Scottish Court of Session Decisions

 

INNER HOUSE, COURT OF SESSION   [2007] CSIH NUMBER
Lord Nimmo Smith Lord Kingarth Lord Wheatley	OPINION OF LORD WHEATLEY   in the cause   CHRISTINE ELIZABETH FRASER or STEWART   Pursuer & Respondent;   against   DONALD STEWART   Defender & Appellant:     ­­­­­­­­­­­­­­­­­________________

 

 

Pursuer & Respondent: Heyhoe; Balfour & Manson, S.S.C.

Defender & Appellant: Party

 

 

In this appeal, the respondent raised an action of divorce against the appellant in 1999 in Kilmarnock sheriff Court. She sought decree of divorce on the grounds that the marriage between herself and the appellant had broken down irretrievably as a consequence of the defender's behaviour; a residence order in terms of section 11(2) of the Children (Scotland) Act 1995 in respect of the child of the marriage Helena Jasmin Stewart; and an order for a molestation interdict. In the early stages of the action she obtained an interim molestation order against the appellant, based on affidavits submitted from herself and two others. Also, in the early stages of the action, the court obtained a report from a local solicitor in Kilmarnock named Wendy Templeton, which is dated 16 December 1999. In his response to the Initial Writ, the appellant also sought a residence order in respect of the child of the marriage, which failing an order for contact to said child. However, on the morning of the proof which took place in respect of these competing craves and their associated averments, the appellant sought to amend his case by adding craves and pleas-in-law to dispute the respondent's craves for divorce and interdict. The respondent did not oppose this motion, nor did she require time to respond. It appears to have been accepted at the time that the appellant's averments in the divorce action were sufficient to accommodate his new craves, and the proof proceeded, with evidence being led on both sides in respect of all of the craves and pleas-in-law tabled.

Following proof the sheriff issued his interlocutor and note on 17 February 2000, in which he made a number of findings in fact. He noted that the parties had been married in May 1993 and that there was one child of the marriage, the said Helena Jasmin Stewart, who was born on 23 August 1997. He concluded that the marriage of the parties had broken down irretrievably, and that this breakdown was caused by the conduct of the appellant. He thereafter described the difficulties which had taken place in arranging contact between the defender and pursuer prior to the proof, and the issues of contact and residence generally. The sheriff concluded by pronouncing decree of divorce, and found that it was in the best interest of the child that she reside with the respondent. He specifically found that it was not in the best interests of the child that she reside with the defender. On the basis that the appellant was voluntarily accorded adequate contact with the child at the time of the proof, the sheriff decided that an order for contact in favour of the appellant was neither necessary nor in the best interest of the child. Finally, the sheriff noted that the respondent did not then seek interdict.

The appellant then appealed to the Sheriff Principal. There appears to have been some difficulty over his legal aid position and representation. It transpired that the appellant had obtained legal aid for the appeal on the question of residence and contact, but had not been granted legal aid to appeal against the sheriff's decision on the question of divorce and interdict. Accordingly, the Sheriff Principal decided to split the appeal into two parts, the first part being concerned with the questions of residence and contact and the second with the merits of the action and the question of interdict. The Sheriff Principal's opinion on these two parts of the appeal were issued on 23 December 2002 and 31 October 2003 respectively. In each case, the Sheriff Principal refused the appellant's appeal.

The appellant now appeals to this court principally against the opinions of the Sheriff Principal, and the decision of the sheriff at first instance, but also calling into review all previous interlocutors. To this end he lodged sixteen grounds of appeal on a variety of topics, but which he made clear were all directed principally at two main objectives. The first of these was that the appellant wished to have the decree of divorce pronounced in the sheriff Court in February 2000 recalled, and a decree of divorce based on two years separation with the consent of both parties put in its place. Secondly, the appellant wished to have the decision of the sheriff to grant a residence order in favour of the respondent recalled, and have put in its place a joint order for residence to himself and his former wife.

In respect the first of these declared objectives on the part of the appellant, we consider that the appeal is completely misconceived. In the first place, this court has no power to recall the sheriff's interlocutor of 17 February 2000 in so far as it concludes that the respondent is entitled to decree of divorce on the ground that the marriage had irretrievably broken down as a result of the appellant's conduct, and thereafter to replace that finding with a decree based on two years separation with mutual consent. The first and most obvious reason for that is that the respondent is not prepared to give her consent to such a decree. Secondly, even if we were in a position to recall the sheriff's interlocutor pronouncing decree of divorce on the ground of the appellant's unreasonable conduct, and substitute a decree based on two years separation and mutual consent, we can find no reason to disturb the sheriff's conclusions in this matter. The sheriff made his finding that the respondent was entitled to her decree on the grounds of the appellant's unreasonable behaviour on the basis of evidence led before him from the respondent, her mother, the appellant's father, and a Mrs Isobel Main. The appellant had the fullest opportunity at the proof through his legal representative to challenge that evidence, and he gave evidence on his own behalf. He also had the opportunity of leading his own witnesses. Faced with all this testimony, the sheriff decided the case wholly on the question of the credibility of witnesses. In that respect, he clearly preferred the evidence of the respondent and her witnesses to that of the appellant. He found that the evidence of the respondent was presented moderately and in a direct way, and she impressed him as credible and reliable. On an important aspect of the evidence she was supported by the appellant's father, and her account received general confirmation from her other witnesses. On the other hand the sheriff concluded that the appellant persistently avoided directly responding to questions from both sides, adding uninvited explanations and justifications to his answers. He was wilfully false in parts of his evidence, and was guilty of dissembling in others. He gave contradictory and inconsistent testimony on a number of matters and the sheriff concluded that the appellant was a witness willing to make any statement in evidence which might promote his objective of obtaining control of his daughter. In his appeal before the Sheriff Principal against the granting of decree of divorce, the appellant submitted that the sheriff had not been entitled to reach the conclusion on the question of the breakdown of the marriage which he did. However, the Sheriff Principal noted that the appellant had been given a full opportunity to present his case and that the sheriff, having heard the evidence led, believed the pursuer and some other witnesses and disbelieved the defender. In these circumstances the Sheriff Principal found that there were no grounds of any kind which would justify his interference in the sheriff's decision.

We have come to the same conclusion. The principle of what can and cannot be considered by the Appeal Court in this sort of situation has long been settled. In Thomas v Thomas 1947 S.C.(H.L.) 45 per Lord McMillan (at p. 59):

"The case now before the House provides a typical example of the difficulties I have indicated, but it is also a typical case for the application of the well-established rule defining the proper approach of an appellate court to the consideration of a decision on fact by the court of first instance, a rule which, in my opinion, is of special force in matrimonial disputes. The appellate court has before it only the printed record of the evidence. Were that the whole evidence, it might be said that the appellate judges were entitled and qualified to reach their own conclusion upon the case. But it is only part of the evidence. What is lacking is evidence of the demeanours of the witnesses, their candour or their partisanship, and all the incidental elements so difficult to describe which make up the atmosphere of an actual trial. This assistance the trial Judge possesses in reaching his conclusion, but it is not available to the appellate court. So far as the case stands on paper it not infrequently happens that a decision either way may seen equally open. When this is so, and it may be said of the present case, then the decision of the trial Judge, who has enjoyed the advantages not available to the appellate court, becomes of paramount importance and ought not to be disturbed. This is not an abrogation of the powers of a court of appeal on questions of fact. The judgement of the trial Judge on the facts may be demonstrated on the printed evidence to be affected by material inconsistencies and inaccuracies or he may be shown to have failed to appreciate the weight or bearing of circumstances admitted or proved, or otherwise to have gone plainly wrong."

In this case, the defender has made no submissions from which we could conclude that the sheriff's view of the facts had been affected by material inconsistencies and inaccuracies, or that he had demonstrably misjudged the weight of the evidence, or that he had gone plainly wrong in his consideration of the testimony he heard. In effect, all that was said by the appellant was that the sheriff should have believed him, and not his wife. It is accordingly not possible for this Court to interfere with the sheriff's decision on the merits of the divorce.

The second main purpose of the appeal concerned the welfare of the child. The appellant's position in this respect was even more unsatisfactory. As counsel for the respondent point out, the appellant's purported concern for the best interests of the child has not been served by the inordinate delay in this case, most of which has been caused by the appellant. It has long been accepted and established that any question concerning the welfare of a child is always open to review by the court originally deciding the questions of the child's welfare until the child was of an age where dealing with questions of residence and contact through legal process was no longer appropriate. It will therefore almost inevitably be, in cases such as this, where the original decision on residence is sought to be reviewed, that it is far more likely to be in the best interests of the child for an application to be presented to the court of first instance rather than to pursue a sterile process of appeals. In Sanderson v McManus, 1997 S.C. (H.L) 55, an action by an unmarried father for access to his child which reached the House of Lords some four years after the original decision at first instance at Edinburgh Sheriff Court, the appellant having failed in the meantime in his appeals to the Sheriff Principal and to the Inner House of the Court of Session. In these circumstances, Lord Hope of Craighead observed (at p. 58):

"The rules defining the proper approach of an appellate court to the consideration of a decision on fact by a court of first instance were described by Lord Macmillan in Thames v Thomas at p. 59. That was an action of divorce but what he said in that case applies with just as much force to disputes about access. If there is a succession of appeals, the passage of time is likely also to give rise to difficulty ... So in almost every such case it is likely to be preferable rather than pursuing a succession of appeals through the courts, to make a fresh application for access to the judge at first instance on the ground of a change in circumstances. It should be noted that, except in the case of an adoption order, no decision about parental rights is a final decision, because the child's welfare remains open to further consideration by the court throughout his childhood."

With this approach we respectfully agree. It is now seven years since the proof was heard in this case. If the appellant wishes to vary the original decision by the sheriff in this case, on the basis that the position in respect of his daughter was now other than the sheriff found it to be, we are completely satisfied that the appropriate course in this case would have been for the appellant to have applied to the court of first instance for a variation on the order on the basis of the material which he now seeks to bring before the Court. This was the approach adopted in the case of Dee v Dee 1998 S.C. 259, where Lord Cullen said:

"Standing the lapse of time since the proof and the fact that on any view there would still have to be enquiry into the new circumstances alleged by the pursuer in the grounds of appeal, we were entirely satisfied that the hearing of the appeal in so far as directed to criticisms of the sheriff would be a sterile exercise which would not advance a determination of what was in the best interests of the children. At the same time we did not consider that in the present type of case it would be appropriate for further enquiry to be undertaken in or through a remit from this court. This would involve a reconsidering of the welfare of the children which would be more appropriately undertaken in the sheriff court, where the pursuer could make a fresh application."

In this respect we think it is important to make two observations. Firstly, it was submitted by counsel for the respondent, and not disputed in any way by the appellant, that the appellant has been repeatedly advised of what the court regard as the preferable course of action in this respect over a number of years and has persistently ignored that advice. Secondly, although asked, the appellant specifically declined to give any kind of reason for his refusal.

In any event, the sheriff came to a clear and unequivocal view on the questions of residence and contact. In finding in fact 11 of his judgement the noted that the appellant had totally disregarded the child Jordan (the respondent's stepson with whom the child Helena had lived in family for a number of years) and that he had made no efforts to seek contact with that child and had not communicated with him in any way. The Sheriff made a number of other findings which indicated clear disapproval of the defender's attitude to the question of contact. In his note, he concluded that neither party challenged the capacity of the other to care for the child, but he also noted that the appellant's approach to the question of custody entirely disregarded the current situation which had been brought about by his conduct, and that his personal desires were presented without any real consideration as to the effect upon the child if she were removed from her mother and stepbrother. He concluded that the child was well settled with her mother and half brother and that the defender had given no thought to the disruption which would follow should the child be removed from this environment. Before the Sheriff Principal, or indeed this court, no submissions were made that the evidence which the sheriff relied upon in reaching this decision was insufficient or failed to justify this view. What appears to have been said by the appellant before the Sheriff Principal, and what we understand him to have repeated before this court, was that the sheriff had failed properly to apply the test described in section 11 of the Children (Scotland) Act 1995.

Section 11(1) of the Act provides:

"In the relevant circumstances in proceedings in the Court of Session or sheriff court, whether those proceedings are or are not independent of any other action, an order may be made under this subsection in relation to -

(a) parental responsibilities;

(b) parental rights;

(c) guardianship; or

(d) subject to section 14(1) and (2) of this Act, the administration of a child's property."

Section 11(7) provides:

"Subject to subsection (8) below, in considering whether or not to make an order under subsection (1) and what order to make, the court -

(a) shall regard the welfare of the child concerned as its paramount consideration and shall not make any such order unless it considers that it would be better for the child that the order be made than none should be made at all; and

(b) taking account of the child's age and maturity, shall so far as practicable -

(i) give him an opportunity to indicate whether he wishes to express his views;

(ii) if he does so wish, give him an opportunity to express them; and

(iii) have regard to such views as he may express.

In the light of these provisions, what the appellant appeared to argue was that because the sheriff had failed to seek the views of the child, he was not entitled to conclude that it was in the child's best interest to award residence to the respondent, and further was not entitled to make no formal award of contact to himself. However, we are quite satisfied that these submissions are simply misconceived.

As the Sheriff Principal noted in his second judgement of 31 October 2003, section 11(7)(a) of the Act contemplates two principles, known respectively as the welfare test and the minimum intervention principle, which have to be applied in deciding questions of residence and contact. The first of those tests requires that the court regards the welfare of the child as its paramount consideration was precisely the basis on which he came to his decision that the child should remain with the respondent. In respect of the minimum intervention principle, the Sheriff Principal confirmed that the sheriff had a sound reason for making no order for contact, namely that informal arrangements in that respect were working satisfactorily. IN these circumstances, the Sheriff Principal could detect no error in the approach taken by the sheriff in considering the terms of section 11(7)(a) of the Act, and in the face of identical submissions made by the appellant to this court we have come to the same conclusions. Nor is the appellant's argument helped in any way by his contention that the sheriff failed, in terms of section 11(7)(b) of the Act, to take account of the views of the child. At the time of the proof, the child was under three years old, and it was clearly within the sheriff's discretion to take the view that to seek the views of a child of that age would be wholly impractical.

In all the circumstances therefore, we consider that there is no practical purpose that can be served about these appeals and that for that reason they should be dismissed; and that further in respect of the appellant's professed desire to have the grounds of divorce altered, and the earlier orders for residence and contact recalled, and fresh orders substituted, we can find no reason of any kind to justify those conclusions.

In these circumstances, we nonetheless have to deal with the appellant's sixteen grounds of appeal.

In respect of the first and second grounds of appeal, it was difficult to discern precisely the nature of the appellant's complaint. In essence it appeared to be that his rights in terms of Article 8 of the European Convention of Human Rights to his private life, and also his daughter's rights under the same Article had been violated by the decision of the sheriff and the Sheriff Principal. However it was impossible to work out how these breaches were said to be established; the appellant simply read out the grounds of appeal with little further elaboration, although invited to do so. His argument appeared to be directed within the context of section 11(7) of the Children (Scotland) Act 1995. No submissions were directed to any matter which might justify the conclusion that either the sheriff or Sheriff Principal had ignored any convention rights in applying the relevant terms of the section. There is no doubt that section 11 is compliant with the Human Rights Act 1999 (see White v White 2001 S.C. 689 at p. 700E). There is therefore no ground for suggesting that the terms of the Act are in any way contradictory of the European Convention of Human Rights or indeed any other convention. As the Act has been correctly applied, there can be no violation of the appellant's human rights.

In respect of the third ground of appeal, it appeared again to be suggested in the first place, that the sheriff had misunderstood the incorrect test in applying section 11 of the Act, which we have already dealt with. Secondly, the appellant submitted that the sheriff had failed to take into account the child's views on the question of residence and contact at the time of the original proof before the sheriff. As we have indicated, at that time the child was 21/2 years old. It was not suggested at any time that she wished to express a view, or indeed that she was able to do so. In terms of section 11(7)(6) of the Act, the sheriff has a discretion to decide what is paracticable in this regard, and no reasons were advanced which would suggest that he erred in the exercise of that discretion. Accordingly, there was no realistic failure to consult the child in this matter at that time; and even if it can be said that there was such a failure, it would in our view be of no significance.

In respect of the fourth ground of appeal lodged by the appellant, the appellant claimed that the sheriff had erred in fact and in law by making findings on unsustainable evidence. Again there was no detail advanced in support of these submissions. A supplementary ground of appeal submitted by the appellant appeared to be that there had been a conspiracy apparently involving his own agents, to prevent him bringing witnesses of his own choosing to the divorce proof. He maintained that he wanted to defend the case on the merits, but that his professional advisers had misrepresented his position to the court. It should be noted that this was a feature of all of the appellant's submissions in this. Both the sheriff and the Sheriff Principal, it was said, had been biased against him for no given reason; his own representatives had been guilty of professional negligence in the way in which they represented his case to the court; sheriffs had expressed views which clearly prejudged his case; the respondent's agents had been guilty of suborning perjury from witnesses particularly in respect of the affidavits which had been lodged to support the pursuer's claim for interim interdict, and so on. However as each of these charges were made, it appeared, on the simplest of inquiry, that all of these allegations were mere suppositions on the part of the appellant, who could point to no real fact or evidence to support any of his claims. As a consequence a number of these allegations were specifically withdrawn almost immediately after they had been made.

In respect of this ground, it is noted that there was copious averments in the pleadings before the sheriff. The first intimation that the appellant wished to defend the case on the merits came on the morning of the proof. When the appellant moved his Minute of Amendment to include appropriate craves and pleas in law in respect of the merits of the action and the question of interdict, the court allowed that motion to be granted. It was not opposed by the respondents. Evidence was then led from the appellant and other witnesses. In these circumstances, the appellant was perfectly able to lead any evidence he wished to dispute the merits of the case. He was not denied any opportunity to do so either by the court or the respondent. Beyond that it is inappropriate for the court to look at any difficulties that may have existed between the appellant and his agent. All the Court can do is to look at the evidence. There is accordingly no merit in this ground of appeal.

Grounds 5, 6 and 7 were withdrawn. However, we feel that it is appropriate to record some of the statements made by the appellant in support of these grounds in case they are repeated at a later date. In respect of ground of appeal 5, the appellant claimed that the sheriff had acted ultra vires. The appellant had claimed that the respondent had plagiarised his work I sitting her social work examination, and the sheriff had acted beyond his powers in failing to take this matter into account. However, the appellant conceded that this matter had not been put to the respondent in evidence. In any event, we are satisfied that it was for the sheriff to consider what matters were significant in the proof before him,. And to reach his decision accordingly.

The appellant then suggested that the proper test in deciding questions of residence was that the child should be looked after by both parties, and the sheriff had therefore acted outwith the powers by applying a different test.

Again, as we have indicated, we are in no doubt, as we have said earlier, that the decision about where the child should reside should be taken in the light of what is properly regarded as the best interests of the child. The applicant, in support of his claim, made reference to a number of cases, none of which appeared in any way to justify the proposition which he advanced. Finally, it was said that the sheriff failed to attach due weight to the factual aspects of the appellant's case in respect of his family situation and that of his extended family. He maintained that this criticism was applicable to every single interlocutor pronounced in the case. He maintained that there was an obligation on the State to protect his family life (K v J 1999 HR 263); in other words, where there is a relationship between a parent and a child, the State must act to promote that relationship. As an example of this proposed failure, the appellant cited the comments made by the sheriff that the appellant's failure to return the child to its mother after a period of contact without explanation or justification was tantamount to contempt of court. We fail to see the relevance of this submission, in any event, the sheriff's view seems to have been entirely justified.

The appellant then made a statement, initially presented as factual that the independent reporter (Wendy Templeton) and the respondent's solicitor had colluded to see that a totally false picture had been presented to the court in terms of Miss Templeton's report in December 1999. On enquiry, however, it soon emerged that this highly damaging profuse accusation was made on no factual basis whatsoever; there was no evidence that the solicitor and Miss Templeton had ever been in correspondence, and no examples of the false statements purportedly made by Miss Templeton in her report were offered. The appellant was forced to concede that these statements were simply his opinion in the face of adverse findings. As a supplementary submission, the appellant argued that a curator should have been appointed to the child at the outset of the case to protect her interests. However, the appellant was unable to suggest any particular interest of the child that required to be protected, and accepted that no motion had been made on his behalf to that accept.

In ground 6, the appellant argued that the sheriff who heard the proof, and the Sheriff Principal had shown ill-will to him. Apart from statements said to be made by another sheriff who did not hear the proof, and which have been fully dealt with by the Sheriff Principal, the principal justification for this view was a statement said to have been made by the sheriff who heard the proof to the effect that the mother should always have custody of children. Again, on examination, this statement, originally alleged as factual by the appellant, soon proved to be entirely unjustified, and it emerged on the appellant's own admission that what the sheriff probably did say was that the child in this case should be with its mother. The only other example which the appellant suggested might indicate that the sheriff had shown favouritism towards the respondent and ill-will towards himself was when the sheriff asked him how he could support his wife and child if he did not work.

Paragraphs 8, 9 and 10 are concerned with allegations of perjury on the part of the pursuer her attempts to mislead the court on matters of fact. The appellant's position in this area was extremely confused. What the appellant appeared to complain about was that she had described herself as a social worker in an earlier affidavit. However, this was clearly not an issue of any kind at the proof, and the matter was not there relied upon or referred to by either side. The appellant also maintained that his stepson Jordan had given perjured evidence. In essence this claim was based upon the fact that in the report prepared for the court by Andrew Mackie, solicitor, dated 2 April 2004, it is reported that Jordan claimed to have had a "brilliant" relationship with the appellant but, as Mr Mackie notes, that statement was at odds with an affidavit dated 8 February 1999 where Jordan complained that his relationship with the appellant was bad, that the appellant was always shouting at him as well as hitting him, that he ignored him and that he hardly ever spoke to him. It was this seeming contradiction that led the appellant to make his allegation of perjury. We are quite satisfied that there is nothing of any merit in this complaint. Jordan did not give evidence at the proof. The affidavit was not said to have been relied upon in any way by either party at the proof. Mr Mackie's report was subsequent to the appeals to the Sheriff Principal. In these circumstances, we cannot see that the appellant's claim that Jordan Stewart had committed perjury has in any way been made out, and if there is an inconsistency in his statements over a period of 5 years (which could be explained in a number of different ways), we find that such inconsistency has no relevance to the present dispute.

Grounds 8, 9 and 10 (which were taken together by the appellant), also contained extremely serious allegations against the pursuer's agent. The Sheriff Principal in his opinion of 9 October 2002 dismissed these complaints as groundless. It became clear that all these various statements and allegations made by the appellant were utterly unsupported by any evidence. When questioned as to the basis of these complaints, it was apparent that the appellant's conclusions were based on conjecture and surmise. It was also noticeable that any kind of questioning of these allegations produced confused and contradictory responses from the appellant. In these circumstances we have no alternative but to reject these grounds of appeal.

Ground 11 is concerned with an allegation that the sheriff had before him material not available to the appellant and made findings in fact based on that material. This appeared to relate to the affidavits placed before the court in support of her claim for interim interdict at the very outset of the case. Again, the appellant failed to indicate which findings in fact had been based on material not put before the sheriff. There was no suggestion that the affidavits about which the appellant had previously complained had been seen by the sheriff at the proof or been used by him in any way. The affidavits themselves had been given to the appellant's agents at the earliest stages of the action, and the appellant had full opportunity to dispute the contents of those affidavits had he so desired. In these circumstances there appears to be nothing in this ground of appeal.

The twelfth ground of appeal refers to the negligent representation of his case by the appellant's own agents. A number of complaints were made. It is said by the appellant that his agents failed to lodge affidavits, to appeal interlocutors that were adverse to his interest, to transfer the action to the Court of Session, and to enrol a motion to ask the Court to return his child back to him. This ground of appeal has no relevance. It has to be said that appellant provided no support of any kind that these complaints were justified. He did not for example indicate that he had instructed his agents to embark on any particular course of action. In the course of acting for himself, he has been repeatedly advised that he could enrol motions varying the original court order, but has declined to do so. Even if these complaints were justified, they have no bearing on the present appeal.

The thirteenth ground of appeal was to the effect that the report obtained by Wendy Templeton in 1999 had been actively biased against the appellant. It was said that the report had a preponderant influence on the sheriff's opinion. However, the sheriff only refers to this report in two respects, once to dismiss a complaint about the conduct of Miss Templeton in preparing her report, and also in respect of an objectionable line of questioning by the appellant on how Miss Templeton's report might have been prepared. Neither of these matters were influential in forming the sheriff's view on the merits of the case. Further, on examining the report, we can ourselves detect no evidence of each of objectivity in its terms.

The fourteenth ground of appeal consisted of two parts. The first was that in instructing Mr Mackie's report (which was produced after the two appeals to the Sheriff Principal), the appellant maintained that the Sheriff Principal had expressed a clear indication to Mr Mackie in what he wanted the report to say. This appeared to be wholly unjustified in terms of the Sheriff Principal' interlocutor instructing the report, and on being asked to explain this allegation, Mr Stewart immediately withdrew it. Thereafter, however, he maintained that, while he had every respect for Mr Mackie, his report was biased. The reason which he gave for this bias was that Mr Mackie had interviewed more people who appeared to be against the appellant's interest than in favour of his position. We regard this ground of appeal as wholly without merit.

The fifteenth ground of appeal contains an allegation by the appellant that the Scottish Legal Aid Board had throughout the currency of this case adopted a policy of refusing legal aid to defend divorce actions on the merits, and that this policy accordingly contravened his human rights. Regrettably, this ground of appeal also failed to be supported by any further submissions. If there was such a policy, nothing was said about what it was, or how it became known to the appellant. In the event, however, the appellant admitted that he had received the benefit of representations in presenting his defence on the merits and against the award of interdict, because his agent had been prepared to represent him on that matter on a pro bono basis. He did have legal aid in respect of his claims on residence and contact. In this circumstances, it was difficult to see that there was any justification for this ground of appeal or any prejudice caused to the appellant.

Finally, in ground of appeal 16, the appellant alleged that he has suffered a miscarriage of justice. He claimed that he had fresh evidence in respect of someone who had given an affidavit at the earliest stage of the action. The appellant contended that if the sheriff at first instance had known that the affidavit supplied by this witness was invalid, he would not have reached the decision which he did. However, it is nowhere evident that the sheriff had relied in any way on these affidavits, which were concerned only with an interim award of interdict. Again, therefore, we can find no merit in this ground of appeal.

In all the circumstances, we conclude that the purposes of this appeal are sterile and frivolous, and have nothing to do with the best interests of the child. Should the appellant have had genuine considerations for the child's best interest, and had genuine information which could properly have been used to review the original award of residence to the respondent, then it was his duty as a responsible parent to bring those concerns back to the court of first instance at the first possible opportunity. He has been advised of this repeatedly, but has consistently declined to do so. There must therefore be serious doubts about his motives in pursuing these appeals, and an inevitable conclusions that those motives have nothing to do with the best interests of his child. Further, even if there was some substantial point and purpose in these appeals, we are wholly satisfied that the appellant has wholly failed to put forward any justification for his submission that the sheriff's interlocutor, so far as it relates to the merits of the action or the question of the welfare of the child, should be altered in any way. We therefore adhere to the interlocutors pronounced by the sheriff on 17 February 2000 and the Sheriff Principal's judgements dated 23 December 2002 and 31 October 2003 respectively.

We also consider it appropriate to deal with the question of expenses at this stage. The respondent moved for expenses at the end of the proof, on the ground, that should she be successful, costs should as normal follow success. The appellant on the other hand submitted that if he was successful, he would seek no expenses due to or by either party. In our view, the respondent has been wholly successful in this appeal, as she has been in the two appeals before the Sheriff Principal, and as she was in the proof held before the sheriff. The appellant has been constantly advised that the best interests of the child would be served if he brought any relevant new material concerning her welfare to the attention of the court of first instance at the earliest opportunity, but he has without any reason given consistently refused to do so. In all these circumstances we can see no reason to depart from the normal rule that expenses should follow success and we accordingly make an award of expenses against the appellant in favour of the respondent.