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You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> F.A.G. OR W. v. J.L.W. and K.H.W. [1999] ScotSC 23 (2nd August, 1999) URL: https://www.bailii.org/scot/cases/ScotSC/1999/23.html Cite as: [1999] ScotSC 23 |
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9700248
JUDGMENT OF
SHERIFF PRINCIPAL NICHOLSON
in the cause
F. A. G. or W
Pursuer and Respondent
against
J. L. W
Defender
and Minuter
and
K. H. W
Third Party
_________________________
Act: Aitken, Aitkens, Solicitors
Alt: Wilson,
Caesar
& Howie, Solicitors
LINLITHGOW, 2 AUGUST 1999
The Sheriff Principal, having resumed consideration
of the
cause,
allows the appeal and recalls the interlocutor of 24 May
complained
of; sustains the plea-in-law
for
the pursuer and respondent and refuses the
first
crave
for
the
defender
and minuter;
finds
no expenses
due
to or by either party in respect of the appeal.
NOTE:
This is an appeal against an interlocutor of 24 May 1999 in which,
after proof, the sheriff varied an earlier interlocutor and made an order
for
the
defender
and minuter (hereafter "the
defender")
to have
contact
every
fortnight
with
the younger
child
of the marriage between the
defender
and the pursuer and respondent (hereafter "the pursuer"). The material
facts
in the
case
are not significantly in
dispute,
and they are as
follows.
The pursuer and the defender
married on 16 June 1984. However, they separated in November 1995 and they
were
divorced
on 6 August 1997. The action of
divorce
was
at the instance of the pursuer on the ground of the
defender's
adultery, and it
was
undefended. The pursuer and
defender
have two
children,
namely K.
who
was
born on 21 November 1985 and V.
who
was
born on 29 July 1991. The
child,
K., is the third party to the present proceedings. After the parties separated the
defender
went
to live in Scarborough and,
when
the
divorce
proceedings
were
commenced,
he
consulted
a solicitor there. He advised that solicitor that he
did
not
wish
to
contest
the
divorce,
but that he
wished
to have
contact
with
his
children.
It appears, however, that the solicitor took no action in that regard, and at the end of the
day
no order
for
contact
in
favour
of the
defender
was
either sought or made. However, a residence order in
favour
of the pursuer
was
made at the time
when
decree
of
divorce
was
granted. In the result both
children
have lived
with
the pursuer throughout their lives. The
defender
for
his part has had no
contact
with
either of the
children
since about January 1997.
Following
on the granting of
decree
of
divorce
the
defender
consulted
Scottish solicitors, and on 11 August 1998 the
current
proceedings
were
raised
with
a view to varying the interlocutor of 6 August 1997 so as to allow the
defender
contact
with
both
children.
Answers to the
defender's
minute
were
lodged both by the pursuer and by the elder
daughter,
K.,
who
in her answers made it
clear
that she
did
not
wish
to have any
contact
with
the
defender.
At the
commencement
of the proof the
defender
intimated that he had
decided
to respect K's views
with
the result that the proof before the sheriff
was
solely
concerned
with
whether
or not the
defender
should have
contact
with
V.
Having heard the proof, and having had an interview with
V., the sheriff took the matter to avizandum and thereafter issued the interlocutor
which
is the subject of this appeal. In that interlocutor the sheriff made an order
for
contact
between the
defender
and V. each alternative Saturday between the hours of 10 am and 4.30 pm
with
the
defender
being obliged to uplift and return the
child
to the pursuer's home. However, he also postponed the
coming
into effect of that order until Saturday 24 July, that is to say some two months after the
date
of the interlocutor. As he explains at the end of his Note, he took that
course
to allow
for
some mediation to take place before the
commencement
of the order. An appeal against the
foregoing
interlocutor has now been taken by the pursuer.
In fact
no mediation as suggested by the sheriff ever took place because of the marking of the present appeal; but, in terms of OCR, r. 31.9, the marking of the appeal
did
not of itself excuse obedience to the sheriff's order. In that situation it appeared that
compliance
with
the sheriff's interlocutor
would
fall
due
on 24 July before parties had been able to sort out the legal aid position relative to the appeal, and accordingly, on 22 July, a motion
was
presented to me on behalf of the pursuer inviting me to suspend
compliance
with
the sheriff's order until the appeal had been
dealt
with.
It
was
submitted, in support of the motion, that
compliance
over a period of
weeks
could
be very traumatic
for
V. if at the end of the
day
the appeal
were
to be succesful. However, the motion
was
opposed on behalf of the
defender
on the ground that it
would
be unfortunate if he had to
wait
even longer before being given an opportunity of
contact
as ordered by the sheriff. Since I
was
able to offer an appeal
diet
within
a
week
of hearing that motion I took the view, having ascertained that parties
would
be able to proceed
with
the appeal at that time, that the best
course
would
be to grant the motion, and that is
what
I
did.
At the appeal hearing the solicitor for
the pursuer began by advising me that in general he accepted the sheriff's
findings
in
fact
as being
findings
which
he had been entitled to make on the evidence. He also advised me that the pursuer had given instructions that, in the event of the appeal being refused, she
did
not seek to
challenge
the extent of the
contact
which
had been ordered by the sheriff.
Consequently,
the submissions advanced on behalf of the pursuer
were
all to the effect that the sheriff had erred in law in his approach to the matter of
contact
in this
case.
The solicitor
for
the
defender
also approached the appeal solely in relation to the law and the legal test
which
had been applied by the sheriff, and he
did
not seek to suggest that, even if the sheriff had erred in law, a
contact
order should nonetheless be made in
favour
of the
defender.
The result of all of that is that this appeal turns solely on the view
which
I take on the sheriff's legal approach to the issue before him. If I take the view that the sheriff's approach
was
correct,
the appeal must
fail;
but, if I take the view that the sheriff erred in law, the appeal must succeed
with
the
consequence
that the
contact
order made by the sheriff must be recalled.
Put shortly for
the moment, the
competing
arguments
which
were
advanced both before the sheriff and before myself
were
as
follows.
For
the pursuer it
was
submitted that,
where
an absent parent seeks an order
for
contact
with
a
child
who
is residing
with
the other parent, it is
for
that absent parent to
demonstrate
to the
court's
satisfaction that the making of such an order
will
be in the interests of, and
will
promote the
welfare
of, the
child
concerned.
It
was
submitted that the
coming
into
force
of the Children (Scotland) Act 1995 (hereafter "the 1995 Act") had not affected the position in that regard, and that the test to be applied under the Act is still the same as that set out in Sanderson v. McManus 1997 SCLR 281, and in the earlier
cases
of Porchetta v. Porchetta 1986 SLT 105 and Russell v. Russell 1991 SCLR 49. The
consequence
of approaching an application
for
a
contact
order in the
foregoing
way
is that a sheriff
will
not be entitled to make the order unless he is able to make
findings
upon
which
he
can
be satisfied that the making of the order
will
be in the interests of the
child.
By contrast,
it
was
submitted on behalf of the
defender
that the 1995 Act has brought about a significant
change
with
the result that an absent parent (at least
where
he
was
married to the other parent at the relevant time)
who
has not been
deprived
of the relevant parental responsibilities and rights
will
be presumed to be entitled to
contact
with
his
child
unless the other parent
can
satisfy the
court
that it
would
not be in the interests of the
child
for
such
contact
to take place. That, it
was
said, is the inevitable
consequence
of the provisions of sections 1 and 2 of the 1995 Act
when
read in
conjunction
with
section 11. On the
foregoing
basis a
court
will
be obliged to make a
contact
order unless the other parent has led satisfactory evidence to show that
contact
would
be against the
child's
interests.
I shall examine the foregoing
approaches in greater
detail
in a moment.
For
the present, however, it is to be noted that the sheriff
for
his part accepted the approach advanced on behalf of the
defender.
In the relevant part of a
detailed
and
careful
judgment the sheriff begins (at p. 16) by noting that, at the time of the
divorce,
and in the present proceedings, the
court
has not been asked to make an order
depriving
the
defender
of his parental responsibilities or rights as might have been possible in terms of section 11(2)(a) of the 1995 Act. He goes on to observe that, although a residence order
was
granted in
favour
of the pursuer at the time of the
divorce,
the
defender's
parental responsibilities and rights are otherwise unaffected by
what
has happened hitherto. The sheriff then goes on to say that "in the present
case
this statutory background is of importance
when
considering
the question of
whether
the
contact
order sought should be made. It is significantly
different
from
the statutory position under the law before the enactment of the 1995 Act."
Having noted (at p. 17) that, prior to the coming
into effect of the 1995 Act, there
was
no statutory imposition of parental responsibilities such as those specified in section 1 of the Act, the sheriff
concludes
that
what
he terms "the
common
law scheme"
was
"
different
in emphasis and effect
from
the statutory provisions of the 1995 Act". He then goes on (at p. 18) to say this:
"The 1995 Act has imposed on parents statutory responsibilities which
previously the law
did
not impose. It is
difficult
to see how, apart
from
ignoring the
change,
it is possible to treat section 1 as
doing
other than to
create
a situation in
which
it
will
normally be assumed that
contact
with
a parent
who
has section 1 parental responsibilities is in the interests of his or her
children.
Section 1 makes
clear
that such responsibility exists only in so
far
as
compliance
is in the interests of the
child.
Section 11(2) provides
for
the making of an order
depriving
a person of parental responsibilities. It is subject to the
consideration
of the
child's
welfare
in section 11(7). Section 3 acts to
deprive
some
fathers
automatically of parental responsibility. There
can
be little point in any of these provisions unless section 1 is meant to represent the usual situation and
create
the assumption to
which
I have referred. The question then becomes
whether
it is established that the
welfare
of the
child
requires that the responsibilities imposed by the law are not exercised. In the absence of any attempt to
deprive
the person
who
has parental responsibilities of them (
where
the same test of the
welfare
of the
child
applies) that may not be easy to establish."
The sheriff goes on to distinguish
on a number of grounds several
cases,
including those to
which
I have already referred, and he then
continues
(at p. 20):
"So where
a parent has the parental responsibility of maintaining parental relations and
direct
contact
with
a
child
and the parental right to
do
so (and no attempt is made to
deprive
him or her of such responsibility and right by establishing that such removal
would
benefit the
child)
only the strongest
competing
disadvantages
will
be likely to prevail to establish that the
welfare
of the
child
would
not be served by allowing
contact
with
the parent. .........
For
the reasons indicated I
do
not
feel
that it has been established nor is it probable that V's
welfare
will
be best served by
denying
her
contact
with
her
father."
I have described
at some length the sheriff's analysis of the statutory position, and of the test to be applied, having regard to the terms of the 1995 Act because it seems to me to express
with
clarity
the effect of the submissions advanced both to the sheriff and to myself on behalf of the
defender.
Putting it shortly, the sheriff's position is that section 1 of the Act sets out
certain
parental responsibilities, including a responsibility on the part of an absent parent to maintain personal relations and
direct
contact
with
his
children.
If that responsibility has not been removed in terms of section 11(2)(a) of the Act, there
will
then be a presumption that it is in the interests of the
child
or
children
for
contact
to be exercised, and that presumption
will
be rebutted only
where
"the strongest
competing
disadvantages"
have been put before the
court
to show that "the
welfare
of the
child
would
not be served by allowing
contact"
with
the parent in question.
In order to assess the validity of the foregoing
approach it is appropriate to begin
with
the position as it existed prior to the
coming
into
force
of the 1995 Act. The authoritative exposition of that position is, of
course,
to be
found
in the
decision
of the House of Lords in Sanderson v. McManus 1997 SCLR 281. (
For
convenience
my references are to that
case
as reported in SCLR since that
was
the report referred to both before the sheriff and before myself. However, I should note that the
case
is also reported at 1997 SC (HL) 55.)
Sanderson v. McManus was
a
case
concerning
an application
for
access to a
child
by that
child's
absent natural
father.
Access
was
refused by the sheriff, by the sheriff principal, and by the Inner House of the
Court
of Session though, in the Inner House, Lord McCluskey
delivered
a
dissenting
judgment in
which,
inter alia, he said: "... ordinarily ... the
courts
proceed upon the basis that the link between a
child
and each of its natural parents is so important in itself that, unless there are very strong reasons to the
contrary,
it should be preserved" (1995 SCLR 902, at 906). As
can
be seen, Lord McCluskey's starting point
was
not significantly
different
from
the approach
favoured
by the sheriff in the present
case,
though of
course
the sheriff sought to
find
support
for
his position in the terms of the 1995 Act.
However, Lord McCluskey's approach did
not
find
favour
in the House of Lords
which
adhered to the
decision
of the majority of the Judges in the Inner House. In that regard Lord Hope of
Craighead,
who
delivered
the leading speech in the House of Lords, said this (at p. 289C):
"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 [Law Reform (Parent and
Child)
(Scotland) Act] 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. In that opinion ..... 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. ........ Lord McCluskey has
disputed
the view,
which
hitherto had 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."
A little later in his speech Lord Hope went
on, in a passage
which
is quoted in the sheriff's Note, to say (at p. 289F):
"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 Sheriff, in his Note, seeks to distinguish
Sanderson
from
the present
case
on the basis that the
former
case
deals
with
the significance of the link between a natural
father
and a
child,
and is not
concerned
with
the situation, as in the present
case,
where
the
father
has been married to the
child's
mother and there is as a
consequence
a legal relationship and responsibility imposed by law. The sheriff goes on to say that the same is true of Porchetta in that, although the applicant
father
had been married to the mother,
custody
of the
child
had been awarded to the mother
when
she had
divorced
him. I shall return later to the question
whether
Sanderson is
distinguishable
from
the present
case
in the light of the provisions of the 1995 Act. At present, however, I should say that I
consider
that the sheriff is
wrong
in his view of Porchetta. As appears
from
the report of that
case
(1986 SLT 105), the
father's
application
for
access
was
made in the original
divorce
proceedings, and not at a later stage,
with
the
consequence
that Lord
Dunpark
was
considering
the mother's application
for
divorce
and
custody,
and the
father's
application
for
access, at the same time.
From
all of the
foregoing,
then, it seems to me to be
clear
that, at least prior to the
coming
into effect of the 1995 Act, there
was
no presumption to the effect that an absent natural parent should be awarded access to his
child
unless there
were
compelling
reasons not to
follow
that
course.
On the
contrary,
while
the link between a parent and his
child
would
always be seen as an important
factor,
every
case
would
require to be
considered
on its own
facts
and
circumstances,
and a
court's
task and
duty
would
be to take
whatever
decision
was
appropriate having regard to the
child's
welfare
as the paramount
consideration.
In
fact
that
decision
would
often, as
was
observed by Lord Hope in Sanderson, and by Lord
Weir
when
that
case
was
in the Inner House, be made
without
reference to questions of onus. However, it seems to me to be
clear
that, under the law as explained in Sanderson, a
court
which
was
minded to make an order
for
access in
favour
of an absent parent
would
require to have before it positive evidence to show that such access
would
promote the
welfare
of the
child;
and of
course
it
would
normally be
for
the parent seeking access to lead such evidence in the
first
place.
As can
be seen, the approach
which
I have just summarised is significantly
different
from
the approach
favoured
by the sheriff in the present
case.
The question, therefore, is
whether
the provisions of the 1995 Act have, as maintained by the sheriff, made such a
difference
inevitable.
The relevant provisions of the 1995 Act for
present purposes appear to be those
contained
in sections 1, 2, 3 and 11. Section 1, so
far
as relevant, provides:
"(1) Subject to section 3(1)(b) and (3) of this Act, a parent has in relation to his child
the responsibility -
.............
(c)
if the
child
is not living
with
the parent, to maintain personal relations and
direct
contact
with
the
child
on a regular basis;
............
but only in so far
as
compliance
with
this section is practicable and in the interests of the
child."
Section 2(1) of the Act provides in effect that the responsibilities set out in section 1 are to be matched by corresponding
rights "in order to enable [a parent] to
fulfil
his parental responsibilities in relation to his
child".
In the
case
of a
child
who
is not living
with
the parent, that right, as set out in section 2(1)(
c),
is "to maintain personal relations and
direct
contact
with
the
child
on a regular basis". I note in passing that the parental rights, as set out in section 2(1) are not qualified by any reference to the interests of the
child
as is the
case
in respect of parental responsibilities (see the quotation
from
section 1 set out above). I return to this point later.
Section 3(1) of the Act effectively provides that, unless he acquires them by agreement under section 4, a father
will
not have parental responsibilities and rights in relation to a
child
if he
was
not married to the mother at the time of the
child's
conception
or subsequently. That provision appears to be at odds
with
the United Nations
Convention
on the Rights of the
Child,
and it is
contrary
to recommendations
contained
in the Scottish Law
Commission's
Report on
Family
Law (Scot. Law
Com.
No. 135)
which
formed
the basis
for
many of the provisions in
what
is now Part I of the 1995 Act.
For
present purposes, however, the significance of section 3 appears to be that the approach to the making of a
contact
order
which
was
favoured
by the sheriff in the present
case
(
which
depended
to a large extent on
what
he saw as the effect of section 1)
will
apparently not apply in a
case
where
a
father
has never been married to a
child's
mother. On that hypothesis the
consequence
would
be that
courts
would
have to apply
different
tests
depending
on
whether
or not a
child's
parents had ever been married. I shall return to that point shortly.
First,
however, I turn to section 11 of the 1995 Act. That section empowers a
court
to make orders in relation to (a) parental responsibilities; (b) parental rights; (
c)
guardianship; or (
d)
the administration of a
child's
property (subsection (1)). Subsection (2) elaborates on the
foregoing,
and provides in sub-paragraph (a) that a
court
may make an order "
depriving
a person of some or all of his parental responsibilities or parental rights in relation to a
child".
Sub-paragraph (b) provides
for
an order imposing parental responsibilities on a person, and giving that person parental rights. Sub-paragraph (
c)
provides
for
the making of a residence order; and sub-paragraph (
d)
makes provision
for
the making of an order "regulating the arrangements
for
maintaining personal relations and
direct
contact
between a
child
under [the age of sixteen] and a person
with
whom
the
child
is not, or
will
not be, living (any such order being known as a '
contact
order')".
Finally,
I turn to section 11(7)
which,
in my view, is of the utmost importance in any
case
where
a
court
is
considering
making an order of any of the kinds permitted by section 11(1). So
far
as relevant
for
present purposes subsection (7) provides:
"..........., in considering
whether
or not to make an order under subsection (1) above and
what
order to make, the
court
-
(a) shall regard the welfare
of the
child
concerned
as its paramount
consideration
and shall not make any such order unless it
considers
that it
would
be better
for
the
child
that the order be made than that none should be made at all".
What,
then, is the effect of the
foregoing
provisions in the present
case?
So
far
as section 1 of the Act is
concerned
I am not persuaded that, at least so
far
as parents
who
are, or
were,
married to each other are
concerned,
it
does
more than to state in statutory terms
what
has long been a part of our law, namely that parents,
whether
living together or not, have
certain
obligations in respect of, and responsibilities
for,
their
children.
The 1986 Act may have obscured that by its emphasis on parental rights but, as is observed by Professor Norrie in his
Commentary
to the section in Green's annotated print of the 1995 Act (revised ed. 1998) (to
which
I
was
referred in the
course
of the appeal hearing), "it has long been understood that 'parental rights exist
for
the benefit of the
child
and they are justified only in so
far
as they enable the parent to perform his
duties
towards the
child'
(per Lord
Fraser
of Tullybelton in Gillick v.
West
Norfolk and
Wisbech
Area Health Authority [1985] 3
WLR
830 at 841)". That is a view
which,
it appears to me, is supported by the
fact
that, in the 1995 Act, the parental responsibilities set out in section 1 are, as I have already noted, matched by
comparable
parental rights in section 2. However, notwithstanding that, as
was
pointed out by the solicitor
for
the
defender
in the present
case,
the long title of the 1995 Act refers to the making of "new provision as respects the relationship between parent and
child"
in the law of Scotland, I
do
not
consider
that section 1 of the Act introduces a new entitlement on the part of parents to
which
a
court
must give effect unless it
can
be shown that to
do
so
would
be
contrary
to the
welfare
of a
child
concerned.
On the
contrary
I am
disposed
to think that at least one of the main purposes of section 1 is to attempt to make
clear
that parental responsibilities exist, and
cannot
simply be given up by a parent
who,
for
whatever
reason, is no longer
willing
to
fulfil
those responsibilities. To that extent, therefore, I
differ
from
the sheriff
when
he says (in the passage
which
I quoted earlier) that the 1995 Act "has imposed on parents statutory responsibilities
which
previously the law
did
not impose". The responsibilities now have statutory
form,
but in my opinion it is
wrong
to say that they
did
not exist prior to 1995, and that they
were
not previously recognised in our law.
Undoubtedly, of course,
the parental responsibilities as set out in the section are all expressed in very positive terms, but I
consider
that it is important to note that they are all qualified by the
concluding
words
of subsection (1), namely that the responsibilities are to exist only in so
far
as "
compliance"
(not, it is to be noted, "enforcement") is "practicable and in the interests of the
child".
The solicitor
for
the pursuer in the present
case
suggested that the
way
in
which
the qualification to the subsection is
drafted
is of significance. Had the intention been, he said, to
create
a presumption in
favour
of a parent
which
could
only be overcome if the other parent
could
show that the exercise of
contact
would
be
contrary
to the
welfare
of the
child,
the qualification to the subsection
could
easily have said so by the use of
words
such as "unless it is shown that
compliance
with
this section is impracticable and
contrary
to the interests of the
child".
The use of
words
such as those, it
was
submitted, might
well
have supported the view that the Act had
created
a presumption in
favour
of
contact
between a
child
and a parent
who
has parental rights,
with
the other parent then having to overcome that presumption by showing that
contact
would
be
contrary
to the
child's
welfare;
but, it
was
also submitted, the
fact
that such
words
are not used, and the
way
in
which
the qualification is in
fact
expressed, lend
weight
to the view that the Act has not
changed,
and
was
not intended to
change,
the approach
which
should be taken by
courts
as set out in Sanderson v. McManus.
The sheriff has dealt
with
this part of the section by saying that it makes
clear
that parental responsibilities exist only so
far
as
compliance
is in the interests of the
child;
and to that extent I
cannot
find
fault
with
what
he says. However, in the preceding sentence of his Note (
which
I have quoted earlier) he expresses the view that it is
difficult
to see how it is possible to treat section 1 as
doing
other than "to
create
a situation in
which
it
will
normally be assumed that
contact
with
a person
who
has section 1 responsibilities is in the interests of his or her
children".
To the extent that the passage
which
I have just quoted reflects the general purpose of section 1, namely that it is generally
desirable
to maintain
contact
between a
child
and a separated parent, I
do
not necessarily
differ
from
what
the sheriff says. However, in my opinion the trap into
which
the sheriff has
fallen
is to go on to elevate that general purpose into a legal presumption
which
will
apply in all
cases
with
the
consequence
that the presumption
will
always prevail unless it
can
be shown that
contact
will
not be in the interests of the
child
in question. I
consider
that the
way
in
which
the qualification to section 1(1) is expressed
does
not support the existence of any such legal presumption, and instead makes it
clear
that the responsibility to maintain
contact
will
exist only in so
far
as
compliance
is positively in the
child's
interests. That, it seems to me, must mean that the parent
who
wishes
to exercise the responsibility of
contact
must himself be satisfied, and must if necessary be prepared to prove, that such
contact
will
be in the interests of the
child.
For
the
foregoing
reasons I am of opinion that the starting point taken by the sheriff
for
the approach
which
he adopted in the present
case
was
unsound.
That, however, is not the end of the matter since it is also necessary to consider
the other sections of the Act on
which
the sheriff
founded.
So
far
as section 2 is
concerned
I
do
not
consider
that it adds much either
way
since, as I have already observed, it is merely the "rights"
counterpart
to the "responsibilities" provisions of section 1. I have earlier noted that it is not qualified, as is the
case
in section 1(1), by any reference to the interests of the
child.
However, I
do
not
consider
that to be of any significance. Since the rights
conferred
by section 2 are expressed as existing in order to enable a parent to
fulfil
his parental responsibilities, it must in my view
follow
that the exercise of rights must also be
carried
out by reference to the qualification at the end of section 1(1).
Section 3(1)(a) of the Act is not of direct
relevance to the present
case
since the present
defender
was
married to the pursuer, and accordingly has parental responsibilities and rights by virtue of sections 1 and 2 of the Act. However, I have already noted that, if the sheriff's approach is
correct,
a
consequence
would
appear to be that a
court
will
require to apply a
different
test
for
determining
the
welfare
of a
child
depending
on
whether
or not an applicant
father
was
or
was
not married to the
child's
mother. That
would
be so on account of the
fact
that the presumption
which,
according to the sheriff, is
created
by section 1
will
apply in the
former
case
but
will
not apply in the
case
of an unmarried
father
who
is excluded
from
the operation of section 1 by virtue of section 3(1)(a). It
would
plainly be an unsatisfactory state of affairs if a
child's
welfare,
and possibly his or her
future,
were
to be
determined
in
different
ways
depending
on the status of the
child's
father,
and I
do
not
consider
that that
can
have been intended by Parliament. On the other hand, if the sheriff's approach
was
wrong,
this particular
dichotomy
will
not arise. In
fact,
I
do
not
consider
that any
dichotomy
is likely
for
reasons
which
have to
do
with
the
content
and structure of section 11, and I now turn to
consider
that section.
In my opinion, the first
point to note in relation to section 11 is that the various orders
which
are
contemplated
in the section are all orders relating to parental responsibilities and parental rights. In that
context
it is important to note that "residence orders" and "
contact
orders" are not expressed in terms of
conferring
a right to residence or a right to
contact.
The provisions relative to such orders assume that the person
concerned
will
have the relevant parental responsibilities and rights and, as the subsections make
clear,
the statutory provisions are
concerned
with
orders "regulating the arrangements"
for
the exercise of such responsibilities and rights. That
form
of
words
is, I think,
consistent
with
what
I understand to be one of the purposes of the 1995 Act, namely that parties should be encouraged to make their own arrangements
for
each parent to
comply
with
his or her parental responsibilities, but
with
the
court
having a power to make an order
for
the regulation of those arrangements
when
parties are unable to reach agreement themselves.
One consequence
of the
way
in
which
section 11 is
drafted
is, I believe, that it
will
not be sufficient
for
an unmarried
father
who
wishes
contact
with
a
child
simply to seek a
declarator
of paternity and then to ask
for
a
contact
order in terms of section 11(2)(
d).
In my view it
will
also be necessary
for
him
first
to seek an order under subsection (2)(b) imposing the relevant responsibilities and giving the relevant rights. If I am
correct
about that, it
follows
that any apparent
dichotomy
between the approach to be taken in the
case
of married and unmarried
fathers
will
disappear
once a
court
is actually
considering
the making of a
contact
order since by that stage
fathers
of both kinds
will
in
fact
have the relevant responsibilities and rights.
More importantly, it seems to me that, although section 11(2)(a) permits a court
to make an order
depriving
a person of some or all of his parental responsibilities or rights, there is nothing in the section to suggest that a person
who
has not been so
deprived
is bound, or even likely, to succeed in obtaining an order such as a
contact
order unless it
can
be shown that that
would
be
contrary
to the interests of the
child.
Given the terms of section 1, as I have earlier sought to
construe
them, and given the terms of section 11(7)
which
I shall examine in more
detail
in a moment, I
consider
that there is nothing in section 11 to support the view that a parent
who
seeks to resist the other parent having
contact
with
a
child
can
achieve that result only by having that other parent
deprived
of parental responsibilities and rights or by
demonstrating,
as the sheriff put it, "the strongest
competing
disadvantages".
At the appeal hearing the solicitor for
the
defender
submitted that, if one parent
were
to seek an order under section 11(2)(a) to have the other parent
deprived
of parental responsibilities and rights, it
would
be
for
the parent seeking the order to establish the grounds
for
the making of the order. That being so, it
was
submitted, it
would
be illogical to have any
different
onus of proof
when
the parent in question
was
merely seeking to prevent the other parent
from
fulfilling
his parental responsibilities by obtaining a
contact
order. I
do
not
doubt
that, in the
case
of an application
for
an order under section 11(2)(a), the onus of proof
will
lie on the person seeking such an order; but,
for
the reasons
which
I have given, I am not persuaded that there is anything in section 11, or indeed elsewhere in the Act, to indicate that,
where
one parent is seeking a
contact
order, the onus should be on the other parent to establish that the order should not be made.
In my opinion that view gains considerable
support
when
one
comes
to section 11(7). I have already quoted the relevant terms of that subsection, and I
consider
that it must have the effect of
disposing
of any argument that the existence of parental responsibilities and rights somehow
creates
a presumption in
favour
of making a
contact
order in
favour
of the person
who
has those responsibilities and rights. I have already noted that the possession of those responsibilities and rights is a prerequisite to seeking an order, but section 11(7) makes it
clear
that, even in that situation, a
court
is not obliged to make an order because, otherwise, the opening
words
in the subsection - "in
considering
whether
or not to make an order" -
would
be
devoid
of meaning. But the subsection goes much
further
because it
clearly
states that, in
considering
whether
or not to make an order and
what
order to make, the
court
must regard the
welfare
of the
child
concerned
as its paramount
consideration.
Moreover, it goes on to say that a
court
is not to make an order unless it
considers
that it
would
be better
for
the
child
that the order be made than that none should be made at all. That part of the subsection plainly requires a
court
to
find
some positive advantage
for
a
child
before making an order; and that, in my opinion, is entirely at odds
with
the proposition that a
contact
order may be made on the basis of a presumption
where
the other party is unable to
demonstrate
what
the sheriff
called
"the strongest
competing
disadvantages".
If the approach
favoured
by the sheriff is
correct,
the result
could
be that a parent
could
obtain a
contact
order in the absence of any evidence or information to show that the
welfare
of the
child
would
thereby be promoted simply because the other parent
was
unable to offer the
compelling
evidence
desiderated
by the sheriff to show that
contact
would
actually be
contrary
to the
child's
welfare.
In my opinion that is not
what
is required by section 11(7), and I therefore
consider
that the provisions of that subsection lend support to my earlier view that section 1
does
not
create
any presumption in
favour
of a parent
who
has parental responsibilities and rights.
From
all of the
foregoing
it
follows
that, in my opinion, the sheriff in the present
case
was
in error
when
he
decided
the outcome of the
case
on the basis that there
was
a presumption in
favour
of
contact.
In my view the 1995 Act has not
changed
the nature of the test as it
was
set out in Sanderson v. McManus, and I
consider
that that
was
the test
which
ought to have been applied. In
fact,
as
was
observed by the solicitor
for
the pursuer, there is nothing in the sheriff's
findings
which,
had he been applying the Sanderson approach,
would
have entitled him to
conclude
that a
contact
order
would
actually be
conducive
to V's
welfare.
The
closest
that the
findings
come
to that is in
finding-in-fact
34 but, as
was
rightly observed, that
finding
really
does
no more than to set out the
defender's
views as to the advantages
which
would
accrue to V. if there
were
to be
contact:
it
does
not
find
that any such advantages
would
in
fact
accrue.
I should perhaps just add that the solicitor for
the
defender
sought to
derive
some
comfort
and support
for
his preferred approach in a passage (at para. 25.015) in the 4th edition of
Dr
Clive's
work
on Husband and
Wife.
However, I have read that paragraph
with
care,
and I
do
not
consider
that it says anything
which
is inconsistent
with
what
I have said in this Note. Indeed, I observe that in
footnote
29
Dr
Clive
makes reference to section 11(7) of the 1995 Act, and suggests that in this respect the 1995 Act is to the same effect as section 3(2) of the 1986 Act. He goes on to mention that, although the House of Lords in Sanderson reserved their opinion on the effect of section 11(7), they also added that this
was
not to be taken as indicating that the new test
was
any
different
from
that provided
for
by section 3(2) of the 1986 Act.
Dr
Clive
does
not suggest that the House of Lords erred in that regard, nor
do
I.
In the whole
circumstances,
therefore, I have
come
to the
conclusion
that this appeal should be allowed, and the sheriff's interlocutor recalled. Both parties to the proceedings are legally aided, and it
was
a matter of agreement that I should
find
no expenses
due
to or by either party in respect of the appeal.