In Appeal From Edinburgh Sheriff Court By S.m. V. C.m.
| Jurisdiction | Scotland |
| Judge | Lord Emslie,Lord Hardie,Lord Wheatley |
| Date | 12 October 2011 |
| Docket Number | XA10/11 |
| Court | Court of Session |
| Published date | 12 October 2011 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Hardie Lord Emslie Lord Wheatley | [2011] CSIH NO. 65 XA10/11 OPINION OF THE COURT delivered by LORD EMSLIE in appeal from the Sheriff Court at Edinburgh in causa by SM Pursuer and Appellant; against CM Defender and Respondent: _______ |
For the Defender and Respondent: Wild; Aitken, Nairn WS
12 October 2011
I Introduction
[1] In this appeal from a decision of the Sheriff Principal of Lothian and Borders, sitting at Edinburgh, the parties are respectively husband and wife. They were married on 10 April 2003. There are two children of the marriage, D now aged about 71/2 and A nearly 5. The pursuer also has an older son from a previous marriage. Sadly, the parties' relationship has broken down and they have not lived together since April 2009. Both parties are now in relationships with others, the husband pursuer with a lady living locally in (XX), and the wife defender with a man ("MM") whose home, business and family are in Berkshire.
[2] In August 2008 the defender attempted to remove the children from the jurisdiction of the Scottish courts, and it required a court order, pronounced on 5 September 2008, to secure the children's return to this country. Thereafter, of consent, the defender was granted a residence order in respect of both children on 4 November 2008. Since then, she has lived with them in the former matrimonial home in (YY), and this has enabled regular and frequent contact to be enjoyed by the pursuer, as their father, and by other members of his family. The defender, however, now wishes to relocate to join MM permanently in the south of England, and a dispute has arisen as to whether she should be permitted to take the children with her. In particular, by Minute of Variation lodged in August 2009, the pursuer craves a residence order in his own favour, failing which variation of the defender's pre-existing residence order so as to oblige her to remain in the (YY) area. For her part, and in direct conflict with the pursuer's wishes, the defender seeks an order permitting the children to relocate and live with her in England.
[3] On 1 June 2010, after several days of proof, the Sheriff refused both of the pursuer's craves, sustained the defender's second plea-in-law and granted her a fresh residence order in terms of section 11(2)(e) of the Children (Scotland) Act 1995 ("the 1995 Act") "... providing that (D) and (A), the children of the marriage between the parties and under the age of 16 years reside with the Defender within England or Scotland ...". The pursuer appealed against that decision to the Sheriff Principal, but on 13 January 2011 the appeal was refused. He now appeals further to this court, maintaining that, in considering the relocation issue, the Sheriff (and in his turn the Sheriff Principal) erred in law and otherwise reached conclusions which were plainly wrong.
II The legal background
[4] Disputes involving parental rights and child welfare issues are notoriously sensitive and difficult to resolve. As Lord Fraser explained in G v G (Minors: Custody Appeal) 1985 1 WLR 647, at p.651:
"The jurisdiction in such cases is one of great difficulty, as every judge who has to exercise it must be aware. The main reason is that in most of these cases there is no right answer. All practicable answers are to some extent unsatisfactory and therefore to some extent wrong, and the best that can be done is to find an answer that is reasonably satisfactory."
[5] Important statutory guidance is now to be found in section 11 of the 1995 Act. Subsection (1) clothes the court with jurisdiction to make a wide range of relevant orders. By virtue of subsection (2) these include inter alia:
"...
(c) an order regulating the arrangements as to-
(i) with whom ...
a child under the age of sixteen years is to live (any such order being known as a 'residence order');
(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');
(e) an order regulating any specific question which has arisen, or may arise, in connection with any of the matters mentioned in ... subsection (1) of this section (any such order being known as a 'specific issue order'); ...".
Subsection (7) then goes on to lay down important rules or principles to which the court must have regard. In particular, in considering whether or not to make an order under subsection (1) ... 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".
Further provision is contained in subsection (7D) as follows:
"Where -
(a) the court is considering making an order under sub section (1) above; and
(b) in pursuance of the order two or more relevant persons would have to co-operate with one another as respects matters affecting the child, the court shall consider whether it would be appropriate to make the order".
[6] The foregoing statutory emphasis on the welfare and best interests of children reflects an international consensus which has developed over several decades. Previously, courts were more inclined to focus on the competing rights and interests of parents, and in relocation disputes special significance was often accorded to the wishes of a child's primary carer pursuant to an award of custody (now "residence"). By way of illustration, in the well known English case of Poel v Poel 1970 1 WLR 1469, Sachs J (at p.1473) said this:
"When a marriage breaks up, a situation normally arises where the child of that marriage, instead of being in the joint custody of both parents, must of necessity become one who is in the custody of a single parent. Once that position has arisen and the custody is working well, this court should not lightly interfere with such reasonable way of life as is selected by that parent to whom custody has been rightly given. Any such interference may ... produce considerable strains which would not only be unfair to the parent whose way of life is interfered with but also to any new marriage of that parent. In that way it might well in due course reflect on the welfare of the child. The way in which the parent who properly has custody of a child may choose in a reasonable manner to order his or her way of life is one of those things which the parent who has not been given custody may well have to bear, even though one has every sympathy with the latter on some of the results".
This echoed the view of Winn LJ in the same case (at p.1471) to the effect that the making of an order for custody in favour of one of the parents must be regarded as a "very dominant factor" in such a dispute.
[7] On the other side of the coin, in cases where relocation was not in issue, the "traditional" view appeared to favour a grant of access (now "contact") to the non-custodial parent in virtually all circumstances. In Sanderson v McManus 1997 SC HL 55, the House of Lords in a Scottish appeal made it clear that there could be no presumptive doctrine along such lines, since that would be incompatible with the court's statutory obligation to treat the welfare of an affected child as the paramount consideration. In that case it was argued on behalf of the father that, in the absence of strong reasons to the contrary, the link between a child and his natural parent was so important in itself that it should be preserved. It was in the best interests of the child to maintain that link, and its maintenance was conducive to the welfare of the child. Section 3(2) of the Law Reform (Parent and Child) (Scotland) Act 1986 (the precursor of section 11(7)(a) of the 1995 Act) did not, it was said, alter that fundamental point. In rejecting this argument as unsound, Lord Hope, with whose speech all of their Lordships agreed, said (at pp.63-64):
"The ... question ... is whether the natural link between the child and his parent is so important that the court must always seek to preserve it unless there are strong reasons to the contrary. Whatever may have been the position at common law, the effect of section 3(2) of the Act of 1986 has been to remove any rule or principle to this effect ...
... The natural relationship is a fact of life which it will always be proper to take into account. But the importance which is to be attached to it must vary according to the circumstances. This is a matter which must be decided not by applying any presumption but upon an evaluation of the evidence. As with any factor which the court is asked to take into account, the question is whether contact with the parent has something to offer which is likely to be of benefit to the child's welfare. This question must be examined from the point of view of the child. It may normally be assumed that the child will benefit from continued contact with the natural parent. But there may be cases where it is plain on the evidence that it has nothing to offer at all. There may be other cases where the evidence will show that continued contact is likely to be harmful. Whatever the view which is taken on this matter in the light of the evidence, the child's welfare is paramount. The decision of the court will depend on its analysis of all the factors which bear on the question what is in the best interests of the child".
[8] As regards the effect of section 3(2) of the 1986 Act...
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