Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2016] CSIH 52

XA4/16

Lady Smith

Lord Brodie

Lord Malcolm

OPINION OF THE COURT

delivered by LORD MALCOLM

in the cause

by

J

Pursuer and Appellant;

against

M

Defender and Respondent:

Act:  Ardrey;  Allan McDougall

Alt:   McAlpine;  Morisons LLP

8 July 2016

[1]        Although they never cohabited, the parties to this action had a relationship which began in February 2009 and ended in March 2010, five days after the birth of their daughter (“F”).  Since then F has lived with her mother (the defender).  In November 2010 her father (the pursuer) raised the present proceedings seeking an order for contact with F in terms of section 11 of the Children (Scotland) Act 1995.  There followed a series of court orders permitting interim contact, which began under supervision at a child contact centre.  As time progressed the court allowed residential contact. 

[2]        The pursuer’s application was opposed, and on 9 August 2013 the sheriff allowed parties a proof.  Diets fixed for November 2013 and January 2014 were discharged.  In February 2014 interim contact was suspended because of certain allegations which will be mentioned later in this opinion.  After more child welfare hearings, a proof fixed for October 2014 was discharged.  Eventually the proof began on 16 December 2014, after which it was adjourned to March 2015 for further evidence.  The adjourned proof took place over various days in March and April 2015.   In July 2015 the sheriff issued a judgment in which he held that contact with her father was not in F’s best interests.  He therefore refused the pursuer’s crave for contact.  The pursuer’s appeal to the sheriff principal was refused on 27 November 2015.  He now appeals to this court.

[3]        The sheriff principal was critical of the procedural history of the case, commenting upon the multiplicity of ineffective child welfare hearings, the protracted delays, and the failure to apply “robust case management such as might focus everyone on the key factor, namely the welfare of the child”.  We wish to associate ourselves with the sheriff principal’s remarks.

The sheriff’s judgment

[4]        The sheriff made 75 findings in fact – none of which are challenged.  While contact arrangements were never problem free, matters took a distinct turn for the worse when F began to report matters which created concern as to possible sexual abuse at the instance of her father.  By January 2014 she was the subject of a joint police/social work interview.  The details of the whole matter are set out in the sheriff’s findings.  The pursuer has never been charged with any offence nor has there been a reference to a children’s hearing.  However the result has been that the pursuer has not seen his daughter since January 2014. 

[5]        By the time of the proof the pursuer’s pleadings included averments to the general effect that the defender was falsely accusing him in an attempt to end his relationship with his daughter.  He claimed that the child had been “coached to make false disclosures” by the defender and her mother.  He had “major concerns” that the defender and her mother are continuing to emotionally abuse F by exposing her to sexualised language and by talking to her about police, lawyers and court related matters.  The question of the truth or otherwise of the allegations was a major and contentious issue at the proof.  In the result the sheriff made the following findings in fact:

“73.     The defender and her family are convinced that F was the subject of sexual abuse at the hands of the pursuer when he exercised contact to her.  As a result, the defender holds very strong feelings against the pursuer.  The pursuer holds strong feelings against the defender and her family, particularly her mother.

74.       For any successful contact to take place between the pursuer and F, the defender and her family would require to be supportive of such contact.  In light of the defender’s beliefs and feelings towards the pursuer, the necessary support would not be available.

75.       There are reasonable grounds to suspect that F has been the subject of some aspect of sexual abuse when in the company of the pursuer”.

[6]        This last finding was a clear rejection of the pursuer’s case that the allegations had been fabricated by the defender and her mother.  The sheriff set out his view that there were two crucial issues to be resolved, namely the relationship between the parties and their respective wider families, and whether the pursuer sexually abused his daughter.  Given the claims and counterclaims as to sexual abuse, it was hardly surprising that the parties and their families were divided into two camps.  The pursuer and his family were vehement in their denial of any inappropriate behaviour, whilst the defender and her parents took the opposite position.

“The parties respective positions regarding the other could not be more clearly evidenced than by the following.  Paragraph 29 of the pursuer’s affidavit commences ‘My biggest worry from all this is that the defender and her mother are continuing to emotionally abuse and brainwash F.  As far as I am concerned the defender and her Mum have introduced her to sexual concepts which she should not know about and they have coached her into making horrible, untruthful allegations, which she has repeated to a variety of people’.  The defender, in answer to a question in chief as to whether she would encourage contact, answered succinctly ‘No’.  She gave as her reason the fact that F told her she had been abused and she had no reason to disbelieve her.  In cross examination she was asked whether F’s disclosure was false and in particular the fact that she was not prepared to entertain any question of the pursuer not having abused F was as a result of her not liking the pursuer.  She replied that was not the position prior to F’s disclosure but she now detested the pursuer.  She also, at very least by implication from an answer in cross examination, has told F that the pursuer is bad since F made the disclosure in January 2014”.

[7]        The sheriff records that the relationship between the parties and their families is “appalling”.  This raised questions as to whether “an appropriate climate” for contact could be established.  On the sexual abuse issue, the sheriff was not prepared to make a finding of such.  The evidence did not “come near the standard that would be required to prove any particular criminal charge beyond reasonable doubt.”  However he observed that ultimately this was not the key issue.  “I have to determine whether on a balance of probability that, having regard to the welfare of F being the paramount consideration, it would be better that an award of contact be made in favour of the pursuer”.  The absence of a specific finding of sexual abuse was not determinative.  Contrary to the position adopted by the pursuer, the sheriff had no doubt that there were reasonable grounds for suspicion that the pursuer abused his daughter.  He said that the evidence pointing to it “simply cannot be ignored”. 

[8]        For the sheriff, all of this had “consequences”.  Firstly the mother and her family were satisfied that the pursuer had abused F.  As a result if contact had problems before, these were going to be increased “many fold” if an order was made.  “A child does not need such potential stress and anxiety as being a regular component of life”.  The defender and her family would need to play a part in the operation of contact.  “The confusion and turmoil created in the mind of a child aged 5 years can only be imagined”.  The sheriff observed that neither parent could stand the other and the family members held similar views.  “In my opinion a child of that age is not able to cope with such a maelstrom”.  There had been no contact for over a year, and the pursuer had never been a “father figure in a family situation”.  Having regard to all of the circumstances the sheriff stated “The only conclusion I can come to in the best interests of F is to refuse contact”.

The appeal to the sheriff principal

[9]        In the appeal to the sheriff principal the pursuer submitted that:

1.         The sheriff failed to take into account a test of necessity.

2.         In the absence of a finding in fact that the pursuer sexually abused his daughter, the sheriff was wrong to refuse contact.

3.         Too much weight was attached to the deteriorating relationship between the parties and the impact of that on the child.

4.         The sheriff failed to take account of the rights of, and benefit to, the child in having contact with both parents.

[10]      The appeal was refused.  In her decision the sheriff principal began by noting that the sheriff enjoyed the advantage of having seen and heard the witnesses, and that there were limitations in the scope for an appellate court to interfere with decisions of this kind. The weight to be attached to one factor compared with another was “pre-eminently a matter for the sheriff”.  The sheriff had carried out “a careful balancing exercise”, and was mindful of the welfare of the child as being the paramount consideration.  It was “not lost on the sheriff” that there had to be relevant and sufficient evidence which addressed all realistic options in relation to maintaining the father/daughter relationship.  He identified factors “which made the step of refusing to make a contact order necessary and justified in the best interests of the welfare of the child”.  The sheriff had concluded that “in light of hostilities between the parties and their families the restoration of contact would lead to further and increasing problems and would not be in the best interests of the welfare of the child” (paragraph 24).

The case law

[11]      Unlike the sheriff, the sheriff principal and this court have been favoured with a relatively full citation of authority.  For present purposes the relevant general principles to be derived therefrom can be summarised as follows.

(1) In terms of section 11(7)(a) of the 1995 Act, the judge must treat the welfare of the child as the paramount consideration.  The issue is – what is best for the child?  Whether the sheriff had addressed the statutory test was an important issue in NEDB v JEG 2012 SC (UKSC) 293 – see Lord Reed at paragraphs 11/13 and Lord Hope of Craighead at paragraph 39.  The court must have regard to a number of specified matters, including the need to protect the child from any abuse (defined as including any conduct likely to cause distress), and the need for co-operation between the parents:  section 11(7A-E).

(2)        Before refusing an application for parental contact, a careful balancing exercise must be carried out with a view to identifying whether there are weighty factors which make such a serious step necessary and justified in the paramount interests of the child (sometimes referred to as “exceptional circumstances”).  Reference can be made to M v K 2015 SLT 469 in the opinion of the court at paragraph 25.  This approach is reflective of the general background of it almost always being conducive to the welfare of a child that parental contact is maintained.  In NEDB at paragraph 14 Lord Reed explained that there must be “a reasonable basis” for a decision to refuse such an application.

(3)        It has been made clear in a number of recent decisions south of the border that, in the context of what are sometimes called intractable cases, it is not appropriate for the court, in effect, to give a veto to a parent who, for no good reason, and come what may, is simply intent on preventing contact.  Reference can be made to Re M (Contact) [2013] 1 FLR 1403 and Re A (Contact: Human Rights Violations) [2014] 1 FLR 1185, (CA).

(4)        For an appellate court to interfere with a decision of this kind, it is not enough to disagree with the court below, in the sense that it would have reached a different decision.  Absent some clear error, such as applying the wrong test, an appellate court can only interfere if the decision is plainly wrong;  that is in the sense that no reasonable judge could have reached it.  A “generous ambit” is given to the judge hearing the proof to reach an unappealable judgment – G v G [1985] 1 WLR 647 in the speech of Lord Fraser of Tullybelton at page 652.  In Osborne v Matthan (No.2) 1998 SC 682, Lord President Rodger observed that the decision which a trial judge reaches on what was then referred to as custody is best described, not as a matter of discretion, “but as a matter of judgment exercised on consideration of the relevant factors”.  Nonetheless, where the sheriff has seen and heard the witnesses, “it would be unusual for an appeal court to interfere with the sheriff’s judgment on the issue of custody.  The sheriff will obviously have advantages which no scrutiny of the transcript of the evidence by an appeal court, however careful, can hope to replicate”.  Similar comments were made in Re C (Contact) [2011] 2 FLR 912 at paragraphs 62/63, including reference to Lord Hoffman’s strictures in Piglowska v Piglowski [1999] 1 WLR 1360 at 1372 that “an appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself”.  (page 1372)  This general approach was recently confirmed by this court in EM v AM [2016] CSIH 2, and was the subject of a careful review of the case law by Professor Norrie (Edinburgh Law Review, Volume 20 (2016) 147).

Is there a separate “test of necessity?”

[12]      Under reference to passages in the opinion of the court in M v K, and to a discussion of Sheriff Sheehan in JGC v NW [2016] SC EDIN 26, in which she quotes at length a passage in a judgment of Sheriff Holligan, there were submissions at the appeal hearing as to whether it is proper to apply a distinct and separate test, described as “a test of necessity”, before refusing an order for parental contact.  Having reviewed the opinion of the court in M v K, we are not persuaded that the court had any intention to go beyond the proposition that, since in general it is strongly in the interests of a child to maintain a relationship with both parents, before a contrary position is taken, the court must, after carefully weighing all the relevant circumstances, identify factors which justify such a serious step and demonstrate that it is conducive to the welfare of the child.  This is no more than one would expect in a proper application of section 11(7) of the Act.  In short, we agree with Sheriffs Holligan and Sheehan that M v K did not lay down a separate test of necessity as a basis for refusing contact, and we endorse the careful reasoning of Sheriff Holligan on this point (HTJH v FM 1 December 2015, unreported). 

Discussion and decision

[13]      The pursuer’s submissions to this court were similar to those advanced to the sheriff principal.  The main theme was that, in the absence of a finding of abuse, there was nothing of sufficient weight to overcome the benefit to F of continuing to see her father.  M v K is a good example of a trial judge failing to give proper value to the parent/child relationship.  However this was in a different factual context from that of the present case.  In M v K the parents’ dispute was based upon “spurious complaints” which came to “dominate the inquiry” before the sheriff (paragraph 30).  His decision turned on the risk of further such complaints causing the child “emotional damage”, which it was thought outweighed any benefit to the child of doing normal “father and daughter things”.  In the present case the sheriff made a specific finding that the pursuer and her family have reasonable grounds to suspect abuse of F when in the company of her father.  And there is nothing to suggest that the sheriff was unmindful of the need to give full weight to the value to be attached to the maintenance of the father/daughter bond.  The sheriff principal commented that the allegations of sexual abuse “deeply troubled the sheriff” and “bolstered (his) conclusion that due to undiminished mutual loathing, the parties would not co-operate in relation to the smooth operation of contact in a calm environment”.  The allegations provided a sound basis for a prediction of ongoing deep hostility between the respective parties and families which would continue to be a major obstacle to the operation of contact (findings 73 and 74 and the sheriff’s note).   

[14]      We do not accept the submission that the sheriff erred in his overall approach to the decision-making process.  It was contended that he did not carry out a proper balancing exercise;  gave undue weight to certain factors and insufficient to others;  and failed to apply a test of necessity.  We have said that the latter adds nothing to a sensible application of the statutory test to applications of this nature, and we agree with the sheriff principal (paragraph 24) that the sheriff “carried out a careful balancing exercise and identified factors which made the step of refusing to make a contact order necessary and justified in the best interests of the welfare of the child”.  The sheriff correctly articulated the statutory test, and it is clear that he regarded F’s welfare as the paramount consideration. 

[15]      It was a major part of the pursuer’s submissions that, in the absence of a finding of abuse, the sheriff should have taken a more active role to overcome the parties’ mutual antipathy and enforce contact.  He should have been “a partisan in the interests of the child” so that she would continue to have a relationship with her father.    He ought to have grappled with and found a way of resolving the problems surrounding contact caused by parents who, it was said, were simply unable to get on with each other.  The sheriff had avoided the necessary decision of ordering supervised contact, which was all that the pursuer had sought.   Instead he had, in effect, said “a plague on both your houses”. 

[16]      Clearly a parent should not be given a veto over contact.  While it is far better if parents can negotiate their own arrangements, once it is plain that this will not happen, other things being equal, the court has a responsibility to respect and promote family relationships, including that of a father with his daughter.  This can include emphasising to the parties at the outset that obedience to the court’s timetable and orders is not optional.  In a number of recent decisions south of the border, for example Re M (Contact) (cited earlier), one can see examples of the court exerting its authority in a robust manner, all in the interests of the child, who might otherwise become a mere pawn in the parents’ dispute.  However, the present is not a case of a parent who, with no reasonable basis, implacably opposes contact, and sets out to frustrate the court’s orders.  On the contrary there is, as the sheriff carefully explained, a foundation for the defender’s and her family’s hostility to the whole idea.  It is not a ploy or pretext for shutting out the pursuer.  It is hostility based on strongly held beliefs. 

[17]      The pursuer’s submissions were somewhat one sided, paying little or no attention to the implications of the “appalling relationships, between the two families” and the “maelstrom”, “confusion”, and “turmoil” which contact would unleash upon the child.  As explained earlier, these factors were influential in the sheriff’s decision.  He is better placed than this court to assess the impact of even limited supervised contact upon F.  The plea for a “pro-active sheriff” enforcing contact ignores the fact that the trial sheriff reached the view that any contact would be against the best interests of the child, which is the paramount consideration.  Once that decision was reached, the time for ordering contact was over.  The real question raised in the present appeal is whether this court can and should interfere with the sheriff’s judgment that, in the best interests of the child, even limited supervised contact should be refused. 

[18]      Contrary to the submission on behalf of the pursuer, and given the unchallenged findings in fact, we are satisfied that the sheriff’s decision cannot be categorised as “unreasonable, inexplicable, unjustifiable, and unnecessary”.  In our view it falls within the aforesaid “generous ambit” given to the sheriff, who has seen and heard all the witnesses and considered all of the evidence.  It is not plainly wrong.  A specific finding of abuse of F by her father was not a pre-requisite for refusal of his application for contact.  While every case turns upon its own facts and circumstances, we note that the reasons for refusal of contact are similar to those upheld by the UK Supreme Court in NEDB - see Lord Reed at paragraphs 11/13.   After having regard to the general principles referred to earlier, and in agreement with the decision of the sheriff principal, we have come to the view that there is no good reason to interfere with the sheriff’s decision.  It follows that the appeal will be refused.