Scottish Sheriff Court Decisions

F256/01

GLASGOW, 6 January 2004.

The Sheriff Principal having resumed consideration of the cause amends the findings in fact contained in the sheriff's interlocutor dated 14 March 2003 complained of as follows:

quoad ultra refuses the appeal and adheres to said interlocutor; finds no expenses due to or by either party in respect of the appeal.

[1] This appeal arises in the context of an application for contact by the father of a child Emma who was born on 6 September 1999. The application was refused following proof. The sheriff records in his Note that the pursuer and defender had a relationship which lasted no more than "at best a couple of months". He goes on to explain that after one or two months into her pregnancy the defender decided that she wanted nothing further to do with the pursuer and saw no reason to keep him advised of the progress of the pregnancy and birth of the child. The defender has since formed a relationship with another man to whom she is engaged to be married (not married, as the sheriff recorded). She has a child to her new partner and that child and Emma along with the defender and her partner form a settled family unit. The pursuer has been seeking without success to obtain contact with Emma since about six months after her birth.

[2] The statutory foundation for an application of this nature, as the solicitor for the pursuer and appellant pointed out, is in sections 1 and 2 of the Children (Scotland) Act 1995 which impose on a parent in relation to his child the responsibility to maintain personal relations and direct contact with the child on a regular basis and a corresponding right to contact to enable that responsibility to be fulfilled. Notwithstanding the prominence of these parental responsibilities and rights any court making an order in relation to parental responsibilities and parental rights is required in terms of section 11(7) of the Act to regard the welfare of the child concerned as its paramount consideration and not to make any order "unless it considers that it would be better for the child that the order be made than none should be made at all". It is to be observed that, in the event of the conclusion being reached in this appeal that the sheriff's decision should not be upheld, it would be incumbent upon me to observe the provisions of that sub-section before making the order for contact which was sought.

[3] In the course of their submissions both agents made reference to a number of authorities and earlier decisions on questions of contact and to the approach and function of an appellate court in reviewing such a decisions. There was also some discussion centring on the significance of Article 8 of the European Convention of Human Rights and to certain of the jurisprudence of the European Court of Human Rights in relation to that article. It does not appear to me that the law is a matter of dispute. The function of the judge of first instance is concisely summarised in the remarks of Lord President Rodger in Osborne v Matthan (No 2), 1998 SC 682 at 689A where after observing that the decision which a trial judge reaches is "better described not as a matter of discretion but as a matter of judgement exercised on consideration of the relevant factors" he went on to say:

In relation to the function of an appellate court it is trite that such a court will always be slow to disturb the decision which has been taken at first instance. That reluctance to interfere arises by way of acknowledgement of the advantage which the court of first instance enjoys in seeing and hearing the witnesses and consequently determining the facts upon which its judgment must be based. In the present case there is no challenge of the sheriff's findings on material facts; it was accepted, as I have indicated, that the sheriff had mistakenly been of the view that the defender had remarried when in fact she was only engaged. Beyond that there are two accepted alterations to the findings in fact which are not material. The notes of evidence were not extended. Accepting the sheriff's findings as stated, the thrust of the submission advanced by the pursuer's agent was that his decision was not reasonable in the light of the facts as found. That is a legitimate issue for an appellate court to consider; see the remarks of Lord McCluskey in Sanderson v McManus, 1996 SLT 750 at 752(L).

[4] In the course of her submissions the solicitor for the pursuer founded on the "right to respect for family life" enshrined in Article 8 of the European Convention of Human Rights and to the acceptance that this concept covered the right of access of a father to a child with whom he had never actually lived in family. Reference was made in the course of discussion to Sahin v Germany, (2003) 36 EHRR 43; Soderback v Sweden, 1998 29 EHRR 1995 and Kroon & Others v The Netherlands, 1994 19 EHRR 263. It does not appear to me that a close examination of these decisions, which to a significant extent involved examination of the relevant domestic law of the countries concerned and the remedies which those systems provided to a parent in seeking to secure his rights under Article 8, is necessary in the context of the present case. There is no doubt that a broad interpretation of the concept of a right to family life is enshrined in human rights jurisprudence, and a robust view has been taken of the right of a father to maintain contact with a child born outwith wedlock. There is equally no question of Scottish domestic law being at odds with ECHR requirements. In White v White, 2001 SC 689 the court was required to consider a submission that Article 8 of the Convention supported the conclusion that Section 11(7)(a) of the 1995 Act should not be interpreted as imposing an onus on a person who applies for an order relating to contact. After quoting from the remarks of Sedley LJ in Re F (Adult) (2000) 2 FLR 512 Lord President Rodger said (at p 700E):

[5] Reference was also made by both sides to certain observations on the importance of contact between a natural parent and his child. Again, I do not consider that there is room for doubt as to the approach which the courts are required to take in relation to this particular consideration. In Sanderson v McManus in the House of Lords Lord Hope of Craighead observed that:

In White (Supra) the Lord President approved the remarks of Lord McCluskey in Davidson v Smith, 1998 Fam LR 24 where he said that a court

The Lord President went on to say (at p 698H):

[6] The sheriff's findings in fact in the present case are in short compass. After recording the brief history of the parties' relationship and attempts by the pursuer to contact the defender with a view to seeing Emma he records that, following the raising of the action (now agreed to be in 2001) "there were some child welfare hearings and the matter remitted to Jamma Umoja to assist in advising the parties". The report of that organisation (which specialises in seeking to resolve disputes of this nature) is referred to as "reflecting the evidence of Mr Forbes" (who, it would appear is the principal author of the report). Of the report the sheriff says:

[7] After recording that prior to the involvement of Jamma Umoja the defender had not told Emma that her real father is not the man that she then called father, the sheriff records that the defender has now told the child that the pursuer is her natural father. She has shown the child a "life book" prepared by the pursuer on the recommendation of Jamma Umoja explaining to her who the various people in the book are. She has also provided photographs of the child to the pursuer and his family.

[8] In findings in fact (10), (11) and (12) the sheriff sets out that the defender "accepts that in due course when in her view Emma is mature enough to fully understand the position it would be in Emma's interests to have a relationship with her real father". Finding in fact (11) records that the pursuer "takes the view that he is entitled to contact with his daughter now". Finding in fact (12) records that the pursuer "can be impetuous at times but there is no reason why he is not a suitable person to have contact with Emma or any other children of that age".

[9] In a concise but persuasive submission the solicitor for the pursuer contended that, on the basis of these latter findings in fact, contact between the pursuer and the child was "inevitable". They did not support what was properly to be regarded as a conclusion but was set out as a finding in fact (13) that "at the moment" it would not be in Emma's interests for a contact order to be made. If what the sheriff was saying was that it was in her interests for contact to take place, but not now, there was no adequate reason given to justify that qualification. The only change of circumstance which could occur to enable an order to be made was for the child to be older. It was not reasonable to refuse to make an order for contact on that basis. In fact it appeared from the terms of his note (p 10) that the sheriff had given undue weight to the mother's wishes. That was not a proper basis on which to decide the matter.

[10] In response the solicitor for the defender submitted that the sheriff had arrived at a perfectly reasonable result after hearing all the evidence, and had taken into account expert advice as contained in the Jamma Umoja report. He had adopted that into his findings. The only justification for the pursuer's claim for a contact order was that he was the father of the child. That was not in itself of great consequence. The pursuer had never had a relationship with the child which was capable of being "maintained" or nurtured. Any order for contact would constitute an invasion of the family life of the defender and the settled unit of which Emma formed a part. It was proper to take into account that whilst the defender was prepared to enter into a dialogue with the pursuer on the prospect of contact in the long term, the pursuer was not "willing to take that opportunity and demanded a crave for contact now". Those relative positions were reflected in findings in fact (10) and (11). The question was not whether the pursuer was a "suitable person" to have contact with the child; it was a question of what was in the interests of the child. There were factors present other than the fact that the pursuer was the child's father. Proper weight had been given to these, in particular the fact that there had never been a relationship with the child.

[11] I not prepared to take a different view to that of the sheriff. The situation is certainly not one in which I am prepared to hold that it would be better for the child that an order for contact be made than that none should be made at all. It is in the first place entirely proper to take into account that, whilst the pursuer is Emma's natural parent, there has never been any contact between them. It is worth noting that in Sanderson v McManus Lord Hope spoke of the benefit of continued contact, and in the passage referred to above in Davidson v Smith Lord McCluskey spoke of "the fact that it is normally in the best interests of a child to maintain contact and relations with the natural parent with whom the child is no longer living" (my emphasis). In White (supra) the Lord President observed that each decision depended on the facts of the particular case. One material fact in this case is that to the child, the pursuer is a stranger.

[12] That leads me to consider what I regard as being the central issue in this case, namely the potential impact on the child (and to an extent the family unit in which she is settled) of contact with the pursuer being introduced. The findings in fact do not touch on this issue, although I appreciate the difficulty in dealing with what is in some respects speculation. But neither is it an issue which is dealt with to any significant extent in the sheriff's note. The closest the sheriff comes is in recording that it is not currently in the interests of Emma "to override the views" of the defender.

[13] The matter is, however, dealt with in some detail in the Jamma Umoja report under the heading "potential difficulties in contact between child and natural father". That report records (paragraph 4.64)

It goes on to record:

[14] These are considerations of the utmost importance in a matter of this nature. I appreciate that in finding in fact (12) the sheriff has recorded that the pursuer "can be impetuous at times but there is no reason why he is not a suitable person to have contact with Emma or any other children of that age", but the latter part of that finding is open to the interpretation that it does no more than reflect paragraph 4.53 of the Jamma Umoja report which states "It is not possible to demonstrate that Mr McKerrow poses a significant threat of harm to the child. He does not have a criminal record, or any issues with drug or alcohol abuse nor a history of causing harm to any child". Moreover, the statement by the sheriff at p 10 of his note that "I am quite satisfied that there was no bar whatsoever" in the pursuer meeting Emma in the future is not entirely consistent with his observation at p 8 that:

[15] It is unfortunate that the sheriff chose to refer to the Jamma Umoja report by use of the formula:

The proper approach would have been to record those parts of the report which could properly be regarded as established facts. I also have some difficulty in knowing what to make of the sheriff's reference to the report "for what it may be worth". He does, however, say that it reflected the oral evidence given by Mr Forbes and it appears to me that I am bound to take the terms of it into account.

[16] Reading through the report one is left with a very strong impression that the personality of the pursuer, and consequent behavioural traits, are not likely to be conducive to making the establishment of contact easy. Paragraph 5.3 states that he "has suffered a prolonged period of being denied access to his daughter. He is of the unrealistic belief that the moment he walks into the room Emma will immediately warm to him and adore him because of his self-proclaimed giftedness with children". The next paragraph speaks of senior staff at Jamma Umoja being unconvinced as to his ability to control hateful feelings towards the defender in front of the child. Paragraph 6.10 states that he has "no insight whatsoever into the impact of his presentation or the fact that he possibly has an underlying mental health problem". In paragraph 6.12 it is said that "Jamma Umoja could not recommend contact until he has addressed this issue".

[17] The difficulty which faces me is that all that there is before me which in any respect addresses this critical issue is the sheriff's bald statement set out in finding in fact (12), coupled with a brief paragraph on p 6 of the note that the defender "took on board what Jamma Umoja had said" and obtained counselling in relation to his position. Beyond that there is simply no information from which I could be satisfied that the problems identified by Jamma Umoja and clearly articulated in the report have been addressed properly. As I have said, the critical issue is the likely impact on Emma of contact being commenced. The potential problems surrounding that are not, in my view, capable of resolution on a review of the sheriff's judgment.

[18] Finally, for the sake of completeness I should add that I can see the force of the argument advanced on behalf of the pursuer and appellant that the longer any arrangements for contact are put off the more difficult it will be for Emma to form a meaningful relationship with the pursuer. If the sheriff is in effect saying that contact must take place sooner or later there is certainly scope for saying that it should take place now. As I have indicated, however, the inference which might be drawn from the terms of findings in fact (10) and (12) that the commencement of contact is only to be prevented as a matter of time is qualified by the sheriff's comment on p 8 of the note that he does not know whether it will be in the interests of Emma to have contact with her father on a physical basis in the future.

[19] For these reasons I do not consider that it would be open to me, sitting as an appellate court to hold that it was in the interests of Emma that an order for contact should be made. The appeal consequently falls to be refused.