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Cite as: [1999] ScotSC 23
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F.A.G. OR W. v. J.L.W. and K.H.W. [1999] ScotSC 23 (2nd August, 1999)
9700248
JUDGMENT OF
SHERIFF PRINCIPAL NICHOLSON
in the cause
F. A. G. or W
Pursuer and Respondent
against
J. L. W
Defender and Minuter
and
K. H. W
Third Party
_________________________
Act: Aitken, Aitkens, Solicitors
Alt: Wilson, Caesar & Howie, Solicitors
LINLITHGOW, 2 AUGUST 1999
The Sheriff Principal, having resumed consideration of the cause, allows the appeal and recalls the interlocutor of 24 May complained of; sustains the plea-in-law for the pursuer and respondent and refuses the first crave for the defender and minuter; finds no expenses due to or by either party in respect of the appeal.
NOTE:
This is an appeal against an interlocutor of 24 May 1999 in which, after proof, the sheriff varied an earlier interlocutor and made an order for the defender and minuter (hereafter "the defender") to have contact every fortnight with the younger child of the marriage between the defender and the pursuer and respondent (hereafter "the pursuer"). The material facts in the case are not significantly in dispute, and they are as follows.
The pursuer and the defender married on 16 June 1984. However, they separated in November 1995 and they were divorced on 6 August 1997. The action of divorce was at the instance of the pursuer on the ground of the defender's adultery, and it was undefended. The pursuer and defender have two children, namely K. who was born on 21 November 1985 and V. who was born on 29 July 1991. The child, K., is the third party to the present proceedings. After the parties separated the defender went to live in Scarborough and, when the divorce proceedings were commenced, he consulted a solicitor there. He advised that solicitor that he did not wish to contest the divorce, but that he wished to have contact with his children. It appears, however, that the solicitor took no action in that regard, and at the end of the day no order for contact in favour of the defender was either sought or made. However, a residence order in favour of the pursuer was made at the time when decree of divorce was granted. In the result both children have lived with the pursuer throughout their lives. The defender for his part has had no contact with either of the children since about January 1997.
Following on the granting of decree of divorce the defender consulted Scottish solicitors, and on 11 August 1998 the current proceedings were raised with a view to varying the interlocutor of 6 August 1997 so as to allow the defender contact with both children. Answers to the defender's minute were lodged both by the pursuer and by the elder daughter, K., who in her answers made it clear that she did not wish to have any contact with the defender. At the commencement of the proof the defender intimated that he had decided to respect K's views with the result that the proof before the sheriff was solely concerned with whether or not the defender should have contact with V.
Having heard the proof, and having had an interview with V., the sheriff took the matter to avizandum and thereafter issued the interlocutor which is the subject of this appeal. In that interlocutor the sheriff made an order for contact between the defender and V. each alternative Saturday between the hours of 10 am and 4.30 pm with the defender being obliged to uplift and return the child to the pursuer's home. However, he also postponed the coming into effect of that order until Saturday 24 July, that is to say some two months after the date of the interlocutor. As he explains at the end of his Note, he took that course to allow for some mediation to take place before the commencement of the order. An appeal against the foregoing interlocutor has now been taken by the pursuer.
In fact no mediation as suggested by the sheriff ever took place because of the marking of the present appeal; but, in terms of OCR, r. 31.9, the marking of the appeal did not of itself excuse obedience to the sheriff's order. In that situation it appeared that compliance with the sheriff's interlocutor would fall due on 24 July before parties had been able to sort out the legal aid position relative to the appeal, and accordingly, on 22 July, a motion was presented to me on behalf of the pursuer inviting me to suspend compliance with the sheriff's order until the appeal had been dealt with. It was submitted, in support of the motion, that compliance over a period of weeks could be very traumatic for V. if at the end of the day the appeal were to be succesful. However, the motion was opposed on behalf of the defender on the ground that it would be unfortunate if he had to wait even longer before being given an opportunity of contact as ordered by the sheriff. Since I was able to offer an appeal diet within a week of hearing that motion I took the view, having ascertained that parties would be able to proceed with the appeal at that time, that the best course would be to grant the motion, and that is what I did.
At the appeal hearing the solicitor for the pursuer began by advising me that in general he accepted the sheriff's findings in fact as being findings which he had been entitled to make on the evidence. He also advised me that the pursuer had given instructions that, in the event of the appeal being refused, she did not seek to challenge the extent of the contact which had been ordered by the sheriff. Consequently, the submissions advanced on behalf of the pursuer were all to the effect that the sheriff had erred in law in his approach to the matter of contact in this case. The solicitor for the defender also approached the appeal solely in relation to the law and the legal test which had been applied by the sheriff, and he did not seek to suggest that, even if the sheriff had erred in law, a contact order should nonetheless be made in favour of the defender. The result of all of that is that this appeal turns solely on the view which I take on the sheriff's legal approach to the issue before him. If I take the view that the sheriff's approach was correct, the appeal must fail; but, if I take the view that the sheriff erred in law, the appeal must succeed with the consequence that the contact order made by the sheriff must be recalled.
Put shortly for the moment, the competing arguments which were advanced both before the sheriff and before myself were as follows. For the pursuer it was submitted that, where an absent parent seeks an order for contact with a child who is residing with the other parent, it is for that absent parent to demonstrate to the court's satisfaction that the making of such an order will be in the interests of, and will promote the welfare of, the child concerned. It was submitted that the coming into force of the Children (Scotland) Act 1995 (hereafter "the 1995 Act") had not affected the position in that regard, and that the test to be applied under the Act is still the same as that set out in Sanderson v. McManus 1997 SCLR 281, and in the earlier cases of Porchetta v. Porchetta 1986 SLT 105 and Russell v. Russell 1991 SCLR 49. The consequence of approaching an application for a contact order in the foregoing way is that a sheriff will not be entitled to make the order unless he is able to make findings upon which he can be satisfied that the making of the order will be in the interests of the child.
By contrast, it was submitted on behalf of the defender that the 1995 Act has brought about a significant change with the result that an absent parent (at least where he was married to the other parent at the relevant time) who has not been deprived of the relevant parental responsibilities and rights will be presumed to be entitled to contact with his child unless the other parent can satisfy the court that it would not be in the interests of the child for such contact to take place. That, it was said, is the inevitable consequence of the provisions of sections 1 and 2 of the 1995 Act when read in conjunction with section 11. On the foregoing basis a court will be obliged to make a contact order unless the other parent has led satisfactory evidence to show that contact would be against the child's interests.
I shall examine the foregoing approaches in greater detail in a moment. For the present, however, it is to be noted that the sheriff for his part accepted the approach advanced on behalf of the defender. In the relevant part of a detailed and careful judgment the sheriff begins (at p. 16) by noting that, at the time of the divorce, and in the present proceedings, the court has not been asked to make an order depriving the defender of his parental responsibilities or rights as might have been possible in terms of section 11(2)(a) of the 1995 Act. He goes on to observe that, although a residence order was granted in favour of the pursuer at the time of the divorce, the defender's parental responsibilities and rights are otherwise unaffected by what has happened hitherto. The sheriff then goes on to say that "in the present case this statutory background is of importance when considering the question of whether the contact order sought should be made. It is significantly different from the statutory position under the law before the enactment of the 1995 Act."
Having noted (at p. 17) that, prior to the coming into effect of the 1995 Act, there was no statutory imposition of parental responsibilities such as those specified in section 1 of the Act, the sheriff concludes that what he terms "the common law scheme" was "different in emphasis and effect from the statutory provisions of the 1995 Act". He then goes on (at p. 18) to say this:
"The 1995 Act has imposed on parents statutory responsibilities which previously the law did not impose. It is difficult to see how, apart from ignoring the change, it is possible to treat section 1 as doing other than to create a situation in which it will normally be assumed that contact with a parent who has section 1 parental responsibilities is in the interests of his or her children. Section 1 makes clear that such responsibility exists only in so far as compliance is in the interests of the child. Section 11(2) provides for the making of an order depriving a person of parental responsibilities. It is subject to the consideration of the child's welfare in section 11(7). Section 3 acts to deprive some fathers automatically of parental responsibility. There can be little point in any of these provisions unless section 1 is meant to represent the usual situation and create the assumption to which I have referred. The question then becomes whether it is established that the welfare of the child requires that the responsibilities imposed by the law are not exercised. In the absence of any attempt to deprive the person who has parental responsibilities of them (where the same test of the welfare of the child applies) that may not be easy to establish."
The sheriff goes on to distinguish on a number of grounds several cases, including those to which I have already referred, and he then continues (at p. 20):
"So where a parent has the parental responsibility of maintaining parental relations and direct contact with a child and the parental right to do so (and no attempt is made to deprive him or her of such responsibility and right by establishing that such removal would benefit the child) only the strongest competing disadvantages will be likely to prevail to establish that the welfare of the child would not be served by allowing contact with the parent. ......... For the reasons indicated I do not feel that it has been established nor is it probable that V's welfare will be best served by denying her contact with her father."
I have described at some length the sheriff's analysis of the statutory position, and of the test to be applied, having regard to the terms of the 1995 Act because it seems to me to express with clarity the effect of the submissions advanced both to the sheriff and to myself on behalf of the defender. Putting it shortly, the sheriff's position is that section 1 of the Act sets out certain parental responsibilities, including a responsibility on the part of an absent parent to maintain personal relations and direct contact with his children. If that responsibility has not been removed in terms of section 11(2)(a) of the Act, there will then be a presumption that it is in the interests of the child or children for contact to be exercised, and that presumption will be rebutted only where "the strongest competing disadvantages" have been put before the court to show that "the welfare of the child would not be served by allowing contact" with the parent in question.
In order to assess the validity of the foregoing approach it is appropriate to begin with the position as it existed prior to the coming into force of the 1995 Act. The authoritative exposition of that position is, of course, to be found in the decision of the House of Lords in Sanderson v. McManus 1997 SCLR 281. (For convenience my references are to that case as reported in SCLR since that was the report referred to both before the sheriff and before myself. However, I should note that the case is also reported at 1997 SC (HL) 55.)
Sanderson v. McManus was a case concerning an application for access to a child by that child's absent natural father. Access was refused by the sheriff, by the sheriff principal, and by the Inner House of the Court of Session though, in the Inner House, Lord McCluskey delivered a dissenting judgment in which, inter alia, he said: "... ordinarily ... the courts proceed upon the basis that the link between a child and each of its natural parents is so important in itself that, unless there are very strong reasons to the contrary, it should be preserved" (1995 SCLR 902, at 906). As can be seen, Lord McCluskey's starting point was not significantly different from the approach favoured by the sheriff in the present case, though of course the sheriff sought to find support for his position in the terms of the 1995 Act.
However, Lord McCluskey's approach did not find favour in the House of Lords which adhered to the decision of the majority of the Judges in the Inner House. In that regard Lord Hope of Craighead, who delivered the leading speech in the House of Lords, said this (at p. 289C):
"The more fundamental question, however, is whether the natural link between the child and his parent is so important that the court must always seek to preserve it unless there are strong reasons to the contrary. Whatever may have been the position at common law, the effect of section 3(2) of the Act of 1986 [Law Reform (Parent and Child) (Scotland) Act] has been to remove any rule or principle to this effect. Lord Dunpark had already recognised the fallacy in this approach, once the welfare of the child was made the paramount consideration, in the opinion which he delivered in Porchetta v. Porchetta. In that opinion ..... he said that a father does not have an absolute right to access to his child, that he is only entitled to access if the court is satisfied that that is in the best interests of the child, and that the onus to show that is on the father who seeks access. ........ Lord McCluskey has disputed the view, which hitherto had been widely held, that Lord Dunpark intended to alter the traditional approach by the remarks which he made in that case. However that may be, I consider that the effect of section 3(2) of the Act of 1986 is to show that the approach taken by Lord Dunpark is the one which should now be adopted by the court."
A little later in his speech Lord Hope went on, in a passage which is quoted in the sheriff's Note, to say (at p. 289F):
"The relationship between the natural father and the child can never be dismissed as irrelevant. The natural relationship is a fact of life which it will always be proper to take into account. But the importance which is to be attached to it must vary according to the circumstances. This is a matter which must be decided not by applying any presumption but upon an evaluation of the evidence. As with any other factor which the court is asked to take into account, the question is whether contact with the parent has something to offer which is likely to be of benefit to the child's welfare. This question must be examined from the point of view of the child. It may normally be assumed that the child will benefit from continued contact with the natural parent. But there may be cases where it is plain on the evidence that it has nothing to offer at all. There may be other cases where the evidence will show that continued contact is likely to be harmful. Whatever the view which is taken on this matter in the light of the evidence, the child's welfare is paramount. The decision of the court will depend on its analysis of all the factors which bear on the question what is in the best interests of the child."
The Sheriff, in his Note, seeks to distinguish Sanderson from the present case on the basis that the former case deals with the significance of the link between a natural father and a child, and is not concerned with the situation, as in the present case, where the father has been married to the child's mother and there is as a consequence a legal relationship and responsibility imposed by law. The sheriff goes on to say that the same is true of Porchetta in that, although the applicant father had been married to the mother, custody of the child had been awarded to the mother when she had divorced him. I shall return later to the question whether Sanderson is distinguishable from the present case in the light of the provisions of the 1995 Act. At present, however, I should say that I consider that the sheriff is wrong in his view of Porchetta. As appears from the report of that case (1986 SLT 105), the father's application for access was made in the original divorce proceedings, and not at a later stage, with the consequence that Lord Dunpark was considering the mother's application for divorce and custody, and the father's application for access, at the same time.
From all of the foregoing, then, it seems to me to be clear that, at least prior to the coming into effect of the 1995 Act, there was no presumption to the effect that an absent natural parent should be awarded access to his child unless there were compelling reasons not to follow that course. On the contrary, while the link between a parent and his child would always be seen as an important factor, every case would require to be considered on its own facts and circumstances, and a court's task and duty would be to take whatever decision was appropriate having regard to the child's welfare as the paramount consideration. In fact that decision would often, as was observed by Lord Hope in Sanderson, and by Lord Weir when that case was in the Inner House, be made without reference to questions of onus. However, it seems to me to be clear that, under the law as explained in Sanderson, a court which was minded to make an order for access in favour of an absent parent would require to have before it positive evidence to show that such access would promote the welfare of the child; and of course it would normally be for the parent seeking access to lead such evidence in the first place.
As can be seen, the approach which I have just summarised is significantly different from the approach favoured by the sheriff in the present case. The question, therefore, is whether the provisions of the 1995 Act have, as maintained by the sheriff, made such a difference inevitable.
The relevant provisions of the 1995 Act for present purposes appear to be those contained in sections 1, 2, 3 and 11. Section 1, so far as relevant, provides:
"(1) Subject to section 3(1)(b) and (3) of this Act, a parent has in relation to his child the responsibility -
.............
(c) if the child is not living with the parent, to maintain personal relations and direct contact with the child on a regular basis;
............
but only in so far as compliance with this section is practicable and in the interests of the child."
Section 2(1) of the Act provides in effect that the responsibilities set out in section 1 are to be matched by corresponding rights "in order to enable [a parent] to fulfil his parental responsibilities in relation to his child". In the case of a child who is not living with the parent, that right, as set out in section 2(1)(c), is "to maintain personal relations and direct contact with the child on a regular basis". I note in passing that the parental rights, as set out in section 2(1) are not qualified by any reference to the interests of the child as is the case in respect of parental responsibilities (see the quotation from section 1 set out above). I return to this point later.
Section 3(1) of the Act effectively provides that, unless he acquires them by agreement under section 4, a father will not have parental responsibilities and rights in relation to a child if he was not married to the mother at the time of the child's conception or subsequently. That provision appears to be at odds with the United Nations Convention on the Rights of the Child, and it is contrary to recommendations contained in the Scottish Law Commission's Report on Family Law (Scot. Law Com. No. 135) which formed the basis for many of the provisions in what is now Part I of the 1995 Act. For present purposes, however, the significance of section 3 appears to be that the approach to the making of a contact order which was favoured by the sheriff in the present case (which depended to a large extent on what he saw as the effect of section 1) will apparently not apply in a case where a father has never been married to a child's mother. On that hypothesis the consequence would be that courts would have to apply different tests depending on whether or not a child's parents had ever been married. I shall return to that point shortly.
First, however, I turn to section 11 of the 1995 Act. That section empowers a court to make orders in relation to (a) parental responsibilities; (b) parental rights; (c) guardianship; or (d) the administration of a child's property (subsection (1)). Subsection (2) elaborates on the foregoing, and provides in sub-paragraph (a) that a court may make an order "depriving a person of some or all of his parental responsibilities or parental rights in relation to a child". Sub-paragraph (b) provides for an order imposing parental responsibilities on a person, and giving that person parental rights. Sub-paragraph (c) provides for the making of a residence order; and sub-paragraph (d) makes provision for the making of an order "regulating the arrangements for maintaining personal relations and direct contact between a child under [the age of sixteen] and a person with whom the child is not, or will not be, living (any such order being known as a 'contact order')".
Finally, I turn to section 11(7) which, in my view, is of the utmost importance in any case where a court is considering making an order of any of the kinds permitted by section 11(1). So far as relevant for present purposes subsection (7) provides:
"..........., in considering whether or not to make an order under subsection (1) above 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 that none should be made at all".
What, then, is the effect of the foregoing provisions in the present case? So far as section 1 of the Act is concerned I am not persuaded that, at least so far as parents who are, or were, married to each other are concerned, it does more than to state in statutory terms what has long been a part of our law, namely that parents, whether living together or not, have certain obligations in respect of, and responsibilities for, their children. The 1986 Act may have obscured that by its emphasis on parental rights but, as is observed by Professor Norrie in his Commentary to the section in Green's annotated print of the 1995 Act (revised ed. 1998) (to which I was referred in the course of the appeal hearing), "it has long been understood that 'parental rights exist for the benefit of the child and they are justified only in so far as they enable the parent to perform his duties towards the child' (per Lord Fraser of Tullybelton in Gillick v. West Norfolk and Wisbech Area Health Authority [1985] 3 WLR 830 at 841)". That is a view which, it appears to me, is supported by the fact that, in the 1995 Act, the parental responsibilities set out in section 1 are, as I have already noted, matched by comparable parental rights in section 2. However, notwithstanding that, as was pointed out by the solicitor for the defender in the present case, the long title of the 1995 Act refers to the making of "new provision as respects the relationship between parent and child" in the law of Scotland, I do not consider that section 1 of the Act introduces a new entitlement on the part of parents to which a court must give effect unless it can be shown that to do so would be contrary to the welfare of a child concerned. On the contrary I am disposed to think that at least one of the main purposes of section 1 is to attempt to make clear that parental responsibilities exist, and cannot simply be given up by a parent who, for whatever reason, is no longer willing to fulfil those responsibilities. To that extent, therefore, I differ from the sheriff when he says (in the passage which I quoted earlier) that the 1995 Act "has imposed on parents statutory responsibilities which previously the law did not impose". The responsibilities now have statutory form, but in my opinion it is wrong to say that they did not exist prior to 1995, and that they were not previously recognised in our law.
Undoubtedly, of course, the parental responsibilities as set out in the section are all expressed in very positive terms, but I consider that it is important to note that they are all qualified by the concluding words of subsection (1), namely that the responsibilities are to exist only in so far as "compliance" (not, it is to be noted, "enforcement") is "practicable and in the interests of the child". The solicitor for the pursuer in the present case suggested that the way in which the qualification to the subsection is drafted is of significance. Had the intention been, he said, to create a presumption in favour of a parent which could only be overcome if the other parent could show that the exercise of contact would be contrary to the welfare of the child, the qualification to the subsection could easily have said so by the use of words such as "unless it is shown that compliance with this section is impracticable and contrary to the interests of the child". The use of words such as those, it was submitted, might well have supported the view that the Act had created a presumption in favour of contact between a child and a parent who has parental rights, with the other parent then having to overcome that presumption by showing that contact would be contrary to the child's welfare; but, it was also submitted, the fact that such words are not used, and the way in which the qualification is in fact expressed, lend weight to the view that the Act has not changed, and was not intended to change, the approach which should be taken by courts as set out in Sanderson v. McManus.
The sheriff has dealt with this part of the section by saying that it makes clear that parental responsibilities exist only so far as compliance is in the interests of the child; and to that extent I cannot find fault with what he says. However, in the preceding sentence of his Note (which I have quoted earlier) he expresses the view that it is difficult to see how it is possible to treat section 1 as doing other than "to create a situation in which it will normally be assumed that contact with a person who has section 1 responsibilities is in the interests of his or her children". To the extent that the passage which I have just quoted reflects the general purpose of section 1, namely that it is generally desirable to maintain contact between a child and a separated parent, I do not necessarily differ from what the sheriff says. However, in my opinion the trap into which the sheriff has fallen is to go on to elevate that general purpose into a legal presumption which will apply in all cases with the consequence that the presumption will always prevail unless it can be shown that contact will not be in the interests of the child in question. I consider that the way in which the qualification to section 1(1) is expressed does not support the existence of any such legal presumption, and instead makes it clear that the responsibility to maintain contact will exist only in so far as compliance is positively in the child's interests. That, it seems to me, must mean that the parent who wishes to exercise the responsibility of contact must himself be satisfied, and must if necessary be prepared to prove, that such contact will be in the interests of the child. For the foregoing reasons I am of opinion that the starting point taken by the sheriff for the approach which he adopted in the present case was unsound.
That, however, is not the end of the matter since it is also necessary to consider the other sections of the Act on which the sheriff founded. So far as section 2 is concerned I do not consider that it adds much either way since, as I have already observed, it is merely the "rights" counterpart to the "responsibilities" provisions of section 1. I have earlier noted that it is not qualified, as is the case in section 1(1), by any reference to the interests of the child. However, I do not consider that to be of any significance. Since the rights conferred by section 2 are expressed as existing in order to enable a parent to fulfil his parental responsibilities, it must in my view follow that the exercise of rights must also be carried out by reference to the qualification at the end of section 1(1).
Section 3(1)(a) of the Act is not of direct relevance to the present case since the present defender was married to the pursuer, and accordingly has parental responsibilities and rights by virtue of sections 1 and 2 of the Act. However, I have already noted that, if the sheriff's approach is correct, a consequence would appear to be that a court will require to apply a different test for determining the welfare of a child depending on whether or not an applicant father was or was not married to the child's mother. That would be so on account of the fact that the presumption which, according to the sheriff, is created by section 1 will apply in the former case but will not apply in the case of an unmarried father who is excluded from the operation of section 1 by virtue of section 3(1)(a). It would plainly be an unsatisfactory state of affairs if a child's welfare, and possibly his or her future, were to be determined in different ways depending on the status of the child's father, and I do not consider that that can have been intended by Parliament. On the other hand, if the sheriff's approach was wrong, this particular dichotomy will not arise. In fact, I do not consider that any dichotomy is likely for reasons which have to do with the content and structure of section 11, and I now turn to consider that section.
In my opinion, the first point to note in relation to section 11 is that the various orders which are contemplated in the section are all orders relating to parental responsibilities and parental rights. In that context it is important to note that "residence orders" and "contact orders" are not expressed in terms of conferring a right to residence or a right to contact. The provisions relative to such orders assume that the person concerned will have the relevant parental responsibilities and rights and, as the subsections make clear, the statutory provisions are concerned with orders "regulating the arrangements" for the exercise of such responsibilities and rights. That form of words is, I think, consistent with what I understand to be one of the purposes of the 1995 Act, namely that parties should be encouraged to make their own arrangements for each parent to comply with his or her parental responsibilities, but with the court having a power to make an order for the regulation of those arrangements when parties are unable to reach agreement themselves.
One consequence of the way in which section 11 is drafted is, I believe, that it will not be sufficient for an unmarried father who wishes contact with a child simply to seek a declarator of paternity and then to ask for a contact order in terms of section 11(2)(d). In my view it will also be necessary for him first to seek an order under subsection (2)(b) imposing the relevant responsibilities and giving the relevant rights. If I am correct about that, it follows that any apparent dichotomy between the approach to be taken in the case of married and unmarried fathers will disappear once a court is actually considering the making of a contact order since by that stage fathers of both kinds will in fact have the relevant responsibilities and rights.
More importantly, it seems to me that, although section 11(2)(a) permits a court to make an order depriving a person of some or all of his parental responsibilities or rights, there is nothing in the section to suggest that a person who has not been so deprived is bound, or even likely, to succeed in obtaining an order such as a contact order unless it can be shown that that would be contrary to the interests of the child. Given the terms of section 1, as I have earlier sought to construe them, and given the terms of section 11(7) which I shall examine in more detail in a moment, I consider that there is nothing in section 11 to support the view that a parent who seeks to resist the other parent having contact with a child can achieve that result only by having that other parent deprived of parental responsibilities and rights or by demonstrating, as the sheriff put it, "the strongest competing disadvantages".
At the appeal hearing the solicitor for the defender submitted that, if one parent were to seek an order under section 11(2)(a) to have the other parent deprived of parental responsibilities and rights, it would be for the parent seeking the order to establish the grounds for the making of the order. That being so, it was submitted, it would be illogical to have any different onus of proof when the parent in question was merely seeking to prevent the other parent from fulfilling his parental responsibilities by obtaining a contact order. I do not doubt that, in the case of an application for an order under section 11(2)(a), the onus of proof will lie on the person seeking such an order; but, for the reasons which I have given, I am not persuaded that there is anything in section 11, or indeed elsewhere in the Act, to indicate that, where one parent is seeking a contact order, the onus should be on the other parent to establish that the order should not be made.
In my opinion that view gains considerable support when one comes to section 11(7). I have already quoted the relevant terms of that subsection, and I consider that it must have the effect of disposing of any argument that the existence of parental responsibilities and rights somehow creates a presumption in favour of making a contact order in favour of the person who has those responsibilities and rights. I have already noted that the possession of those responsibilities and rights is a prerequisite to seeking an order, but section 11(7) makes it clear that, even in that situation, a court is not obliged to make an order because, otherwise, the opening words in the subsection - "in considering whether or not to make an order" - would be devoid of meaning. But the subsection goes much further because it clearly states that, in considering whether or not to make an order and what order to make, the court must regard the welfare of the child concerned as its paramount consideration. Moreover, it goes on to say that a court is not to make an order unless it considers that it would be better for the child that the order be made than that none should be made at all. That part of the subsection plainly requires a court to find some positive advantage for a child before making an order; and that, in my opinion, is entirely at odds with the proposition that a contact order may be made on the basis of a presumption where the other party is unable to demonstrate what the sheriff called "the strongest competing disadvantages". If the approach favoured by the sheriff is correct, the result could be that a parent could obtain a contact order in the absence of any evidence or information to show that the welfare of the child would thereby be promoted simply because the other parent was unable to offer the compelling evidence desiderated by the sheriff to show that contact would actually be contrary to the child's welfare. In my opinion that is not what is required by section 11(7), and I therefore consider that the provisions of that subsection lend support to my earlier view that section 1 does not create any presumption in favour of a parent who has parental responsibilities and rights.
From all of the foregoing it follows that, in my opinion, the sheriff in the present case was in error when he decided the outcome of the case on the basis that there was a presumption in favour of contact. In my view the 1995 Act has not changed the nature of the test as it was set out in Sanderson v. McManus, and I consider that that was the test which ought to have been applied. In fact, as was observed by the solicitor for the pursuer, there is nothing in the sheriff's findings which, had he been applying the Sanderson approach, would have entitled him to conclude that a contact order would actually be conducive to V's welfare. The closest that the findings come to that is in finding-in-fact 34 but, as was rightly observed, that finding really does no more than to set out the defender's views as to the advantages which would accrue to V. if there were to be contact: it does not find that any such advantages would in fact accrue.
I should perhaps just add that the solicitor for the defender sought to derive some comfort and support for his preferred approach in a passage (at para. 25.015) in the 4th edition of Dr Clive's work on Husband and Wife. However, I have read that paragraph with care, and I do not consider that it says anything which is inconsistent with what I have said in this Note. Indeed, I observe that in footnote 29 Dr Clive makes reference to section 11(7) of the 1995 Act, and suggests that in this respect the 1995 Act is to the same effect as section 3(2) of the 1986 Act. He goes on to mention that, although the House of Lords in Sanderson reserved their opinion on the effect of section 11(7), they also added that this was not to be taken as indicating that the new test was any different from that provided for by section 3(2) of the 1986 Act. Dr Clive does not suggest that the House of Lords erred in that regard, nor do I.
In the whole circumstances, therefore, I have come to the conclusion that this appeal should be allowed, and the sheriff's interlocutor recalled. Both parties to the proceedings are legally aided, and it was a matter of agreement that I should find no expenses due to or by either party in respect of the appeal.
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