Scottish Court of Session Decisions

[1] The pursuer and defender are the mother and father of a child H, who was born on 3 May 1992. In the present action, raised in the Sheriff Court at Edinburgh, the pursuer craved custody of H, and interdict against the defender from removing or attempting to remove the child from the jurisdiction of the court except with the written consent of the pursuer. In terms of a counterclaim, the defender sought declarator that he was the father of the child, and sought a finding that he was entitled to access to the child, at specified times or as the court thought fit. The action was raised in January 1993. When it eventually came to proof, the proof was very long. Thereafter, by interlocutor of 10 February 1997, the Sheriff found the pursuer entitled to custody, and granted the interdict sought. In relation to the counterclaim, he granted declarator that the defender was father of the child, but quoad ultra dismissed the counterclaim. In thus rejecting the defender's crave for access, the Sheriff made a finding in law that "It being against the interests of H, and contrary to her welfare, that the defender should have access to her, no finding for access should be made."

[2] The defender appealed to the Sheriff Principal. The appeal related to the refusal of access. By interlocutor of 19 March 1998, the Sheriff Principal refused the appeal and adhered to the interlocutor of 10 February 1997. The defender appealed to the Court of Session, and when the matter came before us, we allowed the Grounds of Appeal which had previously been lodged to be replaced by new Grounds. These were set out under three main heads, A, B and C; but in the event heads B and C were not insisted in. Moreover, of the six sub-heads within head A, subheads (e) and (f) were not eventually insisted in. While subheads (a) to (d) provided the foundation for the submissions made by counsel on behalf of the defender and appellant, it is unnecessary to refer to the detailed terms of these subheads. It is not these, but the submissions advanced by counsel, which require our consideration.

[3] Put shortly, the contention is that the Sheriff erred in his decision to refuse all access, and the Sheriff Principal erred in upholding that decision. Counsel related his submissions to the Findings and Note of the Sheriff, and it is unnecessary to make specific reference to what was said thereafter by the Sheriff Principal. In submitting that the Sheriff had erred in this respect, counsel accepted that the Sheriff's findings-in-fact must stand: the notes of evidence were not available, and he was not asking this court to alter those findings in any respect. Moreover, it was not suggested that this court should replace the Sheriff's decision by a grant of access: if satisfied that the Sheriff had erred, we should recall his finding in law to the effect that no finding for access should be made, and the consequential dismissal of the counterclaim in so far as relating to access. The cause should then be remitted to the Sheriff, and it would be for the defender and appellant thereafter to seek an award of access, if so advised. While it was true that he could seek access at any time and in any event, on the basis of a change of circumstances, he was nonetheless entitled, if the Sheriff had erred in refusing all access, to have that decision reversed. Even although the findings-in-fact would stand, it was important for the defender and appellant, before any new application for access, and indeed for other reasons relating to his own reputation, that the Sheriff's erroneous conclusion that it was against H's interests and contrary to her welfare that the defender should have access to her should be recalled. We did not understand counsel for the pursuer and respondent to take issue with these aspects of the submissions for the defender and appellant.

[4] In criticising the Sheriff's conclusions and decision, counsel for the defender and appellant did not suggest that the Sheriff had misdirected himself in law or applied the wrong test, in considering whether access should be granted. The test which a court must apply, in considering whether to grant access (or, as it would now be, contact) was whether such access or contact would be of benefit to the child's welfare, and this required to be examined from the child's point of view. Having regard to the general desirability of a child having contact with its parents, the refusal of all contact would be unusual, on application of this test. But it was accepted that such refusal might be justified if the interests of the child required it. Reference was made to Sanderson v. McManus 1997 SC (HL) 55. The Sheriff had applied his mind to the correct test, but it was submitted that the conclusions that he had drawn from the facts, and the decision which he reached upon the basis of these conclusions, were plainly wrong, having regard to the facts found, and could not be regarded as a sound exercise of discretion. They were such that, upon the basis of these facts, no judge exercising a reasonable discretion would come to them. And as regards this court, it was of course accepted that we should not intervene unless satisfied that the judge's exercise of discretion was based upon a wrong principle, or was, as here, thus plainly beyond the bounds of any reasonable exercise of discretion. It was acknowledged that in coming to his conclusions and decision, the Sheriff had had the advantage of a first instance judge, having seen the witnesses and being able to assess them as this court could not do. But his conclusions were not dependent upon or justified by this advantage. This court therefore could, and should, intervene, to recall the Sheriff's conclusion that it was against Helens's interests and contrary to her welfare that the defender should have access, and his consequential decision that no finding for access should be made.

[5] The Sheriff's findings-in-fact are set out under 120 numbered heads. And in his Note, having stated his view that access was not in H's interests, and was likely to be contrary to her welfare, he sets out his reasons for coming to that decision under nine heads (a) to (i). In addition to these, he says that he has taken full account of the benefits which might come to H from contact with the defender, but concludes by saying that in any event he was "entirely satisfied" that any benefit to H from access would be "heavily counter-balanced" by the "likely damage and probable risks inherent in the reasons given above."

[6] Before coming to the crucial findings-in-fact, and the Sheriff's reasoning and conclusions, we can state the general background quite briefly. At the date of proof, the pursuer was aged about 38, and the defender about 50. The pursuer's parents are Icelandic, but long resident in Edinburgh, and she is a British citizen. The defender is a Spanish citizen, but long resident in England. The pursuer was married in 1980, but separated from her husband in 1990. They divorced in November 1994. Both the pursuer and the defender have been involved in the performing arts, and met in 1990 at the Edinburgh Festival. Having thereafter formed an association, and having decided to have a child, they began to live together in about November 1991, at the defender's flat in London. The pursuer was then pregnant. When H was born the following May, the defender was present at her birth, and after certain post-natal problems, he was very fully involved with his wife and child, and took a major part in running the home and caring for the baby.

[7] The Sheriff makes a substantial number of findings-in-fact in relation to the ensuing months, but at this stage we would simply note that there were visits to London by the pursuer's parents, and by the defender's mother, and a visit by the pursuer, with H, to Edinburgh. There were also proposals for a visit to Spain, and a possible visit to Iceland. The pursuer was to have returned to London from the Edinburgh visit in October 1992, but did not do so. Following upon a suggestion by her that she might take H to Iceland, the defender sought and obtained an order in the Family Division of the County Court in London, which was discharged upon the pursuer giving an undertaking not to remove H from the United Kingdom without leave, and also to provide the defender with certain supervised contact with the child in Edinburgh. There have been other legal steps, but for a period from November 1992, the defender had supervised access to H for two hours, usually every Saturday, at the pursuer's parents' house in Edinburgh. There was a break in this access between mid April and mid July 1994, but thereafter access was resumed. Access was initially supervised by the pursuer, but during later visits, usually by her mother. Some of the crucial findings-in-fact relate to events during or around the time of access visits between July 1994 and the end of 1995. The present action and counterclaim having been brought, access from October 1995 onwards was regulated by interlocutors of the Sheriff. There were failures by the pursuer to allow access, and a findings of contempt of court upon which she was admonished. But by interlocutor of 28 March 1996, the Sheriff brought interim access to an end, and between then and the conclusion of the proof on 10 December 1996 the defender did not have any access to the child. He has not seen her since.

[8] Of the nine reasons stated by the Sheriff for concluding that access was not in H's interests and was likely to be contrary to her welfare, much the most significant is to be found at head (f), which refers back to findings-in-fact 70, 73 and 89.

[9] Findings 69 and 70 relate to an access visit in March 1994. The defender and H were standing on a landing, where they had stood on previous visits, looking out of the window. The Sheriff finds that on this occasion "H was in front of him, and close to him." After a few minutes, the pursuer's mother called to the child to come down and when she called the defender and the child turned. In finding 70, it is found that at that time the defender had a penile erection, which was apparent as a swelling through his jeans.

[10] Findings 72 to 74 relate to an access visit on 23 July 1994. Finding 72 contains a narrative of the defender playing with H, trying to catch her with a hula hoop which was around his own body or legs. Eventually he succeeded in catching her, and pulled her towards him. It is found in finding 73 that "he then let go of the hoop, and pulled H towards his groin." The pursuer's mother then rushed over to H, and took her away from the defender; and it is found that the defender at that time had a penile erection, visible as a swelling through his cotton trousers.

[11] Finding 89 relates to an access visit in November 1994. H would not let her father put on an apron for painting, and the pursuer's mother went over to help. When she bent down to tie the apron, the defender again had a penile erection which was visible as a moving swelling through his jeans.

[12] Head (f) of the Sheriff's reasons refers to these three incidents of penile erection as "indicating sexual excitement in H's close presence, with a consequent and unacceptable risk that the defender intended her sexual harm." The Sheriff's interpretation of these incidents as indicating sexual excitement in H's close presence cannot in our opinion be criticised. The criticisms advanced by counsel for the defender concentrated not upon that matter, but upon the inference that there was a consequent and unacceptable risk "that the defender intended her sexual harm", which plainly lies at the heart of his subsequent reference to "the likely damage and probable risks inherent" in the stated reasons. This is in our opinion the crux of the matter. But, before coming to discuss it, we would refer to the other reasons, and certain other matters.

[13] At head (a) the Sheriff refers to an incident in June 1992, in London. The pursuer's mother was with H on a bed, when the defender entered the room. In terms of finding 33, the Sheriff says that the defender bent over H, and because of a frenzied look on his face, the pursuer's mother made to put up her hand to stop him coming closer. Before she made any substantial move, the defender got up and rushed out of the room. The Sheriff at head (a) takes this frenzied expression as "indicating some emotion inappropriate for a father approaching his child." The appropriateness of the word "frenzied" cannot in our opinion be quarrelled. The Sheriff is not merely quoting the witness, but accepting the description as reliable. And counsel for the defender, upon that basis, was unable to suggest that it was not indicative of some inappropriate emotion.

[14] Head (b) refers to finding 34, which relates to early July 1992, when H would be some eight weeks old. It is found that after the pursuer had bathed H and laid her naked on a bed the defender said "What a lovely fanny!" The Sheriff describes this reference to the child's vagina as inappropriate, and as suggesting "an unhealthy interest in her sexual functions". There is some suggestion that the use of vernacular slang rather than formal language is inappropriate, but we do not see any possible significance in that. Moreover, if there were no other context, this is not a matter which, in our view, would suggest, in relation to so young a child, any "unhealthy interest in her sexual functions". Whether heads (a) and (b), or either of them, are significant when taken along with head (f) is another matter, and we return to that question when considering head (f). Heads (c) and (d) are other matters which would have no significance unless (as the Sheriff puts it at head (c)) they were "associated with the later evidence of sexual excitation". But in our view they are of no real materiality even in that context, and we do not feel it necessary to refer to them in greater detail.

[15] Head (e) relates to the defender's "open hostility" to H's maternal grandparents. And head (g) refers to his "obsessive and overbearing attitude" towards the pursuer in London, which is said to have become mirrored in his "possessive and egotistic attitude to play with H" There is an unfortunate confusion over the numbering of the findings-of-fact, which makes this last comment difficult to understand. But it does not appear to us that the matters dealt with at heads (e) and (g), even if well-founded, and even if somewhat against the child's interests, could properly be seen as supporting a refusal of all access, in the absence of other indications of likely damage and risk. Nor, given such other indications of damage and risk, does it appear to us that these are matters which give much support to a decision to refuse access. In these circumstances we do not find it necessary to go into these matters in further detail. Head (i) refers to angry outbursts "subversive against" the pursuer's mother, during access periods and in H's presence. These again can perhaps be properly described as not in H's interests; but the comments which we have made in relation to heads (e) and (g) apply also to this head, and we do not find it necessary to refer to it further.

[16] There remains head (h). This concerns a number of episodes of distress shown by H before, during or after access visits, under reference to certain particular findings. There are again problems of numeration. Some of the indications of distress are quite minor, and are probably to be seen simply as indicative of a degree of tension in circumstances such as this. After access resumed in July 1994, she began to bite her nails, and woke on occasion calling out "No, no, no!" In December 1995 she wet her pants on being told that she would see the defender at "a special place called an access centre". There was further occasional enuresis after access at that time. On the other hand at the access visit on 9 December, she was shy at first but settled quickly, and spent much of the time painting with the defender and playing with cut-outs which he had brought. More generally, there had been occasions when she was not distressed, wanting the defender not to go, and to come back soon. On the other hand, in December 1995, she pulled herself away from him when he made to kiss her as he said goodbye. (On an earlier occasion, when he had been sitting close to her with his arm round her, she had told him to take his leg away. But the signs of distress which she showed after that visit seemed to have been directed against the pursuer, and not against him). As with heads (a) and (b), these appear to us to be matters which would not provide a basis for refusing access, in the absence of other indications of likely damage and probable risk. The possible significance of these three heads lies in the context of head (f), to which we now turn.

[17] It was submitted on behalf of the defender that the incidents of penile erection, even if taken as indicating sexual excitement in H's close presence, could not reasonably be regarded as showing a consequent and unacceptable risk "that the defender intended her sexual harm". That submission, thus simply stated, has possible force. But it must be remembered that at this point in his Note the Sheriff is summarising his reasons, rather than giving an extended analysis of them. On a fair reading, it appears to us that the Sheriff is saying that there was a risk of H coming to sexual harm as a result of conduct on the part of the defender, and that he regarded that conduct as sufficiently conscious or deliberate to be regarded as intentional rather than merely unintentional. It is to be noted that there are three separate and similar incidents, over a period of months. At least on the second and third occasions, the defender can reasonably be regarded as having known that in H's close presence, he was liable to feel sexual excitement to the degree and in the way which had occurred on the first occasion. The fact that the same kind of thing happened again on these latter occasions is something which, in our view, the Sheriff was well entitled to regard as intentional, and given this past repetition, he was likewise entitled, in our opinion, to consider that there was a consequent and unacceptable risk of future intentional repetition. That such a course of conduct might lead to sexual harm does not seem to us to be in any way an unreasonable conclusion. We are satisfied that these matters are of a kind where refusal of access would have to be contemplated, and could reasonably be seen as appropriate, despite the normal desirability of such contact.

[18] When taken along with finding (f), finding (a) can in our opinion reasonably be seen as giving further cause for concern as to the defender's emotions and responses to his daughter. While head (b) might otherwise be wholly insignificant, it seems to us to be something which the Sheriff was entitled to see as fitting into a pattern of inappropriate response. And while reading the findings-in-fact as a whole, we are not satisfied that the signs of distress on H's part could be regarded as pointing to any overall unhappiness or unease in relation to seeing her father, this again is a matter upon which we are satisfied that the Sheriff, having heard the evidence and having seen the witnesses, was entitled to conclude that these episodes were a part of a single disturbing picture.

[19] In the whole circumstances, we are not persuaded that the inferences drawn by the Sheriff, or the conclusions to which he came, involve error on his part. Even if there were some element of error (and we have indicated various matters upon which we see little or no weight in points which he has at least mentioned) it was acknowledged that this was not a situation in which further factual enquiry would be appropriate in relation to the refusal which resulted from proof. The matter would be one for us. And on the basis of the incidents referred to in head (f), our own conclusion would be that a refusal of access was indeed appropriate. That being so, we would not disturb the Sheriff's refusal of access, even if there was some error in the process by which he came to that decision.

[20] We would of course emphasise that refusal of access at that time, and upon the basis of the evidence heard at proof, would not be and was not a permanent refusal of access. It would be, and remains, competent for the defender to seek access upon a change of circumstances. There was some discussion as to what the appropriate procedures might be, if the defender were successful in this appeal. Despite his lack of success in the appeal, it is to be noted that there has been a substantial lapse of time since the proof, and H is now much older. We have effectively no knowledge as to what changes of circumstances have occurred, and it is not for us to intrude in any way upon the question of whether contact would now be in the child's interests. In the circumstances we will simply refuse the appeal, affirm the interlocutors of the Sheriff and the Sheriff Principal, and remit the cause back to the Sheriff Court.