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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Pearson (AP) v Carrick Or Pearson (AP) [1999] ScotCS 225 (23 September 1999)
URL: http://www.bailii.org/scot/cases/ScotCS/1999/225.html
Cite as: [1999] ScotCS 225

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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

 

Lord McCluskey

Lord MacLean

Lord Allanbridge

0/122/17/98

 

OPINION OF THE COURT

 

delivered by LORD McCLUSKEY

 

in

 

APPEAL

 

From the Sheriffdom of Glasgow and Strathkelvin at Glasgow

 

by

 

JOHN HOOD PEARSON (A.P.)

Pursuer and Appellant;

 

against

 

LYNN MARY MARGARET CARRICK or PEARSON (A.P.)

Defender and Respondent:

 

_______

 

 

Act: McNair; Allan McDougall & Co., S.S.C. (for Paterson Robertson & Graham, Clydebank)

Alt: J.M. Scott; Drummond Miller, W.S. (for Blair & Bryden, Clydebank)

 

23 September 1999

 

The appellant is the father of the four children of his marriage to the respondent. He appeals against an interlocutor of the learned Sheriff Principal dated 3 December 1997 pronounced in an action at the appellant's instance craving access to the children of the marriage. By that interlocutor the Sheriff Principal varied the findings contained in an interlocutor pronounced by the Sheriff on 15 May 1997. In the interlocutor of 15 May 1997 the Sheriff concluded that it was "in the best interests of the two eldest children of the marriage" for the pursuer to have access to them; and he allowed access for six hours on the first Sunday of each month. The Sheriff Principal, having made significant alterations to the findings contained in the Sheriff's interlocutor, concluded that it was not in the best interests of the children that the pursuer should have access to them. The appellant invites this court to restore the findings and conclusion of the Sheriff.

In order to understand the background to the matter more fully it would be necessary to look at the findings in fact contained in the interlocutor dated 15 May 1997. For present purposes, however, it is sufficient to note that the appellant and the respondent were married on 30 September 1988 and had four children, John, born on 27 May 1988, Elaine, born on 19 June 1990, Gillian, born on 20 January 1992 and Lindsey, born on 9 September 1994. A number of separations occurred between the husband and wife and the final separation took place on 11 February 1994. The appellant had access to the three older children on an unregulated basis for a period of time, and further access from February to July 1995, following an order in the Sheriff Court. In July 1995 when he had access to Gillian, the appellant was found in a drunken state face down beside a canal; Gillian, then aged 31/2, was leaning over the edge of the canal playing with a stick. The appellant was taken to a police station and was charged with a contravention of section 50(2) of the Civic Government (Scotland) Act 1982 (a charge of being drunk in charge of a child under the age of 10). He pled guilty to that charge at Clydebank District Court on 29 July 1996 and was fined 50. He has had no access to any of the children since that date. After a proof, the Sheriff concluded that the defender was a suitable person to care for and have custody of all four children. In relation to access the Sheriff made finding in fact (8) awarding the appellant the limited access specified. As will be seen from the Sheriff's interlocutor and Note the appellant had a history of alcoholism, some details of which will be referred to later. Finding in fact (8) in the interlocutor of 15 May 1997 read as follows:

"The pursuer took steps to obtain treatment for his alcoholism at Gartnavel Royal Hospital and his condition is now greatly improved. He has obtained a tenancy of his own where he resides alone which is sufficiently well furnished and maintained to be suitable for the exercise of access. He is a person with whom his children could re-establish a decent relationship to know him again as their father. He is capable at present of regulating his drinking habits so as to avoid being under the influence of drink during access periods and to avoid introducing the children into households where any drinking is taking place. A recurrence of the incident in July 1995 involving the child Gillian at the canal is unlikely. It is in the best interest of the two eldest children of the marriage for the pursuer to have access to them on an initially limited and non-residential basis. It is not yet in the best interests of the two youngest children of the marriage for the pursuer to have access to them.".

In the Note appended to the interlocutor the Sheriff addressed himself to the question as to whether, having regard to the best interests of the children, and to the history of the appellant's drinking, taken along with the canal incident in July 1995, the appellant should be granted access. He states that he had two reasons for allowing access:

"(first) that I consider from his [the appellant's] attitude displayed in the witness box that from the incident [July 1995], however reprehensible, and from the need to plead guilty to an offence in respect of it, the pursuer has at least learnt a sufficient lesson for it to be unlikely that it or a similar event will recur; and (second) that the pursuer seems to me to have taken his alcoholism sufficiently in hand at this stage in his life to be able to control such drinking as he now does so as to avoid drinking or being drunk at particular periods or for particular events such as proposed access times.".

He continues:

"There is no doubt that he sank at one point to a very low ebb in respect of alcoholism but he did seek and obtain treatment at Gartnavel Royal Hospital and in consequence appears to me to have put the problem largely behind him for the time being albeit he cannot be said to be yet completely cured let alone teetotal. It does appear that there continued to be some episodes of 'binge drinking' from time to time but I formed the clear impression that he is at present sufficiently in control to be able to separate such activity from the exercising of any access to his children. It appears to me also that he is sufficiently aware now of the need to avoid bringing the children into drinking environments for it to be unlikely that he will in the future permit them to be present at other people's houses (eg that of his mother) during any drinking sessions which are likely to take place there.".

The reference to the appellant's mother relates to evidence that she was also a person with a drink problem and that indeed on one occasion she had fallen over one of the children as a result of excessive drinking. At a later stage in his Note the Sheriff stated:

"As stated above I formed the view that the pursuer has at this stage in his life put his alcoholism largely behind him and gained sufficient control over his drinking to be able to separate it from any periods of future contact with his children.".

Although the interlocutor was signed on 15 May 1997, the proof had ended on 20 November 1996; and the reference to "at this stage in his life" refers to the pursuer's position as at late 1996. It should be added that it is unfortunate that in a case of this kind regarding access to children the Sheriff's decision should not have been delivered until six months after the end of the proof. The Sheriff Principal, for reasons that he explains in his Note, made relatively minor alterations to other findings in fact; he deleted finding in fact (8) in its entirety and substituted therefor:

"The pursuer has the tenancy of a house at 16 Graham Avenue, Clydebank where he lives alone. Said house is sufficiently well furnished and maintained to be suitable for the exercise of access. However, in the light of his previous history of addiction to alcohol and his continued propensity for excessive drinking it is not in the best interests of the children of the marriage that the pursuer should have access to them.".

He also made consequential alterations to the findings in law thus holding that the pursuer was not entitled to an award of access to the children of the marriage, thus, of course, recalling the award of access in respect of John and Elaine.

Counsel for the appellant submitted that the Sheriff Principal erred in deleting the Sheriff's finding in fact 8 and substituting therefor an altered finding in the terms quoted. He submitted that the Sheriff Principal had erred in disturbing an exercise by the Sheriff of discretion; and, in this context, referred to the speech of Lord Hope of Craighead in Sanderson v. McManus 1997 SC (HL) 55 at page 57. His Lordship said there:

"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.".

His Lordship then referred to the speech of Lord Macmillan in Thomas v. Thomas 1947 S.C. (H.L.) 45 at p. 59. Counsel for the appellant also submitted that, even if the Sheriff Principal were entitled to vary the findings in fact, he had fallen into error by failing to take account of a material consideration, namely the importance, unless there were compelling reasons to the contrary, of maintaining contact between children and their father. Again support for this approach was found in Sanderson v. McManus supra at pages 63-65. If the court were to conclude that the time which had elapsed since the proof, nearly three years ago, warranted an examination of the up-to-date position, the court should consider a further inquiry conducted by a member of the court, or order a report from a qualified reporter or, failing that, remit to the Sheriff Court for a further inquiry into the present circumstances; this submission reflected the concern expressed by Lord Hope of Craighead at page 58 in Sanderson v. McManus. That inquiry might, he submitted, involve ascertaining the views of the children now in view of their age, and some assessment of the appellant's present attitude to and practices in relation to his drinking.

It is sufficient for the moment to note that counsel for the respondent acknowledged that the Sheriff Principal had to act in the light of the guidance contained in Sanderson v. McMannus and Thomas v. Thomas and she maintained that it was clear, although the Sheriff Principal had not made it express, that he had regarded this as a case falling within the third expression of principle enunciated by Lord Thankerton at page 54 in the report of Thomas v. Thomas. The present case, she submitted, was manifestly one in which the reasons given by the Sheriff for his determination in relation to the pursuer's drinking and how it might affect his behaviour in the future were clearly not satisfactory and because it appeared unmistakably from agreed evidence - to which the Sheriff had made no adequate reference - that he had not taken proper advantage of his having heard and seen the witnesses and had come to a conclusion which was plainly at variance with the evidence. She referred us to Yuill v. Yuill [1945] P. 15 and Jordan v. Jordan 1983 S.L.T. 539 as cases which illustrated the application of the third head of Lord Thankerton's analysis. In advancing his argument for the appellant, counsel also referred us to Britton v. Central Regional Council 1986 S.L.T. 207 as further indicating the inappropriateness of an appeal court interfering with the exercise of discretion by a judge of first instance who has heard evidence. In response to that, Mrs. Scott submitted that this was not truly a case of an exercise of discretion and reminded us of the Opinion of the Lord President (Rodger) in Osborne v. Matthan (No. 2) 1998 SC 682, at page 688. There his Lordship said:

"In some passages in the authorities dealing with decisions on parental rights it is said that the first instance judge exercises a discretion when deciding whether to make an order and, if so, in what terms. See, for instance, Re K.D. (A Minor) per Lord Oliver at p. 819G. It appears to me, however, that the decision which a trial judge reaches on custody may perhaps be better described not as a matter of discretion but as a matter of judgment exercised on consideration of the relevant factors. The court must consider all the relevant factors. The court must consider all the relevant circumstances and decide what the welfare of the child requires. Once the court has identified that, it has no discretion: the court must do what the welfare of the child requires.".

In our view, this passage expresses the correct approach in a case such as the one before this court. The essential questions are questions of fact relating to the appellant's drinking, whether or not the evidence warrants a conclusion that it is under control and whether or not there is a significant risk that he would be materially affected by drink during periods of access. The judgment as to welfare and interests flows directly from the determination of these issues of fact.

The appellant has lodged grounds of appeal and counsel for the respondent has lodged a note of "propositions for the respondent". These two documents sufficiently outline the submissions which counsel made. It is unnecessary for us to go into great detail on these submissions because it became abundantly clear in the course of the debate that the Sheriff had failed to take account of a mass of evidence which contradicted the view which he enunciated (and which is partly quoted above) as to the likelihood of the appellant's being able to control his drink problem so as not to be in a drunken condition, or worse, when enjoying access to the children. By ignoring that mass of evidence and founding his conclusion upon his impressions from observing the pursuer in the witness box the Sheriff very clearly misdirected himself. The position in relation to that evidence is that the parties at the Proof reached agreement, which was incorporated in a joint minute printed in Appendix 1 to the reclaiming motion, to the effect that the records of Gartnavel Royal Hospital Psychiatric Services and of Clydebank Health Centre related to the pursuer and were

"true and accurate statements of the information therein and are evidence of their contents (and that they) shall be held as forming evidence in the present action and do not require to be spoken to by any witnesses.".

These records demonstrate beyond any doubt that the pursuer and appellant has had a drink problem of an extremely serious character since at least his early teens. He was born in February 1965 and was 31 at the date of the proof. It is unnecessary in this Opinion to rehearse all the references in the medical records; it is sufficient to mention, in chronological order the main pages in Appendix 2 which contain references to the appellant's drinking. As early as 1987 it is recorded that the appellant, then 22 years of age, was drinking every day as much as he could afford and would drink four cans of lager during the course of the day followed by eight or nine pints of heavy beer in the pub (page 28). It is recorded in August of the same year that he had defaulted from attendance at the Clydebank Health Centre but was "extremely keen to re-attend". On page 24 it is recorded in November 1987 that he failed to attend consecutive appointments at the Alcohol Assessment Clinic. Page 23 records his main problems as being problems of violence associated with his drinking. Page 22 describes him as a manipulative individual who drinks excessively and records that for a while he was attending Douglas Inch Centre on account of violent behaviour related to drinking. At that date, 13 July 1990, he was recorded as drinking six to seven cans of super lager every morning. Again it is recorded, "As always he seems genuinely keen to dry out for a while". Pages 20, 17, 73, 11, 63, 9, 8, 7, demonstrate repeated attendances and repeated lapses and a continuing history of alcoholism, detoxification, promises of reform, failures and non-attendances. The last entry in the Gartnavel records (page 7), in September 1993, is of his failure to attend for treatment. The G.P. records (the references are to pages 100, 110, 5, 29, 115, 26) show that he continued thereafter to have severe problems of alcohol addiction, that he repeatedly defaulted in respect of his appointments for treatment, that he was drinking heavily and was claiming to be dependent on super lager. They also show that he had a history of injury associated with his drinking. He is shown repeatedly as asserting that he was coming off alcohol and was promising not to drink to excess. When some of these records were put to him in evidence (see page 59 of volume 1 of the Appendix) the questioning was as follows:

"Q. How would you describe your present situation in relation to alcohol? - Just now?

Q. Yes? - I don't drink as much. I can't afford it. (emphasis added).

Q. Do you think you have a problem at the moment? - No.

Q. Have you co-operated with the people that have tried to give you advice about your alcohol problem? - The doctors and that?

Q. Yes? - Yes, I listen to them but it is a drug, isn't it?".

He acknowledged that he failed to turn up for appointments and assistance and treatment. There are other passages in the evidence, quite apart from the medical records, which are relevant to this question of the state of the pursuer's alcoholism and likelihood of his improving. Some of these are referred to in the note by the Sheriff Principal. What all the evidence demonstrates is that there was a powerful body of admitted evidence which suggested that, by the date of the proof, this man had had a problem of serious addiction to alcohol for more than a decade and a half and that he had repeatedly failed to address this problem despite his acknowledging that it was threatening his marriage, his employment prospects and his health. In these circumstances, it is difficult to understand and impossible to approve the failure of the Sheriff to refer to this substantial body of unchallenged evidence. The procedural history of the case shows that the medical records were recovered without the appellant's help but by commission and diligence and that they only went up to mid-June 1996, when they showed that he was admitted to hospital with a suspected fracture as a result of his falling. We do not consider that, upon the basis of a few selected answers from the evidence of the pursuer and the appellant, and without any reference whatsoever to the admitted records, the Sheriff was able to assert, as he did in finding in fact (8) "his condition is now greatly improved". That finding is contradicted by the agreed evidence. Equally undermined by the evidence the Sheriff ignored is the finding

"He is capable at present of regulating his drinking habits so as to avoid being under the influence of drink during access periods and to avoid introducing the children into households where any drinking is taking place.".

It is also impossible to understand how, on a careful consideration of all the available evidence, the Sheriff could have reached the view expressed in the Note that [the appellant] "appears to me to have put the problem largely behind him for the time being, albeit he cannot be said to be yet completely cured let alone teetotal.".

The error of the Sheriff in failing to take note of this formidable body of evidence vitiates completely the conclusions that he expressed both in his finding in fact No. 8 and in his Note as to the alcohol problems of the pursuer as at the date of the Proof. The pursuer and appellant failed to produce at the Proof any medical evidence to update the medical records which had been recovered by diligence five months before the proof began. In our view, the Sheriff Principal was not only entitled but was obliged to consider the evidence and to revise the findings in the light of the whole evidence. That is exactly what he has done. He has addressed his mind to the question of whether or not the evidence led to the conclusion that the appellant had overcome his drinking problem to the extent that he would not be drunk at times when he had access to the children to whom access was granted. The Sheriff Principal plainly, and rightly, concluded that the evidence pointed to the fact that he had a "continued propensity for excessive drinking" as it was put in the revised finding in fact (8).

The Sheriff expressly, and rightly, took into account the circumstance that it is normally right that contact between a child and his natural parents should, where possible, be maintained. The Sheriff Principal does not expressly refer to this factor. However, we do not consider that he can properly be said to have left this matter out of account. For the Sheriff Principal clearly concluded upon ample evidence that the pursuer was continuing to drink excessively. Given that fact and the fact that the two children John and Elaine were soon to approach adolescence there could be no resisting the conclusion that it was not in the interests of those children to be exposed to contact with a person who drank excessively, who engaged in binge drinking and who was likely to continue to behave in the manner indicated in the medical records.

Mr. Macnair for the appellant also suggested that the Sheriff Principal applied too severe a test to the matter of the appellant's conduct and to the considerations which had to be borne in mind in deciding an issue of this kind. It may be that the Sheriff Principal showed considerable restraint in his use of language when criticising the findings and opinions of the Sheriff but we are not persuaded that he failed to address the main issue. In particular he said:

"...the important question which faces me is whether the sheriff's conclusion that the pursuer had his drinking under sufficient control to obviate the risk of him being under the influence of drink at the time of access to the children can stand. I have reached the decision with some hesitation that this conclusion was wrong.".

Whatever might be said about the hesitation with which the Sheriff Principal arrived at his view, it is impossible for this court to view that conclusion by him as being unsound. It is worthy of note that the Sheriff Principal puts the matter more positively in the remainder of his note.

In the circumstances, we are satisfied that the Sheriff Principal was entitled and indeed obliged to take into account the agreed evidence which the Sheriff omitted to refer to, and was entitled on the basis of all the evidence to reach the conclusions he did. In our view, he was fully entitled to alter the findings in fact in the way proposed. We shall therefore refuse the appeal.

It would be appropriate, however, to vary the Sheriff Principal's interlocutor by inserting the words "at least" between the words "until" and "22 April 1996" to reflect the fact that the Sheriff Principal had before him medical records which did not go significantly beyond that date. Strictly speaking the finding which the Sheriff Principal (and for that matter the Sheriff) put into finding in fact 8 as to "the best interests of the children of the marriage" is not a pure matter of fact; but, having acknowledged that, it does not appear to us to be necessary to make any further adjustment to the terms of the interlocutor.


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