An order about contact can have an immediate effect on family life. If a parent believes the sheriff has made a mistake, an appeal may seem like the obvious next step. But in a case involving a child, the question is not only whether an appeal can be made. It is also whether it will improve the child's situation in time to matter. The Sheriff Appeal Court's decision in F v M [2023] SAC (Civ) 29 is a useful illustration.
What happened in F v M?
The parents had agreed arrangements under which the father had regular residential contact and the child otherwise lived with the mother. Following a period of contact, the child was not returned. The father said the child, then aged 12, did not want to go back. The mother sought the child's return and a change to the contact arrangements.
At an urgent hearing before the father had been heard, the sheriff ordered the child's return. Further orders followed when the child remained with the father, and contact was eventually suspended on an interim basis. The father appealed. He argued, among other things, that the child should have been asked for their views before the orders were made and that suspending contact amounted to a punishment of him rather than a decision directed to the child's welfare.
What did the Appeal Court decide?
The appeal failed. The court treated the initial delivery orders as urgent steps to restore the arrangements already reflected in a court order, pending fuller consideration of the child's welfare. It did not regard them as a final decision about where the child should live or what contact should ultimately take place. In the particular circumstances, the sheriff had a sufficient basis to act before hearing from the father, while arranging for the child's views to be obtained later in the proceedings.
The child's views remained important. The Appeal Court's point was about timing: the court need not obtain those views before every interim decision or procedural step. A substantive decision requires proper attention to the child's views where practicable; an urgent holding decision may have to be made before that can happen.
The court also distinguished suspending an existing contact order from varying contact to nil. It characterised the suspension as a temporary protective measure while more information was gathered, not a penalty imposed on the father or a presumption that contact should never resume.
The cost of an appeal that cannot solve the immediate problem
The Appeal Court made a pointed observation about purpose. While the appeal was pending, the first-instance process that could reconsider contact was delayed. By the time the appeal was heard, the child's views had been taken, but contact had not resumed for months. The court considered that this appeal could not itself settle the future contact arrangements and criticised the expenditure of time and resources on it. The unsuccessful father was found liable for the mother's expenses of the appeal.
That observation deserves care. An appeal can be important where there is a material legal error, and appellate review can provide guidance beyond the individual case. The Law Society of Scotland's discussion of F v M questions whether the appeal was truly without purpose, given the impact of the interim orders on the child and the family. The practical lesson is to identify exactly what relief the appeal can deliver, and what will happen to the child's situation while it is determined.
Questions to ask before appealing
- What identifiable error is said to have been made? Disagreement with an interim outcome is not, by itself, a complete appeal strategy. Identify the legal or procedural error and the order you want the Appeal Court to make.
- What can be achieved in the sheriff court now? A child welfare hearing, an application to recall or vary an interim order, or updated evidence about the child's views may address the live contact problem more directly. The right route depends on the orders and stage of the case.
- Will the appeal interrupt progress? Consider whether pursuing it may delay the hearing or report needed to decide contact, and how that delay may affect the child.
- What is the risk on expenses? A parent may face an award of appeal expenses even in a family case if the appeal is unsuccessful.
The underlying aim should be a workable arrangement that serves the child, not simply a ruling about who was right at an earlier hearing. If you are considering an appeal against an interim contact decision, prompt advice is important: the order, the procedural timetable and the available remedy all need to be examined together.
If you need advice on a contact order, an interim suspension or a proposed appeal, contact Serenity Legal Scotland on 0333 242 0316 for an initial discussion.