A v. B [2011] ScotSC 27 (11 May 2011)

A v. B [2011] ScotSC 27 (11 May 2011)

The sheriff erred in granting a final residence order without affording the defender an opportunity to be heard or to see and challenge the report relied upon, constituting a breach of the defender's right to a fair hearing under Article 6(1) ECHR. The sheriff was also wrong to refer the matter to the Principal Reporter under section 54(1) of the Children (Scotland) Act 1995 on the basis of untested information.

Citation
[2011] ScotSC 27
Parties
Pursuer and Respondent: A; Defender and Appellant: B
Jurisdiction
Scotland
Judgment Date
11 May 2011
Procedural Posture
Family Law Child Residence and Welfare / Appeal From Final Residence Order
Outcome
Appeal allowed; sheriff's interlocutor recalled; interim residence order made in favour of pursuer; expenses reserved.
Legal Topics
Child Residence, Welfare of the Child, Right to a Fair Hearing, Interim and Final Orders, Referral to Children's Reporter
Family Law Child Law Human Rights Child Residence Welfare of the Child Right to a Fair Hearing Interim and Final Orders Referral to Children's Reporter

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 3 Authorities cited 5 Party arguments 2
Sign in to unlock

Parties

A

Pursuer and Respondent

B

Defender and Appellant

Procedural Posture

Family Law Child Residence and Welfare / Appeal From Final Residence Order

Legal Issues

  1. 1 Whether the sheriff erred in granting a final residence order without hearing parties or disclosing the report relied upon
  2. 2 Whether the procedure adopted infringed the defender's right to a fair hearing under Article 6(1) ECHR
  3. 3 Whether referral to the Principal Reporter under section 54(1) of the Children (Scotland) Act 1995 was competent in the circumstances

Ratio Decidendi

The sheriff erred in granting a final residence order without affording the defender an opportunity to be heard or to see and challenge the report relied upon, constituting a breach of the defender's right to a fair hearing under Article 6(1) ECHR. The sheriff was also wrong to refer the matter to the Principal Reporter under section 54(1) of the Children (Scotland) Act 1995 on the basis of untested information.

Court Disposition

Appeal allowed; sheriff's interlocutor recalled; interim residence order made in favour of pursuer; expenses reserved.

Orders

  • Appeal allowed
  • Sheriff's interlocutor of 3 September 2010 recalled