A.Y. v. M.M. & WILLIAM WARDEN (CURATOR AD LITEM) [2013] ScotSC 50 (01 August 2013)

A.Y. v. M.M. & WILLIAM WARDEN (CURATOR AD LITEM) [2013] ScotSC 50 (01 August 2013)

The sheriff erred in law by treating certain parental rights as mutually exclusive and by depriving the defender of parental responsibilities and rights without sufficient evidential basis or party support; there is no inherent conflict in a parent holding the full range of parental responsibilities and rights, and deprivation requires compelling justification.

Citation
[2013] ScotSC 50
Parties
Pursuer and Respondent: AY; Defender and Appellant: MM; Curator Ad Litem, Third Party Minuter and Respondent: William Warden
Jurisdiction
Scotland
Judgment Date
01 August 2013
Procedural Posture
Family Action (child Residence and Parental Rights) / Appeal From Sheriff's Interlocutor
Outcome
Appeal allowed; sheriff's interlocutor varied and recalled in part.
Legal Topics
Parental Responsibilities and Rights, Child Residence, Contact Orders, Appeal Procedure
Family Law Child Law Parental Responsibilities and Rights Child Residence Contact Orders Appeal Procedure

Case Brief

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Parties

AY

Pursuer and Respondent

MM

Defender and Appellant

William Warden

Curator Ad Litem, Third Party Minuter and Respondent

Procedural Posture

Family Action (child Residence and Parental Rights) / Appeal From Sheriff's Interlocutor

Legal Issues

  1. 1 Whether the sheriff erred in depriving the defender of certain parental responsibilities and rights under the Children (Scotland) Act 1995
  2. 2 Whether a 'full' parental rights and responsibilities order is inherently objectionable or creates conflicting rights
  3. 3 Whether there was an evidential basis for depriving the defender of parental responsibilities and rights

Ratio Decidendi

The sheriff erred in law by treating certain parental rights as mutually exclusive and by depriving the defender of parental responsibilities and rights without sufficient evidential basis or party support; there is no inherent conflict in a parent holding the full range of parental responsibilities and rights, and deprivation requires compelling justification.

Court Disposition

Appeal allowed; sheriff's interlocutor varied and recalled in part.

Orders

  • Seventh finding in fact and law and fourth finding in law deleted from sheriff's interlocutor of 3 August 2012.
  • Words 'each Thursday from 9am to 6pm and' inserted after 'direct contact with the defender'.