Generally speaking, the view from the bench in Scotland has tended to be that if a section 11 order has been granted in respect of a child, but one party then seeks to depart from or challenge its terms, the proper course of action (if no agreement can be reached) is to seek a variation of the order at a later date. There is a general belief or culture that as children change and develop, so too must the framework of court orders or other legislative interventions which govern and promote their welfare. This philosophy stems from the paramountcy of the welfare principle as provided for by the Children (Scotland) Act 1995, which is embedded in the mindset of every child lawyer and Sheriff in Scotland.
Against that background, what is the proper course of action procedurally if one party decides to abandon an action where a s11 order is sought? In the recent case we dealt with, the pursuer had initially sought a specific issue order in relation to the education of a young child. A proof was fixed but shortly before it, however, the pursuer decided to abandon the action but instead of simply seeking dismissal, instead moved for decree of absolvitor.
While this approach may immediately strike the family practitioner as odd, there is nothing in the court rules to suggest that it was incompetent. Ordinary Cause Rule 23 refers to "a cause" and can therefore be presumed to apply to any civil action, including one designated as a family action. In addition, the specific Chapter of the Rules relating to family actions provide that in the event of abandonment by the pursuer, the court may allow the defender to continue with any order or claim sought in their defences, presenting the prospect of one crave for a s11 order (such as residence) being abandoned while an alternative (such as contact) proceeds to proof.
In more specific terms, Rule 23.1(1)(b) enables the pursuer in any civil action to abandon their claim and obtain decree of dismissal if they have paid the defender's full judicial expenses. In the alternative, the pursuer can instead seek to abandon in terms of Rule 23.2(1)(a) and ask the court to grant decree of absolvitor. In the latter case there is no specific requirement that the pursuer has to pay the defender's expenses and indeed the question of expenses is a matter for the Sheriff's discretion.
The critical point, in this context, is that a party who is assoilzied in terms of the latter rule, in relation to the particular issue raised, cannot then raise the same issue again in future. The degree of finality this offers will clearly be desirable to the defender in many litigated causes. It sits oddly, however, against the general assumption that child-related matters will incorporate a degree of flexibility.
A child's circumstances and the arrangements for their care can never be set in stone. Had a final order been made in this case after proof which had determined the issue in dispute between the parties, and there had subsequently been a material change in circumstances, it would have been open to either party to seek a variation of the s11 order. Equally, had the specific issue order been refused, but a change in circumstances had then arisen that would result in the defender (or the court) coming to support its terms, the application could have been renewed. In that context, can it be procedurally or substantively correct that the issue cannot be raised again?
Notwithstanding decree of absolvitor having been granted, it seems unlikely that the pursuer would ultimately be prevented from bringing the matter before the Court when the issue in question relates to the welfare of a child. It may therefore be that where s11 orders are concerned, endings are not really as final as they may sometimes seem.