Judgments -- Sanderson v. McManus  continued

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    It should be noted that sections 2-4 of the Act of 1986 were repealed by section 105(5) of and Schedule 5 to the Children (Scotland) Act 1995.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

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

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

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

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

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

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

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

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

    The more fundamental question however is whether the natural link between the child and his parent is so important that the court must always seek to preserve it unless there are strong reasons to the contrary. Whatever may have been the position at common law, the effect of section 3(2) of the Act of 1986 has been to remove any rule or principle to this effect. Lord Dunpark had already recognised the fallacy in this approach, once the welfare of the child was made the paramount consideration, in the opinion which he delivered in Porchetta v. Porchetta 1986 S.L.T. 105. In that opinion, which he delivered on 27 April 1984 before the Act of 1986 was enacted, he said that a father does not have an absolute right to access to his child, that he is only entitled to access if the court is satisfied that that is in the best interests of the child, and that the onus to show that is on the father who seeks access. The child in that case, which was an action of divorce, was only 18 months old. He had had almost no contact with his father, who had seen him only twice very briefly. The mother was adamantly opposed to access, and the judge was satisfied that any attempt at access at that time would only sustain this hostility and that the child would sooner or later sense it and suffer thereby. The only reason given for the father's application was that he was the father of the child. Lord McCluskey has disputed the view, which hitherto has been widely held, that Lord Dunpark intended to alter the traditional approach by the remarks which he made in that case. However that may be, I consider that the effect of section 3(2) of the Act of 1986 is to show that the approach taken by Lord Dunpark is the one which should now be adopted by the court. This was the approach which was accepted by Sheriff Gordon in Russell v. Russell 1991 S.C.L.R. 429: see also Montgomery v. Lockwood 1987 S.C.L.R. 525, where Sheriff Principal R.R. Taylor Q.C. said that the pursuer had no right of access to the child unless the court granted it and that the court could not make any order unless it was satisfied that to do so would be in the interests of the child.

    The pursuer's position in the present case is of course different from that of the father in Porchetta. There has been contact between him and his son, although he and the defender were never married to each other. But these considerations only serve to emphasise that the facts of each case may vary from one extreme to the other and that there will be an infinite variety of circumstances in between. The relationship between the natural father and the child can never be dismissed as irrelevant. The natural relationship is a fact of life which it will always be proper to take into account. But the importance which is to be attached to it must vary according to the circumstances. This is a matter which must be decided not by applying any presumption but upon an evaluation of the evidence. As with any other factor which the court is asked to take into account, the question is whether contact with the parent has something to offer which is likely to be of benefit to the child's welfare. This question must be examined from the point of view of the child. It may normally be assumed that the child will benefit from continued contact with the natural parent. But there may be cases where it is plain on the evidence that it has nothing to offer at all. There may be other cases where the evidence will show that continued contact is likely to be harmful. Whatever the view which is taken on this matter in the light of the evidence, the child's welfare is paramount. The decision of the court will depend on its analysis of all the factors which bear on the question what is in the best interests of the child.

    The decisions taken by both the Sheriff and the Sheriff Principal in this case have also been criticised because neither of them made any mention in their notes of this natural link or of the importance, if any, which they attached to it. But the Sheriff said that he had the impression that the pursuer was thinking in terms of his own rights as the child's natural father, rather than what was best for the child. It is implicit in his criticism of the pursuer and his whole approach to the case that he understood that the point of the pursuer's application was his wish as the child's father to preserve the natural link. The issues to which the Sheriff and in his turn the Sheriff Principal directed their attention were the issues which related to the fundamental question as to whether it was in the best interests of the child that access should be allowed in order that this link should continue. At the end of the day the case was not decided by either the Sheriff or the Sheriff Principal on questions of onus. They reached the conclusion in the light of all the evidence that it would not be in the best interests of the child for the pursuer to have access to him. I agree with Lord Weir that the Sheriff Principal in particular, who looked at the whole matter afresh in the light of his variations to the Sheriff's findings and his own findings on the evidence, was justified in the view which he reached that access would not be beneficial to the child but might be harmful. In these circumstances the Court of Session would not have been justified in interfering with the decision taken by the judges at first instance in the Sheriff Court.

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



LORD CLYDE


My Lords,

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

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

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



 
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