- This appeal concerns a child B.K. born on 17 September 2010.Her father is the appellant and her mother with whom she lives is the respondent.The father appeals the decision of the sheriff following proof on the question of contact.The sheriff’s judgment was issued on 27 February 2014.The father has not had contact with the child for approximately one year.Following proof the sheriff having regard to s.11(7)(a) of the Children (Scotland) Act 1995 declined to make an order for contact between the appellant and the child.
- The parties separated in November 2011 when the child was little more than one year old.B.K. has lived with her mother since then.The appellant has parental rights and responsibilities.Contact progressed reasonably well until June 2012.
- This is a case where there had been contact between father and daughter up to July 2013.Due to disputes with regard to the matter of contact and the mother’s care of the child contact became problematic.Proceedings were raised by the mother at Haddington Sheriff Court to regulate residence and contact.
- A note of appeal with four grounds of appeal was lodged by the appellant’s solicitors on 17 March 2014.The first ground of appeal appears to suggest that the sheriff erred in applying an evidential burden on the appellant which, standing the fact that the appellant had full parental rights and responsibilities, constituted an error in law.Secondly, having regard to Article 8 of the European Convention on Human Rights the sheriff erred in rejecting the “necessity test” when considering where the best interests of the child lay and in refusing to make an order in respect of contact.Grounds 3 and 4 related to whether there was sufficient evidence for the sheriff to make Findings in Fact 13 and 18 respectively.
Appeal Hearing
- The appellant appeared without his solicitor who had advised the court the day prior to the hearing that he no longer acted for the appellant in the appeal.Legal aid had been refused and that was the sole reason that the solicitor was no longer acting.The appellant’s solicitor had provided a written argument for the appellant to present together with certain authorities.The appellant was prepared to proceed but asked that the appeal be sisted pending an application to the Scottish Legal Aid Board (SLAB) for legal aid to judicially review SLAB’s decision to refuse legal aid for the appeal.
- The appellant understood that any sist would potentially be an indeterminate or open-ended one. He also acknowledged the need to avoid delay in cases involving children.The motion was opposed by Ms Craig for the mother principally on the grounds that the outcome would be difficult to predict and there would be delay in determining this appeal.
- I refused the appellant’s motion to sist.The appellant’s civil legal aid application for this appeal had been refused by SLAB in April 2014 and the application to review that refusal had in turn been refused and notified on 20 June 2014.No application had been made for civil legal aid for judicial review proceedings against SLAB.
- If I were to accede to the appellant’s motion to sist the cause this would inevitably prolong these proceedings.To sist the cause pending a possible judicial review of the decision by SLAB to refuse civil legal aid for this appeal would be in effect a rather open-ended sist.In other words it would introduce delay and uncertainty.The test for legal aid involves not only consideration of the prospects in a civil appeal but whether it is reasonable to grant legal aid.(Section 14 of the Legal Aid (Scotland) Act 1986)More particularly, the appropriate test for judicial review is set out in the case of McTear v SLAB 1997 SLT 108.It would be necessary to show that the decision making of SLAB was so unreasonable that no reasonable decision maker would have reached the decision they did, namely, to refuse legal aid and which would make the decision susceptible to judicial review.This is a high or stringent test as the judgment of the Court in McTear demonstrates.It goes without saying that cases involving the welfare of children whether in the private or public law sphere should be dealt with expeditiously.Recent cases of the UK Supreme Court have underlined that understanding.NJB v JEG [2012] UK SC 21 and ANS & Anor v ML [2012] UK SC 30.In White v White 2001 Fam LR 21 the Lord President commented adversely on the delay in hearing an appeal some 18 to 19 months after the decision of the Sheriff Principal and reinforced the requirement that cases involving the welfare of the children should be heard with the minimum of delay.Any sist for the purpose of judicial review would bring both uncertainty and delay and accordingly for these reasons I refused the appellant’s motion.
Appellant’s Argument
- The appellant read from a prepared note of argument which his solicitor had drafted.Paragraphs 1 to 7 relate to matters of fact emanating from the evidence or comment by the sheriff in his note.Due to the difficulties with legal aid the shorthand notes had not been extended and therefore a record of the evidence was not available.
- The appellant appeared to accept that certain of the sheriff’s conclusions were correct.For example, at paragraph 4 of the note of argument the appellant sought to criticise the sheriff’s conclusions in Finding in Fact 39.In that finding the sheriff accepted that the defender (and now appellant) made disparaging remarks about the mother when he exercised contact with B.K. in his own home.The sheriff goes on to state:
“Such remarks were intended to colour the child’s view of her mother, may be harmful to that relationship and are not conducive to the child’s welfare.”
In his submissions the appellant accepted that if he had made disparaging remarks about the mother in front of the child or to the child then he accepted that that would be harmful and contrary to the child’s best interest.
- Paragraph 7 of the note of argument refers to the sheriff’s commentary on the appellant’s evidence as to his relationship with B.K.(para 23 on page 33 of judgment)The appellant considered that the sheriff had failed to take account of the entirety of his evidence with regard to his relationship with B.K. and his other children and that there was evidence that the child would derive benefit from contact.This part of the note of arguments may also have some relevance to Ground 1 of the note of appeal which states:
“The sheriff has erred in law having regard to the fact that the appellant has full parental rights and responsibilities in respect of his child and that he failed to give any positive evidence about what he had to offer the child should contact be allowed, particularly having regard to the fact that the respondent did not lead any evidence regarding herself in respect of these matters and having regard to the general principle that it is considered conducive to the welfare of children for absent parents to maintain personal relations and direct contact with them on a regular basis in terms of section 1 of the Children (Scotland) Act 1995.”
- Paragraph 8 of the note of argument addresses the points of law which form grounds 1 and 2 of the note of appeal.The second ground of appeal argues that if there is to be a severing of contact between child and parent the interaction between Article 8 of the ECHR and section 11(7) of the Children (Scotland) Act 1995 requires that it must be “necessary” in the best interests of the child.The sheriff was wrong to reject the appellant’s solicitor’s argument that the necessity test applied in section 11 cases.The sheriff deals with this at paragraph 33 of his note.I was referred to Elsholz v Germany (2000) 34 EHRR 1412 albeit that authority was not produced. It was submitted that in Elsholz the court in deciding whether to interfere with parental rights must strike a fair balance between the interests of the child and those of the parents and in doing so particular importance must be attached to the best interests of the child.
- Accordingly, in this case, the sheriff erred in law in rejecting the submission that the necessity test applied irrespective of the nature of the proceedings.The necessity test did not simply apply to adoption.Had the sheriff applied the necessity test to the evidence he ought to have concluded that cessation of contact was not necessary for the protection and welfare of the child. There was no evidence of harm and the sheriff’s concerns with regard to the effect of the appellant’s behaviour on the child was wholly speculative.In particular the sheriff had no basis upon which to make Finding in Fact 40 to the effect that:
“Were contact to resume, it is likely that the defender will continue to behave as he did in the past by making spurious allegations, seeking unnecessary explanations for innocuous marks on the child and making disparaging remarks about the pursuer to, or in the presence of the child.”
In the sheriff’s opinion this was not conducive to the welfare of the child. It was contended before me that even if the appellant did not alter his behaviour (which he said he would) the sheriff was not entitled to refuse contact as the high test of necessity had not been met.
- Finally, the note of argument sought to address the issue of where the burden of proof might lie in cases involving contact with children.The appellant should not have been put to the test of showing that it would be to the benefit of the child to have contact with him.This is contrary to Article 8 of the ECHR.Reference is made to that part of the sheriff’s note paragraph 23 on page 33 which has already been referred to.The appellant has full parental rights and responsibilities.There is a rebuttable presumption that he is and should be exercising his rights and carrying out his responsibilities in terms of sections 1 and 2 of the Act. The onus of rebuttal should be on the party who is seeking to restrict the other parent’s contact.It appeared to me that the appellant was suggesting that the court in Sanderson v McManus 1997 SC(HL) 55 and White v White did not adopt the correct approach and that these decisions have now to be considered in conjunction with the ECHR jurisprudence.The onus of proof should lie with the party seeking to stop contact to show why it should not be allowed rather than the party who is being denied contact requiring to show why it should not be curtailed.The sheriff therefore erred in refusing all contact between the appellant and his daughter.
Respondent’s Submissions
- Ms Craig urged that the appeal be refused. There was no merit whatsoever in points 3 and 4 of the grounds of appeal in the absence of the extended notes of evidence.It was not open to the appellant to argue that the sheriff had misapplied the evidence or had made findings in fact without there being any basis in the evidence.I was referred to Macphail in Sheriff Court Practice 18.63 and the following passage:
“Where the appellant has not produced the shorthand notes, it was held that it was not open to the Sheriff Principal to hold that the sheriff failed to address his mind to the evidence and had not dealt with certain parts of it.”
I was invited to repel grounds of appeal 3 and 4.
- Turning to the remaining grounds of appeal the first ground of appeal criticises the sheriff in his assessment of the appellant’s evidence relating to the manner in which continuing contact would be conducive to the child’s welfare.In particular the ground of appeal refers to the lack of evidence from the respondent and the sheriff’s failure to have regard to the general principle that it is conducive to the welfare of the children for non-resident parents to maintain personal relations and direct contact with them in terms of section 1 of the Children (Scotland) Act 1995.
- There was no need for the sheriff to look for evidence of what the mother might contribute to the welfare of the child.Residence with the mother had been conceded by the appellant prior to proof.Furthermore, the sheriff had two reports by the court appointed reporter which gave a very positive assessment of the respondent’s qualities as a mother and her ability to care for B.K.The sheriff records that none of the professional workers who have dealt with the respondent have any concerns over her ability to care for the child.
- The sheriff properly focuses on the correct test - that being the test set out in section 11(7)(a) of the 1995 Act.The sheriff addresses the test at paragraph 31 of the note and in the paragraphs that follow.The sheriff considers the two part statutory test. I was referred to Sanderson v McManus and M v M 2012 SLT 427.
- The second ground of appeal involves the requirements of Article 8 of the European Convention on Human Rights.It is suggested that consideration of the statutory welfare test alongside Article 8 requires there to be evidence of necessity before a contact order is refused.
- Ms Craig argued that this proposition was simply wrong in law.In White v White the Lord President considered the interaction between Article 8 of the ECHR and the 1995 Act.The Lord President, Lord Rodger considered the domestic law to be entirely compliant with the provisions and requirements of Article 8.At paragraph 25 of the judgment of the Inner House he had this to say:
“25. These passages are sufficient to suggest that the structure of our law complies with the requirements of Article 8 since it respects family life and contains provisions enshrined in legislation for balancing the competing interests of various members of the family. In making regard for the child’s welfare the paramount consideration, section 11(7)(a) is in conformity with the approach laid down by the European Court.”
- The sheriff was correct to reject the appellant’s solicitor’s submission that the test for not making an order in respect of contact would be one of necessity.The sheriff correctly identifies that cessation of formal contact does not amount to severing of the ties between the parent and child.
- Accordingly, the sheriff had given careful reasons for his decision and has applied the correct test in deciding whether to grant the order for contact.There is no basis in law for his decision being challenged and the appeal should be refused.In any event the appellate court’s role in such proceedings has been set out in M v M and S v S [2012] CSIH 17.Both cases involved relocation but nonetheless the function of the appellate court and its power to interfere with a decision at first instance is circumscribed by the case law.In this case there has been no material error of law and the appeal falls to be refused.
DECISION
- The only issue for the sheriff to decide following proof in this case is the question whether or not a contact order should be made in favour of the appellant who is the father of B.K.The mother opposed any award of contact.Residence of the child with the mother was no longer a disputed issue and the appellant had conceded prior to proof that that child should reside with her mother.
- It is important to record certain of the facts which the sheriff found from the evidence he heard.He records that the appellant had been actively involved with the child when B.K. was an infant and looked after B.K. whilst the respondent was working.Contact took place between father and daughter quite regularly between the date of the separation in November 2011 and approximately one year later when the court decided that further contact should take place at the contact centre.This continued until August 2013 when the court terminated contact and assigned a proof.
- The difficulties relating to contact stem from the behaviour of the appellant in the main.The sheriff found that the appellant was jealous, controlling and dishonest.He repeatedly made unfounded complaints and allegations against the respondent relating to her care of the child.The sheriff found that the appellant made repeated malicious calls to the Social Work Department suggesting that the respondent was involved with drugs or alcohol.There was no basis and certainly no reasonable basis for the allegations.The appellant arranged for the child to be taken to a GP, social workers and indeed to the Sick Children’s Hospital for minor injuries or scrapes which were simply part of the rough and tumble of growing up.The allegations were designed to undermine the respondent’s care of B.K.The appellant refused to return the child to the respondent following contact at the end of June 2012.The child was eventually returned but only when ordered to do so by the court.
- Despite being reassured by social workers and health professionals the appellant continued to make spurious complaints about the respondent’s care of the child.By April 2013 not only had contact been limited to a contact centre but the appellant was well aware that his repeated spurious complaints were not in the child’s best interests.The appellant at that stage knew that his behaviour was having an adverse effect on the child and contact.The appellant gave an undertaking to the court on 30 April 2013 that he would not make complaints other than through his solicitors.Despite that undertaking the appellant proceeded to make a serious allegation to the police that the child may have been abused by the pursuer necessitating child care protection measures.Due to this breach of the undertaking following his repeated spurious complaints contact was reduced to nil on 6 August 2013.
- Against that background the case proceeded to proof in January of this year.
- It is important that I set out the role and function of the appellate court in such proceedings. The law is well settled and set out in Macphail on Sheriff Court Practice (18.103 onwards).
- The sheriff has given a careful analysis and evaluation of the evidence.He gives reasons for preferring the evidence of the respondent and her witnesses to that of the appellant.He is highly critical of the appellant’s evidence and his behaviour.His obsession with undermining the respondent involved behaviour which demonstrated that he did not have regard for the welfare of the child, for example refusing to return the child following contact in June/July 2012;and subjecting the child to needless medical examination and scrutiny.The credibility of the respondent is supported by the evidence of the independent witnesses such as the social workers.In any event, standing the purpose of an appeal I place much weight on the sheriff’s view of the witnesses and his evaluation of the evidence.He has the advantages that the appellate court cannot have.The sheriff sat through the entire case and his judgment in the end of the day reflects his total familiarity with the evidence.My function in this appeal is much more limited and indeed is telescopic in nature.
- In M v M Lord Emslie made reference to the oft quoted dicta of Lord Thankerton in the leading case of Thomas v Thomas 1947 SC (HL).Thomas v Thomas is but the beginning of a series of decisions which state and re-state the principle that the appellate court should only intervene if satisfied that the judge or sheriff at first instance has got it plainly wrong.Lord Hopein Thomson v Kvaerner Govan Limited [2003] UK HL 45 put it thus:
“It can, of course, only be on the rarest occasions and in circumstances where the appellate court is convinced by the plainest of considerations that it would be justified in finding that the trial judge has formed the wrong opinion.”
As Lord Emslie observes in M v M paragraph [16]:
“Where a judge of fact makes findings, or reaches conclusions, which are based on his having heard evidence from witnesses these will not lightly be disturbed on appeal.”
In this appeal I was referred to Lord Emslie’s judgment in S v S a case which also deals with child welfare issues. Lord Emslie deals with the role of the appellate court at paragraph 28:
“…in particular, a decision at first instance cannot be recalled or set aside on appeal unless it is shown to be tainted by some material error of law or approach, or failing that, unless the decision maker, in reaching his conclusions on the evidence before him, can be said to have gone plainly wrong.”
- Accordingly, having regard to the jurisprudence on the role of the appellate court it is necessary that I consider the grounds of appeal based on the sheriff’s findings and note.The absence of extended notes of evidence render grounds of appeal 3 and 4 unarguable.It is not open to me to decide whether the sheriff failed to address the evidence in the absence of the shorthand notes.
- The first ground of appeal appears to argue, in effect, that the sheriff applied the incorrect test.It suggests that the sheriff imposed the burden or onus on the appellant which would be unacceptable in a case involving the welfare of the child where the appellant has parental rights and responsibilities.
- The starting point is the test which the sheriff required to apply in this case which is set out in section 11(7)(a) of the Children (Scotland) Act 1995:
“In considering whether or not to make an order under sub-section (1) above [viz an order in relation to the parental responsibilities, parental rights, guardianship of the administration of the child’s property] 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 it would be better for the child that the order be made than that none should be made at all….”
- Having regard to the decisions in Sanderson v McManus and White v White, the court proceeds on the basis that it is normally conducive to the welfare of the child if a non-resident or absent parent maintains personal relations and direct contact with the child.That being said there is no presumption in favour of a contact order and the court therefore requires to have regard to all the relevant facts available acknowledging that there are circumstances where orders in respect of parental responsibilities may not be in the child’s best interests.
- Turning to the question of onus of proof which appears to be raised somewhat obliquely in the first ground of appeal, it is important to comment that in applying section 11(7)(a) which sheriffs have to do on a regular often daily basis the court may make orders under that provision either on the application of a party or ex proprio motu.The court has an obligation to consider all the evidence and material available to it.Often at an interim stage the material may be in the form of reports and ex parte statements whereas in the present case the sheriff had the distinctive advantage of hearing evidence.Whatever the material may be the sheriff has to consider all the relevant facts and circumstances when applying the statutory test.He has to decide what would be conducive to the child’s welfare.White v White is authority for the proposition that section 11(7)(a) does not impose a legal onus on the person who asks for an order regulating contact.The sheriff recognises this and correctly articulates the law in paragraph 34 of his decision.
- Legal onus, of course, can be distinguished from any evidential onus which one may expect a party applying for an order under section 11 to embrace.Clearly, if there is a duty on the sheriff is to consider all relevant material it is important that parties place before the court material on which the sheriff may reach a decision.The sheriff has clearly done so and has given reasons for the findings he makes both on the evidence and the credibility and reliability of the main players.
- In my view there is no merit in the first ground of appeal which falls to be repelled.
- The second and remaining ground of appeal criticises the sheriff for failing to consider the interaction between Article 8 of the ECHR and the requirements of section 11(7)(a).The court in White v White also considered Article 8 of the ECHR and considered that the domestic law in the form of section 11 complied with the requirements of Article 8 - respect for family life.Article 8 of the European Convention on Human Rights and Fundamental Freedoms is articulated in these terms:
“1 Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals or the protection of the rights and freedoms of others”
- The case of Elsholz referred to by the appellant but not produced is not authority for the proposition that there is an absolute right to family life and to contact. The terms of Article 8 clearly state that the right is to have respect for family life.Elsholz is a case about parental contact however involved issues of procedural and evidential difficulties which do not arise here.As the sheriff observes Lord Rodger in White v White quotes with approval the dicta of Sedley LJ in Re F (Adult) at page 531:
“The family life for which Article 8 requires respect is not a proprietary right vested in either parent or child: It is as much an interest of society as of individual family members, and its principal purpose, at least where there are children, must be the safety and welfare of the child. It needs to be remembered that the tabulated right is not to family life as such but to respect for it. The purpose, in my view, is to ensure that within proper limits entitlement of individuals to the benefit of what is benign and positive in family life. It is not to allow other individuals, however closely related and well intentioned, to create or perpetuate circumstances which jeopardise their welfare.”
At paragraph 31 the sheriff succinctly articulates the legal effect of Article 8 in cases involving the application of the 1995 Act. The sheriff is correct to state:
“Article 8 cannot be prayed in aid to support to support a claim for contact if such contact would not be conducive to the child’s welfare.”
- The necessity test has been considered in another judgment of the UK Supreme Court in ANS & Anor v ML [2012] UK SC 30.That case deals with compatibility with convention rights in the context of dispensation with parental consent on adoption.The necessity test accordingly has a place where there is to be the most serious interference in private or family life such as adoption where the parental rights and responsibilities are severed.On the other hand withdrawal of contact is a decision by the court not to make an award of contact and does not involve the extinguishment of parental rights or responsibilities.The appellant in this case continues to have parental rights and responsibilities. The issue is simply that the court having regard to the welfare test has decided that making a contact order is not conducive to the child’s best interests.It is not difficult to understand why the test of necessity is required in the more drastic severing of rights by adoption which involves the severing of family ties.The case of ANS however recognises the paramountcy of the welfare test in relation to children.The overriding consideration of the best interests of the child trumps all others including the rights and interests of the parents.
- In my view the sheriff’s decision discloses a proper, careful and reasoned application of the Children (Scotland) Act which is the statutory provision which must be applied in cases where there is an application for a section 11 order for contact.Further, the sheriff’s decision discloses a clear appreciation of the interaction between the 1995 Act and Article 8 of the ECHR.
- Accordingly, the appeal falls to be refused.At the conclusion of the appeal I was not addressed on the question of expenses and accordingly make no order in respect of expenses at this stage.In the event that it is necessary to make such an order the parties should contact my appeals clerk to arrange a hearing.I imagine that the parties should be able to agree any question of expense without the necessity of a hearing.
- Finally it is important to acknowledge that the appellant dealt with this appeal without the benefit of his solicitor being present.Obviously, his solicitor has assisted greatly in preparing for the appeal.It is important to recognise that the appellant does retain parental rights and responsibilities and that the appellant has in the past enjoyed contact with his daughter and it is hoped that his daughter enjoyed that same contact.Respecting entirely the careful and well-reasoned decision of the sheriff on this difficult and anxious matter it should nevertheless be possible to achieve an outcome, having regard to the interests of B.K. and putting aside parental difficulties and enmities, that the appellant should be able to maintain some indirect contact with B.K. in order that B.K. is aware that an important figure in her life has a beneficial interest in her welfare as she grows up.Any such contact will only be beneficial if it is undertaken and accepted by both parents to be with the sole object of promoting something worthwhile for the child.