NJDB v JEG & Anor (Scotland)

Summary

Easter Term
[2012] UKSC 21
On appeal from: [2010] CSIH 83

JUDGMENT

NJDB (Appellant) v JEG and another (Respondents) (Scotland)

before

Lord Hope, Deputy President
Lady Hale
Lord Clarke
Lord Wilson
Lord Reed

JUDGMENT GIVEN ON

23 May 2012

Heard on 13 and 14 March 2012

Appellant Andrew Smith QC John Halley (Instructed by Jardine Donaldson Solicitors)		Respondent Simon di Rollo QC Stuart Buchanan (Instructed by Virgil Crawford & Co Solicitors)

		Respondent Andrew Hajducki QC Maggie Hughes (Instructed by Campbell Smith WS LLP)

LORD REED (WITH WHOM LADY HALE, LORD CLARKE AND LORD WILSON AGREE)

This appeal concerns a child, S, who was born on 1 April 2000. His father is the appellant, and his mother is the first respondent. The second respondent is a solicitor who was appointed as curator ad litem to S in respect of these proceedings. The issue between the parties is whether the appellant should have contact with S.

The appellant and the first respondent began a relationship in 1997. It ended a few months after S's birth. The first respondent subsequently married BG. She has a daughter, Z, by a prior relationship. She also has a son, A, by her marriage to BG.

After the relationship between the appellant and the first respondent ended, the appellant had residential contact with both Z and S for some time. In October 2003 the appellant began proceedings in Alloa Sheriff Court in which he sought an order finding that he had parental rights and responsibilities in relation to both Z and S. He also sought a residence order in respect of each of them, or alternatively an order for residential contact with each of them. On 20 January 2004 the sheriff found the appellant entitled to parental rights and responsibilities in respect of both children, made no order meantime regarding contact with Z, and found the appellant entitled to interim residential contact with S. A diet of proof was fixed for July 2004. The proof did not however proceed: following negotiations, the appellant and the first respondent entered into a joint minute of agreement, to which the court gave effect in terms of an interlocutor dated 7 July 2004. That interlocutor granted the appellant parental rights and responsibilities in respect of S, made provision for the appellant to have residential and non-residential contact with S, and provided that the appellant was to be consulted by the first respondent on matters of importance relating to S's health, welfare, education and upbringing. The interlocutor failed however to specify when the contact was to begin.

Disputes began almost immediately over the implementation of the interlocutor. Residential contact nevertheless continued to take place. In December 2004 the appellant lodged a minute seeking the variation of the interlocutor of 7 July 2004 so as to grant him a residence order in respect of S. That minute initiated the proceedings with which this appeal is concerned. In response, the first respondent sought the recall of the interlocutor of 7 July 2004 and…

JUDGMENT