B v. B [2009] ScotSC 37 (11 May 2009)

B v. B [2009] ScotSC 37 (11 May 2009)

The sheriff's interlocutor was recalled because the appellant was not given an opportunity to be heard before the interim residence and delivery orders were made, breaching the right to a fair hearing. The matter was remitted to the sheriff to allow the appellant to be heard and for further investigation if necessary.

Citation
[2009] ScotSC 37
Parties
Pursuer and Respondent: Alan Brown; Defender and Appellant: Kerry Ann Brown
Jurisdiction
Scotland
Judgment Date
11 May 2009
Procedural Posture
Family Law Residence Order Variation / Appeal Against Interim Residence and Delivery Order
Outcome
Appeal sustained; sheriff's interlocutor recalled; cause remitted for reconsideration.
Legal Topics
Residence Orders, Variation of Orders, Interim Orders, Appeal Procedure, Human Rights Act Compliance
Family Law Child Law Residence Orders Variation of Orders Interim Orders Appeal Procedure Human Rights Act Compliance

Case Brief

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Parties

Alan Brown

Pursuer and Respondent

Kerry Ann Brown

Defender and Appellant

Procedural Posture

Family Law Residence Order Variation / Appeal Against Interim Residence and Delivery Order

Legal Issues

  1. 1 Whether appeal against interim residence and delivery order is competent without leave
  2. 2 Whether the sheriff erred by making orders without hearing the appellant
  3. 3 Whether the best interests of the children were properly considered

Ratio Decidendi

The sheriff's interlocutor was recalled because the appellant was not given an opportunity to be heard before the interim residence and delivery orders were made, breaching the right to a fair hearing. The matter was remitted to the sheriff to allow the appellant to be heard and for further investigation if necessary.

Court Disposition

Appeal sustained; sheriff's interlocutor recalled; cause remitted for reconsideration.

Orders

  • Recall of sheriff's interlocutor of 29 April 2009
  • Remit to sheriff to reconsider the minute to vary and to hear solicitor for the appellant on 14 May 2009