S. IN CAUSA A.J.B. v. A.R.B. [2011] ScotSC 77 (24 March 2011)

S. IN CAUSA A.J.B. v. A.R.B. [2011] ScotSC 77 (24 March 2011)

The combination of potential disruption to proceedings, delay, and the risk of additional pressure or harm to S outweighs his right to be involved as a party. There is real doubt as to whether S can give considered instructions or cope with the pressures of being a party. The sheriff's discretion was properly exercised in refusing the application, and the appeal is refused.

Citation
[2011] ScotSC 77
Parties
Minuter and Appellant: S (a child); Pursuer: A J B; Defender: A R B; Curator Ad Litem: Lisa M Girdwood
Jurisdiction
Scotland
Judgment Date
24 March 2011
Procedural Posture
Family Law Appeal / Appeal Against Sheriff's Refusal to Allow Child to Enter Process as Party
Outcome
Appeal refused; sheriff's interlocutor adhered to; cause remitted to sheriff to proceed as accords.
Legal Topics
Child Participation in Proceedings, Legal Capacity of Children, Contact Arrangements, Curator Ad Litem, Procedural Discretion
Family Law Child Law Child Participation in Proceedings Legal Capacity of Children Contact Arrangements Curator Ad Litem Procedural Discretion

Case Brief

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Parties

S (a child)

Minuter and Appellant

A J B

Pursuer

A R B

Defender

Lisa M Girdwood

Curator Ad Litem

Procedural Posture

Family Law Appeal / Appeal Against Sheriff's Refusal to Allow Child to Enter Process as Party

Legal Issues

  1. 1 Whether a child aged 12 should be allowed to enter family proceedings as a party and lodge defences
  2. 2 Whether the sheriff erred in refusing the child's application to enter the process
  3. 3 What factors should guide the exercise of discretion under OCR 13.1 in such applications

Ratio Decidendi

The combination of potential disruption to proceedings, delay, and the risk of additional pressure or harm to S outweighs his right to be involved as a party. There is real doubt as to whether S can give considered instructions or cope with the pressures of being a party. The sheriff's discretion was properly exercised in refusing the application, and the appeal is refused.

Court Disposition

Appeal refused; sheriff's interlocutor adhered to; cause remitted to sheriff to proceed as accords.

Orders

  • Refusal of appeal by S to enter process as party
  • Adherence to sheriff's interlocutor of 30 November 2010