Failure to appear for child hearing not fatal

Sheriff not entitled to dismiss contact action when father's lawyer present

News, 7 March 2006

A father who failed to appear at a child welfare hearing in his action for contact with his children, was not "in default" in terms of the court rules where his solicitor was present, and the sheriff was not entitled to dismiss the action, a court ruled yesterday.

Sheriff Principal Dunlop QC at Dundee allowed an appeal by Dean McLaren, who claimed that he had got the date of the hearing wrong. He had turned up the following day only to discover what had happened, and had immediately consulted his solicitor to try and have the decision reversed.

The sheriff had held that as a child welfare hearing was one at which all parties were expected personally to attend, and to provide the sheriff with sufficient information to enable her to conduct the hearing, Mr McLaren was not "represented" when his solicitor did not have the necessary instructions to conduct the hearing.

Disagreeing with that approach and following two earlier cases, Sheriff Principal Dunlop said that there was no room for a distinction between those solicitors who were fully instructed and those who were only nominally instructed, and that if a solicitor appeared and stated that he or she appeared for the party then in the eyes of the court that party was represented.

He added that the rules did not clearly provide for such situations and it might be time for a fresh look at them.

The sheriff principal's decision can be read at http://www.scotcourts.gov.uk/opinions/A1120_04.html .