A. v. B [2009] ScotSC 186 (17 December 2009)

A. v. B [2009] ScotSC 186 (17 December 2009)

The sheriff erred in law by sisting the action, as this deprived the pursuer of his right to a fair hearing within a reasonable time under Article 6 ECHR. The sheriff's assessment of the pursuer's prospects of success was not a sufficient basis to stay the proceedings, and the effect of the sist was to prejudge the outcome and potentially extinguish the pursuer's rights without a proper hearing.

Citation
[2009] ScotSC 186
Parties
Pursuer and Appellant: A; Defender and First Respondent: B; Minuters and Second Respondents: Aberdeen City Council
Jurisdiction
Scotland
Judgment Date
17 December 2009
Procedural Posture
Family Law Parental Rights and Residence / Appeal Against Interlocutor (order) to Sist (stay) Proceedings
Outcome
Appeal allowed; sheriff's interlocutor recalled; no expenses due to or by any party in respect of the appeal; cause remitted to sheriff to proceed as accords.
Legal Topics
Parental Responsibilities and Rights, Residence Orders, Adoption Proceedings, Right to a Fair Hearing, Article 6 ECHR
Family Law Child Law Human Rights Parental Responsibilities and Rights Residence Orders Adoption Proceedings Right to a Fair Hearing Article 6 ECHR

Case Brief

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Parties

A

Pursuer and Appellant

B

Defender and First Respondent

Aberdeen City Council

Minuters and Second Respondents

Procedural Posture

Family Law Parental Rights and Residence / Appeal Against Interlocutor (order) to Sist (stay) Proceedings

Legal Issues

  1. 1 Whether the sheriff erred in law by sisting (staying) the action for parental rights and residence pending adoption proceedings
  2. 2 Whether the pursuer's right to a fair hearing within a reasonable time under Article 6 ECHR was breached

Ratio Decidendi

The sheriff erred in law by sisting the action, as this deprived the pursuer of his right to a fair hearing within a reasonable time under Article 6 ECHR. The sheriff's assessment of the pursuer's prospects of success was not a sufficient basis to stay the proceedings, and the effect of the sist was to prejudge the outcome and potentially extinguish the pursuer's rights without a proper hearing.

Court Disposition

Appeal allowed; sheriff's interlocutor recalled; no expenses due to or by any party in respect of the appeal; cause remitted to sheriff to proceed as accords.

Orders

  • Appeal allowed
  • Interlocutor of 6 February 2009 recalled