Scottish Court of Session Decisions

The child, Nike, who is the subject of the dispute in this litigation is aged 2 years. The appellant is his mother who formerly cohabited with the first respondent, who is the father. The child has been living with his maternal grandparents since he was approximately 8 months old. His grandmother is the second respondent. Since the Autumn of 1997 the appellant has wished the child to reside with her on a permanent basis. Proceedings were raised by her in the Sheriff Court at Paisley and after a proof the Sheriff issued an interlocutor making a Residence Order in terms of section 11(2)(c) of the Children (Scotland) Act 1995 to the effect that Nike was to

reside with the second respondent but allowing the appellant residential contact at her own home at weekends under supervision of the Social Work Department. The appellant is appealing against this interlocutor and if the appeal were to succeed the child would thereafter return to reside with the appellant.

The Sheriff has made full findings in fact and has given extensive reasons why he reached the conclusion which he did. For the disposal of this appeal it is only necessary to outline certain salient facts which are not in dispute.

The appellant and the first respondent cohabited only at intervals between January 1996 and July 1997. The first respondent is suffering from multiple sclerosis and lives with his parents. No criticism is made of the grandparents' home circumstances or of the second respondent's ability at present to look after the child. The appellant lives in a flat which is well maintained. However, the Sheriff formed an adverse view of her ability to look after Nike, particularly when he commences nursery and primary education. She sees the child regularly and, as we have noted, he stays with her at weekends subject to social work supervision.

The scope of this appeal is restricted to the grounds which have been stated. Criticism is made of the Sheriff's treatment of the evidence of particular witnesses. Certain of the findings of fact are alleged not to be properly founded on the evidence and it is claimed that the Sheriff reached a conclusion in relation to the child's best interests which was not supported by the evidence. Only one specific error of law is identified in the grounds of appeal, namely that the Sheriff's judgment was reached by adopting what is called "a short term" view as the basis for his decision. The grounds of appeal do not allege an error in law because the Sheriff failed to recognise the particular claims of the appellant as the natural parent of the child.

We deal first with the appellant's contention that there was an error of law. Counsel for the appellant referred us to Brixey v Lynas 1994 S.C. 606 and to a passage in the Opinion of the Court at page 611 where the following statement is to be found:

Counsel submitted that the Sheriff in deciding that the child should reside with the second respondent rather than the appellant had regard only to his immediate interests. She referred us to certain passages in the Sheriff's judgment which demonstrated his concentration on the situation at present and in the near future. For example, the Sheriff referred to the present state of health of the second respondent, to the fact that "at present" Nike is happy and well settled with her, and to certain existing inadequacies in the appellant as a parent.

It is important to bear in mind the context in which the observations in Brixey v Lynas were made. What was being criticised was the approach of the Sheriff and the Sheriff Principal in that case. It was held by them that the Court could only be expected to have regard to present circumstances and that if circumstances changed materially thereafter the Court could be asked to consider afresh the matter of custody. It is in this context that, in our opinion, the observations of the Court in Brixey v Lynas should be understood. Accordingly, if it could have been demonstrated that the Sheriff in the present case had approached the question with a limited outlook then we could understand the contention that he had erred in law. However, reading the judgment of the Sheriff as a whole we cannot detect that he did anything of the kind. Counsel for the appellant drew our attention to passages in his note to which he made reference to the situation at present and in the immediate future. This is not surprising because the Sheriff was bound to have regard to the circumstances which existed and which might be expected to exist in the near future in order to arrive at a determination as to where, having regard to the welfare of the child, he was to reside. But at no point can we discover any indication that a long term view was to be disregarded and indeed he makes reference to a possible situation when the child was in his teens. Accordingly, we do not consider that this first ground of appeal has substance.

Counsel for the appellant submitted that in any event the Sheriff had failed to take into account evidence relating to the second respondent's future state of health and evidence from certain social workers concerning the appellant's ability to care for the child. In broad terms the contention was that a proper appreciation of this evidence should have caused the Sheriff to have reached a conclusion on residence favourable to the appellant. We were asked to take the view that this alleged failure was of such a material character that the issue was at large for the determination of this Court.

The second respondent was aged 56 years. She had suffered from various health problems including diabetes, the removal of a single kidney and a high cholesterol level which has led to a successful coronary by-pass operation in June 1996. The Sheriff concluded (in finding of fact 9) that Nike would be likely to reach late teenage years before his grandmother's health problems would become a major factor. He made the following finding:

Counsel for the appellant submitted that there should be added to this finding the following qualification: "The second defender's energy level is likely to deteriorate within the next few years". The basis for this addition was said to be found in the evidence of the second defender's general practitioner (to be found at pages 482-3 of the appendix). We agree that evidence to this effect was given but the doctor's prognosis was in such guarded terms that we do not consider that it provides a proper foundation for the proposed amendment. Even if we were to give effect to counsel's submission we cannot see how it could materially affect the issue. We were not asked to substitute a finding to the effect that any diminution in the second respondent's energy would be likely to significantly impair her ability in future to look after the child nor was our attention drawn to any evidence to that effect. We can therefore find no grounds for holding that the Sheriff's judgment in his approach to the second respondent's ability to cope with a child in the future in his judgment was erroneous.

The next criticism of the Sheriff was that he had "misapprehended" evidence of certain witnesses who were acquainted with the appellant and her domestic circumstances and spoke about her capacity to care for the child. These were two unqualified home support workers and a qualified social worker, Mrs Atkinson. Counsel for the appellant drew our attention to passages in the evidence of the home support workers who expressed opinions to the effect that the appellant and the child had a loving relationship, that the child was happy being with her, and that the appellant, with some support from the social worker, could cope on her own in looking after Nike. Counsel for the appellant submitted that this evidence accurately portrayed the appellant as a single parent, albeit inexperienced and anxious, who could well cope with the upbringing of the child.

Had this been all, there might be said to be merit in the contention put forward by counsel for the appellant but we do not accept that this is the case. What weighed with the Sheriff, as he states, was the evidence of Mrs Atkinson, a very experienced social worker, who had been involved with the family since August 1997. The Sheriff made a careful assessment of her evidence which in broad terms was to the effect that it was doubtful if the appellant, even with support, could cope with the problems of looking after Nike. The Sheriff concluded that the reservations which Mrs Atkinson had were sufficient to "weigh heavily", as he put it, in favour of the child residing with his grandmother. In our opinion it was for the Sheriff to reach his own view on the evidence of the home support workers and the senior social worker and we can find no flaw in his reasoning which would justify us in interfering with his conclusion.

Counsel for the appellant summarised her case in this way. There were no important differences in the material surroundings of the homes of the mother and the grandparents. The appellant could cope with the upbringing of the child despite certain problems. On the other hand, the child would be residing with relatively elderly grandparents where there was an uncertain outlook as regards the health of the grandmother and also with a father who had a distressing illness. The proper place for the child was with his mother, other things being equal.

We cannot entertain the appeal presented in this way. It is nowhere reflected in the grounds of appeal but, quite apart from that, if we were to give any credence to it we would be substituting our own opinion for that of the Sheriff who saw and heard the witnesses. It is clear from his note that the impression made on him by the witnesses, including the appellant and the second respondent as well as Mrs Atkinson, was of importance in enabling him to reach his determination. There is a consistent tract of authority commencing with Thomas v Thomas 1947 S.C.(H.L.) 45 and re-iterated in the very recent case of Osborne v Matthan (No 2) 1998 S.L.T. 1264 which discourages Courts of review from interfering with the judgment of a Court of first instance on the issue of custody or residence, save in exceptional circumstances. We do not consider that such a situation arises here.

Finally, we would mention that counsel asked us to make certain amendments to the findings in fact, apart from the matter of the doctor's evidence upon which we have already touched. The proposed amendments were on matters of detail which could not affect our decision and we do not propose to make any alterations.

The appeal is therefore refused.