Wilson Or Gailey v Gailey [2001] ScotCS 276 (4 December 2001)

Wilson Or Gailey v Gailey [2001] ScotCS 276 (4 December 2001)

The Sheriff's findings in fact regarding the pursuer's unreliability and conduct were not supported by sufficient evidence and materially prejudiced the exercise of discretion; the Sheriff Principal erred by failing to review these findings and relying primarily on the children's stated wishes. The decisions below cannot stand and the matter must be remitted for reconsideration.

Citation
[2001] ScotCS 276
Parties
Pursuer and Appellant: Elizabeth Bray Wilson or Gailey; Defender and Respondent: Derek Charles Gailey
Jurisdiction
Scotland
Judgment Date
04 December 2001
Procedural Posture
Appeal From Sheriff Court (family/contact Proceedings) / Appeal to Inner House, Court of Session
Outcome
Appeal allowed; interlocutor of the Sheriff recalled; case remitted to a different Sheriff for further proceedings.
Legal Topics
Child Contact, Welfare of the Child, Appeal Procedure, Evidential Findings
Family Law Child Law Child Contact Welfare of the Child Appeal Procedure Evidential Findings

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 2 Authorities cited 2 Party arguments 2
Sign in to unlock

Parties

Elizabeth Bray Wilson or Gailey

Pursuer and Appellant

Derek Charles Gailey

Defender and Respondent

Procedural Posture

Appeal From Sheriff Court (family/contact Proceedings) / Appeal to Inner House, Court of Session

Legal Issues

  1. 1 Whether the Sheriff's findings in fact regarding the pursuer's reliability and conduct were supported by evidence
  2. 2 Whether the Sheriff Principal erred by relying primarily on the children's stated wishes without reviewing the Sheriff's findings
  3. 3 Whether the welfare and best interests of the children justified refusal of contact

Ratio Decidendi

The Sheriff's findings in fact regarding the pursuer's unreliability and conduct were not supported by sufficient evidence and materially prejudiced the exercise of discretion; the Sheriff Principal erred by failing to review these findings and relying primarily on the children's stated wishes. The decisions below cannot stand and the matter must be remitted for reconsideration.

Court Disposition

Appeal allowed; interlocutor of the Sheriff recalled; case remitted to a different Sheriff for further proceedings.

Orders

  • Interlocutor of the Sheriff Principal set aside
  • Interlocutor of the Sheriff recalled