Osborne v Matthan
| Jurisdiction | Scotland |
| Judgment Date | 18 October 1996 |
| Docket Number | No. 6. |
| Date | 18 October 1996 |
| Court | Court of Session (Inner House - First Division) |
FIRST DIVISION.
Children and young personsParent and childParental rightsCustodyInterim custodyChild living with non-relative due to mother being in prisonMother to be deported to JamaicaWhether best interests of child that person retain interim custodyWhether sheriff erred in awarding custody to motherProper test to be appliedLaw Reform (Parent and Child) (Scotland) Act 1986 (cap 9), sec 3(2)
Section 3(2) of the Law Reform (Parent and Child) (Scotland) Act 1986 enacts that in any proceedings relating to parental rights the court shall regard the welfare of the child involved as a paramount consideration and shall not make any order relating to parental rights unless it is satisfied that in doing so will be in the interests of the child. Section 8 of the Act includes custody in the term parental rights.
A mother was convicted of a drugs offence. From the age of 18 months her child had been brought up by a non-relative. On leaving prison the mother was due to be deported to Jamaica. The person who had brought the child up raised an action in the sheriff court seeking interim custody of the child who was by that time about four years old. The sheriff proceeded on the basis that the mother might shortly be deported, that once she was deported, she would not be permitted to return to Scotland and that accordingly any decision about the interim position on custody would in effect determine the final outcome of the case. In the result, the sheriff, in effect, made orders finally disposing of the issues in the case. The sheriff granted an order in favour of the mother. The pursuer reclaimed.
Held (1) that even if, in practice, any interim decision would determine the final outcome of the case, that did not mean the sheriff could ignore the fact that he was dealing with the grant of interim orders so that he was not entitled to pronounce decree disposing of the whole dispute once and for all; (2) that in approaching the question of interim custody the sheriff was exercising a discretion so that the court could not interfere with it unless that discretion was exercised upon a wrong principle or that his decision had been so plainly wrong that he must have exercised his discretion wrongly; (3) that, as the sheriff had made a finding that the child had been very well cared for by the pursuer for about two and a half years and was not able to gauge what would be the child's long-term interests in Jamaica as the evidence about the arrangements in Jamaica were scanty, he was in no position to do other than to apply the usual test for deciding who should have interim custody by maintaining the status quo; and appealallowed.
Dicta of Lord Prosser in Sinclair v. SinclairSC1988 SC 19 at p 23 applied.
Mrs Helen Cruickshanks or Osborne brought an action seeking interim custody and interim interdict against Althea Matthan in the sheriff court. A proof on the interim orders was heard before the sheriff and, on 15 August 1996, the sheriff pronounced an interlocutor sustaining the pleas-in-law for the defender, repelling the pleas-in-law for the pursuer, refusing to make an order for interim custody of Fiona Matthan, a child of the defender, in favour of the pursuer, and refusing to grant interim interdict against the defender removing the child from the pursuer's care and control or from Scotland.
The pursuer appealed to the Court of Session.
Cases referred to:
Britton v. Central Regional Council 1986 SLT 207
Early v. Early 1990 SLT 221
Sinclair v. SinclairSC 1988 SC 19
Textbook referred to:
Wilkinson and Norrie, Parent and Child, pp 213214
The cause called before the First Division, comprising the Lord President (Rodger), Lord Weir and Lord Murray for a hearing in the summar roll.
At advising, on 18 October 1996, the opinion of the court was delivered by the Lord President (Rodger).
Opinion of the CourtIn August 1992 the defender, Miss Althea Matthan, had a child Fiona. Although Miss Matthan comes from Jamaica, Fiona was born in London. She is black. Fiona's father is also from Jamaica and lives there. To begin with Miss Matthan cared for Fiona, but when she was a year old Miss Matthan began selling crack cocaine on the streets of London. In order to leave herself free to do so, she made an arrangement for her daughter to be looked after, first by someone called Joanne, but later by the pursuer's daughter, Deborah Osborne. After a short time another daughter of the pursuer, Fiona Osborne, took over the care of Fiona. Miss Matthan paid them 50 per week for this service. In fact, however, while Fiona Osborne was being paid to look after Fiona, her mother, Mrs Osborne, who is the pursuer in the present proceedings, became increasingly involved in her care. In about February 1995 Miss Matthan was arrested for offences arising out of supplying cocaine. She was detained on remand in...
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Osborne v Matthan (No 2)
...from the pursuer's care and control or from Scotland. The pursuer successfully appealed to the Court of Session: seeOsborne v MatthanSC 1997 SC 29. The cause was thereafter remitted to the sheriff, who heard a proof on the At advising, on 29 April 1997, the sheriff found the pursuer entitle......
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A.m. Or G. V. A.g.
...child's long term interests where the status quo was satisfactory. Reference was made Sinclair v. Sinclair 1988 SC 18, Osborne v. Matthan 1997 SC 29 and Osborne v. Matthan (No.2) 1998 SC 682. In the present case the issue had to be decided upon ex parte statements. The distinction between a......