Brixey v Lynas (No.1)
| Jurisdiction | Scotland |
| Judgment Date | 24 June 1994 |
| Docket Number | No. 59 |
| Date | 24 June 1994 |
| Court | Court of Session (Inner House - First Division) |
FIRST DIVISION
Sheriff Principal of Glasgow and Strathkelvin
EvidencePresumptionParent and childChildren and young personsCustodyVery young childWhether in best interests of child to be in custody of motherWhether presumption in favour of mother
The parents of a very young child each brought a separate action for her custody. The parties had separated when the child was four months old. The mother obtained an interim custody order for the child which lasted until after proof when the sheriff (Gordon) awarded custody to the father. The sheriff found that both parents were immature and that neither had shown great stability of judgment in their lives but that there was no reason to doubt the sincerity or the love either parent had for the child nor the ability of either of them to look after her. He found that the child would have a better opportunity to have a stable background and successful future with the father than with the mother, although at the time of proof the child was "happy, healthy and well cared-for" in the mother's custody. The child had a half-sister who also stayed with the mother. The sheriff principal refused the mother's appeal and indicated that the sheriff could only be expected to have regard to the circumstances pertaining at proof. If those changed the court could consider custody afresh. The mother then appealed to the Court of Session.
Held (1) that the court had in practice to recognise as an important factor in a custody dispute between the parents of a very young child that during the child's infancy the child's need for the mother was stronger than the need for the father, albeit that that general belief was neither a presumption nor a rule of law; (2) that that general preference was substantially strengthened if preservation of the status quo also favoured the mother's case for custody, although that preference was not to be given undue weight and had to be balanced against any long-term interest of the child which might apply after the early years of its life had passed; (3) that the sheriff had been entitled to have regard to the advantages of background and environment which the father's family would presently be able to provide for the child's benefit but, by holding them to be decisive, he had failed to balance those advantages against the general preference which favoured the mother; (4) that by looking only to the present situation of the secure and stable environment provided by the father's family and not taking a long-term view in relation to the interests of the child, both the sheriff and the sheriff principal had erred, for a custody order, once made, was in practice very difficult to disturb; and accordingly (5) that the sheriff principal had erred in emphasising the ability of the court if necessary to consider matters afresh when he rejected the mother's contention that there was nothing to prevent the father from leaving his parental home and influence whenever he chose to do so; (6) that that was an important consideration which had not been addressed by the sheriff, and the court could not accept the evidence as demonstrating that in the long term the father's environment was likely to be as secure or stable as it was at present because, in the absence of evidence on the matter, the court was entitled to have regard to the fact that it would be unusual for a young man to remain for a long time unmarried and resident at his parents' house; (7) that as the sheriff had erred the court could look at matters afresh; and (8) that in the circumstances, including the willingness of each parent to allow generous access to the other, the advantage of maternal care for both the short and the long term, the advantage of the child continuing her association with her half-sister and the advantage of maintaining
the status quo which had successfully existed since the child's birth, it was in the best interests of the child that the mother be awarded custody; and appeal allowed.
Emma Louise Brixey brought an action against Michael James Patrick Lynas in the sheriffdom of Glasgow and Strathkelvin at Glasgow in which she sought custody of their child, Kellianne Constance Lynas. The father brought a cross-action, also craving custody. The actions were conjoined.
The mother was granted a custody order ad interim.
A proof was heard before the sheriff (G. H. Gordon, Q.C.) who, at advising on 21st July 1993, recalled the interim award and pronounced decree of custody in favour of the father. The facts as ascertained at proof are sufficiently set forth in the opinion of the court.
The mother appealed to the sheriff principal (N. D. MacLeod, Q.C.). At advising, on 23rd September 1993, the sheriff principal adhered to the interlocutor of the sheriff and refused the appeal.
The mother appealed to the Court of Session.
The cause called before the First Division, comprising the Lord President (Hope), Lord Allanbridge and Lord Morison, for...
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