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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 OsborneLord Nimmo SmithLord Carloway |
[2007] CSIH 77XA214/06 OPINION OF THE COURT delivered by LORD OSBORNE in APPEAL from the Sheriffdom of Glasgow
and Strathkelvin at 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
[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
[3] In the
present action, raised in the
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 (
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
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
"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."
"(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."
"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."
"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
The hearing before us
"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.
[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
[16] The appellant
went on to challenge the lawfulness of section 3 of the Children (
"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."
"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.
[20] Finally, the
appellant contended that section 3 of the Children (
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
"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."
"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