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SHERIFF APPEAL COURT
[2024] SAC (Civ) 33
Sheriff Principal Ross
OPINION OF THE COURT
delivered by SHERIFF PRINCIPAL ROSS
in the appeal in the cause
PL
Pursuer and Respondent
against
SD
Defender and Appellant
19 July 2024
[1]
The parties have two children, aged 6 and 8. The relationship has broken down.
The defender and appellant (the "defender") has been convicted of serious sexual offences
including rape of the pursuer and respondent (the "pursuer") and a sexual offence against a
15 year-old. He received a custodial sentence in November 2022. This action, however,
pre-dated that by 21 months, having been raised in February 2021.
[2]
By the date of proof the only remaining dispute was the nature of the pursuer's
contact with the children. Although he previously sought prison visits, by the date of the
proof the pursuer sought only limited contact, namely direct contact by video link for up to
45 minutes, either fortnightly or monthly, contact to be supervised at his end. He sought
2
letterbox contact, with letters passed direct to the children. He submitted that these could
not be passed via the defender, as she would not pass them on.
[3]
The defender opposed this, and sought to restrict contact to letterbox contact only, on
the basis that the pursuer could not be trusted not to abuse direct contact. She feared
inappropriate conduct by him, or manipulation of the children. It was submitted that the
reports showed him to be of poor character, manipulative and controlling. She was
concerned about what he would say to the children. He did not accept responsibility and
blamed his victims for false allegations. She accepted that indirect contact would be of
benefit to the children. Her pleadings admit that the pursuer formerly played an active role
in the care and upbringing of the children, until January 2020 when contact terminated.
[4]
Having heard parties at the proof diet on 14 March 2024, the sheriff pronounced an
interlocutor allowing monthly video contact between the pursuer and the children, contact
to be supported at the pursuer's end by an individual authorised by the Scottish Prison
Service, together with letterbox contact quarterly and a card each birthday.
[5]
The defender appeals that interlocutor. The grounds of appeal include that the
sheriff gave insufficient weight to the pursuer's convictions, the defender's mental health
and possible effect on childcare, and the pursuer's minimisation of the offending, and gave
undue weight to the relationship between pursuer and children and to the children's views.
Submissions
[6]
For the defender, the submissions were very similar to those made to the sheriff.
It was submitted that this court is entitled to interfere on the grounds that the sheriff did not
give appropriate weight to the serious nature of the convictions, or to the fact that the
pursuer is a convicted paedophile. It was feared that the circumstances may give rise to
3
mental injury in the children as such persons are manipulative and cunning. The expertise
of any supervisor would be unknown. Further, the sheriff gave insufficient weight to the
mental health of the defender, which might impact on the children. She may have to
interact with the pursuer and this was likely to be highly distressing. It would be mentally
injurious to her. Reference was also made to the social work report obtained in criminal
proceedings. The pursuer continued to deny the offences, and this was given insufficient
weight by the sheriff, who was said to have failed to weigh up and fully consider his
comments on social media, which involve accusing the defender of lying about him.
[7]
The defender's submissions referred also to the pursuer's relationship with the
children. While he formerly did exercise contact, he was now in prison. The sheriff attached
too much weight to the views of the children.
[8]
The submissions for the pursuer pointed out other elements of the sheriff's
judgment, including that she determined that denial of the offence did not indicate elevated
risk, based on experience of similar cases. The sheriff required to balance the various
interests, and in doing so had sight of affidavits, reports, pleadings and the views of the
children.
Decision
[9]
The starting point for the sheriff was to consider the best interests of the children.
She did so. In doing so she recognised the points raised by the defender and balanced these
against other factors. The appeal does not allege that the sheriff did not have regard to
evidence, or took into account irrelevant factors, but rather that she failed to balance the
merits of the evidence heard.
4
[10]
Although this is a competent ground of appeal (see Macphail; Sheriff Court Practice
(4th ed) at paragraph 18.161), formulae such as "insufficient weight" or "undue weight" are
virtually meaningless by themselves. They do not justify an appeal which simply invites an
appeal court to override the decision. An appeal is not a second opportunity to seek the
same result. An appeal on this ground is only justified, and the appeal court may only
intervene, where: "there has been an error in the balancing exercise, or that the sheriff's
conclusion is so plainly wrong that there must have been such an error" (ibid).
[11]
Mere assertion of error is not enough. An appellant must demonstrate either that the
balance is wrong, or that the sheriff's conclusion is plainly wrong. To show that the balance
was wrong it is necessary to discuss all, not merely some, of the balancing factors, both
favourable and unfavourable to the appellant's position. To show that a decision is plainly
wrong it is necessary to examine the reasons given for the decision. Contextual analysis is
crucial. Merely restating one side of the argument does not demonstrate lack of balance.
Presentation of only favourable facts does not demonstrate error.
[12]
This appeal does not carry out that exercise. It is no more than a restatement of the
arguments made to the sheriff, and disagreement with the result. It does not examine the
soundness of the reasons which supported the decision, or test them against the overarching
requirement to act in the best interests of the children.
[13]
When the court's decision is considered, it is plain that the sheriff carried out the
tasks required of her. She heard the motion for contact. The court had obtained a child
welfare report dated some 2 months previously, and was aware of the reporter's concerns
about the pursuer's denial of the offences. The reporter had spoken to the defender at
length but had not spoken to the pursuer. The report noted that the children enjoyed
contact with the pursuer, knew he had done "bad stuff", and that he was in prison.
5
The elder child wanted to see him because he might not get out. The younger child really
missed him. While at liberty prior to trial, the pursuer had had direct contact with the
children for 90 minutes once per week.
[14]
The sheriff made her decision based on the correct legal test, namely the best
interests of the children. She had regard to their views and concerns, and the need to protect
them from the risk of abuse. She considered whether it was appropriate to make an order
having regard to the possible need for the parties to cooperate with each other. An order
was necessary as the parties were in dispute.
[15]
She made the order for direct video contact for two reasons. The first was the views
of the children. They had a lot of fun with the pursuer at contact. They know he is in
prison. They both wanted to visit him there. She formed the view that the children like him
and are worried about him. Seeing him would give them some comfort, and they wanted to
see him. Seeing him in prison would show them the reality of his circumstances.
[16]
The second reason was the inadequacy of written communication. It is a dying skill,
and not easy for the children. Video communication is familiar, allows people to see each
other and communicate spontaneously, and is much more natural for children.
[17]
The sheriff provided for video communication to be supported by an authorised
person provided by the Scottish Prison Service. That was designed to protect against the
type of concerns voiced by the defender. A further protection was that the pursuer knows
that video contact can be removed if it is abused. Indirect communication was by card.
Again, inappropriate communication could lead to termination of this privilege.
[18]
The foregoing does not demonstrate any error. It is balanced and discerning
disposal. The sheriff took into account the factors relied upon in the submissions before her.
This appeal appears to raise new assertions, including that the SPS staff monitor might not
6
be sufficiently qualified to oversee the contact, and that the mental health of the defender
might suffer. To the extent that these are new points they are not competent grounds of
appeal. To the extent they were enmeshed in what was said to the sheriff, which is not
evident from submissions, they are in any event no more than part of the balancing exercise
which the court carried out. They do not, either separately or collectively, demonstrate the
decision was plainly wrong or based on an unbalanced assessment of evidence. The
grounds of appeal do not demonstrate that the best interests of the children required no
direct contact at all, or only monitored indirect contact. They do not recognise the principle
that it is almost always conducive to the welfare of a child that parental contact is
Disposal
[19]
The appeal is refused, and the court will adhere to the sheriff's interlocutor of
14 March 2024. Parties did not make submissions on expenses. They should attempt to
agree these. If there is no agreement they should enrol the appropriate motions, and
submission if so advised, within 21 days of issue of this decision.
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