Scottish Court of Session Decisions

[1] This case is concerned with an attempt by a mother to obtain contact with her two children by a marriage which has ended in divorce. The children are respectively Ashley Elizabeth, born on 15 October 1990 and Graham Robert, born on 18 July 1994.

[2] The history of the matter reveals that contact had been maintained over a certain period of time after the parties separated in 1995 but was eventually terminated in December 1999. The pursuer brought the present action in the Sheriff Court at Glasgow, in the course of which a divided proof was heard by the Sheriff who issued an interlocutor on 25 October 2000 dismissing the action.

[3] Against that decision the pursuer appealed to the Sheriff Principal who initially considered the matter when he determined, ex proprio motu, to order a report to ascertain the views of the children in relation to the question of contact with the pursuer. Having obtained such a report the Sheriff Principal dismissed the appeal on 1 March 2001 declining, for the reasons given in his Note, to make any contact order, although he expressed the hope that all concerned would work towards the resumption.

[4] The case comes before us at the instance of an appeal by the pursuer against the latter decision, but much of the argument before us was concentrated upon the Sheriff's decision and his findings in fact, to which we shall return.

[5] We require first to deal with the position of the Sheriff Principal's decision which we can address quite shortly.

[6] While it is entirely understandable that the Sheriff Principal thought it sensible to obtain a report in order to ascertain the wishes of the children, in basing his decision substantially on the terms of the report he did not find it necessary to address the issues considered by the Sheriff and in particular whether or not the Sheriff's findings in fact were justifiable on the evidence. He thus in effect allowed himself to be diverted from the issue that should have been central to the appeal and, as we have stated, based his decision not to make a contact order and to refuse the appeal substantially, if not entirely, upon the views of the reporter stating the wishes of the children. In particular, the elder child, while not antagonistic towards her mother, was not anxious for contact to be resumed, largely because of the way it was exercised, both in relation to persons present, including her step-father, and also, it has to be said, with a certain degree of boredom.

[7] In our opinion the Sheriff Principal misdirected himself by proceeding down this track, even if he was entitled to obtain the report which he did. He should have looked at the matter in the round and at least considered whether or not the Sheriff's basic decision was correct. For these reasons we consider that the Sheriff Principal's approach was erroneous and, in those circumstances, should be set aside. We will therefore allow the appeal against the decision of the Sheriff Principal.

[8] That decision opens up before us for review the original decision of the Sheriff.

[9] Before doing so, however, we should record that the law applying to this type of issue was not generally in dispute at the bar. It depends upon the Children (Scotland) Act 1995, in particular sections 1 and 2 and, in particular again, sections 1(1)(c) and 2(c). The whole position was extensively reviewed by the First Division in White v. White 2001 SC 689. It is sufficient for our purposes simply to record that at the end of the day the issue to be determined depends upon an assessment of the welfare and best interests of the child or children in question. To that extent we do not think that the Sheriff misapplied any question of law and the issue to be determined is entirely whether or not the relevant and crucial findings in fact which he made were evidentially supportable upon the material before him.

[10] In these circumstances we invited counsel for the defender and respondent to identify from the evidence the material upon which he maintained the Sheriff was entitled to make the vital findings in fact which are in particular 14, 15, 17 and what could be described as the findings in summary, namely, 20 and 21.

[11] Counsel for the defender immediately accepted at the outset of the debate that finding in fact 17, as narrated, was not soundly based upon the evidence. There was some discussion as to whether or not the pursuer told her children that she was going to get remarried, but she certainly did not say to them what the finding narrates. In these circumstances counsel accepted that the finding should not have been made and we will accordingly ignore it in our consideration of the evidence and the findings.

[12] Thereafter, in relation to findings 14 and 15 counsel made a general submission applying to both based upon the pleadings. He pointed out that various averments consistent with the generality of the two findings were made by the defender and were not contradicted by the pursuer by way of a general denial or any other positive denial in the pleadings. They should, therefore, be taken as admitted facts at least impliedly if not expressly.

[13] We can deal with this point at once since we do not consider it is an appropriate way to determine a question which is essentially one for evidence. There is nothing in the Sheriff's note to indicate that he proceeded on the averments in making the findings which are challenged, or that any submission was made to him that the material averments should be taken to have been admitted. In any event the record is in a very unsatisfactory state, for example, there is no condescendence 5, notwithstanding there is a lengthy answer 5. It appears that little or no adjustment has taken place. We were informed by counsel for the pursuer that the proof proceeded essentially upon the basis that the record was out of date. In all these circumstances, we do not consider it appropriate to approach the validity of findings 14 and 15 on the basis of the this submission and we will reject it. The matter therefore requires to be assessed upon the evidence.

[14] With regard to finding in fact 14, counsel principally relied upon cross examination of the pursuer at pages 42, 46, 50 and 51 of the Appendix, together with a brief reference to the evidence in chief of the defender's relative at page 229. Counsel for the pursuer and appellant subjected these passages to a very detailed analysis, against also the background set by pages 62 and 63 in relation to the cross-examination of the pursuer.

[15] Having examined these passages ourselves we consider that the finding 14 goes far too far in so far as it makes general statements about the extent to which the pursuer, putting it simply, let the children down. It was accepted that she did on one day not take the children, as she had been expected to do, because she was working at "T in the Park" and also she accepted that she, in the summer of 1999, could not come on one occasion because she was going to Blackpool. We therefore consider that this finding cannot be regarded as sufficient to form any basis for suggesting that the pursuer was generally unreliable, if not worse, when it came to honouring contact arrangements with the children.

[16] With regard to finding 15 there was apparently some evidence that counsel accepted to suggest that there was an occasion when she did not turn up at all, but it did not go so far as to support the suggestion that the children had been kept waiting on previous occasions when contact had not been exercised.

[17] Having considered this matter in some detail we are satisfied that, while there is evidence to support the specific incidents referred to, there is no sufficient evidence to justify the view of general bad time keeping or failure to turn up, suggesting unreliability.

[18] It is therefore our conclusion that findings 14, 16 and 17, for the reasons given, cannot stand in their present form and indeed, as far as 14 and 15 are concerned, should be restricted only to the specific instances that are mentioned in each finding. The error in relation to finding 17 is compounded by a reference in the Sheriff's Note when he says, at the top of page 21 of the print:

[19] The evidence as to how the children learnt of the pursuer's intention to remarry is not entirely clear, and it does, perhaps, leave room for the view that the pursuer did not deal with that matter in an altogether satisfactory way. There is, however, no evidence to support that assertion as a matter of fact. We therefore consider that it should not have featured in the Sheriff's reasoning. Furthermore, it is a finding of a character which must have materially prejudiced the exercise of his discretion in assessing the evidence, which calls again into question whether his decision can stand.

[20] The substance of that issue is whether or not the vital findings 20 and 21 can stand given our view of findings 14, 16 and 17. It was argued by counsel for the defender that the former were free-standing findings but with that we do not agree. If the findings to which we have referred are treated as deleted, or are substantially reduced, the overall evidence position does not support the generality of findings 20 and 21.

[21] The consequence of that is, in our opinion, that the overall basis upon which the Sheriff determined the matter, to be found in the third last paragraph of his Note as follows:

cannot stand, being unsupported by what we consider to be appropriate and necessary findings in fact, given the views we have expressed.

[22] In these circumstances we consider that the Sheriff has misdirected himself on the proper view to be taken of the evidence and reached a conclusion which is not supported by the evidence.

[23] In these circumstances the appeal will be allowed in respect of the interlocutor of the Sheriff which will be recalled. That being so the process remains alive and we will remit the case to a different Sheriff, to proceed as accords in the hope that efforts can be made to re-establish contact between the mother and the children.

[24] We should emphasise that in any future proceedings in this case, whether by submission or evidence, it would not be appropriate for any reference to be made to the findings in fact made by the Sheriff in the present proof which we have rejected as unsound for the reasons given.