Scottish Court of Session Decisions

[1] The appellant in this case is the father of Gemma Suzanne Thomson who was born on 10 December 1995. The respondent is her mother. The appellant is appealing against an interlocutor of the sheriff at Selkirk dated 16 February 2000 in which he varied a previous order for contact between Gemma and the appellant by restricting that contact to nil.

[2] The background to the case is as follows:-

The parties were married in April 1993. In June 1998 they separated and Gemma and the respondent went to live with the respondent's sister in St. Boswells. After the separation Gemma continued to have contact with her father. On the whole that contact proceeded satisfactorily. Eventually the respondent raised an action for divorce from the appellant and after a joint minute relating inter alia to the periods of contact between Gemma and the appellant had been tendered in the process the divorce action was allowed to proceed as undefended by way of affidavit evidence. The joint minute which was tendered on 20 April 1999 reflected the terms of contact which had been exercised since the date of separation.

[3] Decree of divorce was pronounced by an interlocutor dated 31 May 1999 and authority was interponed to the joint minute. Decree was extracted on 15 June 1999.

[4] Unfortunately, prior to that interlocutor being pronounced an incident occurred when Gemma refused to go with the appellant when he called to exercise contact with her. The appellant, although he tried to insist on seeing Gemma, eventually left without her. The next day the appellant, after telephoning the respondent, called to see Gemma but she refused to see him. There has been no contact between the appellant and Gemma since that date.

[5] In the light of these circumstances the respondent lodged a minute of variation in which she craved the court to vary an interlocutor of 15 June 1999 by restricting the contact between the defender and Gemma to nil. It is clear that the date in the crave, which was the date of extract of the decree of divorce, was an error. The date should have been the date of the interlocutor interponing authority to the joint minute, namely 31 May 1999. Curiously enough a further error regarding the relevant date was made by the sheriff in his interlocutor disposing of this minute in that he purported to vary an interlocutor of 25 June 1999 instead of 31 May 1999, but although this point was mentioned by Mr. Halley, counsel for the appellant, in his preliminary remarks, he made no issue of it, accepting that this appeal did not rest on such a technicality. For the record he also pointed out in his preliminary remarks that it was clear that there had been no change of circumstances affecting contact since the interlocutor of 31 May 1999 and, accordingly, the minute of variation could be said to be incompetent. However, once again, counsel did not rely on that point in support of the appeal, accepting that there were much wider issues to be resolved in it, and so we do not need to deal with it.

[6] Those wider issues depended on the evidence which was led at the proof on the minute of variation and answers which took place in the Sheriff Court at Selkirk on 19 November 1999 and the sheriff's findings in fact and law, along with his reasons which were incorporated in his interlocutor of 16 February 2000.

[7] In effect, by the interlocutor of 16 February 2000 the sheriff, after hearing the evidence and the submissions of the agents for the parties, decided that it was in Gemma's best interests that the arrangements for contact between her and the appellant, as incorporated in the joint minute, should be varied by restricting the contact between them to nil.

[8] As has already been said, it is against that interlocutor that the appellant has appealed to this court. Mr. Halley's motion on the appellant's behalf was that that interlocutor should be recalled so that the interlocutor of 31 May 1999 would then revive, allowing contact between the appellant and Gemma in terms of the original joint minute.

[9] Put briefly, Mr. Halley's submission was that the sheriff had not applied the correct test in reaching the decision which he did. He pointed out that the sheriff was faced with two bodies of conflicting evidence as to how Gemma reacted to contact with the appellant. The sheriff had apparently accepted both bodies of evidence and not attempted to reconcile them. In that situation Mr. Halley submitted that where an order for contact had already been pronounced in favour of the appellant, the sheriff should have approached the matter on the basis that the onus of proof rested on the respondent to prove that it was not in the best interests of Gemma to have contact with the appellant. In view of the fact that there were two conflicting but acceptable bodies of evidence as to how Gemma reacted to contact with the appellant that onus had not been discharged and the original order should not be varied.

[10] Mr. Halley criticised the sheriff for applying the test in the case of Sanderson v. McManus 1997 SC (HL) 55 to this case. He maintained that that case was distinguishable on the view that there the father, who was not married to the mother of the child, was seeking an order for contact with the child, whereas in the present case the appellant already had an order which the respondent was seeking to vary. In that situation, Mr. Halley submitted that the onus was on the respondent to prove that it would be in the best interests of Gemma that she should have no contact with the appellant and that in the context of the sheriff's note she had failed to do so.

[11] We reject that argument. We are satisfied that the test laid down in Sanderson (supra) was the appropriate one in the present case and that the sheriff applied it correctly. As Lord Hope said in his speech in Sanderson (supra) at page 64:

[12] Accordingly what the sheriff was required to do in this case was to decide on the evidence whether it was in the best interests of the child that contact between the appellant and Gemma should continue as previously agreed, or be restricted to nil. That was indeed the test which he applied. In the event he decided, for the time being at least, and we emphasise that qualification, that it would be in the best interests of Gemma that there should be no contact with the appellant at all.

[13] We do not see how the sheriff could have decided otherwise. It was not in dispute between the parties that Gemma, at this stage, does not want to see the appellant and will not go with him. Mr. Halley maintained that that was simply giving effect to the child's apparent wishes and that there was no independent evidence to say that that was in her best interests. We do not agree with that submission, because there is not only agreement between the parties that Gemma does not want to see the appellant at present, but there is clear evidence that since the contact has ceased Gemma's sleeping, eating and sociability have all greatly improved. Accordingly, in our view, not only has the sheriff applied the correct test in this case but there was ample evidence to support the conclusion which he reached, namely, that contact with the appellant for the time being at least was not in her best interests and should be restricted to nil.

[14] In these circumstances, we shall allow the appeal to the extent of deleting the date, 25 June, in the sheriff's interlocutor of 16 February 2000, and substitute therefor the date 31 May 1999; quoad ultra we shall refuse the appeal. We shall also find the appellant liable to the respondent in the expenses of the appeal.