S v M (Access Order)
| Jurisdiction | England & Wales |
| Judge | LORD GOFF OF CHIEVELEY,LORD MUSTILL,LORD SLYNN OF HADLEY,LORD HOPE OF CRAIGHEAD,LORD CLYDE |
| Judgment Date | 06 February 1997 |
| Judgment citation (vLex) | [1997] UKHL J0206-1 |
| Court | House of Lords |
| Date | 06 February 1997 |
| Docket Number | No. 6. |
[1997] UKHL J0206-1
HOUSE OF LORDS
Lord Goff of Chieveley
Lord Mustill
Lord Slynn of Hadley
Lord Hope of Craighead
Lord Clyde
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Hope of Craighead. For the reasons he gives I would dismiss this appeal.
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Hope of Craighead. For the reasons that he gives I would dismiss this appeal.
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Hope of Craighead. For the reasons that he gives I too would dismiss this appeal.
My Lords,
This is an action by an unmarried father for access to his child. It was raised four years ago in the Sheriff Court at Edinburgh. The action was defended by the child's mother on the ground that it was not in the child's best interests that the pursuer should have access to him. The child was born on 11 April 1989 while the pursuer and the defender were living together. About six months after he was born the child's parents separated. For a time they resumed living together, but in January 1991 they ended their relationship. The defender then formed an association with another man with whom she was living when the action came up for proof and whom she has now married. The child saw the pursuer on a number of occasions in 1993 following orders which were made by the Court awarding the pursuer interim access. The last such occasion was on 31 July 1993. On 19 August 1993 the Sheriff held, after proof, that it was not in the child's best interests for the pursuer to have access to him. As a result the arrangements for interim access were brought to an end. On 28 January 1994 the Sheriff Principal 1994 S.C.L.R. 537, after hearing further evidence, agreed with the Sheriff on this point and refused the pursuer's appeal against the Sheriff's interlocutor. On 13 July 1995 an Extra Division (Lord Weir and Lord Brand, Lord McCluskey dissenting) 1996 S.L.T. 750 refused the pursuer's appeal against the interlocutor of the Sheriff Principal. That decision is now the subject of a further appeal by the pursuer to your Lordships' House.
The resolution of a dispute about access is in almost every case a matter for the court of first instance. So much depends on the facts and on the impression which is made on the judge by the parties to the dispute when they come to give evidence. An appeal court which has not had the advantage of seeing and hearing the witnesses will always be slow to disturb the decision which has been taken on the facts by the judge. The rules defining the proper approach of an appellate court to the consideration of a decision on fact by the court of first instance were described by Lord Macmillan in Thomas v. Thomas 1947 S.C. (HL) 45 at p. 59. That was an action of divorce, but what he said in that case applies with just as much force to disputes about access. If there is a succession of appeals the passage of time is likely also to give rise to difficulty. Decisions in these cases are taken in the light of the facts and circumstances as presented to the judge at the time of the proof. But circumstances change as the child gets older, and the parties to the dispute may change their ways and form new relationships. The greater the interval between the taking of the evidence from the witnesses and the hearing of each appeal the more unsatisfactory the situation is likely to become. The stronger will be the argument that the appellate court should not disturb the status quo, as can be seen from the decision of your Lordships' House in Brixey v. Lynas 1996 S.L.T. 908. This is especially so where, as in this case, the effect of the order which was made at first instance was to refuse access. The child who is at the centre of this dispute was four years old when he last saw the pursuer. He is now aged seven, and he will be eight years old in a few months time. It would not be right for your Lordships, if minded to allow this appeal, simply to reverse the decision of the judge at first instance and order that the pursuer be awarded access to the child. At the very least some further inquiry would be necessary. This may bring new facts to light which may show that, whatever the position may have been four years ago, it would not now be in the interests of the child that the pursuer should be awarded access. So in almost every such case it is likely to be preferable, rather than pursuing a succession of appeals through the courts, to make a fresh application for access to the judge at first instance on the ground of a change in circumstances. It should be noted that, except in the case of an adoption order, no decision about parental rights is a final decision, because the child's welfare remains open to further consideration by the court throughout his childhood.
This appeal however does not come before your Lordships as an appeal on the facts. It clearly could not do so, because section 32(5) of the Court of Session Act 1988 provides that the judgment of the Court of Session on an appeal to that Court after a proof in the Sheriff Court shall be appealable to this House on matters of law only. The Dean of Faculty was right therefore on the pursuer's behalf to accept all the findings of fact which were made in the Sheriff Court by the Sheriff as varied by the Sheriff Principal. He confined his submissions to two points only, which were the subject of debate in the Court of Session and on which Lord McCluskey expressed strong views in his dissenting opinion. The first related to the nature of the welfare test which is set out in section 3(2) of the Law Reform (Parent and Child) (Scotland) Act 1986. The second related to the question whether the Court was entitled, in reaching its decision about access, to have regard to the content of statements said to have been made by the child which were inadmissible as evidence of the truth of their contents because they were hearsay as the child did not give evidence.
The hearing of this action in the Sheriff Court took an unusual course. When the case came before the Sheriff for a proof the pursuer had already been found entitled to interim access to the child. This was to be at an access centre each Saturday from 12 noon to 3.00 p.m. in terms of an order which had been made in his favour about four weeks previously. This was a variation of a previous order for interim access which had been made earlier that year. The Sheriff refused a motion by the defender on 16 July 1993 at the end of the proof, when he took the case to avizandum, for the order for interim access to be suspended. On 19 August 1993 he issued his final interlocutor, finding in fact and law that it was not in the best interests of the child that the pursuer should have access to him. The effect of that interlocutor was to bring the pursuer's right of access in terms of the interim order to an end. When the appeal came before the Sheriff Principal on 11 November 1993 he was informed that the pursuer had exercised access to the child on two occasions while the Sheriff's decision was at avizandum. He was told that on the second of these occasions which took place on 31 July 1993 there was some kind of an incident at the access centre, the details of which were in dispute. He decided, with the agreement of the parties' representatives, to hear evidence about this incident which was the subject of further findings of fact by him in addition to the findings already made by the Sheriff. He also varied the Sheriff's findings in the light of criticisms which he made of them on the ground that the Sheriff had based them on hearsay evidence. When the case came before the Extra Division therefore the Court had the benefit of the Sheriff's findings as varied by the Sheriff Principal together with the findings which the Sheriff Principal had made after hearing further evidence. The judges in the Extra Division were also faced with the fact that, after having seen and heard evidence from both the pursuer and the defender and other witnesses, the Sheriff Principal had reached the same conclusion as the Sheriff–namely, that it was not in the best interests of the child that the pursuer should have access to him. These were findings of fact by two judges at first instance on the paramount consideration to which the Court is required by section 3(2) of the Act of 1986 to have regard, which is the welfare of the child.
The evidence which the Sheriffs accepted showed that the relationship between the pursuer and the defender was an unhappy one. There were a number of separations, as the defender frequently left the pursuer both before and after the birth of the child because of his violent and aggressive behaviour towards her. The final separation followed a further incident of violence, in the course of which the pursuer assaulted the defender and threw the child across the room. After the final separation access took place initially at the home of the pursuer's parents where a large number of other people were always present. On occasions a dog was also present, against the wishes of the defender who considered the dog to be dangerous. According to the pursuer's evidence things went reasonably well while the child was with him at his parent's house. But the Sheriff accepted the evidence of the defender and her witnesses that after access the child came home reporting abusive and derogatory remarks about her and that on occasions he behaved aggressively and out of character, both at home and at...
To continue reading
Request your trial
-
Re X and Y (leave to remove from jurisdiction: no order principle)
...v Porchetta 1986 SLT 105, Scot HL. S (removal from jurisdiction), Re [1999] 1 FLR 850, [1999] Fam Law 219. S v M (access order) [1997] 1 FLR 980; sub nom Sanderson v McManus 1997 SC (HL) 55, Scot HL; affg [1996] SLT T (a minor) (contact after adoption), Re[1995] 2 FCR 537, [1995] 2 FLR 251,......
-
Appeal By Em Against Am
...“whether the decision under appeal is one that no reasonable judge could have reached”. Reference was also made to Sanderson v McManus 1997 SC (HL) 55, Lord Hope p57H-58; and Osborne v Matthan (No.2) 1998 SC 682, Lord President (Rodger) p688H-689C. [17] Counsel noted that the sheriff princi......
-
Af Against Ff
...that State.” Authorities referred to:- 1. Little v Little 1990 SLT 785 2. Jacques v Jacques 1997 S.C. (H.L.) 20 3. Sanderson v McManus 1997 S.C. (H.L.) 55 4. Cunningham v Cunningham 2001 F.L.R. 12 5. Payne v Payne 2001 2 WLR 1826 6. M v M 2008 F.L.R 90. 7. Wilson v Wilson 2009 F.L.R 18 8. T......
-
In Appeal From Edinburgh Sheriff Court By S.m. V. C.m.
...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 inco......