Cunningham v. Shields [2002] ScotCS 342 (16 January 2002)

Cunningham v. Shields [2002] ScotCS 342 (16 January 2002)

The Sheriff erred by failing to ascertain whether the child wished to be heard on the matter of moving to Australia, especially given the passage of time and the child's increased maturity; the court's duty to ascertain the child's views is ongoing until the order is made and is not discharged by earlier dispensation of intimation.

Citation
[2002] ScotCS 342
Parties
Pursuer and Respondent: Mrs. Claire Cunningham or Shields; Defender and Appellant: Nicholas Shields
Jurisdiction
Scotland
Judgment Date
16 January 2002
Procedural Posture
Appeal From Sheriff Principal at North Strathclyde / Appeal to Extra Division, Inner House, Court of Session
Outcome
Appeal allowed; interlocutors of Sheriff and Sheriff Principal recalled in entirety.
Legal Topics
Residence Order, Specific Issue Order, Child's Views, Children (scotland) Act 1995, UN Convention on the Rights of the Child
Family Law Child Law Residence Order Specific Issue Order Child's Views Children (scotland) Act 1995 UN Convention on the Rights of the Child

Case Brief

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Parties

Mrs. Claire Cunningham or Shields

Pursuer and Respondent

Nicholas Shields

Defender and Appellant

Procedural Posture

Appeal From Sheriff Principal at North Strathclyde / Appeal to Extra Division, Inner House, Court of Session

Legal Issues

  1. 1 Whether the Sheriff erred by failing to ascertain the child's views before making a residence and specific issue order
  2. 2 Interpretation and application of section 11(7)(b) of the Children (Scotland) Act 1995

Ratio Decidendi

The Sheriff erred by failing to ascertain whether the child wished to be heard on the matter of moving to Australia, especially given the passage of time and the child's increased maturity; the court's duty to ascertain the child's views is ongoing until the order is made and is not discharged by earlier dispensation of intimation.

Court Disposition

Appeal allowed; interlocutors of Sheriff and Sheriff Principal recalled in entirety.

Orders

  • Appeal allowed without reservation
  • Interlocutors of Sheriff and Sheriff Principal recalled in entirety