Osborne v Matthan (No 2)
| Jurisdiction | Scotland |
| Judgment Date | 12 May 1998 |
| Docket Number | No 63 |
| Date | 12 May 1998 |
| Court | Court of Session (Inner House - First Division) |
FIRST DIVISION
Children and young personsParent and childParental rightsCustodyNon-relative having custody of childMother to be deported to Jamaica after having served sentence in prisonWhether in best interests of child that custody be removed from non-relative and returned to motherProper test to be appliedWhether cause shown for non-relative to be granted custodyChildren Act 1975 (cap 72), sec 47(2)Law Reform (Parent and Child) (Scotland) Act 1986 (cap 9), secs 2,3 and 81
Section 2 of the Law Reform (Parent and Child) (Scotland) Act 1986, enacted, inter alia, that (1) Subject to sections 3 and 4 of this Act(a) a child's mother shall have parental rights whether or not she is or has been married to the child's father(3) Nothing in this section shall affect any enactment or rule of law by virtue of which a parent may be granted or deprived of parental rights. Section 3 enacted, inter alia, that (1) Any person claiming interest may make an application to the court for an order relating to parental rights and the court may make such order in relation to parental rights as it thinks fit. (2) In any proceedings relating to parental rights the court shall regard the welfare of the child involved as the paramount consideration and shall not make any order relating to parental rights unless it is satisfied that to do so will be in the interests of the child. Section 8 of the Act included custody in the term parental rights. Section 47(2) of the Children Act 1975 enacted, inter alia,that: Notwithstanding the generality of section 3(1) of the Law Reform (Parent and Child) (Scotland) Act 1986, custody of a child shall not be granted in any proceedings to a person other than a parent, tutor, curator or guardian of the child unless that person(d),can show cause why an order should be made awarding him custody of the child.
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 custody of the child who was by that time about four years old. The sheriff granted an interim order in favour of the mother, which order was subsequently reversed on an appeal to the Court of Session. The mother was thereafter released from custody and a proof was held on the merits of the cause. The sheriff found that it was in the best interests of the child that she be resident with the non-relative under conditions which would guarantee that significant contact would be made between the child and the mother and that sufficient contact between the child and its cultural and racial heritage would be maintained. In those circumstances, custody was awarded to the non-relative. The sheriff thereafter made a purported order in terms of sec 11 (1)(b) of the Children (Scotland) Act 1995 directing that the child should remain under the supervision of the Social Work Department of her local council. The mother appealed to the Court of Session and, in the appeal, it was accepted that that portion of the sheriff's decision had been incompetent. Their Lordships thereafter remitted the cause to the sheriff to ascertain how, if at all, the impossibility of making the purported order affected his findings in fact and his reasoning and conclusions and the appeal was continued. The sheriff reported that his decision to make the supervision order had not been a precondition of his custody order and that, because of the mother's unsettled and uncertain future after her
deportation, he would not have granted her custody of the child in any event. At the continued hearing of the appeal, the mother argued that secs 3(1) of the 1986 Act and 47(2) of the 1975 Act were interrelated and since the non-relative was not related to the child, the onus was on her to show cause why an order for custody should be made in her favour. The mother also argued that the sheriff had failed to recognise that he was deciding an issue of custody between the non-relative, who had no parental rights, and the mother, whose rights as the child's natural mother were legally recognised under sec 2(1)(a) of the 1986 Act. There was, accordingly, a strong supposition that it was in the child's best interests to be brought up by her mother. The mother also argued that the sheriff had failed properly to take into account the problems that the child might face as a black child being brought up by a white family in an overwhelmingly white community and that there was no evidence that the mother would not care properly for the child in Jamaica and that, as the social work department had not expressed any concerns about the child's welfare, were she to go to Jamaica, the sheriff had erred in concluding otherwiseHeld (1) (per the Lord President (Rodger)) that although the intention behind sec 47(2) of the 1975 Act and its relationship with sec 3 of the 1986 Act had proved difficult to elucidate, nevertheless the authorities suggested that cause under sec 47(3)(d) was to be judged in terms of the child's welfare; (2) that in a case where the sheriff had seen and heard the witnesses, it would be unusual for an appeal court to interfere with the sheriff's judgment on the issue of custody as the sheriff obviously had advantages which no scrutiny of the transcript of evidence by an appeal court, however careful, could hope to replicate and that was a real factor of importance in the present case where it was plain from the terms of the sheriff's judgment that he had formed certain views about the mother's possible conduct on her return to Jamaica as a result of the impression which she had made on him when she gave evidence in the witness box; (3) that the sheriff was not deciding between the non-relative who had no rights and the mother who had parental rights recognised by law as, at the time or the proof, the position was that the non-relative had interim custody and the question for the sheriff was whether custody of the child should be removed from her and returned to the mother so that, in characterising the issue thus, the sheriff was doing nothing more than reflecting what was the reality of the situation and the practical nature of the dispute which he had been called upon to decide; (4) that, although the mother's aunt had offered support for the mother and child on return to Jamaica, the sheriff had been entitled to have doubts about whether the mother would take suitable advantage of that offer; and (5) that the sheriff had been entitled to conclude that it would not be in the child's best interests to be in the mother's custody as that conclusion had been based on the view from seeing the witnesses and in particular on seeing the mother give evidence, that the mother's future, and hence the future which would face the child in Jamaica, were unsettled so that he was considering what was in the best interests of the child in a situation where there were two alternatives, one of which entailed the child remaining in a settled home where she was happy and well-cared for in a good area of the country but where she might well suffer cultural difficulties due to her racial origins at some uncertain point in the future, matters which the non-relative had not yet fully appreciated and, on the other hand, the child would be going into a society with which she was unfamiliar and where the future arrangements for her care would be uncertain since the mother's future would be unsettled but in which she would be with her mother and her half sister and would not face the identity 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 of discretion but as a matter of judgment exercised on consideration of the relevant factors; the court had to consider all the relevant circumstances and decide what the welfare of the child required and once that has been identified, the court had no discretion but had to follow what the welfare of the child required.
Mrs Helen Cruickshanks or Osborne brought an action seeking custody and interim custody of a child, Fiona Matthan, against Althea Matthan, the child's mother, in the sheriffdom of Tayside, Central and Fife at Perth. A proof on interim orders was heard before the sheriff and, on 15 August 1996, the sheriff pronounced an interlocutor sustaining pleas in law for the defender, repelling the pleas in law for the pursuer, refusing to make an order for interim custody of the child, and refusing to grant interim interdict against the defender removing the child 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 merits.
At advising, on 29 April 1997, the sheriff found the pursuer entitled to the parental right of custody in respect of the child in terms of sec 3(1) of the Law Reform (Parent and Child) (Scotland) Act 1986. The sheriff also made an order in terms of sec 11(1)(b) of the Children (Scotland) Act 1995 directing that the child should remain under the supervision of the social work department of Perth and Kinross Council.
The cause thereafter called before the First Division in the summar roll for a hearing at which it was conceded that the purported order in terms of sec 11(1)(b) of the 1995 Act had been incompetent. Their Lordships thereafter remitted to the sheriff to report on how, if at all, the impossibility of making that order affected his findings in fact and his reasoning and conclusions, and continued the appeal.
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