Senna-Cheribbo v Wood
| Jurisdiction | Scotland |
| Judgment Date | 19 November 1998 |
| Docket Number | No 31 |
| Date | 19 November 1998 |
| Court | Court of Session (Inner House - Extra Division) |
EXTRA DIVISION
Children and young personsParent and childResidence orderWhether sheriff erred in refusing mother residence order in respect of young childSheriffs discretionRelevant factors
A two-year-old child had been living with his paternal grandparents since he was eight months old. His mother applied to the sheriff court to have a residence order made in her favour. The sheriff refused the order allowing the child to remain resident with his father but allowing the mother residential contact at her home at weekends under social work supervision. The father suffered from multiple sclerosis and lived with his parents. The mother appealed to the Court of Session and argued that it was not in the child's best interests to remain where he was. The grandmother was 56, a diabetic and had a history of health problems which would lead to deterioration in energy levels. The mother argued that the sheriff had erred in law by taking only a short-term view as the basis for his decision when he had been obliged to consider the long term.
Held (1) that me sheriff's judgment, as a whole, did not show that he approached the question of the best interests of the child with a limited outlook and nowhere was there any indication that a long-term view was to be disregarded and, indeed, the sheriff had made reference to a possible situation when the child was in his teens; (2) that there was no evidence to show that any diminution in the grandmother's energy would be likely significantly to impair her ability in future to look after the child whereas there was evidence to the effect that the mother could not cope with the care of the child on a permanent basis, even with support; and, accordingly, (3) that, in all the circumstances, the sheriff had not erred; and appeal refused.
Carmen Catherine Gilda Senna-Cheribbo applied to the sheriff court at Paisley in the father and Mrs Margaret Masterton, the father's mother, were brought in the application as first and second-named defenders respectively.
The sheriff refused to make the order.
The applicant thereafter appealed to the Court of Session.
Cases referred to:
Brixey v LynasSC 1994 SC 606
Osbome v MatthanSC (No 2) 1998 SC 682
Thomas v ThomasSC 1947 SC (HL) 45
Textbook referred to:
Wilkinson & Norrie, The Law Relating to Parent and Child in Scotland, p 212
The cause called before an Extra Division, comprising Lord Caplan, Lord Morison and Lord Weir for a hearing on the summar roll.
At advising, on 19 November 1998, the opinion of the court was delivered by Lord Weir.
Opinion Of The CourtThe child, Nike, who is the subject of the dispute in this litigation is aged two years. The appellant is his mother who formerly cohabited with the first respondent, who is the father. The child has been living with his maternal grandparents since he was approximately eight months old. His grandmother is the second respondent. Since the autumn of 1997 the appellant has wished the child to reside with her on a permanent basis. Proceedings were raised by her in the sheriff court at Paisley and after a proof the sheriff...
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