational foundation for refusing contact. Given the history, the sheriff’s conclusion was “inevitable.”
- Judicial impartiality – The sheriff’s robust language, while regrettable, was directed at both parties and did not indicate bias. Only exceptional language creating a reasonable apprehension of partiality would amount to an error of law; that threshold was not reached.
The Supreme Court nevertheless condemned the six-year duration and £1 million cost of publicly funded litigation, criticising lax case management, expansive pleadings and unclear roles (notably that of the curator ad litem). It endorsed earlier Inner House calls for procedural reform, stricter legal-aid oversight and active judicial control.
Holding and Implications
APPEAL DISMISSED.
The sheriff’s order withdrawing contact remains intact, with the Appellant retaining parental responsibilities restored by the Inner House. While the decision sets no new legal precedent regarding contact, the Supreme Court’s extensive critique reinforces the need for: (1) expedited child-welfare litigation, (2) disciplined pleadings and proactive case management, (3) clearer guidance on the role and remuneration of curators ad litem, and (4) potential reform of traditional Scottish judgment formats.
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