United Kingdom House of Lords Decisions

Parliamentary Archives,
HL/PO/JU/19/257

Brixey v. Lynas





JUDGMENT

Die Martis 2° Julii 1996

Emma Louise Brixey brought an action against Michael James Patrick Lynas in the sheriffdom of Glasgow and Strathkelvin at Glasgow in which she sought custody of their child, Kelliann Constance Lynas. The father brought a cross action, also craving custody. The actions were conjoined.
The mother was granted a custody order ad interim.
A proof was heard before the sheriff (G H Gordon, QC) who, at advising on 21 July 1993, recalled the interim award and pronounced decree of custody in favour of the father. The facts ascertained at proof are sufficiently set forth in the speech of Lord Steyn.
The mother appealed to the sheriff principal (N D MacLeod, QC). At advising, on 23 September 1993, the sheriff principal adhered to the interlocutor of the sheriff and refused the appeal.
The mother appealed to the Court of Session.
The cause called before the First Division, comprising the Lord President (Hope), Lord Allanbridge and Lord Morison for a hearing.
At advising, on 24 June 1994, the First Division allowed the appeal: 1994 SC 606.
The father appealed to the House of Lords.

Cler: Parliamentor:

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

BRIXEY

v.

LYNAS

(ON APPEAL FROM COURT OF SESSION)

ON 4 JULY 1996

Lord Keith of Kinkel
Lord Jauncey of Tullichettle
Lord Mustill
Lord Nicholls of Birkenhead
Lord Steyn




LORD KEITH OF KINKEL

My Lords,

My Lords, for the reasons given in the speech to be delivered by my noble and learned friend Lord Jauncey of Tullichettle, which I have read in draft and with which I agree, I would dismiss this appeal.

LORD JAUNCEY OF TULLICHETTLE

My Lords,

My Lords, this appeal relates to the custody of a four year old illegitimate girl. It raises no question of legal principle and is devoid of merit.




The facts may be briefly stated. The child, K, was born on 21 May 1992 to the mother ("the appellant") as a result of an association with the father ("the respondent"), which had started while he was at school in Fort Augustus and continued after he left in July 1991. At the date of K's birth the mother was 20 and the father 18. The mother already had an older daughter by another man. At the invitation of the father's parents the parties, with K, moved to live with them in Rutherglen but the relationship came to an end on 21 September 1992 when they separated, the father having by subterfuge removed K. Both parties then raised actions in the Glasgow sheriff court for custody and the mother obtained an interim order for the delivery of K to her mother's house in the Black Isle. K has lived with the mother and the older child ever since, first in the Black Isle and later in another part of Easter Ross, but the father has had periods of access to her for a week during each month at his parents' house in Rutherglen. On 21 July 1993 the sheriff, after proof in the conjoined actions, awarded custody of K, who was then 14 months old, to the father. The mother appealed the interlocutor in her action to the sheriff principal who refused the appeal. On her further appeal to the Court of Session the First Division, by interlocutor of 24 June 1994, recalled the interlocutors of the sheriff and the sheriff principal and awarded custody of K to the mother. Against this interlocutor the father now appeals.


- 1 -

The sheriff found as a fact that apart from being subject to respiratory infections K was happy, healthy and well cared for in the mother's house. In his note he drew attention to the different social backgrounds from which the parties came. The father was, he said, comfortably middle class, while the mother had had none of the educational and social advantages which he had had. The mother's lifestyle was not particularly stable although that was not unusual for a person of her background. However he concluded that were the mode of life of each parent much the same he would not think that there were sufficient grounds for separating the child from her mother and sister. He then continued, in a passage which I shall quote in full: "But if the child were to be in the custody of the father she would become part of the Lynas family, and as member of that family she would have all the advantages of comfort, education and a strong and stable moral framework which they can offer. The decision is Solomonic in its difficulty, and I lay no claim to Solomon's traditional wisdom. I have however come to the view that I should not deprive the child of the advantages which the accident of her paternity make available to her, and that in the end of the day it is in her best interests that her father be awarded custody. I appreciate that it would be possible for the Lynas family to provide for the child's education, etc even if the father did not have custody, but I do not see the child being able to take advantage of such help if she remains with her mother. I appreciate, too, that there is a sense in which what I am saying represents an award of custody to the Lynas family or to Mrs Lynas as much as to the father. I think, however, that the best way of serving the child's interests at this stage is to award custody to the father." He concluded that to transfer K at that stage of her life to an unfamiliar environment would not cause her any significant emotional distress.

In delivering the opinion of the First Division Lord Morison, after referring to the restrictions imposed on an appellate court in disturbing the conclusions of a sheriff as to the child's best interest, continued at 1994 SC, pp 608/609:

"However, in determining whether the sheriff has failed to take sufficiently into account any significant factor, it is legitimate for this court to have regard to any general practice, approach or principles which may be derived from a consideration of previous cases dealing with the custody of young children. A number of cases were cited to us, which are referred to in Wilkinson and Norrie's recently published textbook The Law Relating to Parent and Child in Scotland at pp 211 et seq, under the heading 'Mother's Custody of Child of Tender Years'."

After stating the names of the cases cited, Lord Morison continued:

"These cases amply justify the submission contained in Wilkinson at p. 211 that: 'In the case of very young children a certain preference for the mother, ... is ... defensible.' This principle is expressed in a variety of different ways in the cases referred to, and with differences of emphasis to which we see no need to allude. But it is in our opinion quite clear, as we understood to be conceded on behalf of the respondent in the present case, that it has been and remains the practice of the courts in Scotland to recognise as an important factor which has to be fully taken into account in a dispute concerning custody between the mother and father of a very young child, that during his or her infancy the child's need for the mother is stronger than the need for a father. This principle should not be regarded as creating any presumption in favour of the mother, nor, certainly, as a rule of law. But nonetheless there is a generally recognised belief that a mother is ordinarily better able, for whatever reason, to minister to a very young child's needs than is a father."

"It is also clear from the cases cited that this general preference in favour of the mother is substantially strengthened if preservation of the status quo also favours her case for custody. If, as in the present case, the infant has been in the mother's care since birth and is, as the sheriff found, 'happy, healthy and well cared for' the correct approach is that referred to in Wilkinson at p 212, viz: 'it may therefore be better, especially where the mother has until the dispute arose had the child in her care, for the child to be in the mother's custody rather than to embark on the risks inherent in the father's fulfilling a maternal role or in the creating of a new relationship in which there will be a surrogate mother'."

"The opinion at p 608 expressed the view that in holding the advantages of the father's background to be decisive the sheriff failed to balance these advantages against the important general considerations above referred to. It went on to point out at p 610 that nowhere in his note did the sheriff address the benefit to be gained by leaving the child in her present environment and particularly the advantages of maternal care, and concluded at p 611 that the court must take account of this omission. The opinion further criticised the sheriff for failing to have regard to the consequences of material changes which were likely to occur in the future, for example if the father were to marry or move out of his parents' house unmarried. Having concluded that the sheriff had failed to have regard to the foregoing important matters the First Division considered that the matter was at large for their determination. They decided that it would not be in K's best interest to be removed from the care of her mother and stated, at p 611/612: "In particular, we consider that the advantage of maternal care both in the short and in the long term, rather than care by a female substitute such as the paternal grandmother, the advantage of the child continuing her association with the half sister , and the advantage of maintaining the status quo which has successfully existed since the chid's birth, outweigh those advantages to which the sheriff referred and which are of uncertain duration."

Counsel for the father argued what he described as two main points of principle, namely (1) that it was not enough to overturn the conclusion of the judge of first instance who had seen and heard the witnesses, that he had attached inadequate weight to particular facts; rather it had to be shown that the decision amounted to an error in principle, and (2) that there was neither principle nor practice in Scotland whereby during its infancy a child's need for its mother was stronger than for its father. So far as the first point is concerned it is quite clear, from the consideration of the opinion of the First Division and in particular of the following passage at p 610: "But he nowhere in his note addresses himself specifically to the benefit to be gained by leaving the child in her present environment, and particularly to the advantages of maternal care, rather than a substitute for it, either now or during the period in which she is growing up", that the court was concerned not only with the weight which the sheriff attached to certain facts but with his failure to have regard at all to important considerations. This first point therefore fails.
Counsel for the father's main attack, however, which he advanced with vigour, was concentrated upon what he described as the maternal preference and the sexual prejudice which this was said to involve. He first of all criticised the use of the word "principle" by Lord Morison in the context of there being a preference for the mother in the case of very young children, and argued that he had made selective and unjustified use of certain passages in Wilkinson and Norrie's recently published The Law Relating to Parent and Child in Scotland (1993). If Lord Morison had intended to state a principle of law there might have been substance in the criticism, but when the relevant passage is read as a whole it is clear that he was at pains to point out that it created neither presumption nor rule of law but rather that it accorded with general belief.
Looking at this passage as a whole, I should have thought that it did little more than state what sensible people with experience of the world, if all other things are equal, consider to be a natural fact of life. Counsel sought further support for his attack on the alleged principle in an article entitled "Mother Knows Best" by Elaine Sutherland, a senior lecturer in private law at Glasgow University (1994 SLT (News) 375), in which the author criticised the approach of the First Division in this case to maternal preference, stated (p 377) that it had not been the case that there "has been and remains the practice of the courts in Scotland", to accept the maternal preference, and concluded that the acceptance of such a preference ran against the accepted principle of viewing each child as an individual and non-discrimination. So far as the practice of the courts in Scotland is concerned this House must be guided by the First Division which, in my view, must be credited with at least as much practical knowledge of what goes on in the Scottish courts as the learned author. When she states (p 378): "To place any stress on a maternal preference is to diminish the recognition of the child's individual circumstances", and later refers to "non-discrimination", I cannot help feeling that these views begin to transcend the bounds of common sense. To ignore entirely the fact that in normal circumstances, and I stress the word normal, a mother is better able than a father to fulfil the needs of a very young child is to ignore what is generally accepted to be reality. Furthermore any suggestion that Lord Morison was over selective in his citation from Wilkinson and Norrie is unfounded. The part of the work at pp 211-212 headed "Mother's Custody of Child of Tender Years" is very well balanced and the passage cited by Lord Morison is entirely in tune with other observations by the authors such as that in the early years of a child the need for a mother or mother substitute is almost certainly stronger than the need for a father.
Counsel for the father referred to English cases in support of his attack on maternal preference. In Re S (A Minor) (Custody), Butler-Sloss LJ in the Court of Appeal said at p 390F:

"There are dicta of this court to the effect that it is likely that a young child, particularly perhaps a little girl, would be expected to be with her mother, but that is subject to the overriding factor that the welfare of the child is the paramount consideration."

She later stated at p 390H:

"I would just add that it is natural for young children to be with mothers but, where it is in dispute, it is a consideration but not a presumption."

In Re A (A Minor) (Custody) the same Lord Justice stated at p 400A:

"In cases where the child has remained throughout with the mother and is young, particularly when a baby or a toddler, the unbroken relationship of the mother and child is one which it would be very difficult to displace, unless the mother was unsuitable to care for the chid. But where the mother and child have been separated, and the mother seeks the return of the child, other considerations apply, and there is no starting-point that the mother should be preferred to the father and only displaced by a preponderance of evidence to the contrary."

My Lords, in my view these cases do nothing to support counsel's argument. Butler-Sloss LJ with her great experience of family cases accepts that it is natural for young children to be with their mothers, and in the above passage in Re A, which is particularly relevant to this case, she points to the difficulty of displacing an unbroken relationship between a mother and a very young child unless the mother is unsuitable to have care.
The paramount consideration in any dispute as to custody is the welfare of the child (sec 3(2) of the Law Reform (Parent and Child) (Scotland) Act 1986). To determine what is in the best interests of a very young child, regard must necessarily be had to its relationship with the mother with whom it is living. To suggest that any recognition of the normal mother's natural ability to look after a very young child amounts to sexual discrimination is absurd. Nature has endowed men and women with very different attributes and it so happens that mothers are generally better fitted than fathers to provide for the needs of very young children. This is no more discriminatory than the fact that only women can give birth. Every case must be considered on its own facts. There will be cases where the mother is wholly unfitted to care for even the youngest child and the court will proceed accordingly. There will be other cases where the child is older and the matter is finely balanced. However here the child is very young, has never been separated from its mother or half sister for any significant length of time, and it is not suggested that the mother is unsuitable to care for her. In that situation the advantage of continued care with the mother without disturbance of the status quo must be an important factor to be taken into account.
At the time of the sheriff court proof K, who was only 14 months old, had been with her mother since birth apart from the periods of access enjoyed by the father. Her home was with her mother and half sister where she was happy, healthy and well cared for. In awarding custody to the father the sheriff was clearly much influenced by the advantages moral and particularly material which he considered would accrue to K from becoming a member of the father's family. He did not, as Lord Morison pointed out at p 610, specifically address the benefit of leaving K where she was with the availability of maternal care, nor did he address the situation which would arise in the long term if the father, who was then unemployed, were to obtain employment and/or leave the family home, but rather accepted that he was granting custody to the father's family or to his mother as much as to the father. Given that the mother's care for K was not criticised the sheriff undoubtedly erred in not addressing the advantages of the status quo when considering the advantages of an upbringing in the father's family, which would in effect involve substituting the paternal grandmother for the natural mother. It follows that the First Division were fully justified in interfering with the sheriff's decision and in substituting therefor a decision of their own.
Counsel for the father argued strenuously that if maternal preference was a relevant consideration it could not apply in this case where the sheriff had seen and heard both parties in the witness box and treated them as individuals. I believe this to be too simplistic an approach. If the sheriff had addressed himself to the matters above referred to and had nevertheless concluded that the advantages offered by membership of the father's family were so great as to outweigh any advantage in maintaining the natural maternal link or the status quo, there might have been some substance in the argument. However this he did not do but rather appears to have omitted to bring these important factors into the balancing exercise.
My Lords, to summarise, the advantage to a very young child of being with its mother is a consideration which must be taken into account in deciding where lie its best interests in custody proceedings in which the mother is involved. It is neither a presumption nor a principle but rather recognition of a widely held belief based on practical experience and the workings of nature. Its importance will vary according to the age of the child and to the other circumstances of each individual case such as whether the child has been living with or apart from the mother and whether she is or is not capable of providing proper care. Circumstances may be such that it has no importance at all. Furthermore it will always yield to other competing advantages which more effectively promote the welfare of the child. However where a very young child has been with its mother since birth and there is no criticism of her ability to care for the child only the strongest competing advantages are likely to prevail. Such is not this case.
For the foregoing reasons I would dismiss the appeal. There will be no order as to costs.

LORD MUSTILL

My Lords,

I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Jauncey of Tullichettle. For the reasons he gives I too would dismiss the appeal.

LORD NICHOLLS OF BIRKENHEAD

My Lords,

I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Jauncey of Tullichettle and for the reasons he gives I too would dismiss this appeal.

LORD STEYN

My Lords,

I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Jauncey of Tullichettle. For the reasons he gives I too would dismiss the appeal.