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Child Maintenance & Enforcement Agency v Garry Smith, Temporary Sheriff Principal C G McKay, Dumfries Sheriff Court, 7 January 2011


The pursuers (and appellants) were the Child Maintenance and Enforcement Agency. The defender (and respondent) had allegedly failed to make child maintenance payments to the pursuers under a Liability Order dated 21st May 2008.

First Instance Proceedings:
This was an appeal in a summary application under the Child Support Act 1991, s.39A of which provides that an inquiry must be held into the circumstances of non-payment. This inquiry was to take place by way of a proof on the 28th January 2010. On that date the pursuers were prepared to lead evidence but were not given an opportunity to do so. Instead the sheriff accepted an explanation about the circumstances of non-payment from the defender, who had not been put on oath, without affording the pursuers the opportunity to test this evidence. He then proceeded to make findings in fact based on this unchallenged information and dismissed the application of the pursuers.

Parties' Submissions:
The pursuers submitted that the Sheriff had failed to conduct a s.39A inquiry. The hearing had not been conducted in accordance with the principals of civil litigation as the pursuers were not able to challenge the evidence accepted by the court. The defender was not present at the appeal therefore made no reply.

The sheriff principal held that in the Scottish adversarial system the only way of determining facts in a contested case is by way of a proof. At the hearing on 28th January the sheriff took account of what the defender had to say but did not allow that "evidence" to be tested in the normal way. Accordingly there had been no inquiry as required by s.39A of the 1991 Act.

The sheriff principal allowed the appeal and recalled the interlocutor of the first instance sheriff. He remitted the case to a new sheriff for a proof in terms of s.39A of the 1991 Act. No expenses were found due to or by either party.