Scottish Court of Session Decisions

Act: Carmichael QC, Byrne; Drummond Miller LLP (For Latta & Co, Glasgow)

Alt: Macgregor; Office of the Advocate General

16 July 2013

[1] This application at the instance of ASM for leave to appeal to the Inner House of the Court of Session is presented in terms of section 13(4) of the Tribunals, Courts and Enforcement Act 2007. ASM is a citizen of Iraq. He arrived in the United Kingdom in August 2002 and applied for asylum. His application was refused and by 21 January 2003, he was appeal rights exhausted.

[2] In 2007, the applicant began a relationship with LM, a lady who is a United Kingdom citizen and their son A was born in 2007. On 5 March 2010, the applicant pled guilty to a charge of lewd, indecent and libidinous behaviour towards LM's five year old nephew. He was sentenced to an extended sentence totalling four years: two years custodial and a two year extension period and placed on the Sex Offenders Register indefinitely. The sheriff recommended that he should be deported.

[3] The applicant has not seen his son since November 2009 when he was arrested. At that date the son was aged two. The son is now aged five and will be six later this year.

[4] The applicant's relationship with LM ended in 2010. He is prohibited from seeing his son without the approval of his supervising officer and he has made no attempt to have contact with him since November 2009 and conceded at the First‑tier Tribunal that it was not, at that time, in his son's interest to have contact with him. The applicant was assessed before his release from prison as having no victim empathy and to be lacking insight into his offending behaviour. As a result, the child has been placed on the Child Protection Register and has been continuously assessed by children's hearings.

[5] On 23 January 2012, the respondent served a decision to make a deportation order in respect of the applicant in terms of section 32(5) of the UK Borders Act 2007. The applicant appealed to the First-tier Tribunal against this decision. The basis of his appeal was that deportation would be a breach of his article 8 right to family life. On 2 March 2012, the First-tier Tribunal dismissed the appeal and upheld the decision to deport the applicant. The applicant appealed against that decision to the Upper Tribunal and by determination promulgated on 10 October 2012, the Upper Tribunal dismissed the appeal. The applicant then sought leave of the Upper Tribunal to appeal to this court. Again the application for leave to appeal was based solely on alleged errors in the First-tier Tribunal's approach to questions of family life. By decision dated 28 November 2012, the Upper Tribunal refused leave to appeal.

[6] The applicant now applies to this court for leave to appeal, again based solely on factors relating to the First-tier Tribunal's and Upper Tribunal's assessment of family life. There are essentially two grounds stated in the application on which the applicant seeks leave to appeal. First, that the tribunal erred in taking into account the applicant's offending history as a factor militating against contact with his son. It is contended that absent any evidence the applicant is a risk towards his child, that was not a relevant factor in assessing what is in the child's best interests. Second, that the First-tier Tribunal erred as to onus. There is an assumption that it is normally in the best interests of the child to have contact with his natural parent and reference was made in particular to White v White 2001 SC 689 in the opinion of Lord President Rodger at paragraphs 14‑ 16; Ciliz v The Netherlands, application number 29192/95 (particularly at paragraphs 59-60) and Görgülü v Germany, European Court of Human Rights 2004 1 FLR 894, particularly at paragraph 48. These arguments were developed in written submissions on behalf of the applicant to which counsel for the respondent responded in written submissions and also in oral submissions at the bar.

[7] The test for this court is to consider whether the application discloses grounds that have a real prospect of success. With regard to the first ground, it is of course the case that any court in the United Kingdom, and indeed in the European Union, will proceed on a working assumption that it is normally appropriate and in the best interests of a child that the child should have contact with his natural parents. Following the views expressed in the Supreme Court in the ZH Tanzania v The Secretary of State for the Home Department [2011] 2 AC 166, it is established that the primary consideration is the interests of the child. I quote from Lord Kerr of Tonaghmore at paragraph 46 of ZH Tanzania in which he says:

"It is a universal theme of the various international and domestic instruments to which Baroness Hale JSC has referred that, in reaching decisions that will affect a child, a primacy of importance must be accorded to his or her best interests. This is not, it is agreed, a factor of limitless importance in the sense that it will prevail over all other considerations. It is a factor, however, that must rank higher than any other. It is not merely one consideration that weighs in the balance alongside other competing factors."

I proceed on the basis of that view in the decision that I make today.

[8] It appears to me that the Upper Tribunal and the First‑tier Tribunal proceeded on the same view. The First-tier Tribunal listed several factors in its consideration of the interests of the child at paragraphs 18(g) to (o) in its determination and expressed the view quite forcefully that it is not in the interests of the child for this applicant to have contact with him. The present case, it seems to me, is entirely different from the circumstances in many other cases, such as Ciliz v the Netherlands and Görgülü v Germany. Those cases were not concerned with applicants who had been convicted of offences involving sexual abuse of children, particularly sexual abuse of a male child in the family grouping where the child of the applicant is itself a male child of approximately the same age. As has been stressed on repeated occasions and, in particular, in the passage to which I have referred in White v White, the consideration of a child's best interests must be fact sensitive and involves a detailed analysis of the particular facts and circumstances of the particular case. It appears to me that the First-tier Tribunal has engaged in just such an analysis and similarly the Upper Tribunal has engaged in such an analysis and has attached primacy to the interests of the child; that is clear from paragraphs 31 and 32 of the Upper Tribunal's decision.

[9] There is, in my view, no force in the ground of appeal directed to onus. Onus, it seems to me, after a tribunal has heard evidence, is not a central issue. A tribunal has to apply its mind to the evidence that is before it and to the working assumption to which Lord President Rodger referred in White v White. I can do little better than to restate the observations of the Upper Tribunal when it refused leave to appeal to this court on 28 November 2012, when it observed:

"The grounds of appeal appear to ignore the factual matrix of this appeal. This was that the applicant had been found guilty of lewd, indecent and libidinous conduct towards a 5 year old boy - his own son's cousin, that the applicant had not seen his son since November 2009 and that his relationship with his son's mother ended in 2010. The terms of his licence forbade him from speaking to a child under 17 either directly or indirectly without the prior approval of his supervising officer and from attempting to approach his partner's children."

He had made no attempt to have contact with the child since his release from prison and the Upper Tribunal considered that the grounds of appeal disclosed no error of law in the determination and they therefore refused permission to appeal to this court. I agree with the determination of the Upper Tribunal in that regard. I do not consider that the applicant has shown that he has a real prospect of success if this matter were allowed to proceed. Accordingly I refuse this application.