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FIONA ANN GRANT OR WHITE v. JAMES LAWRENCE WHITE (AP)


FIRST DIVISION, INNER HOUSE, COURT OF SESSION

Lord President

Lord Kirkwood

Lord McCluskey

XI39/00

OPINION OF THE LORD PRESIDENT

in

APPEAL

From the Sheriffdom of Lothian and Borders at Linlithgow

in the cause

FIONA ANN GRANT or WHITE

Pursuer and Respondent;

against

JAMES LAWRENCE WHITE (A.P.)

Defender and Minuter:

_______

For minuter and appellant: Mundy; Russel & Aitken (for Caesar & Howie, Solicitors, Bathgate)

For respondent: J. M. Scott; Balfour & Manson (for Aitkens, Solicitors, Livingston)

6 March 2001

[1]On 6 August 1997 the Sheriff granted decree of divorce in an action between the pursuer, Mrs. Fiona Ann Grant or White, and the defender, Mr. James Lawrence White. The Sheriff ordered that the children of the marriage, K, born on 21 November 1985, and V, born on 29 July 1991, should reside with the pursuer. The Sheriff was not asked to make any order relating to contact between the defender and his children and he did not do so. In August 1998 the defender ("the minuter") lodged a minute in the divorce process craving the court to vary the interlocutor of 6 August 1997 by making an order allowing him to have direct contact with the children every alternate Saturday. The pursuer ("the respondent") opposed the crave of the minute. The minute was intimated to the older girl, K, who expressed a desire not to have contact with the minuter. The minuter therefore decided not to pursue his application for contact with her and, when the proof on the minute began on 11 January 1999, the Sheriff interponed authority to a Joint Minute and dismissed the application in relation to her.

[2]After proof, by decree dated 24 May 1999, the Sheriff varied the interlocutor of 6 August 1997 and made an order broadly to the effect that the minuter should have direct contact with V each alternate Saturday from 10 a.m. till 4.30 p.m. The respondent appealed to the Sheriff Principal who allowed the appeal and, by decree dated 2 August 1999, refused the minuter's crave for contact. The Sheriff Principal's decision is reported as White v. White 1999 S.L.T. (Sh. Ct.) 106. The minuter appealed to this court and I observe at the outset that it is unsatisfactory that the appeal was not heard until 1 March 2001. I return to that matter below.

[3]In the light of the proof the Sheriff made various findings in fact. The parties agreed that by a slip of the pen in finding 3 the Sheriff had wrongly given the date of the parties' marriage as 1994 rather than 1984. With that exception, and with the exception of one suggested addition to finding 23, which was not insisted upon, the respondent did not challenge the Sheriff's findings in fact. We must therefore deal with the case on the basis of those findings. What divided the parties both before the Sheriff Principal and in this court was not the facts but the law and, more particularly, the approach which a sheriff was required to take in dealing with an application for an order under Section 11 of the Children (Scotland) Act 1995 ("the 1995 Act"). Before turning to that matter, however, I must set out the main facts which were said to be relevant to the issue between the parties.

[4]The parties lived together with their daughters until about November 1995. The minuter worked but was also involved in the care of the children, doing such things as taking them to and from school, bathing and dressing them and reading to them. As the Sheriff put it, he behaved like most employed fathers would behave, devoting such time as he was able to the care of his children. During this period he had a good relationship with the girls, but K was closer to her mother while the minuter enjoyed a closer relationship with V than with K. There was no evidence that his relationship with the girls was in any way detrimental or harmful to them. When the parties separated, the girls continued to live with their mother and the minuter would usually see them for about an hour on Tuesday evenings and from 10 a.m. until 4 p.m. on Saturdays. Generally, K was not interested in having contact with the minuter and would sometimes be reluctant to go to see him; on occasions she would refuse to go. V was more willing to go, but on occasions the minuter had to lift her and carry her to his car. In this she was influenced by her sister's reluctance and refusals.

[5]A new phase began in August 1996 when the minuter's father died. The minuter returned to Scarborough to live with his mother and so he was not able to see his children each Tuesday and Saturday. He spoke to them regularly on the telephone, however, and between August and December he travelled to West Lothian three or four times to see the girls. On one occasion the respondent took the girls to Scarborough where they spent the weekend with the minuter at his mother's house. In December 1996 the respondent cancelled an arrangement for the minuter to see the girls on Boxing Day and he agreed to postpone his visit until after Christmas. He went to West Lothian on 5 January 1997 and spent much of the day with them. That was to be the last time he had direct contact with them, but he continued to speak to them by telephone until about March 1997.

[6]Until about Christmas 1996 relations between the parties were relatively cordial and the respondent had not excluded the possibility of a reconciliation with the minuter. But in about February or March 1997 the minuter had a short relationship with another woman and, while this was going on, the respondent telephoned the minuter's home and spoke to this other woman with whom she quarrelled. The woman made a threat that the girls would be removed from the respondent's care. The respondent raised an action of divorce on the basis of the irretrievable breakdown of the marriage due to the minuter's unreasonable behaviour and she obtained an interim interdict against the minuter from removing the children. In due course the initial writ was amended to seek divorce on the ground of irretrievable breakdown due to the minuter's adultery. From the time of the telephone call from the other woman the respondent did not contact the minuter and she changed her home telephone number to an ex-directory number which she did not give to him. Although the minuter wrote to the girls, they did not reply and he could not speak to them on the telephone.

[7]In these circumstances the respondent has taken no steps to encourage the children to have contact with the minuter and she has no intention of doing so since it is her view that it is in their best interests that there should be no such contact. This view of the respondent has been largely influenced by what K said to her. V, who was old and mature enough at the time of the proof to express a view, said on several occasions that she did not want to see the minuter or to have contact with him and no-one has tried to alter that view. On the other hand, the minuter is genuinely fond of both of his girls and believes that contact with him would be in their best interests. He wishes to have a part in controlling, directing and guiding their upbringing and to fulfil his responsibility to maintain personal relations and to have direct contact with them on a regular basis. He accepts that he cannot play such a part in K's life unless she agrees. The minuter is in a position to travel to West Lothian and so contact with V is practicable. V suffers from asthma and it is probable that attacks were caused by discussion of the proceedings relating to contact and by the prospect of contact being resumed. If the minuter were to resume contact with V, this would cause her some upset and distress, which would be likely to disappear as she became familiar once more with her father.

[8]On the basis of these findings in fact the Sheriff found in fact and law that:

"1.It is in the best interests of the child, [V] , that the minuter should maintain personal relations and direct contact with her.

2.It is in the best interests of said child that such contact should take place on a non-residential basis.

3.It is better for said child that a contact order regulating such contact should be made rather than that none be made."

In essence, when allowing the appeal, the Sheriff Principal held that there was nothing in the facts as found by the Sheriff which entitled him to hold that it was in the best interests of V that the minuter should maintain personal relations and direct contact with her. That being so, the Sheriff had not been entitled, having regard to the terms of Section 11(7)(a) of the 1995 Act, to make the contact order (1999 S.L.T. at p. 113 B - C). On behalf of the minuter Mr. Mundy argued that, when that provision was considered in the context of the 1995 Act as a whole, the Sheriff Principal could be seen to have approached it in the wrong way, while, for the respondent, Mrs. Scott submitted that the 1995 Act had made no change in the pre-existing law and that the Sheriff Principal had applied Section 11(7)(a) correctly in the light of previous authorities and, in particular, the decision of the House of Lords in Sanderson v. McManus 1997 S.C. (H.L.) 55.

[9]In the long title the 1995 Act is described inter alia as "An Act to reform the law of Scotland relating to children ... to make new provision as respects the relationship between parent and child and guardian and child in the law of Scotland...". Subsections (1), (3) and (4) of Section 1 ("Parental responsibilities") provide:

"(1)Subject to section 3(1)(b) and (3) of this Act, a parent has in relation to his child the responsibility -

(a)to safeguard and promote the child's health, development and

welfare;

(b)to provide, in a manner appropriate to the stage of development

of the child -

(i)direction;

(ii)guidance,

to the child;

(c)if the child is not living with the parent, to maintain personal

relations and direct contact with the child on a regular basis; and

(d)to act as the child's legal representative;

but only in so far as compliance with this section is practicable and in the interests of child.

(3)The responsibilities mentioned in paragraphs (a) to (d) of subsection (1) above are in this Act referred to as 'parental responsibilities'; and the child, or any person acting on his behalf, shall have title to sue, or to defend, in any proceedings as respects those responsibilities.

(4)The parental responsibilities supersede any analogous duties imposed on a parent at common law; but this section is without prejudice to any other duty so imposed on him or to any duty imposed on him by, under or by virtue of any other provision of this Act or of any other enactment."

Section 2 is headed "Parental rights" and subsections (1), (4) and (5) provide:

"(1)Subject to section 3(1)(b) and (3) of this Act, a parent, in order to enable him to fulfil his parental responsibilities in relation to his child, has the right -

(a)to have the child living with him or otherwise to regulate the

child's residence;

(b)to control, direct or guide, in a manner appropriate to the stage

of development of the child, the child's upbringing;

(c)if the child is not living with him, to maintain personal relations

and direct contact with the child on a regular basis; and

(d)to act as the child's legal representative.

(4)The rights mentioned in paragraphs (a) to (d) of subsection (1) above are in this Act referred to as 'parental rights'; and a parent, or any person acting on his behalf, shall have title to sue, or to defend, in any proceedings as respects those rights.

(5)The parental rights supersede any analogous rights enjoyed by a parent at common law; but this section is without prejudice to any other right so enjoyed by him or to any right enjoyed by him by, under or by virtue of any other provision of this Act or of any other enactment."

[10]Since the parties were married when K and V were born, in principle the minuter has both parental responsibilities and parental rights in respect of them. Moreover, since he has not been deprived of any of his responsibilities or rights, he does actually have all of them, including the responsibility under Section 1(1)(c) to maintain personal relations and direct contact with his children and the right, in order to fulfil that responsibility, to maintain personal relations and direct contact with them on a regular basis. On the other hand, the minuter is required to comply with the responsibilities which Section 1 imposes upon him only in so far as it is practicable and in the best interests of his children for him to do so. Since the minuter already has all these rights and responsibilities, in his minute seeking variation of the divorce decree he was not asking the court to impose on him the responsibility for maintaining personal relations or contact with V, nor was he asking the court to grant him the corresponding right. Rather, he was asking for an order regulating the arrangements for discharging his responsibility and for exercising his corresponding right.

[11]The provisions which bear on orders of this kind are to be found in Section 11. Subsections (1), (2), (3), (5), (7) and (13) of that section, so far as relevant for present purposes, provide:

"(1)In the relevant circumstances in proceedings in the Court of Session or sheriff court, whether those proceedings are or are not independent of any other action, an order may be made under this subsection in relation to -

(a)parental responsibilities;

(b)parental rights....

(2)The court may make such order under subsection (1) above as it thinks fit; and without prejudice to the generality of that subsection may in particular so make any of the following orders -

(a)an order depriving a person of some or all of his parental

responsibilities or parental rights in relation to a child;

...

(d)an order regulating the arrangements for maintaining personal

relations and direct contact between a child under that age and a person with whom the child is not, or will not be, living (any such order being known as a 'contact order')....

(3)The relevant circumstances mentioned in subsection (1) above are -

(a)that application for an order under that subsection is made by a

person who -

...

(ii)has parental responsibilities or parental rights in relation

to the child....

(b)that although no such application has been made, the court

(even if it declines to make any other order) considers it should make such an order.

(5)In subsection 3(a) above 'person' includes (without prejudice to the generality of that subsection) the child concerned....

(7)Subject to subsection (8) below, 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; and

(b)taking account of the child's age and maturity, shall so far as

practicable -

(i)give him an opportunity to indicate whether he wishes

to express his views;

(ii)if he does so wish, give him an opportunity to express

them; and

(iii)have regard to such views as he may express.

(13)Any reference in this section to an order includes a reference to an interim order or to an order varying or discharging an order."

[12]The general authority for the Sheriff's granting the order sought by the minuter regulating the exercise of his parental responsibilities and rights was Section 11(1) read in conjunction with subsection (2)(d). In considering whether or not to vary the divorce decree and, if so, in what way, the Sheriff had to apply subsection (7). In other words, he had to regard the welfare of V as the paramount consideration and was not to make any order unless he considered that it would be better for V that the order be made than that none should be made at all. The Sheriff was, of course, well aware that this was the test which he required to apply and, in his findings in fact and law and in his decree, he sought to apply it in the manner described in his note. The nub of his reasoning is to be found in a passage where, after analysing the 1995 Act and the authorities on the law in force before it was passed, the Sheriff says:

"Accordingly it seems to me therefore that section 1 of the 1995 Act gives statutory recognition to what was perhaps already a widely held belief; that the welfare of children is best served if they keep contact, and are afforded the opportunity to keep contact, with both parents. The Act does not give that statutory recognition in all cases. It allows that recognition to be removed in certain circumstances. This statutory imposition of parental responsibilities is a change on the previous law. So where a parent has the parental responsibility of maintaining personal 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. An order to allow such contact will be necessary where the parent with the sole parental right of residence either refuses to allow contact or is indifferent or uncooperative in ensuring that contact takes place.

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. Such contact will not give rise to the sort of competing disadvantages to which I refer. I will accordingly make a contact order as being in her best interests. One is necessary because without it no contact is likely to take place."

[13]Mrs. Scott adopted the Sheriff Principal's criticism of the Sheriff's reasoning to the effect that he had decided the outcome of the case on the basis that there was a presumption in favour of the absent parent having contact with his child (1999 S.L.T. at p. 113 B), whereas the true position was that there was no presumption in favour of the granting of such an order and it was for the parent to demonstrate to the court's satisfaction that the making of a contact order would be in the interests of, and promote the welfare of, his child. In other words, the position remained, as Lord Dunpark had held in Porchetta v. Porchetta 1986 S.L.T. 105, that

"A father does not have an absolute right to access to his child. He is only entitled to access if the court is satisfied that that is in the best interests of the child. The onus is on the defender to show that."

The critical point was said to be that there was an onus on the parent seeking access to show that it would be in the best interests of the child. That approach had been approved by the House of Lords in Sanderson and the Sheriff Principal had been correct to hold that it should continue to be applied when courts were asked to grant an order under Section 11(1) of the 1995 Act.

[14]No-one can doubt that Section 11(7)(a) requires the court to have regard to the welfare of the child concerned as its paramount consideration. This is merely the latest in a long line of similar provisions going back to the Guardianship of Infants Act 1925. When Parliament enacts such a test, it intends to lay down a test which is capable of being understood by the judges who will have to apply it and which will, so far as possible, result in all courts approaching the issue in the same way. In other words, when Parliament says that judges are to have regard to the welfare of the child, it must consider that judges will, by and large, have a common conception of what that involves - of what will advance the welfare of children in regard to these matters. More particularly, Parliament must consider that they will have a common conception of what will, generally speaking, be in the interests of children so far as contact with their parents is concerned. If that were not so, the test would either be meaningless or else a court could never apply it without expert evidence - which might vary from case to case - as to what would, in general, best serve the interests of children and, therefore, of the child or children in question. But, of course, the test has to be applied daily in courts up and down the land, not only after proof but much more often in relation to motions for interim orders (Section 11(13)). Parliament could not have intended that courts should hear evidence in all these cases on what in general may be thought best to promote the welfare of a child. And indeed courts can and do apply the test all the time without hearing evidence as to this general issue. Rather, they look at the material presented to them and, when doing so, have regard to some general principle as a point of reference as to whether, in general, it is in the interests of a child to have direct contact with an absent parent. The point of reference to which they have regard - and which they take because it represents the consensus of society - is that "it may normally be assumed that the child will benefit from continued contact with the natural parent." Lord Hope formulated the general principle, in respect of a natural parent, in these words in Sanderson 1997 S.C. (H.L.) at p. 64 and, subsequently, Lord McCluskey, giving the opinion of the Second Division, said much the same in Davidson v. Smith 1998 Greens Fam. L.R. 21 at p. 24, paragraph 5-10:

"In the first place, [the sheriff] was entitled and indeed bound to take account of the fact that it is normally in the best interests of a child to maintain contact and relations with the natural parent with whom the child is no longer living. That may be judged as a benefit without the need for evidence from experts or otherwise."

The same goes, at least as powerfully, for contact between a child and his father where the father was married to the child's mother. Not surprisingly, the same general principle informs the decisions of the English courts and can be seen, for instance, in the statement by Latey J. which Balcombe L.J. endorsed in In re H (Minors)(Access) [1992] 1 F.L.R. 148 at p. 151 A.

[15]In Sanderson Lord Hope deprecated the use of the term "presumption" to describe an assumption or general principle of this kind and I would respectfully associate myself with that observation. In any case which a court has to decide it is simply a working hypothesis born of human experience. Men and women have always drawn on their own experience in everyday matters of family life and in any given society people will tend to share certain views about them. In language of unsurpassed beauty that has echoed down the ages, Proverbs and the Wisdom of Solomon give expression to the views on the upbringing and welfare of children which were current in ancient Israel. While we can never hope to emulate their poetry, we too, as a society in twenty-first-century Britain, must hold certain common values and assumptions as to the upbringing and welfare of children. In Sanderson Lord Hope was articulating one of these shared assumptions or general principles. And indeed the power of that particular assumption can perhaps be gauged by imagining the outcry if a judge were to declare that she would take as her starting point the opposite assumption, that normally a child would not benefit from contact with his absent parent. If, therefore, Parliament had given no further guidance on the point, in deciding what would be for the child's welfare, and hence what should be regarded as the paramount consideration in terms of Section 11(7)(a), the court would have applied the kind of general principle articulated by Lord Hope in Sanderson. As he was at pains to explain, the court's decision would, of course, have depended on the facts of the particular case. In reaching its decision, however, the court would have weighed the various factors on one side or the other with this point of reference in mind.

[16]But in my view, when called upon to apply Section 11(7)(a), we are not in a situation where Parliament has given no indication of its view on what, generally speaking, is in the interests of children in respect of maintaining contact with their parents. Admittedly, Parliament has not made the kind of express statement of general principle which is to be found in Section 11(4)(c) of the Family Law Act 1996 enacted for England and Wales but not brought into force. Such explicit statements of principle are rare in British legislation and more usually, as here, we have to deduce the principles on which Parliament has proceeded from the operative provisions which it has enacted. As the Sheriff noticed, in Section 1(1) of the 1995 Act Parliament has imposed on parents various responsibilities which can be enforced by their children (Section 1(3)). The only possible inference is that Parliament considered that the welfare of children was best served by imposing those responsibilities on their parents. Mrs. Scott readily conceded, for instance, that one could infer from Section 1(1)(b) that Parliament had proceeded on the general principle that it conduced to the welfare of children if their parents provided them with direction and guidance in a manner appropriate to their stage of development. Such a general principle is hardly startling. Indeed it really amounts to little more than a common place and the Scottish Law Commission seems to have considered that it was already to be found in the pre-existing law (Report on Family Law (Scot. Law Com. No. 135, 1992), paragraph 2.1). Similarly, one can infer from Section 1(1)(c) that Parliament has proceeded on the general principle that it conduces to the welfare of children if their absent parent maintains personal relations and direct contact with them on a regular basis. Again, the principle is by no means novel, being much the same as the assumption enunciated by Lord Hope. Even more significantly, this general principle is to much the same effect as Article 9.3 of the United Nations Convention on the Rights of the Child which has been ratified by the United Kingdom. It provides:

"State Parties shall respect the rights of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interest."

[17]Of course, like the other paragraphs of subsection (1), paragraph (c) contains nothing more than a general principle which must be applied with discrimination. Parliament has itself recognised that there is a limit to the extent to which parents can be expected to comply with the responsibilities laid upon them. They cannot be expected to do so if it is impracticable, for instance, because they are working far from home. Similarly, there may be particular circumstances where the discharge by a parent of his parental responsibilities would not in fact operate in the interests of the child. Reflecting the terms of Article 9.3 of the United Nations Convention, Parliament therefore places a limit on the parental responsibilities and does not require that a responsibility which is intended to be for the benefit of the child should be exercised so as to work to his detriment. But that necessary qualification does not detract in any way from the general principle which is to be deduced from the provision in paragraph (c): that it is conducive to the welfare of children if their absent parents maintain personal relations and direct contact with them on a regular basis. As I have suggested already, such a general principle would readily find acceptance in our society. Be that as it may, when applying the provisions of Part I of the 1995 Act and, in particular, Section 11(7)(a), courts should have regard to this general principle which is to be deduced from Parliament's enactment in Section 1.

[18]At times, at least, in the course of her argument Mrs. Scott did not appear to dispute that such a general principle could be deduced from Section 1(1)(c). She accepted that the provision showed that "it would usually be in the interests of the child" for the absent parent to maintain personal relations and direct contact on a regular basis. But she insisted that the court was constrained from giving effect to that general principle in applying Section 11(7) by the decision of the House of Lords in Sanderson and especially by the comment in the speech of Lord Hope, with whom the other Lords of Appeal concurred, to the effect that, in applying Section 3(2) of the Law Reform (Parent and Child) (Scotland) Act 1986, courts should adopt the approach of Lord Dunpark in Porchetta (1997 S.C. (H.L.) at p. 64 A - B). This included Lord Dunpark's view that the onus of showing that access would be in the interests of the child was on the parent who applied for access (1997 S.C. (H.L.) at p. 63 G - H).

[19]In Sanderson the House of Lords was concerned with Section 3(2) of the 1986 Act rather than with Section 11(7)(a) of the 1995 Act. While noting that their Lordships had heard no submissions on the new legislation and that it would not be right for him to express any views on it, Lord Hope also said that he would not like his silence to be taken as indicating that he considered that the new statutory test differed from the test in the 1986 Act (1997 S.C. (H.L.) 61 G - 62 B). It seems to me therefore that their Lordships were expressing no view on the approach to be taken under the 1995 Act and that, in applying the provisions of the new Act, we are accordingly not bound by their decision in Sanderson. That said, we must obviously pay great respect to their observations, in so far as they can be said to be relevant to the issue before us. Indeed, for that reason I have already drawn upon Lord Hope's formulation of the assumption as to the value of a parent's contact with his child.

[20]Only Lord Clyde actually dealt in any detail with onus. He pointed out that it would usually be of little practical importance in cases of this kind where the evidence had been heard (1997 S.C. (H.L.) at p. 65 D - E). I would respectfully agree with that observation, which is, of course, only one particular application of a point of more general application. See, for instance, the comment of Lord Reid in McWilliams v. Sir William Arrol & Co. 1962 S.C. (H.L.) 70 at p. 83. What Lord Clyde envisaged was that Section 3(2) imposed an evidential, as opposed to a legal, burden on the person seeking an order for access.

[21]When the terms of Section 11 of the 1995 Act are examined, they can be seen to be inconsistent with the notion that Section 11(7)(a) itself imposes a legal onus on the person who asks for an order regulating contact. Whereas subsection (2) of Section 3 of the 1986 Act had to be read in the context of subsection (1), which referred to a person claiming an interest making an application to the court for an order relating to parental rights, Section 11(7)(a) of the 1995 Act has to be read in the context of subsection (3)(a) and (b) of the same section. These paragraphs show that the court may make an order in terms of subsection (1) both where someone makes an application for such an order (paragraph (a)) and where no such application has been made but the court considers that it should make such an order (paragraph (b)). In other words, such orders can be made by the court ex proprio motu without any application. In such a case no question of onus can possibly arise and yet Section 11(7)(a) applies to the court which is considering whether to make the order. It follows that, since Section 11(7)(a) does not of itself import any kind of legal onus in the case where the court makes an order spontaneously, it does not import any kind of legal onus either in the more usual case where someone makes an application for the same kind of order. Mrs. Scott accepted that, where the court was considering whether to make an order which no-one had sought, the court had simply to consider all the relevant material and decide what was conducive to the child's welfare. That would be the paramount consideration. In my view, exactly the same applies to the case where a party seeks an order. The court must consider all the relevant material and decide what would be conducive to the child's welfare. That is the paramount consideration. In carrying out that exercise the court should have regard to the general principle that it is conducive to a child's welfare to maintain personal relations and direct contact with his absent parent. But the decision will depend on the facts of the particular case and, if there is nothing in the relevant material on which the court, applying that general principle, could properly take the view that it would be in the interests of the child for the order to be granted, then the application must fail. That might be so, for instance, if a father had abandoned his wife when the child was born and, years later, suddenly sought a contact order. A fortiori the application will fail if the relevant material shows that it would definitely be contrary to the child's welfare for the order to be granted. In practice, as Lord Oliver of Aylmerton remarked in In re K.D. [1988] A.C. 806 at p. 827 D, the court will indeed be able to determine the matter on the available material. If, having considered the material, the court is minded to make an order because it would be conducive to the welfare of the child, it has then to consider whether it would be better for the child to make the order than not to make any order at all. This second limb of the test is designed to give effect to Parliament's view that, wherever possible, matters should be regulated by the parties without the intervention of the court. I refer to the discussion by the Scottish Law Commission in its Report on Family Law, paragraphs 5.16 - 5.18.

[22]In support of his contention that Section 11(7)(a) should not be interpreted as imposing an onus on a person who applies for an order relating to contact under Section 11(2)(d) of the 1995 Act, Mr. Mundy invoked Article 8 of the European Convention on Human Rights and Fundamental Freedoms which is 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 a 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 well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

He referred us to two decisions of the Commission, X v. Sweden (Application 7911/77) (1977) 12 D.R. 192 and R.S. v. United Kingdom (Application 24604/94) (1995) 20 E.H.R.R. C.D. 98, for the propositions that, in principle, a parent always has a right of access to his or her child under Article 8(1) and that any interference by a public authority must not only be in accordance with the law but must also correspond to a pressing social need and be proportionate to the aim pursued.

[23]Mrs. Scott amplified these statements with a number of other authorities. Very properly, she drew attention to the passage in Hendriks v. Netherlands (1982) 5 E.H.R.R. 223 at p. 231, paragraph 95 where the Commission expressed the general view that the link between a parent and a child is of fundamental importance and that, when the parents have separated, continued contact between the parent and the child is desirable and should in principle remain possible. This provides further corroboration, if such were required, of the general principle which our law would adopt in any event and upon which Parliament has proceeded in Section 1 of the 1995 Act.

[24]More importantly, Mrs. Scott referred us to the opinion of Sedley L.J. in Re F (Adult) [2000] F.L.R. 512 at p. 531 H - 532 B:

"The family life for which Art 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 assure within proper limits the 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 situations which jeopardise their welfare. As the European Court of Human Rights said in Marckx v. Belgium (1979) 2 EHRR 330, Art 8(1) 'does not merely compel the state to abstain from ... interference; in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective "respect" for family life.'"

Consistently with what is said there, the European Court has held that the obligations on a State may involve the adoption of measures designed to secure respect for family life even in the sphere of relations between individuals, including the provision of an adjudicatory and enforcement machinery protecting individuals' rights. In all respects regard must be had to the fair balance which has to be struck between the competing interests of the individual and the community, including other concerned third parties. See Glaser v. United Kingdom 19 September 2000 unreported, at paragraph 63. More particularly, the obligation of the national authorities to take measures to facilitate the non-custodial parent's contact with his children after divorce is not absolute and any obligation to apply coercion must be limited since the interests, as well as the rights and freedoms, of all concerned must be taken into account. More particularly, the best interests of the child and his or her rights under Article 8 of the Convention must be considered. Where contacts with the parent might appear to threaten those interests or interfere with those rights, it is for the national authorities to strike a fair balance: Glaser, at paragraph 66. In Elsholz v. Germany 13 July 2000, unreported, the Court had already observed (at paragraph 50) that a fair balance must be struck between the interests of the child and those of the parent and that

"in doing so particular importance must be attached to the best interests of the child which, depending on their nature and seriousness, may override those of the parent. In particular, the parent cannot be entitled under Article 8 of the Convention to have such measures taken as would harm the child's health and development."

[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 the 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. That said, however, contrary to Mr. Mundy's submission, I find nothing in the Convention or in the decisions cited to us which would materially affect my approach to the interpretation of Section 11(7)(a).

[26]The approach to Section 11(7)(a) which I have outlined above does not coincide with that of either the Sheriff or Sheriff Principal. On the one hand I consider that the Sheriff Principal was wrong to hold that there was any kind of legal onus on someone who applies for an order under Section 11(1). On the other, I consider that the Sheriff went too far when he said that, in view of the principle to be detected in Section 1(1), "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". Mrs. Scott submitted that this error vitiated the Sheriff's entire judgment and that it could therefore not stand, even if we did not accept the Sheriff Principal's approach.

[27]The significance of this error depends on the facts upon which the Sheriff was proceeding. So far as these are concerned, I note particularly that for a period of years the minuter enjoyed a perfectly normal and satisfactory, indeed good, relationship with V while the parties lived together. Moreover, he maintained contact with his daughters for over a year after the parties separated - for some of the time travelling a considerable distance in his spare time to do so. There was nothing to suggest that the relationship had been detrimental or harmful to the girls in any way. Against that, it was said that, partly at least under the influence of her older sister, V was opposed to having contact with the minuter and that the prospect of resuming contact with him was a probable cause of asthma attacks. It was also likely that V would suffer some upset and distress if contact were resumed, but this would be likely to disappear as she became familiar with him once more. Looking at the whole picture, including V's views, and having regard to the general principle to which I have referred, I am satisfied that the Sheriff was indeed entitled, on the basis of the facts which he had found proved, to conclude that it was in the best interests of V that the minuter should maintain personal relations and direct contact with her. That being so, and treating the welfare of V as the paramount consideration, the Sheriff was entitled to conclude that the minuter should actually be able to exercise his responsibility to maintain personal relations and direct contact with V. While maintaining that no order should have been granted, Mrs. Scott did not challenge the particular terms of the Sheriff's order as being excessive or inappropriate. As the Sheriff pointed out, this was a case where, if the contact which he judged was for the benefit of V was to take place, it would do so only if an order were pronounced. He was therefore entitled to take the view that it was better for V if the order were made than if none were made at all.

[28]Finally, Mrs. Scott submitted that, even if we considered that the Sheriff had been entitled to pronounce the order and we were therefore going to allow the appeal against the Sheriff Principal's interlocutor, we should not restore the Sheriff's interlocutor without first intimating the appeal to V in order to give her an opportunity to intervene and present her views. I am satisfied that this would not be appropriate. It is in my opinion too late to intimate the appeal at this stage when it has been pending for about eighteen months. V has clearly been aware of the appeal and we were indeed told that she had already consulted a solicitor in connexion with the whole matter. That being so, she could have sought to intervene before now. In any event, there is merit in bringing this particular round of proceedings to an end. If contact proves successful, there will be no need for any further procedure. Equally, if contact proves unsuccessful, then it may be that the minuter will not press the matter and the whole question will be resolved without the need for any further procedure. If the matter is not resolved in either of these ways, then V can always take appropriate steps to have the order regulating contact recalled.

[29]For these reasons I would allow the appeal and restore the Sheriff's decree.

[30]Finally, the time between the lodging and the hearing of this appeal is unacceptable. Cases like this, which involve the welfare of a child, should be heard with the minimum of delay. The Rules of Court already provide for many such appeals to be heard quickly. If necessary, the Rules should be amended so as to ensure that this particular kind of case is also dealt with in that way.

FIRST DIVISION, INNER HOUSE, COURT OF SESSION

Lord President

Lord Kirkwood

Lord McCluskey

XI39/00

OPINION OF LORD McCLUSKEY

in

APPEAL

From the Sheriffdom of Lothian and Borders at Linlithgow

in the cause

FIONA ANN GRANT or WHITE

Pursuer and Respondent;

against

JAMES LAWRENCE WHITE (A.P.)

Defender and Minuter;

_______

For minuter and appellant: Mundy; Russel & Aitken (for Caesar & Howie, Solicitors, Bathgate)

For respondent: J. M. Scott; Balfour & Manson (for Aitkens, Solicitors, Livingston)

6 March 2001

[1]I am in entire agreement with the Opinion of your Lordship in the chair. I should wish to add only a brief comment upon the approach to a case of this kind.

[2]The case is one in which the father of a young girl, born in wedlock in July 1991, seeks to renew contact with his child. Contact between them ceased in January 1997. Limited contact between the father and his daughter had continued until then following the separation of the married parents in November 1995: they were divorced in August 1997.

[3]There are no accusations that he has in any way or at any time treated the child badly. It appears, however, that, at some time after the separation of the parties in 1995, the child herself showed some reluctance to go to meet her father, but it is not suggested that any such reluctance derived from anything that her father has done to her. It also appears from the sheriff's findings in fact that, at least since early 1997, the mother of the child has stood back and has done nothing to encourage contact against the child's apparent reluctance.

[4]The father has the parental responsibility under section 1 of the 1995 Act to maintain personal relations and direct contact with the child on a regular basis, but only in so far it is practicable to do so and it is in the interests of the child. Section 2 gives him a corresponding right to enable him to fulfil his parental responsibilities, including the maintaining of personal relations and direct contact. There is not said to be any practical difficulty in maintaining contact. In terms of the Act, both the responsibilities and the rights supersede any analogous duties or rights imposed on a parent at common law. The 1995 Act also repealed sections 2 to 4 of the Law Reform (Parent and Child) Act 1986.

[5]The present litigation was initiated by an application made by the father for an order under section 11(2)(b) of the 1995 Act (a 'contact order') regulating the arrangements for maintaining personal relations and direct contact between the father and his daughter. Under section 11(7), the court, in considering whether or not to make a contact order, and what order to make, "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". The subsection further provides that the child may be given an opportunity to express her views.

[6]For reasons that your Lordship in the chair has explained, the regime enacted by the 1995 Act in respect of contact between a child born in wedlock and her father is entirely compatible with Article 8 of the European Convention on Human rights. There is nothing I could add in relation to that matter.

[7]Although we were privileged to hear a full debate over a period of two days and were referred to numerous authorities and dicta on various aspects of this type of problem, I have not been persuaded that the relevant provisions of the 1995 Act are difficult to understand or to apply in a case of this kind. The authorities, the text books and much else besides are replete with discussion of such concepts as "right", "responsibility", "onus", principle and the like; and your Lordship's opinion makes reference to such matters. However, much of the material to which we were referred was written against a background that was different both in terms of the facts and in terms of the law, whether derived from statute or from the common law. If, as I judge, the 1995 Act is clear both in its meaning and its application to the set of circumstances before us, it would be of rather limited value for me to enter into yet another discussion of these concepts. This is particularly true of the legal concept of onus of proof. Nowhere in the 1995 Act do I find a provision that, in arriving at a decision in relation to contact between a father and his daughter, the paramount consideration shall be the onus of proof. I return to this later.

[8]The 1995 Act makes it plain that the court's consideration of and judgment about the welfare and the interests of the child is to determine what order, if any, it should make. All the authorities, however they phrase the matter, are agreed that the link between a child and the child's biological parents is a factor of some materiality in the making of that judgment. Different judges and authors have expressed themselves differently as to the weight to be accorded to maintaining such a link in the particular circumstances of each unique case. But no one has said that it is irrelevant; and no one could suggest that it should be left out of account. Mrs. Scott drew our attention to In re K.D. [1988] 1 A.C. 682 and to the speech of Lord Oliver of Aylmerton, which, she accepted, was a speech which attached less weight than most to the biological link. That was a case in which the young mother of a very young boy was denied access to the child so as to allow the child to be adopted by adoptive parents. In that context, his Lordship nonetheless referred to "the single common concept that the natural bond and relationship between parent and child gives rise to universally recognised norms which ought not to be interfered with and which, if interfered with at all, ought to be so only if the welfare of the child dictates it." Lord Templeman put the point more positively: "The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child's moral and physical health are not endangered." The agreement amongst judges and others on this is reflected in the UN Convention on the Rights of the Child, Article 9.3. of which provides, "State Parties shall respect the rights of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests." The Lord President (Hope), speaking of the European Convention on Human Rights, said in T. Petitioner 1997 SLT 724 at p. 734, that the presumption to be applied when interpreting legislation found to be ambiguous is that Parliament is to be presumed to have legislated in conformity with the Convention, not in conflict with it. The same general approach has to be taken when construing and applying legislation dealing with the subject matter of the UN Convention, which the United Kingdom ratified in December 1991.

[9]It follows that the possibility and the advantages of maintaining of the link between the father and his daughter fall to be taken into account when the court comes to make the judgment required of it under the 1995 Act; but, however its importance may be assessed in the circumstances of any particular case, it is one factor among many. It may be determinative; it may not. It must always be a matter of weighing all the material bearing upon welfare and the interests of the child. It would be impossible to list all the other matters that might be relevant, because life constantly throws up unprecedented circumstances; and the law has to be flexible enough to cope with the unforeseen.

[10]On the matter of onus of proof, it is inconceivable that a court, charged with the duty in such a case of making a decision about the interests and welfare of a child and having heard the evidence of the parents and others, whether family friends, or relatives, or professionals such as teachers or psychologists, would make its judgment on the basis of the failure of one party or the other to discharge the onus of proof. To do so would be to abdicate the responsibility that the Act has laid upon the court to decide on the basis of the welfare and the interests of the child, and not upon technical considerations that have nothing directly to do with welfare or the interests of the child. After all, the child commonly has nothing to do with the presentation of the case to the court, whether by the parent or by any other person. The law, as your Lordship has demonstrated, gives a potential value to the maintaining of the link between the child and each of her natural parents. The judge who approaches the issues raised in an application for a section 11 order does not do so value-free. Once that is recognised, it can be seen that in the real world, under the 1995 Act, there is no conceivable circumstance in which the court will have to decide such an important matter as the future of the relationship between a child and her natural parents on the basis of the onus of proof.

[11]Accordingly, for my part, it is clear that the Sheriff Principal was misled by the submissions made to him, including the concessions that he accepted, into considering the wrong issue, that of the onus of proof. The sheriff, however, made no such error. He made a judgment about welfare and interests. He may have overstated the weight to be attached to the maintaining of the link between parent and child (though I think it is unnecessary to decide that he did); but he reached a clear decision, amply justified by his findings in fact, that the granting of an order for contact was in the child's best interests. I, therefore, agree with the result proposed by your Lordship in the chair.

FIRST DIVISION, INNER HOUSE, COURT OF SESSION

Lord President

Lord Kirkwood

Lord McCluskey

XI39/00

OPINION OF LORD KIRKWOOD

in

APPEAL

From the Sheriffdom of Lothian and Borders at Linlithgow

in the cause

FIONA ANN GRANT or WHITE

Pursuer and Respondent;

against

JAMES LAWRENCE WHITE (A.P.)

Defender and Minuter:

_______

For minuter and appellant: Mundy; Russel & Aitken (for Caesar & Howie, Solicitors, Bathgate)

For respondent: J. M. Scott; Balfour & Manson (for Aitkens, Solicitors, Livingston)

6 March 2001

I entirely agree with the Opinion of your Lordship in the chair and have nothing useful to add.

Figure 1