Fiona Ann Grant Or White V. James Lawrence White (ap)
| Jurisdiction | Scotland |
| Judge | Lord President |
| Date | 06 March 2001 |
| Docket Number | XI39/00 |
| Court | Court of Session |
| Published date | 16 March 2001 |
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...
To continue reading
Request your trial