Thain v McCafferty or Thain [2005] ScotSC 4 (18 January 2005)

Thain v McCafferty or Thain [2005] ScotSC 4 (18 January 2005)

The sheriff's interlocutor of 8 October 2004 was procedurally deficient for failing to include findings in fact and law and a note of reasons as required by rule 12.2(3). The appropriate remedy is to remit the cause to the sheriff to provide these, rather than to rehear the evidence or recall the interlocutor outright.

Citation
[2005] ScotSC 4
Parties
Pursuer and Respondent: Neil Graham Thain; Defender and Appellant: Alison Gail McCafferty or Thain
Jurisdiction
Scotland
Judgment Date
18 January 2005
Procedural Posture
Family Law Child Residence/contact (minute of Variation) / Appeal Against Interlocutor; Remitted for Supplementary Findings and Reasons
Outcome
Cause remitted to Sheriff Mackenzie to prepare supplementary findings in fact and law and a note of reasons within four weeks; no expenses due to or by either party for the appeal hearing on 21 December 2004.
Legal Topics
Child Residence Orders, Contact Orders, Minute of Variation, Appeal Procedure, Sheriff Court Practice
Family Law Child Residence Orders Contact Orders Minute of Variation Appeal Procedure Sheriff Court Practice

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

Neil Graham Thain

Pursuer and Respondent

Alison Gail McCafferty or Thain

Defender and Appellant

Procedural Posture

Family Law Child Residence/contact (minute of Variation) / Appeal Against Interlocutor; Remitted for Supplementary Findings and Reasons

Legal Issues

  1. 1 Whether the sheriff erred in granting a residence order for the child to live with the pursuer without adequate findings in fact and law and without a note of reasons as required by rule 12.2(3) of the Ordinary Cause Rules
  2. 2 Whether the absence of a record of evidence precluded a proper appeal

Ratio Decidendi

The sheriff's interlocutor of 8 October 2004 was procedurally deficient for failing to include findings in fact and law and a note of reasons as required by rule 12.2(3). The appropriate remedy is to remit the cause to the sheriff to provide these, rather than to rehear the evidence or recall the interlocutor outright.

Court Disposition

Cause remitted to Sheriff Mackenzie to prepare supplementary findings in fact and law and a note of reasons within four weeks; no expenses due to or by either party for the appeal hearing on 21 December 2004.

Orders

  • Remit to Sheriff Mackenzie to prepare supplementary note with findings in fact and law and reasons for decision within four weeks.
  • Parties to be heard further on the appeal on a date to be fixed.