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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Muirhead v MG [2007] ScotCS CSIH_77 (31 October 2007)
URL: http://www.bailii.org/scot/cases/ScotCS/2007/CSIH_77.html
Cite as: [2007] CSIH 77, [2007] ScotCS CSIH_77

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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

 

Lord Osborne

Lord Nimmo Smith

Lord Carloway

 

 

 

 

 

 

[2007] CSIH 77

XA214/06

 

OPINION OF THE COURT

 

delivered by LORD OSBORNE

 

in

 

APPEAL

 

from the Sheriffdom of Glasgow and Strathkelvin at Glasgow

 

in the cause

 

THOMAS LOGAN MUIRHEAD

Pursuer and Appellant;

 

against

 

M.C.G.

Defender and Respondent:

 

_______

 

 

 

Act: Party (Pursuer and Appellant)

Alt: Miss Dowdalls, Advocate; Balfour & Manson, Edinburgh (for Levy & Macrae, Glasgow) (Defender and Respondent)

 

31 October 2007

 

The background circumstances

[1] From about February 1999 until about August 1999 the appellant and the respondent had a relationship. In or about November 1999 the respondent discovered that she was pregnant. She gave birth to a female child, E, who was born on 15 May 2000. It is common ground that E is the daughter of the appellant who is named as her father in the Register of Births. In or about December 1999, the appellant travelled to Australia, remaining there for a period of time. However, about one week after the birth of E, the appellant visited the respondent and the child. Thereafter he had contact with the respondent and E on several occasions in relation to the carrying out of DNA testing, at the appellant's request. Subsequently, the appellant returned to Australia. Prior to his departure, he informed the respondent that he had decided to return to Australia for two years. He said that he did not wish to be involved in E's care and upbringing for the first two years of her life. He stated that discussions about E's future would take place upon his return in two years' time. Thereafter there was no contact between the appellant and the respondent until about July 2001 when the appellant telephoned the respondent to request contact with E. She agreed to that request. The appellant spent several hours with E in the company of mutual friends. Thereafter the appellant informed the respondent that he would see E again in about one year's time. In or about May 2002, the appellant again telephoned the respondent, seeking to discuss E's future. Because of the particular circumstances at the time when this telephone call was received, the respondent was not able to discuss these matters. Following upon that, e-mails were exchanged between the appellant and the respondent. There was no further direct contact between them until December 2002, when a meeting was arranged to take place at the respondent's father's home to discuss future contact arrangements. The meeting lasted about one hour. The appellant saw and spent some time with E then. The appellant's attitude at the meeting was assertive and dogmatic. He insisted upon an equal sharing of E's care. Eventually the respondent asked the appellant to leave. Since then, all correspondence relating to E has been conducted through solicitors. The appellant has had no contact with E since December 2002.

[2] The respondent became friendly with one T.M., during her pregnancy with E. Their relationship deepened and, after about a year, they set up home together. The respondent gave birth to T.M.'s son, H, on 13 January 2004. The respondent and T.M. were married on 6 January 2005. He is a chartered surveyor aged 35 years. E regards T.M. as her father. She has no knowledge of the existence of the appellant.

[3] In the present action, raised in the Sheriff Court in Glasgow, the appellant seeks principally two remedies. The craves concerned are in the following terms:

1. To make an order imposing upon the pursuer all parental responsibilities and

giving to him all parental rights as provided for in sections 1, 2 and 11 of the Children (Scotland) Act 1995 in respect of the child E G M and to make such an order ad interim.

2. To make an order allowing the pursuer to have direct contact with the said

child E G M each Wednesday and/or Saturday between the hours of 2 p.m. and 4 p.m. or during such other periods as the court sees fit.

The action was defended by the respondent.

[4] Following the raising of the action, quite elaborate pleadings were prepared. The respondent tabled two preliminary pleas, but these were not debated. A proof before answer before the sheriff was held over a period of days, commencing on 14 July 2005. The procedure followed was that, at the outset, the sheriff canvassed the suggestion of ordaining the respondent to lead at the proof. She narrates in her judgment that she did this since she considered that the appellant would have been disadvantaged had he been required to do so. She records that it was agreed that the ordaining of the respondent to lead was appropriate. Evidence was heard from the respondent herself, from Mr. T M, from B M, a close friend and former flat-mate of the respondent, and W G, the father of the respondent. Surprisingly, in view of the nature of the appellant's action and the state of the pleadings, in which a range of matters were formally the subject of dispute, the appellant elected not to give evidence. He led no evidence from any witness. It is therefore no surprise that the sheriff observes in her Note at page 87 of the appeal print:

"I know nothing about E's biological father other than the facts revealed in the course of the evidence for the defender and from the productions referred to in evidence."

[5] In her judgment the sheriff makes 34 findings in fact, inevitably based upon what was admitted and upon the evidence that she heard, described above. These findings in fact deal with a range of matters, including the contact between the parties and between the appellant and E. The sheriff also makes two findings in fact and law in the following terms:

"(1) That an order imposing upon the pursuer all parental responsibilities and giving to him all parental rights as provided for in sections 1, 2 and 11 of the Children (Scotland) Act 1995 in respect of the child E G M should not be made.

(2) That an order allowing the pursuer to have contact with the said child E G M should not be made."

[6] The sheriff has also furnished a Note in which she clearly explains the reasons for her decision. At page 87B-C the sheriff observes:

"The present arrangements for E's care and upbringing are entirely satisfactory. E is a happy child and she has all the advantages of a child-centred family unit. E regards Mr. M as her father and he treats her as his child. Mr. M presented as a mature, well balanced individual, who takes the responsibilities of family life seriously and whose primary concern is for the welfare of his wife and family. E has a close bond with her maternal grandfather who spoke with great tenderness and a sense of humour about her strength of character. E loves her mother, whose love for E is unconditional."

Dealing with the position taken up by the appellant at the proof, the sheriff records at pages 86D-87B of the appeal print:

"The pursuer explained that the reason he had chosen not to give evidence and not cross-examine the defender's witnesses was that he recognised that positive things had emerged from the defender's evidence. In particular, he said he was pleased that the defender acknowledged he behaved 'impeccably' when he had contact to [sic] E in July 2001. Furthermore he was pleased that the defender wanted E. to know who her father is and to know him as a person. The only outstanding question, the pursuer submitted, was when and how E should be told about him. He submitted that the process should start immediately. The process would be handled sensitively and properly by all those involved, including himself, and in a way that would serve E's best interests. The goal was to get him together with E as soon as possible, hopefully within the next four to five weeks. ...

The pursuer submitted that a Parental Rights and Responsibilities Order in his favour was appropriate having regard to the following factors: (a) financial support; (b) pursuing contact; (c) keeping arrangements; (d) presence at birth; (e) having his name on the birth certificate; (f) involvement in E's education; (g) degree of attachment between father and child; (h) the reason for his application. It was plain, he submitted, that he should be involved in discussions in relation to E's welfare and that he should actively participate in making decisions about her welfare."

[7] The sheriff, in deciding to reject the appellant's claim, expressed the following views at page 87D of the appeal print:

"The pursuer either cannot see, or chooses not to see that his behaviour is incompatible with the behaviour of a responsible and caring parent. The fact that he relied upon the factors listed (a) to (h) supra in support of his application for a Parental Rights and Responsibilities Order demonstrates his blindness to the history of his attitude towards E. I shall deal with each of these factors in turn.

(a) Financial Support

It can be said - and should be said - in the pursuer's favour that he contributed a lump sum payment of £2,000 towards preparation for E's birth and that he made payments of £600 per month as maintenance for E for about two years.

(b) Pursuing Contact.

The pursuer made it plain to the defender from early on that he had chosen not to participate in E.'s care and development for the first two years of her life. He saw her on a handful of occasions in the weeks following her birth; on one occasion in July 2001; and on another occasion in December 2002.


(c) Keeping Arrangements.

There were few arrangements to keep other than the pursuer's self-imposed exile from the first two years of E.'s life.

(d) Presence at Birth.

The pursuer was absent.

(e) Having his Name on E.'s Birth Certificate.

The pursuer would not countenance E.'s registration until DNA testing confirmed that he was her father.

(f) Involvement in E.'s Education.

There has been no involvement other than the pursuer's unsuccessful attempt to collect E. from nursery.

(g) Degree of Attachment.

E. has no awareness of the pursuer's existence.

(h) Reason for Application.

The reason appears to be that the pursuer wants E. to know about him now and to have contact with him now.

Unless and until the pursuer faces and deals with the reality of the catalogue of errors and misjudgements he has made in the past as a father, I can have no confidence that he has the ability to make appropriate decisions in relation to exercising parental rights and responsibilities. The pursuer has an almost astonishing lack of awareness or insight into the actual and potential consequences of his behaviour upon E.'s care and emotional and psychological development. I consider that the defender has dealt with the pursuer's behaviour with remarkable equanimity. I doubt that she could have shown such open-mindedness and tolerance but for her confidence in the stability and depth of her relationship with Mr. M.

The pursuer's crave for the full range of parental rights and responsibilities is inept. The facts and circumstances of this case demonstrate that the pursuer is unable or unwilling to consider E.'s best interests. In particular, the fact that he would have her be told now of her paternal parentage amply demonstrates a complete lack of understanding of and respect for E.'s innocence and sense of security. E. is entitled to be shielded from information with which she is too young to cope. I have no doubt that it is not in E.'s best interests to be informed of her paternal parentage at this stage of her life. It is not possible to say, with any certainty, when she might be sufficiently mature, emotionally and intellectually, to be made aware of this information. One can only speculate as to what her reaction to the information might be. I have every confidence that the defender and T.M. will deal with this sensitive issue in an appropriate, child focused manner."

The sheriff's decision was issued on 27 July 2005.

[8] Being dissatisfied with the sheriff's decision, the appellant appealed to the sheriff principal. In his judgment, extending to 19 pages, he gives details of the attack mounted by the appellant on the sheriff's findings in fact in that appeal. He deals with each point in turn, rejecting them all. He also deals with a range of other arguments advanced to him by the appellant. The sheriff principal refused the appeal to him. The appellant has now appealed to this court against the decision of the sheriff principal.


The hearing before us

[9] Before us, the appellant sought to support his extensive written grounds of appeal, which were focused almost exclusively on the decision of the sheriff, as opposed to that of the sheriff principal from which the appeal has, of course, been taken. He began by contending that the sheriff had erred by refusing to allow the appellant to object to evidence led by the respondent, under reference to what is recorded at page 49 of the extended notes of evidence at the proof. Looking at those notes, it is clear to us that what was attempted at that stage on the part of the appellant was an objection, not to a question, or even to a line of evidence, but rather to an answer, with which it seemed that the appellant disagreed, to a question which had been put to the respondent. Quite rightly, the sheriff rejected that objection. Her action, in so doing, in our opinion cannot be characterised as a refusal to allow any objections to be properly taken by the appellant. Nor can her decision be seen as indicative of bias on the part of the sheriff against the appellant, as he contended.

[10] The appellant also complained of the decision of the sheriff to order that the respondent should lead at the proof. In our view, having regard to the explanation given by the sheriff concerning that, her decision is redolent of her concern for the position of the appellant. In any event, the appellant agreed to the course suggested at the time. The suggestion that the sheriff was biased against him on that account and that a fair-minded and impartial observer of the proceedings would have so concluded is without any rational basis, in our opinion.

[11] The appellant went on to contend that, at the proof, he had been prejudiced by lack of fair notice in the respondent's pleadings of her position. The particular complaint was that there was no fair notice of the position taken up in evidence by the respondent that, in principle, she was not opposed to contact, but that contact would be premature until E. developed sufficient maturity to be able to understand human biology and the fact that her step-father, with whom she lived in family and whom she regarded as her father, was not her natural father. In our opinion, this submission possessed no merit whatsover. In the first place, in Answer 14 for the respondent in the record, at pages 23 to 24 of the appeal print, that very position of the respondent is outlined. It is there said:

"The pursuer has failed to maintain any relationship with E. He is a stranger to said child. His re-involvement in E.'s life would only serve to confuse and upset the said child who is too young to be able to understand the concept of biological father."

We regard it as clearly implicit in those averments that the appellant's re-involvement in E.'s life could become appropriate when the child reaches more mature years. Furthermore, if the appellant considered that the respondent's pleadings did not disclose the nature of her defence, he could have taken a plea to that effect, which he did not do. More particularly, the appellant could have objected to the line of evidence concerned, if he felt that he was prejudiced, or even sought an adjournment of the proof, to enable him to consider the implications of what had been said by the respondent. Finally, we consider that this submission possesses little force in a context in which the appellant elected not to give or to lead any evidence at all.

[12] The appellant also made certain submissions concerning alleged errors in the sheriff's findings in fact. It is our opinion that the sheriff was well entitled to make the findings that she did upon the basis of the uncontroversial features of the case, as they were revealed in the pleadings, and on the basis of the evidence led for the respondent, which the sheriff, not surprisingly, felt able to accept, there being no competing evidence. We reject the appellant's criticisms of the sheriff's findings in fact, agreeing with the sheriff principal's reasoning in this matter.

[13] The appellant sought to persuade us that the proof before the sheriff did not constitute a "fair and public hearing ... by an independent and impartial tribunal" within the meaning of Article 6(1) of the European Convention on Human Rights and Fundamental Freedoms, despite the fact that he also sought to contend that the Human Rights Act 1998 was, in some way, "invalid" as in conflict with European Community law. His contention appeared to be that European Community law had had the effect of incorporating the Convention in its entirety into British law upon the accession of the United Kingdom as a member of the Community.

[14] The Article 6 challenge advanced by the appellant appeared to be based, in large measure, on the sheriff's preparedness to allow the respondent to furnish her address in writing, as opposed to in oral evidence. We consider that that was an entirely unexceptionable exercise by the sheriff of her discretion, in all the circumstances. Had the appellant had any good reason to object to such a procedure, in our opinion, he should have done so, but did not. A further basis for the Article 6 challenge was the allegation that the sheriff had declined to allow a legitimate objection by the appellant to evidence. We have already rejected that same contention in another context.

[15] The appellant sought to base his Article 6 challenge on a range of other considerations none of which possess merit in our opinion. For example, he criticised, in this context, the decision of the sheriff to ordain the respondent to lead at the proof, although that was plainly to his advantage and, in any event he agreed to it.

[16] The appellant went on to challenge the lawfulness of section 3 of the Children (Scotland) Act 1995 and section 14 of the Registration of Births, Deaths and Marriages (Scotland) Act 1965, upon a basis which, so far as we understood it, in our opinion, possesses no legal merit and is completely misconceived. The basis appeared to be related to the terms of Article 18 of the European Community Treaty. Both of the enactments challenged, however, are legislative provisions of the Parliament of the United Kingdom, which we are bound to apply in this court. In any event, we do not consider that either of these provisions has a bearing on any issue properly arising in the present case.

[17] In the course of his submissions the appellant also sought to persuade us to make a reference to the European Court of Justice under Article 234 of the European Community Treaty. That Article provides, inter alia, as follows:

"The Court of Justice shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of this Treaty; (b) the validity and interpretation of acts of the institutions of the Community and of the ECB; (c) the interpretation of the statutes of bodies established by an act of the Council, where those statutes so provide. Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon."

[18] In our opinion, in the circumstances of this case, and having regard to the terms of that Article no referable issue has arisen in this litigation. In particular, we do not consider that any issue concerning the interpretation of the Treaty has arisen. No other possible basis for a reference was suggested. Thus, we consider that no reference could competently be made in this case. Further, under Rule of Court 65.2, the making of such a reference is a matter for our discretion. Having considered all that the appellant has said on this matter we decline to make a reference. The test we have to apply is whether a decision on a referable question of Community Law is necessary to decide the dispute between the parties. The question proposed by the appellant was in the following terms:

"Is the European Community Treaty to be interpreted as meaning that, whenever alleged inconsistencies with the European Community Treaty arise in an appeal, any national rule, procedural or otherwise, must be set aside to allow these alleged inconsistencies to be argued in front of the national courts?"

In our opinion, that question formulated by the appellant does not in fact raise a referable issue which is necessary for the decision in this case.

[19] The appellant went on to submit that a devolution issue had arisen in the present case, although no attempt has been made by him to raise such an issue by the appropriate means. So far as we understood what he was saying in relation to this matter, the contention appeared to relate to an alleged failure by the Scottish Parliament to enact legislation putting the unmarried fathers of children on the same basis as regards parental responsibilities and rights as would be a married father, until the enactment of the Family Law (Scotland) Act 2006, which did not have retrospective effect in relation to fathers whose status had been the subject of registration prior to the commencement of certain provisions of that Act. We are at a loss to understand how a failure on the part of the Scottish Parliament to legislate can be seen as giving rise to a devolution issue within the meaning of Schedule 6 to the Scotland Act 1998 which, in any event, at least at one stage in his argument, the appellant contended was "invalid".

[20] Finally, the appellant contended that section 3 of the Children (Scotland) Act 1995 was in conflict with Article XVIII of the Treaty of Union of 1707. No authority was put before us which satisfied us that this issue was justiciable before this court. In any event, we do not accept that that issue has any bearing on the resolution of the only issue in the present case, that is to say, whether it was in the best interests of the child E. that the appellant should have contact with her, when that issue was litigated before the sheriff in 2005.

[21] Counsel for the respondent submitted that the appeal should be refused. She dealt with all of the submissions made by the appellant and demonstrated to our satisfaction that they possessed no merit. In the whole circumstances we shall refuse this appeal.

 

Some observations by the court

[22] In Sanderson v McManus 1997 SC (HL) 55, the House of Lords had occasion to deal with a case involving an unmarried father, who had brought an action in the Sheriff Court for access in respect of his child. At pages 57 and 58, Lord Hope of Craighead made certain observations which, we consider, deserve to be repeated and emphasised in the present case:

"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 at page 59. That was an action of divorce, but what he said in that case applies with just as much force in dispute 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 argument that the appellate court should not disturb the status quo, as can be seen from the decision of your Lordship's House in Brixey v Lynas. 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 enquiry 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 pursing 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 of circumstances. It should be noted that, except in the case of an adoption order, no decision about parental rights is a final decision, but because the child's welfare remains open to further consideration by the court throughout his childhood."

[23] The same general point was made in D v D 1998 S.C. 259 by Lord Justice Clerk Cullen at page 262. There he said:

"Standing the lapse of time since the proof and the fact that on any view there would still have to be enquiry into the new circumstances alleged by the pursuer in the grounds of appeal, we were entirely satisfied that the hearing of the appeal in so far as directed to criticisms of the sheriff would be a sterile exercise which would not advance a determination of what was in the best interests of the children."

[24] In our opinion, the appellant's conduct in this case, by appealing to the sheriff principal and subsequently appealing to this court, demonstrates his complete failure to appreciate the force of the observations just quoted. The sheriff in this case made her decision on 27 July 2005. More than two years have now elapsed since that decision was made. Even if this court had been persuaded that her decision was flawed, the result would not have been that this court would immediately order contact to the appellant. After the passage of such a period of time, it would have been necessary for some further enquiry to have been made before any court could contemplate making such an order. At an early stage in the course of the hearing before us, this point was made to the appellant both by the court and by counsel for the respondent, but he was deaf to it and resolved to insist in his appeal regardless.

[25] We have no hesitation in characterising the appeal argued before us by the appellant as a completely sterile exercise. He indulged in presenting numerous legal arguments to this court, many of which were completely misconceived and others of which related to issues which were irrelevant to the resolution of the only true issue in the case. The appellant, at times, seemed to us to have the purpose, not of persuading us to make an order which might have had the effect of bringing about a review of the issue of contact in the light of the circumstances as they now are, but rather of ventilating the arguments which we have described merely by way of a protest at the decision of the sheriff, which he found unpalatable. If the appellant is seriously minded to endeavour to establish a relationship with his daughter, he would be well advised to consider carefully the possibility of making a fresh application for a contact order at some appropriate time in the future, when the child will be mature enough to be able to understand the appellant's status as her biological father. We would doubt whether that stage has yet been reached, since the child is, even now, only seven years old.

[26] Finally, we have to record that the time of this court was occupied for a period of three days in considering the present appeal. As will be evident from what we have said concerning it, we are firmly of the view that it possessed no arguable merit whatsoever. We feel bound to observe that the present arrangements, under which this court, from time to time, is obliged to hear appeals which possess no arguable merit at all are profoundly unsatisfactory. One obvious consequence of those arrangements is that scarce public resources are wasted and the hearing of the appeals of deserving appellants is delayed. We consider that urgent consideration should forthwith be given by those having responsibility in the matter to the introduction of legislation under which leave to appeal to this court would be required by all appellants. Only by such means can the waste of scarce public resources, such as has occurred in this case, be avoided.

 


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