APPEAL DECISION NJDB against JEG

The First Division of the Court of Session has today issued its judgment in this appeal from the sheriff court. It has upheld the decision of the sheriff withdrawing all contact between NJDB (the father) and his son [S]. NJDB, however, retains certain restricted responsibilities and rights in respect of [S].

The court has been particularly concerned about the protracted length of the proceedings in the sheriff court.  Evidence was led for, in total, 52 days in a family case which ought to have been relatively straightforward.  The court was informed that proceedings of such length in such cases are not unusual.  The court regards this state of affairs as highly unsatisfactory. 

The primary responsibility for achieving such a disposal lies with the parties’ professional advisers, solicitors and counsel.  In a situation where, for their clients, the proceedings may well be emotionally charged, professional advisers have a duty to take steps to identify and concentrate on, and only on, the issue – the welfare of the subject child or children.

Under current arrangements sheriffs and judges are not best placed to control the scope of proceedings.  Pleadings are largely in the hands of professional advisers and, at a proof, the only controlling measure which the sheriff or judge can take may be limited to ruling upon exceptions to questions or to lines of evidence as going beyond the scope of the pleadings.    Nor are they best placed to decide in the course of a proof whether a particular line is relevant or helpful.  If, as is suggested, this case is not atypical, it may be that the liberty which professional advisers have hitherto enjoyed in this field should be curtailed.

 The Court  has suggested that consideration should now be given to the issuing of Practice Notes in cases involving the welfare of children (as has already been done with respect to adoption cases) to regulate proceedings with a view to reaching an expedited but right disposal.   Such Notes might also address the role of curators ad litem in such proceedings.

 The full Opinion is now available.

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