United Kingdom House of Lords Decisions

Sanderson v. McManus [1997] UKHL 1 (6th February, 1997)

LORD GOFF OF CHIEVELEY

My Lords,

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

LORD MUSTILL

My Lords,

    I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Hope of Craighead. For the reasons that he gives I would dismiss this appeal.

LORD SLYNN OF HADLEY

My Lords,

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

LORD HOPE OF CRAIGHEAD

My Lords,

    This is an action by an unmarried father for access to his child. It was raised four years ago in the Sheriff Court at Edinburgh. The action was defended by the child's mother on the ground that it was not in the child's best interests that the pursuer should have access to him. The child was born on 11 April 1989 while the pursuer and the defender were living together. About six months after he was born the child's parents separated. For a time they resumed living together, but in January 1991 they ended their relationship. The defender then formed an association with another man with whom she was living when the action came up for proof and whom she has now married. The child saw the pursuer on a number of occasions in 1993 following orders which were made by the Court awarding the pursuer interim access. The last such occasion was on 31 July 1993. On 19 August 1993 the Sheriff held, after proof, that it was not in the child's best interests for the pursuer to have access to him. As a result the arrangements for interim access were brought to an end. On 28 January 1994 the Sheriff Principal 1994 S.C.L.R. 537, after hearing further evidence, agreed with the Sheriff on this point and refused the pursuer's appeal against the Sheriff's interlocutor. On 13 July 1995 an Extra Division (Lord Weir and Lord Brand, Lord McCluskey dissenting) 1996 S.L.T. 750 refused the pursuer's appeal against the interlocutor of the Sheriff Principal. That decision is now the subject of a further appeal by the pursuer to your Lordships' House.

    The resolution of a dispute about access is in almost every case a matter for the court of first instance. So much depends on the facts and on the impression which is made on the judge by the parties to the dispute when they come to give evidence. An appeal court which has not had the advantage of seeing and hearing the witnesses will always be slow to disturb the decision which has been taken on the facts by the judge. The rules defining the proper approach of an appellate court to the consideration of a decision on fact by the court of first instance were described by Lord Macmillan in Thomas v. Thomas 1947 S.C. (HL) 45 at p. 59. That was an action of divorce, but what he said in that case applies with just as much force to disputes about access. If there is a succession of appeals the passage of time is likely also to give rise to difficulty. Decisions in these cases are taken in the light of the facts and circumstances as presented to the judge at the time of the proof. But circumstances change as the child gets older, and the parties to the dispute may change their ways and form new relationships. The greater the interval between the taking of the evidence from the witnesses and the hearing of each appeal the more unsatisfactory the situation is likely to become. The stronger will be the argument that the appellate court should not disturb the status quo, as can be seen from the decision of your Lordships' House in Brixey v. Lynas 1996 SLT 908. This is especially so where, as in this case, the effect of the order which was made at first instance was to refuse access. The child who is at the centre of this dispute was four years old when he last saw the pursuer. He is now aged seven, and he will be eight years old in a few months time. It would not be right for your Lordships, if minded to allow this appeal, simply to reverse the decision of the judge at first instance and order that the pursuer be awarded access to the child. At the very least some further inquiry would be necessary. This may bring new facts to light which may show that, whatever the position may have been four years ago, it would not now be in the interests of the child that the pursuer should be awarded access. So in almost every such case it is likely to be preferable, rather than pursuing a succession of appeals through the courts, to make a fresh application for access to the judge at first instance on the ground of a change in circumstances. It should be noted that, except in the case of an adoption order, no decision about parental rights is a final decision, because the child's welfare remains open to further consideration by the court throughout his childhood.

    This appeal however does not come before your Lordships as an appeal on the facts. It clearly could not do so, because section 32(5) of the Court of Session Act 1988 provides that the judgment of the Court of Session on an appeal to that Court after a proof in the Sheriff Court shall be appealable to this House on matters of law only. The Dean of Faculty was right therefore on the pursuer's behalf to accept all the findings of fact which were made in the Sheriff Court by the Sheriff as varied by the Sheriff Principal. He confined his submissions to two points only, which were the subject of debate in the Court of Session and on which Lord McCluskey expressed strong views in his dissenting opinion. The first related to the nature of the welfare test which is set out in section 3(2) of the Law Reform (Parent and Child) (Scotland) Act 1986. The second related to the question whether the Court was entitled, in reaching its decision about access, to have regard to the content of statements said to have been made by the child which were inadmissible as evidence of the truth of their contents because they were hearsay as the child did not give evidence.

    The hearing of this action in the Sheriff Court took an unusual course. When the case came before the Sheriff for a proof the pursuer had already been found entitled to interim access to the child. This was to be at an access centre each Saturday from 12 noon to 3.00 p.m. in terms of an order which had been made in his favour about four weeks previously. This was a variation of a previous order for interim access which had been made earlier that year. The Sheriff refused a motion by the defender on 16 July 1993 at the end of the proof, when he took the case to avizandum, for the order for interim access to be suspended. On 19 August 1993 he issued his final interlocutor, finding in fact and law that it was not in the best interests of the child that the pursuer should have access to him. The effect of that interlocutor was to bring the pursuer's right of access in terms of the interim order to an end. When the appeal came before the Sheriff Principal on 11 November 1993 he was informed that the pursuer had exercised access to the child on two occasions while the Sheriff's decision was at avizandum. He was told that on the second of these occasions which took place on 31 July 1993 there was some kind of an incident at the access centre, the details of which were in dispute. He decided, with the agreement of the parties' representatives, to hear evidence about this incident which was the subject of further findings of fact by him in addition to the findings already made by the Sheriff. He also varied the Sheriff's findings in the light of criticisms which he made of them on the ground that the Sheriff had based them on hearsay evidence. When the case came before the Extra Division therefore the Court had the benefit of the Sheriff's findings as varied by the Sheriff Principal together with the findings which the Sheriff Principal had made after hearing further evidence. The judges in the Extra Division were also faced with the fact that, after having seen and heard evidence from both the pursuer and the defender and other witnesses, the Sheriff Principal had reached the same conclusion as the Sheriff--namely, that it was not in the best interests of the child that the pursuer should have access to him. These were findings of fact by two judges at first instance on the paramount consideration to which the Court is required by section 3(2) of the Act of 1986 to have regard, which is the welfare of the child.

    The evidence which the Sheriffs accepted showed that the relationship between the pursuer and the defender was an unhappy one. There were a number of separations, as the defender frequently left the pursuer both before and after the birth of the child because of his violent and aggressive behaviour towards her. The final separation followed a further incident of violence, in the course of which the pursuer assaulted the defender and threw the child across the room. After the final separation access took place initially at the home of the pursuer's parents where a large number of other people were always present. On occasions a dog was also present, against the wishes of the defender who considered the dog to be dangerous. According to the pursuer's evidence things went reasonably well while the child was with him at his parent's house. But the Sheriff accepted the evidence of the defender and her witnesses that after access the child came home reporting abusive and derogatory remarks about her and that on occasions he behaved aggressively and out of character, both at home and at school. On about four occasions he returned from access visits bearing signs of minor injury. On the last occasion when access took place, which was on 31 July 1993 at an access centre, the child said after the period of access that the pursuer had hit him and pointed to his face. The pursuer denied hitting the child, but on his way home the child told the defender that the pursuer had hit him because he would not call him Daddy. He later said that the pursuer had hit him both to the defender's partner and to another close friend of hers. After this incident the defender decided that there should be no more access. The child has not had any contact with the pursuer since that date.

    The Sheriff made it clear in his note that he was satisfied that the things which the child reported to the defender and other witnesses after these periods of access had in fact happened or been said to him. He stated that this cast a deep shadow over the way in which access to the child had been exercised. It is not now disputed that the Sheriff was wrong to treat the child's statements in this way. Section 2(1)(b) of the Civil Evidence (Scotland) Act 1988 provides that in any civil proceedings a statement made by a person otherwise than in the course of the proof shall be admissible as evidence of any matter contained in the statement of which direct oral evidence by that person would be admissible. The problem in this case is that the child, who was aged four at the time when the statements were made and was aged five at the date of the proof, did not give evidence. The Sheriff was not asked to consider whether he was a competent witness at the date of the proof, nor was he asked to consider whether he was a competent witness at the time when the statements were made. For the reasons which were suggested in M. v. Kennedy 1993 S.C.L.R. 69, 78C-F and again in M. v. Ferguson 1994 S.C.L.R. 487, 492C-E, I consider that it would have been sufficient to satisfy the test of competency that the child was a competent witness at the time when the statements were made. But no attempt was made at the proof to examine this issue, and the appeals have been conducted throughout on the basis that the child's statements were inadmissible as evidence of the matters contained in them. The evidence of a child who is not a competent witness is not admissible: F v. Kennedy (No. 1) 1993 S.L.T. 1277 It was for this reason that the Sheriff Principal varied several of the Sheriff's findings in order to confine the findings in fact to a narrative of what the child was proved to have said without forming any conclusion as to whether what he said was or was not true.

    The Sheriff Principal, having held that the Sheriff was wrong to treat the child's statements as admissible evidence of the facts contained in them, said that the Court was nevertheless entitled, if satisfied that the statements were made, to consider them along with all the surrounding circumstances in order to see whether they could properly be regarded as colouring the other evidence. Among the surrounding circumstances which the Sheriff Principal had in mind were the age of the child, the frequency and character of the statements and such evidence as there might be to indicate whether they were made as the result of coaching or spontaneously. In the Extra Division (1996 S.L.T. 750 at p. 766I) Lord Weir, with whom Lord Brand agreed, said that in his opinion the Sheriff Principal was justified in having the limited regard which he did towards these statements, and that it would be entirely artificial to leave them out of account when forming an overall impression of the evidence. Lord McCluskey however said at p. 760E that, as the contents of the statements attributed to the child could not be used to establish the truth of what the child was reported to have said, it was far from clear what value, if any, could be given to the statements as proving anything. In his opinion the Sheriff was wrong to conclude that the fact that such statements were made by the child gave cause for concern that access by the pursuer to the child might be potentially harmful to him. As there was no evidence to suggest that the pursuer was responsible for the child saying these things, the Sheriff Principal had got the matter out of proportion and had drawn inferences of fact from the statements which were unwarranted. The Dean of Faculty submitted that, as the statements which the child made were inadmissible as evidence of the truth of their contents, they should have been disregarded entirely by the Sheriff Principal.

    The short answer to the point made by the Dean of Faculty is to be found in the fact that the evidence that the child made these statements was not in itself inadmissible. It was part of the evidence in the case, to which no objection was taken when it was being led from the witnesses. What the witnesses said about this was not hearsay, because they were describing what they themselves had observed about the child's reactions after the pursuer had had access to him. These consisted partly of actings by the child and partly of things which he said. It has not been suggested that the Sheriff was not entitled to take account of the way in which the child acted. In this situation I agree with both the Sheriff Principal and Lord Weir that it would have been artificial to leave out of account what the child said, so long as the evidence was that these statements were spontaneous. What the child said was simply another aspect of the child's behaviour which the court was entitled to take into account when having regard to his welfare. The weight to be attached to such statements must of course depend on the circumstances. This is a matter which must be left to the judge of fact to decide. He must be careful, when deciding what weight to attach to such statements, to distinguish between the making of the statements and the truth of their contents. But the fact that the statements cannot be used to establish the truth of their contents does not mean that they are of no value as evidence. As an indication of the child's state of mind, they may be as revealing as the child's actings. There is no rule of law which prevents the judge from taking such statements into account along with other evidence about the child's behaviour, when forming a view as to whether it is in the best interests of the child that access should continue or whether it should be brought to an end.

    The principal issue to which the Dean of Faculty then addressed his argument was that the Sheriff, the Sheriff Principal and the majority in the Extra Division had all misdirected themselves in law about the test to be applied when determining applications relating to access under section 3(2) of the Act of 1986. He submitted that the traditional approach had always been to regard retaining links between a child and his natural parents as being in the child's best interests and conducive to the welfare of the child. This was a principle, or at least a factor, to which the Court was bound to have regard. In a case where the considerations were evenly balanced an order for access should be made, as not to make such an order would be to leave this important factor out of account. In the present case the pursuer was not married to the child's mother, but this did not affect the importance of maintaining the link between the natural father and the child. Although the effect of section(1)(b) of the Act of 1986 was that the pursuer had no parental rights under the statute, he was nevertheless the father of the child. From the child's point of view it was irrelevant whether his father and mother were ever married to each other, in view of the natural link which existed between him and each of his parents.

 

    It should be noted that sections 2-4 of the Act of 1986 were repealed by section 105(5) of and Schedule 5 to the Children (Scotland) Act 1995. With effect from 1 November 1996 the relationship between parent and child, which is now expressed in terms of parental responsibilities and parental rights, is regulated by the provisions of Part I of the Act of 1995. The factors to which the court must have regard in considering whether or not to make an order relating to parental responsibilities and parental rights are those set out in section 11 (7) of that Act. But section 15(2) of the Act of 1995 provides that no provision in that part of the Act shall affect any legal proceedings commenced before that provision comes into effect, except where there has been a final decree in a cause in which an order for custody or access has been made. So we are concerned in this case with the provisions of the Act of 1986, and in particular with the effect of the provisions to be found in section 3(2) of that Act. No submissions were made to us about the effect, if any, of the difference in wording between the provisions of that sub-section and section 11(7) of the Act of 1995. In these circumstances it would not be right for me to express any views on this point. But I should not like my silence to be taken as indicating that I consider that the new statutory test is different in any respect from that which was provided by section 3(2) of the Act of 1986.

    Section 3 of the Act of 1986 is in these terms:

    "1. Any person claiming interest may make an application to the court for an order relating to parental rights and the court may make such order relating to parental rights as it thinks fit.

    2. In any proceedings relating to parental rights the court shall regard the welfare of the child involved as the paramount consideration and shall not make any order relating to parental rights unless it is satisfied that to do so will be in the interests of the child."

    The expression "parental rights" is defined in section 8 as meaning guardianship, custody or access, as the case may require, and any right or authority relating to the welfare or upbringing of a child conferred on a parent by any rule of law. The defender as the child's mother has parental rights in relation to the child under section 2(1)(a) of the Act. The pursuer does not have parental rights, because section 2(1)(b) says that a child's father shall have parental rights only if he is married to the child's mother or was married to her at the time of the child's conception or subsequently. But it is not and could not be disputed that he has a sufficient interest as the child's father to apply to the court for an order for parental rights in relation to the child. Nor is it disputed that an application for parental rights can be made, as has been done in this case, for the making of an order in regard to only one of the various rights which fall within the category of parental rights as defined by the Act.

    The issue relates to the meaning and effect of section 3(2) of the Act. This sub-section states that the welfare of the child is the paramount consideration. It does not say what other considerations may or may not be taken into account. But the court is told that it shall not make any order relating to parental rights unless it is satisfied that to do so will be in the interests of the child. The scope of the court's powers is indicated by the concluding words of the previous sub-section, which states that the court may make such order relating to parental rights as it thinks fit.

    In my opinion the effect of sub-section (2) is clear. The court is given a wide discretion as to the considerations pointing one way or the other which it may take into account. But all other considerations must yield to the consideration which is stated by the sub-section to be paramount, which is the welfare of the child. As it is told that it "shall not" make any order relating to parental rights unless it is satisfied that "to do so" will be in the best interests of the child, the onus is on the party who seeks such an order to show on balance of probabilities that the welfare of the child requires that the order be made in the child's best interests. It is of course true, as Lord Weir pointed out in this case, that questions of onus usually cease to be important once the evidence is before the court. The matter then becomes one of overall impression, balancing one consideration against another and having regard always to the consideration which has been stated to be paramount. The court must however be able to conclude that it would be in the child's best interests that the order should be made. If it is unable to come to that view, the proper course for it to take is to make no order.

    The point which was made by Lord McCluskey in his dissenting opinion in this case, which the Dean of Faculty invited us to follow, was this. In his view the link between the child and each of his natural parents is so important in itself that, unless there are very strong reasons to the contrary, it should be preserved. It is a link which has an intrinsic value quite independent of any supposed "right" of a parent to obtain an order from the court allowing access to his or her child. The alteration which section 3(2) of the Act of 1986 made to the previous law was thus purely procedural. It did not alter the fundamental point that, unless there are strong reasons to the contrary, it is in the best interests of the child to maintain links with his natural parent and that the maintaining of such a link is conducive to the welfare of the child. It was this approach which led him to express strong views at the outset of his opinion about the effect of the decisions taken in the Sheriff Court, which he saw as being that all contacts between the child and his father were to be severed permanently.

    I do not think that it would be accurate to view the effect of the interlocutors which have been pronounced in this case as being to sever all such contacts permanently. A person who has an interest to do so can renew his application for parental rights in relation to a child at any time throughout his childhood on proof of a change in circumstances. The practical effect of a previous unsuccessful application may be of course to make it unlikely that any different order would in future be made. But when disposing of an application under section 3(1) of the Act of 1986 the court has always to proceed on the facts and circumstances which are before it for the time being in the evidence. It must ask itself whether, at the time when the decision has to be taken, it is in the child's best interests that the order should be made. Unlike an adoption order, the effect of which is to vest the parental rights and duties relating to the child in the adopters permanently, an order under section 3(1) is always open to review if there is a material change in circumstances. The question whether there should be contact between the child and his natural parent thus remains an open question throughout his childhood, unless it is resolved by the making of an adoption order. I should add that the making of such an order in the present case is now a possibility, as the defender and her husband have now commenced proceedings to adopt the child.

    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 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 1986 S.L.T. 105. In that opinion, which he delivered on 27 April 1984 before the Act of 1986 was enacted, 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. The child in that case, which was an action of divorce, was only 18 months old. He had had almost no contact with his father, who had seen him only twice very briefly. The mother was adamantly opposed to access, and the judge was satisfied that any attempt at access at that time would only sustain this hostility and that the child would sooner or later sense it and suffer thereby. The only reason given for the father's application was that he was the father of the child. Lord McCluskey has disputed the view, which hitherto has 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. This was the approach which was accepted by Sheriff Gordon in Russell v. Russell 1991 S.C.L.R. 429: see also Montgomery v. Lockwood 1987 S.C.L.R. 525, where Sheriff Principal R.R. Taylor Q.C. said that the pursuer had no right of access to the child unless the court granted it and that the court could not make any order unless it was satisfied that to do so would be in the interests of the child.

    The pursuer's position in the present case is of course different from that of the father in Porchetta. There has been contact between him and his son, although he and the defender were never married to each other. But these considerations only serve to emphasise that the facts of each case may vary from one extreme to the other and that there will be an infinite variety of circumstances in between. 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 decisions taken by both the Sheriff and the Sheriff Principal in this case have also been criticised because neither of them made any mention in their notes of this natural link or of the importance, if any, which they attached to it. But the Sheriff said that he had the impression that the pursuer was thinking in terms of his own rights as the child's natural father, rather than what was best for the child. It is implicit in his criticism of the pursuer and his whole approach to the case that he understood that the point of the pursuer's application was his wish as the child's father to preserve the natural link. The issues to which the Sheriff and in his turn the Sheriff Principal directed their attention were the issues which related to the fundamental question as to whether it was in the best interests of the child that access should be allowed in order that this link should continue. At the end of the day the case was not decided by either the Sheriff or the Sheriff Principal on questions of onus. They reached the conclusion in the light of all the evidence that it would not be in the best interests of the child for the pursuer to have access to him. I agree with Lord Weir that the Sheriff Principal in particular, who looked at the whole matter afresh in the light of his variations to the Sheriff's findings and his own findings on the evidence, was justified in the view which he reached that access would not be beneficial to the child but might be harmful. In these circumstances the Court of Session would not have been justified in interfering with the decision taken by the judges at first instance in the Sheriff Court.

    For these reasons I would affirm the interlocutor of the Court of Session and dismiss this appeal.

LORD CLYDE

My Lords,

    I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hope with which I agree. I wish only to add a few words of my own on the principal point in the appeal.

    The development of the law relating to parents and children in Scots law over the last hundred years has seen a movement away from a consideration of the rights of parents to the custody of or access to their children to a recognition that priority has to be given to the interests and welfare of the child. This development can be traced through the principal legislation from the Guardianship of Infants Act 1886, through the Guardianship of Infants Act 1925 and other statutes, to the Law Reform (Parent and Child) (Scotland) Act 1986. The latest formulation is to be found in section 11(7) of the Children (Scotland) Act 1995. Lord Dunpark's decision in Porchetta v. Porchetta 1986 S.L.T. 105 finds its place in this development in anticipation of the Act of 1986. The requirement in the formulation propounded both by him and by section 3(2) of the Act of 1986 is that the Court has to be "satisfied" that the granting of the order which is sought will be in the interests of the child. That requirement does not necessarily involve the formal leading of evidence. The particular circumstances will dictate what is or is not required to satisfy the court in particular cases. Section 3(2) infers at least an evidential burden on the person seeking an order to produce the material to support his or her case. But true questions of the burden of proof will almost invariably fade into insignificance after any inquiry and it is evident that the burden of proof was not a determinative consideration in the present case.

    One factor which unquestionably has to be considered by the court from which a parent seeks an order is that of maintaining the link between parent and child. In many cases regarding opposed orders for custody or access that consideration will be at the heart of the dispute. In many cases it may well be proper to regard it as a factor of the very greatest weight. On the other hand the unusual case cannot be excluded where in all the circumstances it may be proper in the interests of the child to exclude access to a parent. Thus for example, where there has been no absolute commitment to a lasting relationship, as may be affirmed by a marriage, and where the relationship as a result of which the child came to be born has terminated, and where the mother has entered into a new partnership which is intended to be permanent and which can provide the child with a secure background, there may be circumstances where that unusual course of refusing access to the father may be justifiable in the interests of the child. Article 9.3 of the United Nations Convention on the Rights of the Child indeed recognises that the right of the child to maintain regular relations and contact with both parents is subject to exception where that would be contrary to the child's best interests. On the facts found in this case I agree that the lower courts were entitled to refuse access to the appellant.