S. IN CAUSA A.J.B. v. A.R.B.

The Sheriff Principal having resumed consideration of the cause refuses the appeal and adheres to the sheriff's interlocutor of 30 November 2010; remits the cause to the sheriff to proceed as accords.

This action, between estranged husband and wife, concerns the arrangements for their children S (aged 12) and C (aged 9). It has been ongoing since December 2005. There has been sundry procedure involving a number of Child Welfare Hearings and the obtaining of reports from three separate psychologists. In December 2009 the sheriff heard five days of proof, evidence being given by the pursuer and D.C., the defender's cohabitee.

The children currently reside with the defender. The critical issue is whether the children, and S in particular, should have contact with their father the pursuer. I was informed that parties - pursuer, defender and the curator ad litem to S - were agreed that such contact was in the best interests of S. S's position, at least on the face of it, is that he does not wish to see his father. Professor Thomas MacKay, a consultant psychologist, has been working with the family towards achieving a resolution as well as reporting to the court.

At the outset of the appeal Ms Innes appearing on behalf of S indicated that parties were agreed that the sheriff was wrong to hold that permitting S to enter the process would have the effect of terminating the curator's appointment by virtue of section 15(5)(b). The reason for this agreement was that it was accepted that a curator ad litem was not a "legal representative" as envisaged by Part 1 of the 1995 Act.

Undue weight should not be placed upon the procedural and evidential difficulties which might be occasioned by the allowance of the Minute. That was a matter which ought to have little weight in comparison to the child's right to be heard and his Article 6 and 8 rights. If the decision was considered to be a narrow one - and the sheriff had expressed the view that it was - the court ought to exercise discretion in favour of allowing S to be sisted.