Brixey v Lynas (No.1)
| Jurisdiction | England & Wales |
| Judge | Lord Keith of Kinkel,Lord Jauncey of Tullichettle,Lord Mustill,Lord Nicholls of Birkenhead,Lord Steyn |
| Judgment Date | 04 July 1996 |
| Judgment citation (vLex) | [1996] UKHL J0704-1 |
| Court | House of Lords |
| Docket Number | No. 1. |
| Date | 04 July 1996 |
[1996] UKHL J0704-1
House of Lords
Lord Keith of Kinkel
Lord Jauncey of Tullichettle
Lord Mustill
Lord Nicholls of Birkenhead
Lord Steyn
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE
My Lords,
For the reasons given in the speech to be delivered by my noble and learned friend Lord Jauncey of Tullichettle, which I have read in draft and with which I agree, I would dismiss this appeal.
My Lords,
This appeal relates to the custody of a four year old illegitimate girl. It raises no question of legal principle and is devoid of merit.
The facts may be briefly stated. The child, K, was born on 21 May 1992 to the mother ("the appellant") as a result of an association with the father ("the respondent"), which had started while he was at school in Fort Augustus and continued after he left in July 1991. At the date of K's birth the mother was 20 and the father 18. The mother already had an older daughter by another man. At the invitation of the father's parents the parties with K moved to live with them in Rutherglen but the relationship came to an end on 21 September 1992 when they separated, the father having by subterfuge removed K. Both parties then raised actions in the Glasgow Sheriff Court for custody and the mother obtained an interim order for the delivery of K to her at her mother's house in the Black Isle. K has lived with the mother and the older child ever since, first in the Black Isle and later in another part of Easter Ross, but the father has had periods of access to her for a week during each month at his parents' house in Rutherglen. On 21 July 1993 the sheriff, after proof in the conjoined actions, awarded custody of K, who was then 14 months old, to the father. The mother appealed the interlocutor in her action to the sheriff principal who refused the appeal. On her further appeal to the Court of Session the First Division by interlocutor of 24 June 1994 recalled the interlocutors of the sheriff and the sheriff principal and awarded custody of K to the mother, Brixey v. Lynas 1994 S.L.T. 847. Against this interlocutor the father now appeals.
The sheriff found as a fact that apart from being subject to respiratory infections K was happy healthy and well cared for in the mother's house. In his note he drew attention to the different social backgrounds from which the parties came. The father was, he said, comfortably middle class, while the mother had had none of the educational and social advantages which he had had. The mother's lifestyle was not particularly stable although that was not unusual for a person of her background. However he concluded that were the mode of life of each parent much the same he would not think that there were sufficient grounds for separating the child from her mother and sister. He then continued in a passage which I shall quote in full:
"But if the child were to be in the custody of the father she would become part of the Lynas family, and as member of that family she would have all the advantages of comfort, education and a strong and stable moral framework which they can offer. The decision is Solomonic in its difficulty, and I lay no claim to Solomon's traditional wisdom. I have however come to the view that I should not deprive the child of the advantages which the accident of her paternity make available to her, and that in the end of the day it is in her best interests that her father be awarded custody. I appreciate that it would be possible for the Lynas family to provide for the child's education etc even if the father did not have custody, but I do not see the child being able to take advantage of such help if she remains with her mother. I appreciate, too, that there is a sense in which what I am saying represents an award of custody to the Lynas family or to Mrs Lynas as much as to the father. I think, however, that the best way of serving the child's interests at this stage is to award custody to the father."
He concluded that to transfer K at that stage of her life to a familiar environment would not cause her any significant emotional distress.
In delivering the opinion of the First Division Lord Morison, after referring to the restrictions imposed on an Appellate Court in disturbing the conclusions of a sheriff as to the child's best interest, continued at 1994 S.L.T. 849F:
"However, in determining whether the sheriff has failed to take sufficiently into account any significant factor, it is legitimate for this court to have regard to any general practice, approach or principles which may be derived from a consideration of previous cases dealing with the custody of young children. A number of cases were cited to us, which are referred to in Wilkinson and Norrie's recently published textbook The Law Relating to Parent and Child in Scotland at pp 211 et seq, under the heading 'Mother's Custody of Child of Tender Years.'"
After stating the names of the cases cited Lord Morison continued:
"These cases amply justify the submission contained in Wilkinson at p 211 that: 'In the case of very young children a certain preference for the mother, … is … defensible.' This principle is expressed in a variety of different ways in the cases referred to, and with differences of emphasis to which we see no need to allude. But it is in our opinion quite clear, as we understood to be conceded on behalf of the respondent in the present case, that it has been and remains the practice of the courts in Scotland to recognise as an important factor which has to be fully taken into account in a dispute concerning custody between the mother and father of a very young child, that during his or her infancy the child's need for the mother is stronger than the need for a father. This principle should not be regarded as creating any presumption in favour of the mother, nor, certainly, as a rule of law. But nonetheless there is a generally recognised belief that a mother is ordinarily better able, for whatever reason, to minister to a very young child's needs than is a father.
It is also clear from the cases cited that this general preference in favour of the mother is substantially strengthened if preservation of the status quo also favours her case for custody. If, as in the present case, the infant has been in the mother's care since birth and is, as the sheriff found, 'happy, healthy and well cared for' the correct approach is that referred to in Wilkinson at p 212, viz. 'it may therefore be better, especially where the mother has until the dispute arose had the child in her care, for the child to be in the mother's custody rather than to embark on the risks inherent in the father's fulfilling a maternal role or in the creating of a new relationship in which there will be a surrogate mother.'"
The opinion at p. 850B expressed the view that in holding the advantages of the father's background to be decisive the sheriff failed to balance these advantages against the...
To continue reading
Request your trial
-
Osborne v Matthan (No 2)
...problems and problems of racial intolerance which she would be liable to experience in Scotland; and appeal refused. Brixey v LynasSC1997 SC (HL) 1applied. Observed (per the Lord President (Rodger)) that the decision which a trial judge reached on custody was to be described not as a matter......
-
Shuric Merchant v Tameika Williams
...should be given to a capable mother4. 11 She relied onAustin v Austin [1865] 55 ER 6345, Stephenson v Stephenson6 and Brixey v Lymas [1997] S.C. (H.L.) 17 for that proposition. In each of these cases the courts went to great lengths to underscore the importance of the irreplaceable maternal......
-
Mercer v Hermans
...[1994] 2 FLR 489; sub nom. B v. B (Minors: Residence and Care Disputes)UNK[1994] 2 F.C.R. 667, referred to. (3) Brixey v. Lynas, [1996] 2 FLR 499; [1997] 1 F.C.R. 220, dicta of Lord Jauncey of Tullichettle applied. (4) L (Contact: Domestic Violence), Re, [2000] 2 FLR 334; (2000), 30 Fam. La......
-
B and another v Home Office
...CA, per Butler-Sloss LJ.See also Re A (a minor) (custody) [1991] FCR 569, CA.; Re W (residence) [1999] 3 FCR 274; and Brixey v Lynas [1997] 1 FCR 220. 37 Brown v The Secretary of State for Scotland ( Case 197/86) [1988] ECR 3161 at 38 Which is set out in paragraph 71 above. 39 See eg Kempf ......