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Henry v. Johnston [2003] ScotCS 197 (09 July 2003)

SECOND DIVISION, INNER HOUSE, COURT OF SESSION

Lord Justice Clerk

Lord Abernethy

Lord McCluskey

XA63/03

OPINION OF THE COURT

delivered by LORD ABERNETHY

APPEAL

From the Sheriffdom of South Strathclyde, Dumfries & Galloway at Stranraer

MRS. GILLIAN McCANDLISH HENRY or JOHNSTON

Pursuer and Appellant;

against

IAN CAMPBELL JOHNSTON (A.P.)

Defender and Respondent;

_______

Act: Speir; Balfour & Manson (for McAndrew & Co., Stranraer)

Alt: Stirling; Brodies (for AF & CD Smith, Stranraer)

9 July 2003

[1] The parties in this action were formerly husband and wife. There are two children of the marriage, Natalie, born on 8 July 1992 and Rachel, born on 25 July 1995. The issue between the parties is whether the father, the defender and respondent in this appeal, should have contact with the children and, if so, what the extent of the contact should be. He was referred to as the minuter in the courts below and it is convenient if we also refer to him as the minuter. The mother was referred to as the respondent in the courts below and it is convenient if we also refer to her as the respondent, even though she is the appellant in this appeal.

[2] During the marriage the parties lived in Stranraer. They separated in about March 1995, a few months before Rachel was born. Since the separation they have continued to live in Stranraer. For a time the minuter had contact, first with Natalie and then, after Rachel was born, with both children. This took place on an informal basis. In the middle of 1997, however, the minuter obtained new employment and his hours of work tended to conflict with the contact arrangements. As a result these often had to be cancelled at short notice. This led to friction between the parties and disappointment on the part of the children. Amid some acrimony the informal arrangements broke down and from about late 1997 the minuter ceased to attempt to maintain contact with the children. At Christmas 1997 the minuter visited the respondent with presents for the children. She and her family gave him a hostile reception. The children were brought to the door but would hardly speak to him. That was the last occasion on which he saw them, other than when passing in the street. The minuter did not formally seek contact until about 2001. By that time the respondent and her father were deeply hostile towards him. The respondent opposed contact by him.

[3] The matter came to proof before the sheriff at Stranraer. The proof was heard on three days in the later part of 2002 with a hearing on evidence on 24 January 2003. On 3 February 2003 the sheriff found that the minuter should have contact with the children and he granted contact for the periods craved.

[4] The respondent appealed to the sheriff principal. The appeal was heard on 17 March 2003. On 2 April 2003 the sheriff principal dismissed the appeal. He varied the sheriff's interlocutor by adding a short passage to one of the findings in fact but otherwise, except in one respect concerning the extent of contact which has now been overtaken by time, he adhered to the sheriff's interlocutor.

[5] The respondent appealed to this court. There are two grounds of appeal. Ground 1 is in five parts but Mr. Speir, counsel for the respondent, made submissions in support of sub-heads (1), (3) and (4) only. They are in the following terms:

"1. The learned Sheriff erred in law or fact and law by sustaining the minuter's plea-in-law and repelling the respondent's plea-in-law and granting the order for contact in terms of his interlocutor of 3 February 2003. In particular he erred:

(1) By failing to take into account et separatim failing to give proper weight to the report and evidence of Professor Triseliotis ...

(3) By failing to properly apply the guidance given by the Inner House in White v White 2001 SC 689 (per Lord President (Rodger) at 698-699) in relation to the correct approach to the application of section 11(7)(a) of the Children (Scotland) Act 1995. ...

(4) By making an order for extensive contact in favour of the minuter that was excessive and inappropriate in the circumstances and contrary to the evidence in the case ... ".

[6] In relation to sub-head (1) Mr. Speir referred us to the sheriff's findings in fact and that part of his Note dealing with Professor Triseliotis's Report (No. 5/14 of process) and his evidence. Findings in fact 11, 12 and 13 are in the following terms:

"11. Again for the purposes of this litigation the Respondent instructed Professor John Triseliotis to prepare a report into the children in the context of the circumstances of this action. He did so in late August 2002 and his report dated 30^thAugust, 2002 is number 5/14 of process. Professor Triseliotis has a background of research and teaching in the subject of separated children. To prepare his report he visited Stranraer on 24^th August, 2002 and met and interviewed the Respondent in her home. He then had a meeting with the children, and had then engaged in certain exercises which he had devised. His report is to the most part based upon this interview and meeting. However, Professor Triseliotis took no steps whatsoever to contact the Minuter prior to his visit to Stranraer. Nor at any other time. Whilst his position is that he would have liked to have done so, he did not. Amongst other things due to some problem with legal aid. The outcome is that whilst Professor Triseliotis is an individual independent of the parties, his report was instructed solely by the Respondent and his sole interview was with the Respondent, and the meeting with the children was conducted in her house.

12. Professor Triseliotis's conclusion is to the effect that the children consistently said that they do not wish contact with the Minuter. His view is that children of their age should be listened to and their wishes respected, until such time as they themselves ask for contact. His final comment being that the Respondent should assist by obtaining photographs of the Minuter and providing more positive information about him to the children. To the end of encouraging their interest.

13. In preparing his report Professor Triseliotis failed to carry out any balancing exercise. By balancing the considerations to which he attached weight against the normal assumption that children will benefit from continued contact with the natural parent. And by balancing these considerations against the benefits of contact with the particular natural parent concerned, namely the Minuter. Which benefits he never even investigated the existence of."

In his Note the sheriff said this:

"The remaining witness was Professor Triseliotis. Whilst he is a decent man and was not biased, for reasons already given I was prepared to attach very little weight to his evidence. The crucial aspect was that balance was absent from his approach. I accept that the children probably stated that they did not with (sic) contact. And were liable to be upset at the outset if it was resumed but that is only to be expected. But he failed to look to the long term welfare of the children throughout their childhood as part of the exercise."

Mr. Speir submitted that the sheriff had in substance rejected Professor Triseliotis's evidence for two reasons. First, because he failed to carry out any balancing exercise and, in particular, had not balanced the considerations to which he attached weight against the normal assumption that children will benefit from continued contact with the absent parent; and, secondly, because he did not interview the minuter. However, the sheriff had misunderstood Professor Triseliotis's function as an expert witness. It was not his function to carry out a balancing exercise. That was for the sheriff to do. So far as the failure to interview the minuter was concerned it was accepted that that affected the weight to be put on Professor Triseliotis's evidence but it was no more than a factor to be taken into account. It should not have led to the wholesale rejection of his evidence. Moreover, Professor Triseliotis had sat in court throughout the evidence of the minuter and members of his wider family as well as the evidence of the respondent and had then re-affirmed the conclusions contained in his Report. Accordingly, it was submitted, the sheriff's finding in fact 13 should be deleted.

[7] In relation to sub-head (3), which overlapped to some extent with sub-head (1), Mr. Speir reminded us of the correct approach to section 11(7)(a) of the Children (Scotland) Act 1995. He referred to the opinion of Lord President Rodger in White v. White 2001 SC 689 and the speech of Lord Hope of Craighead in Sanderson v. McManus 1997 SC (HL) 55. The paramount consideration was the welfare of the children. While there was an assumption that it was normally conducive to their welfare that they have contact with the absent parent, that was not always so. The decision will turn on the facts of the particular case. It was therefore necessary to consider all the evidence and decide whether, in the particular case, it would be conducive to the welfare of the children that they have such contact. In this case there had been no contact between the children and the minuter for some five and a half years now and the children had made it clear that they did not wish contact. At least in the case of Natalie she was well able to know her own mind. In the passage in his Note quoted above the sheriff had not given sufficient weight to their views. In any event, it was unclear how he was treating the children's views. Mr. Speir suggested, although he did not press this strenuously, that in that situation the sheriff should have interviewed the children, although, as the sheriff records in his Note, he was not asked by either party to do so. In the circumstances, it was submitted, the sheriff's findings in fact 18, 19 and 20 should be deleted. These are in the following terms:

"18. Should the Minuter's application for a contact order be granted it would have the following benefits for the children in the context of their welfare throughout their childhood. They would benefit from continued contact with their natural parent. It cannot only be assumed that they would so benefit, but in this particular case the benefits would be real. The Minuter has proved in the past that he is a capable father and capable of looking after the children well during contact periods, which they enjoyed in the past. The children would also benefit throughout their childhood by being brought up in contact with their paternal grandparents, uncles, aunts and cousins. The latter contact possibly providing the most valuable as the children get older. Further if contact is resumed there may still be the chance that over time the level of bad feeling between the two families will subside, and a degree of family normality will be restored.

19. There are no disadvantages to the long term benefits to the children should the contact order be granted. But in the short term the possibility must be that difficulties will be encountered by the Minuter when he attempts to exercise contact at first. He is likely to meet a hostile and unpleasant reception. The fear must be that however she is advised the Respondent will be unable to accept any decision awarding contact to the Minuter. And do nothing to encourage the children to go and make the regime a success. And possibly consciously or unconsciously exacerbate the difficulties by her attitude.

20. Balancing all the considerations and regarding the welfare of the children as the paramount consideration, it is in the best interests of both children that the present order for contact be made, than that no order should be made."

In substitution therefor Mr. Speir submitted that the following finding should be made:

"Balancing all the considerations and regarding the welfare of the children as the paramount consideration, it is in the best interests of both children that no order for contact be made."

[8] It is not necessary to record Mr. Speir's submissions in relation to sub-head (4) because, as is more fully explained later in this opinion at paragraph [15], the matter was ultimately agreed between the parties.

[9] Ground of appeal 2, which relates to the sheriff principal's interlocutor of 2 April 2003, is in the following terms:

"2. The learned Sheriff Principal erred in law or fact in (sic) law by dismissing the appellant's appeal on 2 April 2003, except to the extent of allowing the additional finding in fact and varying the Sheriff's interlocutor quoad residential contact during Easter 2003. In otherwise refusing the appeal the learned Sheriff Principal erred in adhering to the erroneous approach and reasoning of the learned Sheriff and the foregoing grounds of appeal are referred to mutatis mutandis."

In support of this ground of appeal Mr. Speir adopted generally the submissions he had previously made in submitting that the sheriff had erred. He added one particular point, however. He drew our attention to paragraph 3 of the Note attached to that interlocutor. There the sheriff principal had said, in recording one of the reasons why the sheriff did not accept Professor Triseliotis's conclusion:

"The Professor was unable to balance the attitude of the children against the general assumption that normally there was a presumption that both parents should have contact with their children."

Mr. Speir submitted, under reference to the authorities cited above, that the sheriff principal had gone too far in saying that there was a presumption that both parents should have contact with their children. There was no more than an assumption to this effect.

[10] In all these circumstances the appeal should be allowed and the interlocutors of the sheriff and sheriff principal (except in so far as he added a short passage to one of the findings in fact) should be recalled. Mr. Speir's primary submission was that the minute should be dismissed and the respondent's plea in law sustained. Failing that the case should be remitted to a different sheriff to proceed as accords. In support of that procedure he referred to Gailey v. Gailey, an unreported decision of an Extra Division dated 4 December 2001.

[11] In reply Miss Stirling, counsel for the minuter, agreed that the welfare of the children was paramount. She also accepted that their views were a factor to be taken into account. Moreover, as the sheriff acknowledged, they were liable to be upset at the outset if contact were resumed. Their temporary distress, however, should not stand in the way of what was in their long term best interests: see Osborne v. Mattham (No. 2) 1998 SC 682, per Lord President Rodger at page 697. That case was also authority for the view that an appeal court should be slow to alter the decision of the sheriff who heard the proof. He had advantages from seeing and hearing the witnesses which no scrutiny of the transcript of the evidence by an appeal court, however careful, could hope to replicate. Turning to the sheriff's treatment of Professor Triseliotis's Report and his evidence Miss Stirling submitted that the Report should be regarded only as a report of the children's views. Given that Professor Triseliotis had spoken only to the respondent and the children it could not be of assistance as a contact report. In any event, by basing his conclusion solely on the children's wishes he was not applying the test which the courts had to apply. Furthermore, his reasons for coming to that conclusion (given at pages 235-6 of the transcript of evidence, pages 288-9 of the Appendix) were based on a false view of the facts as found by the sheriff. The sheriff was fully entitled to make the findings he did in findings in fact 11, 12 and 13. So far as ground of appeal 1(3) was concerned Miss Stirling submitted that the sheriff had adopted the proper approach. His findings in fact 18 and 19 were fully justified on the evidence and his conclusion in finding in fact 20 was equally justified. As for the particular point made in relation to the sheriff principal, when the passage in question was looked at in context it was clear that he was not elevating the assumption that a child will normally benefit from continued contact with the absent parent into a presumption.

[12] Strictly speaking the way into this appeal for the respondent is to seek to open up the sheriff principal's interlocutor of 2 April 2003. The ground of appeal in relation to that interlocutor, however, leads to a consideration of the sheriff's interlocutor of 3 February 2003. In that way, therefore, the appeal came to focus on the latter. The issue between the parties was whether it is in the children's best interests for them to have contact with the minuter, their father. Their welfare is paramount. The sheriff saw and heard the witnesses and has made his findings which he very fully explained in his Note. It would be unusual in that situation for an appeal court to interfere with his judgment. In any event, however, we were satisfied that he was fully entitled to come to the conclusion to which he came. We were not persuaded that his treatment of Professor Triseliotis's Report and evidence was in error. Professor Triseliotis had seen only the respondent and the children. He had not seen the minuter. Nor had he seen any member of the minuter's wider family. His Report, therefore, was inevitably one-sided and, as so often happens in such situations, it was partly based on a view of the facts different from that formed by the sheriff after hearing evidence from both sides. Moreover, his conclusion was not based on a consideration of all the factors which a court requires to take into account. To that extent it was not a balanced Report and his evidence based on it was similarly not balanced. In our view the sheriff was fully entitled to attach little weight to that evidence when considering whether the children should have contact with the minuter.

[14] With regard to the criticism made of the sheriff principal, it is true that in one passage in his Note he said that normally there was a "presumption" that both parents should have contact with their children. A presumption is a legal term of art and, as Lord Hope of Craighead pointed out in Sanderson v. McManus, there is no such presumption. It is rather an assumption. It is clear, however, from the context that the sheriff principal had in mind that it is indeed an assumption.

[15] Having considered the competing submissions we were clearly of the view that there was no merit in the appeal in so far as the principle of contact was concerned. We intimated that decision to the parties. The question remained, however, as to the extent of contact. In support of ground of appeal 1(4) Mr. Speir submitted that the contact granted by the sheriff was excessive and inappropriate in the circumstances. On behalf of the minuter Miss Stirling, while maintaining that the contact granted by the sheriff was not excessive and was appropriate, made it clear that the minuter fully recognised that any resumption of contact should be gradual. As it was near the end of the day counsel sought and were granted leave to consider their positions overnight to see if agreement could be reached. The next morning they intimated that they had reached agreement. The terms of the agreement were as follows:

"Subject to the approval of the Court the parties have agreed that the Sheriff's interlocutor of 3 February 2003 quoad contact (paragraph 2 of Findings in Law) be recalled and the following be substituted therefor:

That a contact order for contact by the Minuter to Natalie Johnstone and Rachel Johnstone should be made as follows:

(1) For contact to take place as hereafter specified on the first and third weekends of each month commencing on 21 June 2003 as follows:

(a) On the first 3 occasions in June and July 2003 for non-residential

contact on the Saturday from 2pm to 5pm;

(b) On the next 2 occasions in August 2003 for non-residential contact on

the Saturday from 12 noon to 6pm;

from 12 noon to 6pm;

(d) On the third Saturday in September 2003 for non-residential contact

from 10am to 6 pm;

(e) On the first Saturday in October 2003 for non-residential contact from

12 noon to 6 pm;

(f) On the third weekend in October 2003 for residential contact from 6pm

on the Saturday to 6pm on the Sunday; and

thereafter for non-residential contact on the first Saturday each month from 12 noon to 6pm and for residential contact on the third weekend of each month from 6pm on Friday to 6pm on Sunday.

(2) From December 2003 for residential contact for one week during each of the Christmas and Easter school holidays and for two weeks during the school summer holidays."

[16] The court gave the necessary approval. We therefore recalled the sheriff's finding in law 2 and in substitution for it made a contact order in the terms agreed. Quoad ultra we dismissed the appeal.