Scottish Court of Session Decisions

The cause thereafter called before the First Division, comprising the Lord President (Rodger), Lord Caplan and Lord Wylie for a hearing on the summar roll.

At advising, on 12 May 1998—

LORD PRESIDENT (RODGER)—This is an appeal from a decision of the sheriff at Perth in an action between the pursuer, Mrs Helen Osborne, and the defender, Miss Althea Matthan, in which the pursuer craves the court to find her entitled to the parental right of custody in respect of Fiona Matthan (‘Fiona’), the defender's daughter, who is now aged five. On 29 April 1997 the sheriff found in favour of the pursuer. In particular he found in fact and law that: ‘it is in the best interest of the child Fiona Matthan to be resident with the pursuer at this time under conditions which will guarantee that significant contact be maintained between the child and the defender and that sufficient contact between the child and its cultural and racial heritage is maintained; Accordingly SUSTAINS in hoc statu the first plea-in-law for the pursuer and REPELS the pleas-in-law for the defender, FINDS the pursuer entitled to the parental right of custody in respect of FIONA MATTHAN, a child under the age of sixteen years, in terms of Section 3(1) of the Law Reform (Parent and Child) (Scotland) Act 1986.’

When the sheriff pronounced his interlocutor, part of which I have quoted, finding the pursuer entitled to custody of Fiona, he went on to make what purported to be an order in terms of sec 11(1)(b) of the Children (Scotland) Act 1995 directing that Fiona should remain under the supervision of the Social Work Department of Perth and Kinross Council. It is now accepted that this part of the sheriff's order was incompetent. That point was indeed raised by the council in a letter dated 12 August 1997 and by an interlocutor pronounced in the Single Bills on 29 August 1997 this court allowed the council to lodge a minute relating to that matter. Thereafter on 19 September 1997, again in the Single Bills, this court of consent recalled the part of the sheriff's order relating to the supervision order.

It appeared, however, that the purported supervision order might be regarded as such an integral part of the sheriff's order of 29 April 1997 that it would be unclear what order he would have pronounced if he had known that the supervision order was incompetent. Accordingly, when the appeal was originally heard in January 1998, the court remitted to the sheriff to report to the court fully on ‘how if at all, the impossibility of making the order purportedly made in terms of sec 11(1)(b) of the Children (Scotland) Act 1995…affects (a) the findings in fact and (b) his reasoning and conclusions…’ and continued the appeal. The sheriff duly reported and his report was available to the court at the continued hearing of the appeal.

Many of the relevant facts are not now in dispute and a clear picture emerges from the sheriff's findings in fact as supplemented by certain additional findings which we were asked to make and which were also not controversial.

The defender was born in Jamaica in 1975 and came to Britain in about December 1991 on a pass which entitled her to stay for 18 months. She ought therefore to have returned to Jamaica by June 1993. To begin with, the defender stayed in bed and breakfast accommodation but in about April 1993 she obtained a local authority house in a tower block in Hackney. The pursuer was living in the same tower block with her husband and two daughters, Deborah and Fiona Osborne. The defender struck up an association with members of the pursuer's family. At about Christmas 1993, when Fiona Matthan would have been about 16 months old, the pursuer's daughter Fiona Osborne began to act as a child minder for the defender. The pursuer actively assisted her daughter in this. At this time the defender was selling drugs on a full-time basis in the locality and after a while she began to sell them from her flat in the tower block. The pursuer and her family were aware of this. As a result of her involvement in drug dealing, in April 1994 two armed men threatened the defender in her house. The defender and Fiona Osborne agreed that, for her safety, the defender's daughter should live with the pursuer's family full-time. This she did and thereafter Fiona became involved in all the normal activities of the pursuer's family. The pursuer's daughter kept the defender fully informed of what was happening with Fiona and the defender would visit her regularly, sometimes taking her back to her flat for two hours on a Sunday.

In February 1995 the defender was arrested for drug dealing and was remanded in custody in Holloway Prison. From that time onwards, the defender was unable to offer any financial support to the pursuer and her family in looking after Fiona. During the defender's period on remand the pursuer's daughter took Fiona to see her almost every day. The defender expressed the firm view to the pursuer and her daughter that Fiona should not be given to any member of her own family and that the pursuer's daughter should continue to look after her on the defender's behalf. She told the pursuer and her daughter that she had been unhappy in Jamaica and they formed the impression, which was well founded, that there had been a considerable amount of violence in her upbringing. Although her mother lived in Jamaica, she had been brought up by her grandmother and had not gone to school. She had also been raped and abused.

In June 1995 the defender was found guilty of dealing in drugs and was sentenced to three years imprisonment. Shortly thereafter the defender was moved to Styal Prison near Manchester. It was also indicated that she would be liable to immediate deportation on the conclusion of her sentence. While in prison, the defender gave birth to a second daughter, Crystal, the half-sister of Fiona. The father was the defender's co-accused who was sentenced to four years imprisonment and deported to Jamaica at the conclusion of that sentence.

In the autumn of 1995 the pursuer separated from her husband and returned to Perth. By this time the pursuer had become the principal carer of Fiona. The pursuer's daughter, Fiona Osborne, stayed in London because the defender had accumulated visits and was to have those visits while on a temporary transfer to Holloway. Once the visits had been completed, the pursuer's daughter and Fiona joined the pursuer in Perth. After that the pursuer's family made several visits, sometimes with Fiona, to Styal Prison.

The defender's prison sentence was completed on 7 August 1996, but she remained in custody by virtue of the deportation order. In July of the same year the pursuer had raised the present action. After a proof in respect of interim custody and interim interdict on 14 August, Sheriff McInnes made an order in favour of the defender, but, on appeal to this court, the order was recalled and the pursuer was awarded interim custody of Fiona. See Osborne v Matthan. Thereafter the defender was released from custody and she found accommodation in Crieff. She was staying there during the proof on the merits in April 1997 and she continues to live there with her daughter Crystal. Although access visits to Fiona were arranged while the defender was in Crieff before the proof, the defender did not attend for all of them, particularly in the early stages, but this may in part at least have been due to difficulties in making the necessary travel arrangements. Fiona is aware that the defender is her mother and she calls her ‘Mum’.

The sheriff made the following findings-in-fact about Fiona's situation at the time of the proof: ‘15. The defender's daughter is happy and settled in the pursuer's home. There is a strong bond of mutual affection between all members of the family. The pursuer's house is a 3-bedroomed council house in a pleasant area of Perth. The child shares a bedroom with the pursuer's daughter Fiona at present. She is doing well at school. She has in effect been a full member of the pursuer's family since she was 16 months old. She states that she does not wish to go to Jamaica with her mother, although it is not possible to say how deeply this view is held. 16. The defender and her child Fiona also enjoy a good relationship during periods of access, and are in the main happy and relaxed in each other's company. The defender is however somewhat passive in her approach to her daughter. She has in the past been equivocal in her attitude to her daughter's future. She has made numerous differing statements about what she hopes and intends for her daughter. She has in particular said on many occasions that she does not wish to return to Jamaica, and that she does not wish her daughter to go there. She has further stated that she would have been prepared to leave her daughter with the pursuer, and has only sought to defend this present action because the pursuer is seeking to formalise her relationship with her daughter.’

At the proof the defender's position was that, if the pursuer were not awarded custody of Fiona, the defender would take her to live with her and Crystal in Jamaica. Evidence was accordingly led about the situation in Jamaica and in particular about an offer of accommodation which her great aunt had made. The great aunt, Miss Millington, lives in Kingston where she owns a large house, with 12 bedrooms, a garden and a swimming pool, in a pleasant area of the town. There are good educational and health facilities in the area. Miss Matthan and her two children would have the use of three bedrooms, a kitchen and a bathroom in an annex to the house. The defender had also been offered employment in a market stall owned by her great aunt. Certain members of the defender's extended family live in the great aunt's house and would be able to help to look after Fiona and Crystal while the defender was working. The defender and her children would have access to the wider extended family who live in other parts of Jamaica.

It is agreed that Fiona, who has never been to Jamaica, would suffer considerable distress if she were summarily removed to Jamaica which would be a wholly alien environment. The defender's intention is to make contact with Erroll Mills, Fiona's father, on her return to Jamaica. He has a criminal record.

It is also relevant to notice that the pursuer and her family lived in a multi-racial society in Hackney for some years. The pursuer was a worker in a multi-racial playgroup and her husband was involved in a multi-racial youth club, comprising mainly black children. The pursuer's elder daughter, Deborah, has a long-term stable relationship with David Fraser, who is black. They have a child. David Fraser, who is fond of Fiona and sees her often, has a good relationship with her.

In terms of his interlocutor the sheriff found the pursuer entitled to the parental right of custody of Fiona in terms of sec 3(1) of the Law Reform (Parent and Child) (Scotland) Act 1986. Subsections (1) and (3) of sec 2 of that Act provide: ‘(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.’ Subsections (1) and (2) of sec 3 provided: ‘(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 relating 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.’ ‘Parental rights’ are defined by sec 8 as meaning ‘tutory, curatory, custody or access, as the case may require, and any right or authority relating to the welfare or upbringing of a child conferred on a parent by any rule of law.’ At the relevant time sec 47(2) of the Children Act 1975 provided: ‘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—(a) being a relative or step-parent of the child, has the consent of a parent, tutor, curator or guardian of the child and has had care and possession of the child for the three months preceding the making of the application for custody; or (b) has the consent of a parent, tutor, curator or guardian of the child and has had care and possession of the child for a period or periods, before such application, which amounted to at least twelve months and included the three months preceding such application; or (c) has had care and possession of the child for a period or periods before such application which amounted to at least three years and included the three months preceding such application; or (d) while not falling with paragraph (a), (b) or (c), can show cause why an order should be made awarding him custody of the child.’ It is accepted that the pursuer in the present case does not fall within paras (a), (b) or (c) and so must be considered under para (d).

When this appeal was first heard by an Extra Division in January 1998, there was considerable discussion of the interplay between sec 3(1) of the 1986 Act and sec 47(2) of the 1975 Act as amended. In particular, as a result of observations by the court, there was discussion of the title of the pursuer to bring the proceedings, the competency of the proceedings and the relevancy of the pursuer's averments. The court did not, however, resolve these issues, which were left over to the subsequent hearing—the hearing before us.

At that subsequent hearing counsel for the defender took no point as to the pursuer's title or interest to bring the present proceedings. It is therefore unnecessary to consider that point. Rather, their submission on the interpretation of sec 3(1) and sec 47(2) was bound up with their wider submission on the nature of the issue before the court.

Counsel for the defender pointed out that Mrs Osborne is not related in any way to Fiona. Nor is she Fiona's tutor, curator or guardian. Fiona comes to be in her care as a result of a series of steps, beginning with the defender entrusting Fiona's care to the pursuer's daughter. In that situation the court was considering a claim for parental rights, in particular custody, by someone who had no recognised relationship with Fiona. That claim was defended by Fiona's mother who had parental rights by virtue of sec 2(1)(a) of the 1986 Act. What the pursuer was therefore asking was that the court should grant her custody of Fiona and so deprive the defender of her existing parental right of custody. In that situation, said counsel, there was an additional burden on the pursuer which she would have to discharge before the court could properly be satisfied that it would be in the interests of Fiona's welfare that the pursuer should be awarded custody of her. Section 47(2)(d) of the 1975 Act recognised this distinction between a case like the present and cases where the pursuer had some kind of relationship with the child. In cases like the present the pursuer had to ‘show cause’ why an order of custody should be made in her favour. While making that submission, counsel did not, however, argue that the ‘cause’ which the pursuer would have to show was distinct from the welfare of Fiona. Rather, the cause was to be determined by reference to Fiona's welfare.

The exact intention behind sec 47(2) of the 1975 Act and its relationship with sec 3 of the 1986 Act have proved difficult to elucidate. None the less the authorities suggest that the ‘cause’ in sec 47(2)(d) is one which is to be judged in terms of the child's welfare. See F v F at p 362G–H per Lord President Hope and D v Grampian Regional Council per Lord McCluskey at p 680G–681A; per Lord Morison at p 684C–E;per Lord Prosser at p 687E–F. Effect would be given to sec 47(2)(d) by the requirement that an applicant in the pursuer's position would ‘have to make out a strong case on the merits if he were to succeed’: Beagley v Beagley perLord Fraser of Tullybelton at p 90. Counsel for the defender did not invite us to reconsider what was said in these cases nor indeed did they submit that what had been said was incorrect. It therefore appears to me proper to accept the guidance which these cases have to offer on the inter-relationship and effect of the two provisions.

In some passages in the authorities dealing with decisions on parental rights it is said that the first instance judge exercises a discretion when deciding whether to make an order and, if so, in what terms. See, for instance, Re K D (A Minor) per Lord Oliver at p 819G. It appears to me, however, that the decision which a trial judge reaches on custody may perhaps be better described not as a matter of discretion but as a matter of judgment exercised on consideration of the relevant factors. The court must consider all the relevant circumstances and decide what the welfare of the child requires. Once the court has identified that, it has no discretion: the court must do what the welfare of the child requires.

Even though the decision may therefore not be truly one depending on the discretion of the judge, none the less consider that counsel for the defender were right to acknowledge that, in a case like the present where the sheriff has seen and heard the witnesses, it would be unusual for an appeal court to interfere with the sheriffs judgment on the issue of custody. The sheriff will obviously have advantages which no scrutiny of the transcript of the evidence by an appeal court, however careful, can hope to replicate. That is a real factor of importance in this case where it is plain from the terms of his judgment that the sheriff formed certain views about the defender's possible conduct on her return to Jamaica as a result of the impression which she made on him when she gave evidence in the witness box.

Although counsel for the defender freely recognised the importance which would normally be attached to the judgment of the sheriff in such a case, they argued that in this particular case this court could and should interfere with that judgment because the sheriff had erred in law in the approach which he had adopted. His error was said to lie in failing to recognise that he was not deciding an issue of custody, say, between two parents each enjoying parental rights, but, rather, he was deciding between the pursuer who has no rights and the defender who has parental rights recognised by law. This error was said to be apparent in a sentence of the sheriff's note where he said ‘In fact there would be no reason whatsoever in this case for supporting the defender's claim to have custody of her child returned to her but for the question of race’ and in the following paragraph from the sheriff's report to this court: ‘Finally, I have to report that, although the decision was at no time free from difficulty, in the event that neither supervision orders or undertakings were available, I do not consider that I would have granted custody to the defender. On the evidence, her future and her past were so unsettled and uncertain it would have been extremely difficult to conclude that it would be in the best interests of the child to be in her custody, despite the intervention of her great aunt. In conclusion, I must therefore report to your Lordships that, having reconsidered the evidence and productions, and my notes on counsel's submissions, the best indication I can give is that, even if the issues indicated in the supervision order had not been addressed, I would not have removed the child from the custody of the pursuer on the basis of the other evidence in the case.’ In each case, counsel argued, the sheriff showed that he thought that he had to decide whether to award custody to the defender, whereas the actual position was that the defender was entitled to custody by virtue of sec 2(1)(a) of the 1986 Act unless it was taken away from her.

In my view, when fairly read, these passages do not demonstrate that the sheriff was in error. It has to be remembered that, by its interlocutor of 18 October 1996, this court awarded interim custody of Fiona to the pursuer. The position at the time of the proof, therefore, was that Mrs Osborne had interim custody and the question for the sheriff was indeed in fact whether custody of Fiona should be removed from the pursuer and returned to the defender. That was how the sheriff characterised the issue and he was doing nothing more than reflecting what was the reality of the situation and the practical nature of the dispute which he was called upon to decide.

At the time of the proof therefore the dispute can perhaps be characterised in this way. The pursuer, who had been awarded interim custody, was seeking an award of custody of Fiona. Her claim was being resisted by the defender whose parental right to have custody of Fiona under sec 2(1)(a) of the 1986 Act had been superseded ad interim by the award in favour of the pursuer.

I should add that, while it is unfortunate that in his Note the sheriff uses the terminology of the Children (Scotland) Act 1995 which did not apply to the proceedings, nothing turns on that so far as the merits of the case are concerned. It was not suggested by counsel for the defender that, by reason only of having adopted that terminology, the sheriff had misdirected himself on the issue of custody.

In sketching out the approach which they said that the sheriff should have adopted and which this court should adopt, counsel for the defender referred us to what had been said in a number of English cases. Some stress was laid on a characteristically pithy and trenchant passage from the speech of Lord Templeman in Re KD at p 812B–D: ‘The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child's moral and physical health are not endangered. Public authorities cannot improve on nature. Public authorities exercise a supervisory role and interfere to rescue a child when the parental tie is broken by abuse or separation. In terms of the English rule the court decides whether and to what extent the welfare of the child requires that the child shall be protected against harm caused by the parent, including harm which could be caused by the resumption of parental care after separation has broken the parental tie.’ This passage had been reflected in subsequent decisions by the English courts. For instance, in Re K (A Minor) at p 436F Fox LJ put the matter in this way: ‘Looking at the whole matter, I can see no ground for ordering that the father should be displaced from his normal role in the care and upbringing of his child. In my opinion the judge did not direct himself properly as to the law to be applied to the case and, properly directed, he would not in my view have been entitled to reach the conclusion which he did. That is because, in my view, no circumstances had been demonstrated which made it necessary that, in the interests of the welfare of the child, the father's "right" to bring him up should be displaced.’ That was a case where the trial judge had refused the natural father's application for care and control of his son who had lived with the mother's half-sister and her husband after the mother had committed suicide. Although the half-sister and her husband had a comfortable and stable home and the son had blossomed while in their care, the Court of Appeal held that he should be returned to the care and control of his natural father. Waite J (at p 437A expressed the relevant principle as being that ‘the court in wardship will not act in opposition to a natural parent unless judicially satisfied that the child's welfare requires that the parental rights should be suspended or superseded’. In Re K (A Minor) (Wardship: Adoption), Butler-Sloss LJ, with whom Purchas LJ and Sir Patrick O'Connor agreed, followed Fox LJ and added that the mother in the case in question ‘must be shown to be entirely unsuitable before another family can be considered, otherwise we are in grave danger of slipping into social engineering’.

On the other hand, in Re H (A Minor) (Custody: Interim Care and Control) Lord Donaldson MR expressed caution about the formulation adopted by Fox LJ and preferred that of Waite J. This led Balcombe LJ to seek to resolve any possible divergence of approach by saying in Re W (A Minor) (Residence Order) at p 633F: ‘It is the welfare of the child which is the test, but of course there is a strong supposition that, other things being equal, it is in the interests of the child that it shall remain with its natural parents, but that has to give way to the particular needs in particular situations.’ Finally in Re M (Child's Upbringing) at p 456B–C Ward LJ referred to what Balcombe LJ had said and added: ‘In my judgment that strong supposition, other things being equal, that it is in the interests of the child to be brought up by his natural parents, is a guide to the resolution of the competing claims in this case which Thorpe LJ in error did not follow. I agree this is not determinative of the conclusion for it must be subservient to the paramount consideration, which the court has always in mind, that is to say, the welfare of the child.’

In his final submissions on behalf of the defender counsel adopted the terminology derived from Balcombe LJ's opinion and argued that, though the test was the welfare of Fiona, there was a ‘strong supposition’, other things being equal, that it would be in the best interests of Fiona to be brought up by her natural mother, the defender.

From the point of view of this court, however, the most important guidance as to the approach which we must adopt in applying sec 3(2) of the 1986 Act is to be found in the decisions of the House of Lords on that subsection.

The first is Brixey v Lynas at p 5 where Lord Jauncey observed: ‘The paramount consideration in any dispute as to custody is the welfare of the child (sec 3(2) of the Law Reform (Parent and Child) (Scotland) Act 1986).’

The second case, Sanderson v McManus, also concerned a situation where the rights of a natural parent were involved: the natural father was seeking access to his son. The general nature of the issue before the court was explained by Lord Hope of Craighead in this way (at p 62D–H): ‘The issue relates to the meaning and effect of sec 3(2) of the Act. This subsection states that the welfare of the child is the paramount consideration. It does not say what other considerations may or may not be taken into account. But the court is told that it 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. The scope of the court's powers is indicated by the concluding words of the previous subsection, which states that the court may make such order relating to parental rights as it thinks fit. In my opinion the effect of subsec (2) is clear. The court is given a wide discretion as to the considerations pointing one way or the other which it may take into account. But all other considerations must yield to the consideration which is stated by the subsection to be paramount, which is the welfare of the child. As it is told that it ‘shall not’ make any order relating to parental rights unless it is satisfied that ‘to do so’ will be in the best interests of the child, the onus is on the party who seeks such an order to show on balance of probabilities that the welfare of the child requires that the order be made in the child's best interests. It is of course true, as Lord Weir pointed out in this case, that questions of onus usually cease to be important once the evidence is before the court. The matter then becomes one of overall impression, balancing one consideration against another and having regard always to the consideration which has been stated to be paramount. The court must however be able to conclude that it would be in the child's best interests that the order should be made. If it is unable to come to that view, the proper course for it to take is to make no order.’ Later, when dealing specifically with the significance of the natural relationship, Lord Hope said this (at pp 63–64): ‘The more fundamental question however 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 sec 3(2) of the Act of 1986 has been to remove any rule or principle to this effect. Lord Dunpark had already recognised the fallacy in this approach, once the welfare of the child was made the paramount consideration, in the opinion which he delivered in Porchetta v Porchetta…However that may be, I consider that the effect of sec 3(2) of the Act of 1986 is to show that the approach taken by Lord Dunpark is the one which should now be adopted by the court…The pursuer's position in the present case is of course different from that of the father in Porchetta. There has been contact between him and his son, although he and the defender were never married to each other. But these considerations only serve to emphasise that the facts of each case may vary from one extreme to the other and that there will be an infinite variety of circumstances in between. The relationship between the natural father and the child can never be dismissed as irrelevant. 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 other 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. The 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.’ Lord Clyde began (at p 65B) by observing that: ‘The development of the law relating to parents and children in Scots law over the last 100 years has seen a movement away from a consideration of the rights of parents to the custody of or access to their children, to a recognition that priority has to be given to the interests and welfare of the child.’ Having endorsed the view that the test was now to be found in sec 3(2), his Lordship added (at p 65E–F): ‘One factor which unquestionably has to be considered by the court from which a parent seeks an order is that of maintaining the link between parent and child. In many cases regarding opposed orders for custody or access that consideration will be at the heart of the dispute. In many cases it may well be proper to regard it as a factor of the very greatest weight. On the other hand the unusual case cannot be excluded where in all the circumstances it may be proper in the interests of the child to exclude access to a parent.’

These passages leave no room for doubt that the paramount factor in any decision on parental rights is the welfare of the child and that the decision of the court will depend on what is in the best interests of the child. All other factors yield to that factor. This is not to say that the court may not consider other factors. It seems clear that it can. As Lord Hope points out, Parliament does not say what considerations, apart from the child's welfare, may be taken into account, but the inference must be that in any particular case there may be a range of considerations which are relevant. Among those considerations in the present case is undoubtedly the fact that the defender is Fiona's natural mother. Moreover that fact may properly be regarded as important since, in the absence of any court order, it confers on the defender a right to Fiona's custody under sec 2(1)(a) of the 1986 Act. But, as the terms of that section show, however important such a right may be, it is subject to any order which the court makes in the interests of Fiona. While the terms of sec 2(1)(a) therefore lend support to the view that it may normally be assumed that a child will benefit from being in her mother's custody, the validity of that assumption in any particular case must be tested by reference to the evidence. That evidence may strengthen the assumption or weaken it or even in an extreme case negative it entirely. Doubtless, as Fitzgibbon LJ stressed long ago in Re O'Hara at p 240, in reaching its decision a court ‘must act cautiously, not as if it were a private person acting with regard to his own child’. None the less, what the court requires to do is to consider the whole position as it appears in the light of the evidence; having done so and having exercised all due caution, it must determine what is in the best interests of the child and base its decision on that. In the present case therefore the sheriff required to consider the whole position, including the fact that the defender is Fiona's mother, in the light of the evidence and, having done so, he required to determine what was in the best interests of Fiona and base his decision on that.

I doubt whether, in practice, this approach is materially different from the one which is advocated in the English authorities which were cited to us, but, if there is a difference, then we must apply the approach which has been identified by the House of Lords in interpreting the Scottish legislation.

Counsel for the defender did not seek to challenge the sheriff's finding that Fiona is happy and well settled in the pursuer's home and that there is a bond of mutual affection among all members of the family. She lives in a three-bedroomed house in a pleasant part of Perth and is doing well at school. She has in effect been a full member of the pursuer's family since she was 16 months old. There is therefore no doubt that, if Mrs Osborne is awarded custody, Fiona will continue to be well looked after.

The principal argument by counsel for the defender that, despite these satisfactory arrangements, Mrs Osborne should not be awarded custody was based on evidence about Fiona's situation in the longer term, when she is older. The sheriff heard evidence from a number of experts about the problems which she would face as a black child brought up in a white family and in a city such as Perth where the community is overwhelmingly white. The sheriff accepted that evidence and made findings in fact 18 and 19 which are in these terms: ‘18. There are serious potential problems when a black child, such as the defender's daughter, is placed for adoption with a white family, such as the pursuer's. Such a child is deprived of contact with its natural heritage and culture, and this can often lead to a serious crisis of identity, particularly during adolescence. Further, such a child is seriously disadvantaged in coping with the stress of racism, which a black child will inevitably encounter to a greater or lesser degree if she continues to live in Britain. 19. The difficulties faced by black children living in a white family can be lessened by sensitive and informed measures undertaken by those concerned in the care of the child. In the present case, the pursuer who is both intelligent and very fond of the defender's daughter has made some effort at providing contact between the defender's daughter and her racial heritage, but these efforts though well meaning and sincere, have been quite insufficient. The pursuer has resisted to some extent the opportunity of advice about this problem, and has significantly under-estimated the problems that the child will face.’

In his Note the sheriff points out that, if the pursuer were not awarded custody of Fiona and Fiona were to go with Miss Matthan to Jamaica she would be going to a country and a culture which are wholly alien to her since she has lived all her life in this country, first in London and then in Perth. Even though that is so, the sheriff accepted that the weight of expert testimony ‘appears to be that whatever other problems are created by such a move the child would be brought up with a pride in its heritage, an appropriate measure of self esteem, and would not be exposed to the racism endemic in British society’. Counsel for Miss Matthan argued that for the sheriff to award custody to the pursuer and so leave Fiona in what might be materially more advantageous circumstances rather than to allow her to go with her mother and her half-sister to live in Jamaica was to indulge in precisely the kind of social engineering which had been condemned by Butler-Sloss LJ in Re K. That was particularly to be deplored when, as the sheriff had found, Fiona would be liable to suffer a serious crisis of identity during adolescence.

Counsel submitted that the sheriff had erred because he had decided to award custody to the pursuer on the basis of what he saw as the short-term advantages to Fiona and in so doing he had overlooked the long-term situation which should have been at the root of his decision. The error could be detected in the sheriff's concluding finding in fact: ‘20. It is in the best interests of the child Fiona Matthan to remain resident for the time being with the pursuer, but on the condition and understanding that regular and frequent contact is maintained by whatever means between the defender and her daughter. It is also a further condition of this order at this time that the pursuer undertakes counselling and advice from the local Social Work Department on the best means of coping with the racial issues which will affect the child as she develops. The possibility that the child might wish to visit, or even return on a full-time basis to her mother in Jamaica, must be accepted by the pursuer.’ Whatever might be the position in other cases, in the present case it would be extremely unlikely that Fiona would in fact ever be able to visit Miss Matthan in Jamaica. Miss Matthan, having been deported, would not be re-admitted to this country. That being so, though basing his decision on short-term considerations, the sheriff was in effect determining the long-term custody of Fiona and deciding that she should be brought up in a society where she would encounter serious cultural problems from which she would be free if she were allowed to go to live with her mother and half-sister in Jamaica. The sheriff's approach was flawed.

It is at once the strength and the weakness of the defender's case that the sheriff accepted the full force of the expert evidence as to the problems which Fiona is liable to encounter if she is brought up by the pursuer in Perth. These potential problems are obviously a consideration which, taken in isolation, points against awarding custody to the pursuer. But, where the sheriff has accepted that there are potential problems of this kind, but none the less decides that the better course in the interests of Fiona's welfare is to make an order for custody in the pursuer's favour, then, if the sheriff has a proper basis for reaching that view, the most powerful factor in the defender's favour loses its force. It is important therefore to see how the sheriff explains his decision in the following passage in his Note: ‘Despite the clarity and emphasis of the opinions expounded particularly by Professor Mullard and Ms Kwhali [the experts for the defender], they were at the same time clear that the question of race should not be allowed to predetermine the outcome in every case. As I have indicated, I am happy to accept the views of the defender's experts in this matter as being correct. In particular, I have no doubt that their assessment of the risks in a case such as this is entirely accurate, for the reasons they described in the evidence. However, my serious reservations about the defender's commitment to the long term care of her daughter remains. This is a matter to which the defender's experts did not I think have anything like full access in coming to their conclusions. While I have no doubt that Miss Millington will always be prepared to provide accommodation and support for the defender as a member of her family, I am simply not convinced at this time that the defender will continue to avail herself of such support. Also it has to be borne in mind that an order of residence such as being considered in the present case is never final until the child is over age, and that the relevant statute provides opportunities for supervision orders in particular cases. I have therefore concluded that at this time it is not in the best interests of the child to be uprooted and sent to Jamaica. I am satisfied that such a move would cause the child considerable and unnecessary distress. I do not think that the defender has demonstrated her ability to sustain the necessary support for the child in the foreseeable future. I am not convinced that there is sufficient certainty in the defender's future in Jamaica to entrust the child to that course. I have therefore come to view that it is preferable at this stage that the child should not be exposed to such pain, stress and uncertainty; but that in view of the expert testimony in the case that the defender must be encouraged to continue to play as major a part as circumstances will permit in her daughter's life. It is also clear that the pursuer must be prepared to comply with advice and guidance in respect of the appropriate upbringing that the child will require. In particular, the pursuer must reconcile herself to the thought that the child must be given every opportunity in the future to consider going to visit or even to live with her mother wherever she is staying. It is quite possible, and indeed likely that the child will at some point wish to resume more direct contact with her mother and that this may well at that time be in her best interests. The evidence did not demonstrate that there was a strong sibling relationship between Fiona and Crystal Matthan, but the fact that the child's only sister will be living in Jamaica may also become significant in due course. I therefore wish specifically to qualify the award of residence to the pursuer with the caution that this arrangement may well not be permanent, and to underline that the residence order should persist only under the strictest condition that the supervision order as described will be observed by the pursuer.’ As I understand the sheriff's reasoning, and as the findings in fact show, he accepts that there is a significant risk that Fiona will encounter the kinds of problems which the defender's experts foretold. But, as he points out, not even those experts considered that those potential problems could be determinative in every case. In weighing his decision, the sheriff was conscious that he had an advantage which the defender's experts had not enjoyed: he had had an opportunity to consider the evidence about the long-term care of Fiona in Jamaica. Part of that evidence came from the defender's great-aunt, Miss Shirley Millington, who flew over from Jamaica to give evidence and whom the sheriff describes as ‘a thoroughly imposing witness in every way’, a description which was endorsed by senior counsel who appeared for the pursuer. On the basis of her evidence the sheriff made finding 17 in these terms: ‘The defender's great-aunt lives in Kingston, Jamaica. She owns a large house, with a total of 12 bedrooms, and which has a garden and a swimming pool, in a pleasant area of the town. There is good educational and health provision nearby. The defender and her two children would have the use of 3 bedrooms and a kitchen and bathroom in the annex to the great-aunt's house. The defender has been offered employment in a market stall owned by her great-aunt. There is an extended family in Jamaica to which the defender and her daughters would have access. Further, members of the extended family living in the great-aunt's house would be able to care for the children if the defender was working.’ If the sheriff had been satisfied that these were the conditions in which Fiona would be brought up in Jamaica, then, even if custody were not awarded to the pursuer, Fiona would be likely to be brought up in a comfortable home and within a stable family. In addition she would have the advantage of being brought up with her mother and half-sister in a cultural milieu with which she could be expected to identify.

The difficulty, however, is that, as his Note shows, the sheriff was not satisfied that this is what would actually happen if Fiona went to Jamaica with her mother. His doubts were based on the evidence given by the defender and on the impression which this made on him.

As the sheriff points out, the defender was for long at best half-hearted about taking Fiona back to Jamaica. Her counsel argued that this was understandable while she was unsure about the situation which they would face on her return to Jamaica. When, however, Miss Millington was contacted by the defender's mother and made the concrete proposals for their future, the defender's attitude changed. She then became enthusiastic about the prospect of going to live along with her children at Miss Millington's house in a lovely part of Kingston. It was not surprising if the defender had been originally doubtful about returning to Jamaica, but was now enthusiastic: the change reflected a change in the prospects which awaited her and her daughters.

In assessing Miss Matthan's attitude, the sheriff said that: ‘There has therefore to be considerable doubt about whether the defender will be able or willing to take suitable advantage of her aunt's offer of support when she returns to Jamaica. Her conversion to a settled life comes at a very late stage in proceedings. The fathers of her two children both live in Jamaica; the defender anticipates that one if not both will be in touch with her on her return, and both fathers have criminal records. There appear to have been no significant previous contact(s) between the defender and Miss Millington. The defender's past in Jamaica appears to have been troubled, and her life in England can hardly be described as settled and normal. Indeed, the clear impression given by the evidence is that the defender threw herself with some enthusiasm into the drug culture of Hackney. To anticipate an instant alteration in her lifestyle on her return to Jamaica could be described as unreasonable.’ Senior counsel for the defender argued that, even when she had been engaged in drug dealing in London, the defender had made adequate arrangements for Fiona's care by placing her with Mrs Osborne's daughter. Moreover, the fact that Fiona was now a happy child showed that she had not suffered while the defender had looked after her in the crucial early months of her life. Therefore, even if there were legitimate concerns about what would happen in Jamaica—and counsel recognised that the court would be entitled to have such concerns—there was no reason to anticipate that Fiona would suffer any harm from them.

In my view the sheriff was certainly entitled to have considerable doubts about whether the defender would take suitable advantage of her aunt's offer of support on her return to Jamaica. She is a young woman who is not yet 23 years of age. She has in the past formed relationships with two men with criminal records. It seems unlikely that on her return to Jamaica she will be content to remain living with her great-aunt without having contact with men of her own age. Indeed her own evidence suggested that she would resume contact with one of her former boyfriends, Fiona's father, who was staying in her mother's house at the time of the proof and who, she said, would be at the airport to meet her on her return to Jamaica.

There was another aspect of the evidence which tends to show how fragile the defender's arrangements with her great aunt might prove to be. The initiative for making these arrangements had come from the defender's mother rather than from the defender herself. Indeed it was clear, both from the evidence of the defender and from the evidence of Miss Millington, that the defender had not actually discussed the matter with her aunt at all before the proof.

Putting these various factors together, I consider that there was a proper basis upon which the sheriff was entitled to form the view that it was doubtful whether the defender would adhere to the arrangement to which her aunt spoke. In addressing that matter the sheriff was also entitled to have regard to the undisputed evidence that the defender had lived a most unsettled life as a young woman in England. He concluded that ‘to anticipate an instant alteration in her lifestyle on her return to Jamaica could be described as unreasonable’. That again was a view which the sheriff was entitled to reach on the evidence and there is no proper basis upon which we would be justified in interfering with it.

In that situation counsel for the defender fell back on the argument that because, when her life was unsettled in London, Miss Matthan took steps to see that Fiona was properly looked after, she could be expected to do so again in Jamaica. I do not find the argument compelling. Counsel was in effect arguing that the court should move Fiona from a situation where she is admittedly settled and well looked after into a new situation. In passing I note that, although that actual move from the pursuer's home in Perth to a home with the defender in Jamaica would cause Fiona some distress, I agree with counsel for the defender that, if the move were otherwise required in the interests of Fiona, such temporary distress would not be a sufficient argument for preventing the defender from taking her with her to Jamaica. I do not therefore attach any significant weight to that potential distress. The critical factor is, rather, the uncertainty about the new situation into which Fiona would move, more generally the uncertainty about the future which would await her in Jamaica. Counsel for the defender was really arguing that the court should make an order which would result in Fiona being moved from a settled home where she is well looked after to a situation which may well be unstable and unsatisfactory and where it is therefore hard to predict what the arrangements for her care may be, even assuming that Miss Matthan does her best for her. That is to invite the court to adopt a course which will entail tangible risks to Fiona's well-being, risks which would not be present if Fiona were left in the custody of the pursuer.

In arguing that Fiona should be allowed to return to live with her mother in Jamaica, counsel for the defender reminded the court on several occasions that her half-sister Crystal is in the defender's custody and will go with her to Jamaica when her deportation takes effect. It was said to be anomalous that the sheriff should have held that it was against the interests of Fiona to be in her mother's custody and to go with her to Jamaica, when Crystal was living with the defender at present in the Perth area, when the social work department had expressed no concerns about her welfare, and when she would accompany her mother to Jamaica. I acknowledge that at first sight there may be at least an appearance of an anomaly or inconsistency. Any such appearance does not, however, persuade me that the sheriff's view is wrong.

The simple fact is that the only matter before the sheriff concerned Fiona's custody. The sheriff had no locus to consider, or to make any observations upon, Crystal's welfare and he did not hear evidence on that matter. Her situation is obviously different from that of Fiona. What the sheriff's conclusions would have been on Crystal's position, if that had been a proper matter for his consideration, must remain a matter of speculation. When, however, that matter was not before him for adjudication, I see no basis for saying that the fact that Crystal is with her mother and will go to Jamaica indicates any inconsistency in the attitude or reasoning of the sheriff. The risks to Fiona's welfare which the sheriff has identified remain just as real and do not somehow vanish simply because Crystal may well be exposed to them if she goes with her mother to Jamaica. Just because there is no basis upon which the sheriff can properly assess any risks to Crystal or intervene to prevent her being exposed to those risks, it does not follow that he is wrong to take into account the risks to Fiona which he has identified when considering what he should do in the best interests of her welfare.

As I have noted already, the principal argument in favour of taking what is admittedly a risk and allowing Miss Matthan to take Fiona back to Jamaica is that, if Fiona remains with Mrs Osborne, she may well encounter substantial problems from being brought up in a white culture where she will be exposed to racism. Whatever other problems she might face in Jamaica, she would avoid this problem.

Both courses which the sheriff had to consider have possible disadvantages. This is indeed the kind of case where there cannot be any ‘right’ solution. The sheriff has heard the evidence and in particular has had an opportunity to assess the pursuer and the defender. With that advantage he is better placed than anyone else to gauge the competing risks. He has done so and has decided that, when her welfare is the paramount consideration, there is not sufficient certainty about the defender's future in Jamaica to entrust Fiona to her rather than to the pursuer with whom she is well cared for and settled. Especially where the sheriff has reached that view, despite giving the fullest possible weight to the expert evidence about the difficulties which may lie in store for Fiona during adolescence and beyond, I see no basis upon which this court can properly say that the sheriff has reached the wrong conclusion on the basis of the evidence which he heard.

There is, however, a further important point which has to be considered. The sheriff was obviously—and understandably—concerned about these possible problems which may confront Fiona in future if she remains in the pursuer's custody. He was anxious to do what he could to minimise them and so he purported to make a supervision order in terms of sec 11(1)(b) of the Children (Scotland) Act 1995 by which Fiona would remain under the supervision of the Social Work Department of Perth and Kinross Council. The aim of the order was to make sure that everything possible was done to ensure that Fiona grew up with an awareness of her cultural and racial heritage, to provide the pursuer and her family with the necessary guidance, instruction and advice for the care of Fiona and on how to deal with racial prejudice when it affects her, and to ensure that frequent and regular contact is maintained between Fiona and the defender by as many means as possible. As I mentioned above, after the proof, however, it became clear that this order was incompetent, since the 1995 Act did not apply to these proceedings. The incompetent order was recalled by this court. In the hearing before us it was agreed between counsel that, even if the 1995 Act had applied to the proceedings, the sheriff would not have had the power to make a supervision order of this kind.

The important thing to notice is that the sheriff not only imposed an incompetent supervision order, but said, in a passage of his Note which I have quoted already, that he underlined that the order for custody ‘should persist only under the strictest condition that the supervision order as described will be observed by the pursuer’. He also emphasised that ‘the requirement of a supervision order to provide the necessary guidance and support to the pursuer and her family is a vital part of the residence order’.

In his Report to this court on what he would have done if he had realised that no such order could be made, the sheriff outlined the problems which had made this a particularly anxious case and added: ‘However, as indicated in the Note appended to the Findings in Fact, just as there were serious doubts about the defender's ability to look after her daughter, there were concerns about the pursuer's ability to cope with the racial problems and educational needs of a black child growing up in a white society. It was in these circumstances, and following the evidence of the social worker, that I concluded that a supervision order was both practicable and appropriate to deal with these problems in general terms, and as such problems arose, should the pursuer be awarded custody. I have to emphasise that I am satisfied that the decision in principle on custody preceded the decision to make a supervision order. The decision to make a supervision order was not a pre-condition of the making of the order for custody. However, as your Lordships have noted, the making of the supervision order was clearly of major significance in the context of the decision. Had I understood that no supervision order of any sort was available, I would have approached this issue in a different way, by asking the pursuer herself about whether she would give undertakings to contact the social work department for advice on racial matters, and to maintain contact as appropriate between the child and the defender through telephone and letters. It is not unusual in this court for custody and access matters to be regulated in this way. The sanction for failure to observe such undertakings is that the party in whose favour the undertakings have been given can bring the matter back to the court. Depending on the circumstances, it is also normal for the court to make it clear to parties what the consequences will be in the event of a failure to observe such undertakings. In other words, I feel confident that in the event that a supervision order had not been available, arrangements could have been made to deal with the problems above described. I am also confident from my experience of the local social work department that they would have been prepared to co-operate on an informal basis with any such arrangements, although in such a situation the department would normally be involved in the making of such arrangements, perhaps by being asked to make a report to the court in advance of the arrangements being confirmed. Finally, I have to report that, although the decision was at no time free from difficulty, in the event that neither supervision orders or undertakings were available, I do not consider that I would have granted custody to the defender. On the evidence, her future and her past were so unsettled and uncertain it would have been extremely difficult to conclude that it would be in the best interests of the child to be in her custody, despite the intervention of her great aunt. In conclusion, I must therefore report to your Lordships that, having reconsidered the evidence and productions, and my notes on counsel's submissions, the best indication I can give is that, even if the issues indicated in the supervision order had not been addressed, I would not have removed the child from the custody of the pursuer on the basis of the other evidence in the case. In conclusion therefore I report that the impossibility of making an order in terms of sec 11(1)(b) of the Children (Scotland) Act 1995 would not affect the findings in fact, and subject to what I have said about alternative measures to deal with the problems described, would not have affected my reasoning and conclusions.’

Counsel for the defender criticised the Report on the basis that, having said in his original note that the supervision order was ‘a vital part’ of the order for custody, the sheriff was in effect adopting a different position. Counsel did not go so far, of course, as to suggest that the sheriff was misrepresenting his view or indeed that his report was other than a frank account of his view. That being so, it appears to me that the true position is that, because of the view which he formed about the defender and her unsettled past and future, the sheriff was satisfied that it would not be in Fiona's best interests to be in her custody. That was his basic and critical conclusion.

Happily, Fiona was in the care of the pursuer where she was happy and well settled at present. There was, however, a potential significant problem which Fiona might experience in the medium term, in her adolescence and beyond. Although he was satisfied that the pursuer was an intelligent woman, he also considered that he should take whatever steps were open to him to minimise the risk of that problem developing. In the light of what was said at the proof, the sheriff had thought that the best way to deal with that problem was by imposing a supervision order and he had therefore made such an order. If he had been aware that such an order was incompetent, he would have tried to achieve the same result by encouraging the pursuer to give an undertaking to a similar effect. But even if that had not proved possible, he would still not have considered that it would have been in the best interests of Fiona to be in the custody of the defender.

I think it right to test the position by assuming that no undertakings can be given. The question then comes to be whether the sheriff's conclusion that it would not be in Fiona's best interests to be in the defender's custody is one which he was entitled to reach on the basis of the evidence which he heard. In my opinion it was. That conclusion was based on his view, formed after seeing the witnesses and in particular after seeing the defender give evidence, that the defender's future, and hence the future which would face Fiona in Jamaica, was unsettled. He was therefore considering what was in Fiona's best interests in a situation where there were two alternatives. On the one hand, if he awarded custody to the pursuer, Fiona would remain in the settled home where she is happy and well cared for in a good area of Perth, but where she may well suffer cultural difficulties and racial intolerance at some uncertain point in the future, matters which the pursuer had not yet fully appreciated. On the other hand, if Fiona went with her mother to Jamaica, she would be going to a society with which she was unfamiliar and where the future arrangements for her care would be uncertain since the defender's future would be unsettled. But Fiona would, of course, 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 this country. There is no perfect solution, but I can see no basis upon which I can properly say that the sheriff was not entitled to form the view that in his judgment, taking Fiona's welfare as the paramount consideration, it was in her best interests to remain in the pursuer's custody in Perth. That being so, I do not consider that it is open to this court to substitute its view for that of the sheriff. I say that particularly because one component of the sheriff's view was his assessment of the defender in the light of the impression which he formed of her when she gave evidence. That is an important factor on which this court is incapable of forming a judgment of equal worth with that of the sheriff.

The sheriff tells us that, if he had been aware that he could not make a supervision order, he would have sought to achieve the same effect by means of undertakings. Counsel for the pursuer proffered to the court a document containing undertakings which he was instructed to say that the pursuer would give. They were to the same effect as the requirements which would have been imposed under the supervision order and their aim would be to ensure that the pursuer took appropriate steps to try to minimise the problems which Fiona may face in the future and in order to ensure that, so far as possible, she maintains contact with the defender.

Counsel for Miss Matthan did not oppose the idea that the pursuer should be required to give these undertakings, if the court concluded that she should be awarded custody. But counsel pointed to their inherent weaknesses, some of which were indeed inherent in the kind of supervision order which the sheriff had wished to make. Counsel pointed out that, in the minute which the local authority had submitted to the court following the imposition of the purported supervision order, the local authority had argued that the requirements of the purported order were impracticable. In particular they submitted that:‘There is to the knowledge of the minuters no one available in the Perth and Kinross area who has an understanding of the child's cultural and racial heritage and is accordingly capable of encouraging the child's understanding thereof. The sheriff made no award of access in favour of the defender and appellant. The minuters have no authority to ensure that frequent and regular contact is maintained between the child and her mother. If, as appears likely, the defender and appellant returns to Jamaica the minuters do not have the resources to fund direct contact and would have difficulty in funding any significant telephone contact. The minuters have a general responsibility to secure the welfare of the child, and to visit her and offer advice as to her care and maintenance in terms of the Foster Children (Scotland) Act 1984. A supervision requirement is unnecessary in these respects. The minuters' existing duties to said child extend to those matters they can practicably carry out. The minuters have allocated a case worker to the pursuer and respondent to assist her in so far as she is prepared to allow.’

On this basis counsel for the defender argued that there were no facilities available in the Perth area from which the pursuer could obtain the necessary help with the kinds of problems which she was likely to face in bringing up a black child in a white environment. Moreover, there was said to be an element of unreality in the sheriff's view that Fiona would be able to keep in contact with her mother. Miss Matthan has only a limited ability to read and write. Fiona is still at an age when writing a letter would be difficult for her. Telephone calls to Jamaica would cost money which the pursuer does not have. The reality was that Fiona would lose contact with her mother and sister if she were in the custody of the pursuer and there was no real prospect of her ever being able to go to visit her mother in Jamaica, as the sheriff envisaged.

I do not in any sense underestimate the points made on the defender's behalf, but they appear to give a somewhat one-sided picture.

So far as the local authority is concerned, they acknowledge their duty under sec 3(1) of the Foster Children (Scotland) Act 1984 to secure Fiona's welfare. They can therefore be expected to take whatever steps may be practicable to fulfil that duty in so far as potential problems due to Fiona's racial background may affect her welfare. While it appears from the terms of the council's minute that there may be a lack of suitable skilled persons within the Perth area, I am not prepared to accept, without proof, that no arrangements could be made with relevant experts elsewhere in Scotland or, if need be, elsewhere in the United Kingdom to provide the necessary assistance to the pursuer and Fiona in preparing for, and handling, any problems. We were not asked to remit the matter to the sheriff to hear evidence on the point.

So far as encouraging and maintaining contact with the defender is concerned, the record speaks for itself. The sheriff found that, even though she disapproved of the defender's drug dealing, the pursuer's daughter was punctilious in taking Fiona to visit the defender while she was in prison. She did this despite the fact that it would have been inconvenient for her and would have cost her money. Secondly, the sheriff found that the pursuer respected the defender's position as Fiona's mother. Indeed counsel for the defender accepted that it was because of the efforts which had been made by the pursuer and her daughter that there continued to be a relationship between the defender and Fiona. I have therefore little doubt that, if she were awarded custody, the pursuer would take a responsible attitude about the need to maintain contact between Fiona and the defender. That being so, she would be likely to encourage Fiona to do what she could to maintain contact, whether through letters or by telephone calls. It is true that Fiona is still too young to write herself, but the pursuer is an intelligent woman and would be well able to write on her behalf until she was old enough to do so herself. Admittedly, Miss Matthan has difficulty in reading and writing, but again I see no reason to believe that she could not enlist the aid of others to read any letters and to write a letter to her dictation. The problems, though real, are not unsurmountable. Similarly, although telephone calls to Jamaica are by no means cheap, they are not so prohibitively expensive as to make it inconceivable that Fiona could telephone her mother on special occasions at least and so, in this way, supplement the contact through letters. Similarly, it is well known that many people of West Indian origin who live in this country visit relatives in the West Indies from time to time. For that reason, although such a visit would obviously be expensive, I would not rule it out as impossible at some time in the future.

Plainly, even if all these steps are taken and things work out as well as possible, any contact between Fiona and the defender will be in an attenuated form and will not amount even to the kind of contact which can take place under an order for access where the parties are both living in this country. That is unfortunate, but the fact that any contact will be limited is not in my view a sufficient reason for calling into question the sheriff's basic decision on custody. It is simply one of the factors which he had to take into consideration. As his Report to the court demonstrates, having taken it into consideration, he still reached the view that it would be in Fiona's best interests to be in the pursuer's custody. That is a view which he was entitled to take on the evidence.

As I have explained, counsel for the pursuer indicated that she was prepared to give formal undertakings to the court. The obvious point to be made is that, since the defender will be in Jamaica, this is not a case where she is likely to be in a position to bring to the attention of the court any failure by the pursuer to carry out the terms of the undertaking. While I accept that point, I have come to the view that it would be preferable to accept the undertakings offered by the pursuer and to have the terms recorded in the minute of proceedings. The aim of the undertakings would be to provide a formal recognition by the pursuer of the responsibilities which she will be shouldering to try to minimise the problems which Fiona may face in the future. It is plain that the sheriff was concerned to put a formal structure in place, even though he acknowledged the devotion which the pursuer and her family had shown to Fiona and their concern to do the right thing for her sake at all times. It appeared that the pursuer had not yet fully grasped the potential problems and the need to act to minimise them. The formal structure was designed to facilitate such action. I recognise, of course, that it may be harder in mis case than in many others for anyone to monitor what happens and to draw attention to any failure by the pursuer to observe the terms of the undertakings. None the less it seems to me that, whether directly from the defender or otherwise, the attention of the court might well be drawn to any such failure and, in that event, the court would be better placed to deal with the situation than it would be if no undertakings had been given. To this admittedly limited extent the undertakings might promote Fiona's welfare.

In all the circumstances I propose to your Lordships that, if the pursuer is prepared to give the undertakings, we should order that they be recorded in the minute of proceedings and we should thereafter dismiss the appeal except in so far as already dealt with.

LORD CAPLAN —I have read the opinion of your Lordship in the chair and agree with all that is said therein.

The defender's senior counsel did not seriously dispute that under sec 3 of the Law Reform (Parent and Child) (Scotland) 1986 this case must be decided by paying regard to the welfare of Fiona as the paramount consideration, and that the sheriff could only grant the order sought if he was satisfied that to do so will be in the interests of the child. Given these statutory parameters and the fact that the case has been the subject of a long proof before the sheriff, and careful and comprehensive consideration by him thereafter, it is not surprising to find that the technical points which were presented to us in support of the appeal are largely overtaken by his findings as to the above central facts.

During the presentation of the appeal some time was spent in considering the interaction between sec 47(2) of the Children Act 1975 and sec 3 of the 1986 Act. This matter is not free from difficulty but at the end of the day the defender's senior counsel did not attack the pursuer's title to sue, nor maintain that sec 47(2) was critical to his appeal. It is therefore unnecessary that I should form any concluded view on the questions relative to the matters that were argued. Having said that I should be reluctant, without very convincing grounds, to accept the views of certain commentators, which were presented to us, to the effect that the section being considered is totally meaningless.

One argument which was strongly advanced was that the sheriff had merely decided what, even he, regarded as a difficult question by drawing a balance and favouring what he considered to be a narrow advantage in favour of the pursuer. The suggestion was that the sheriff had not given sufficient weight to the preponderant claim of the natural mother. We were served up various authorities which attempted to define the claim of the natural parent with various degrees of advantage to such parent. In J v C Lord MacDermott was prompt to agree that (even at the date at which he was speaking) parental rights remain qualified and not absolute (p 821). Whatever differences in shade emerge in subsequent dicta no one had ever suggested otherwise. In Re K D (A Minor) (Ward: Termination of Access) Lord Templeman appears to suggest that the right of the natural parent should not be displaced unless the child's moral and physical health are endangered (p 812). In the same case Lord Oliver of Aylmerton also accepts the need for potential harm because his view is, that the right of the natural parent must prevail ‘where there is no positive evidence that access to the child will be damaging to him’. Of course the case I have just mentioned was concerned not with custody but with access. In other cases judges have had recourse to tests such as ‘a strong supposition, other things being equal, that it is in the interests of a child that he should be brought up by his natural parents’ (in Re M (Child's Upbringing), or that ‘The mother must be shown to be entirely unsuitable’ (in Re K (A Minor) (Wardship: Adoption). However, the rather emphatic formulation of the right of the natural parent in England was to a degree modified when it was said in effect by Balcombe LJ (in Re K (A Minor) (Custody: Interim Care and Control) and Waite LJ in Re M (Child's Upbringing)that although there is a ‘strong supposition’ of right in favour of a natural mother this must be subservient to the paramount consideration of the welfare of the child. I think it goes without saying that the claim of a natural mother to bring up her child will always be carefully considered by the court and that she will only be deprived of her parental rights if it is clear that the child's welfare requires this. There is no doubt that society recognises that, all other things being equal, it is an important element in the welfare of a child, and a benefit, to be brought up by its natural parents. However, Scottish courts, in particular, have resited the temptation to elevate the primacy of the parental claim into anything approaching a principle, far less a rule. This emerges clearly in the House of Lords in Sanderson v McManus where, in the passages quoted by your Lordship in the chair, Lord Hope of Craighead makes it plain that what is required is a factual investigation as to what is in the best interests of the child and that the importance to be placed on the claim of the natural parents will depend entirely on a consideration of the whole circumstances. Lord Clyde effectively says the same thing.

The defenders are correct when they say that the onus of proving what is best for the child rests on the party making the claim for a court order. However, in this case the issues are clearly defined and given the detailed analysis of the facts by the sheriff I do not think that any question of onus remains at the end of the day.

To suggest that the sheriff failed to give due consideration to the claim of the natural mother is I think an unsupportable proposition. One only requires to look at the careful steps he has taken to emphasise the need for the child to remain in active contact with her mother. There is no doubt, on a review of the sheriff's original Note, as supplemented by his later Note, he was quite clear that it would not be desirable for the child to go at this juncture to Jamaica with her mother. The sheriff's concerns in relation to the defender's proposals were arrived at after he had heard and seen the interested parties in the case, and also had heard comprehensive expert evidence. Certainly he originally decided that it was advisable to attach conditions to the pursuer's custody order. He identified a long term problem for Fiona if she remains in Perth in the pursuer's immediate care. She will eventually suffer the tensions of a black child residing in a town with no obvious facilities for a black child. She will lose contact with her cultural and ethnic background and may even be exposed to racism. The sheriff's views on these matters were not attacked and I certainly recognise that they may prove to be well founded. It is therefore not surprising that initially the sheriff attempted to mitigate the potential problems for the child by imposing the conditions which eventually proved to be incompetent. The fact that the sheriff sought to palliate the potential problems for Fiona were she to continue residing with the pursuer cannot be taken as an indication that without the support of his conditions Fiona would be better off with her mother. Any argument to a contrary effect was entirely negatived by the sheriff's supplementary Note where he states categorically that, even if he had appreciated that the conditions he imposed were unavailable, he would not have sent Fiona back to her mother.

The serious implications of the sheriff's concerns regarding the defender must be appreciated. The defender's counsel argued that she had shown herself to be a loving and interested mother. It was said that Fiona is on good terms with her. These suggestions are no doubt justified. However, what the defender has not shown is her capacity to support Fiona and provide her with a stable environment on a day to day basis. Certainly the past offers little encouragement that she would be able to do so. She engaged herself in serious drug dealing. She put that activity ahead of her duty to retain the care of her daughter. After she was released from prison the sheriff observes that she was unsettled and uncertain as to her plans (and that includes her plans for Fiona). The defender attempts to present a rosier picture in relation to her future by relying on the intervention of Miss Millington. However, it is perhaps not surprising, in all the circumstances, that the sheriff is not satisfied that the arrangement with Miss Millington will materialise or work. That observation is not meant to be any sort of criticism of Miss Millington who by all accounts is a worthy lady. However, Miss Millington's support was enlisted not by the defender herself but by her mother. Echoing the sheriff I find it very troubling that at the time of the proof the defender had not discussed her position with Miss Millington (nor it would appear approached her personally). Then there is the matter of her relationship with Fiona's father. He is said to have a criminal record and his present position remains uncertain. The defender accepted that when she returned to Jamaica he would meet her at the airport and that he is presently staying with her mother. There must be, to put it no higher, a serious risk that, returned to Jamaica, the defender will come under the influence of her former boyfriend and find it difficult to settle to a stable relationship under the care of Miss Millington. Just what all this would mean for Fiona is worrying. Certainly there are unfortunate features of the total situation for which the defender may not be responsible. She herself seems to have suffered from inadequate parenting. She was brought up in a deprived part of Kingston. She was ill-educated and is illiterate. She was raped when younger. All these factors would be disturbing to any young woman. However when one adds the fact that the defender's capacity to maintain a decent life in Jamaica is untested, and that the sheriff considers her to be weak and indecisive, the reality is that, if Fiona returns to Jamaica with her mother, she would be exposed to a variety of risks which could cause her material or moral harm.

It would be a mistake to suppose that there is any entirely satisfactory solution to the problems arising in relation to the upbringing of Fiona. It would be ideal if she could be brought up in a settled environment by her mother and with her sister. It would be ideal if she could return to her natural roots, have a stable home, and avoid such problems as may arise if she continues to reside in Perth. However, the sad fact is that these ideals are probably not attainable and the objective must be to arrive at the best and safest compromise for Fiona. As matters stand she presently enjoys a secure and loving environment. She is happy and she does well at school. Whatever problems and tensions may beset her in the future, she does not at present experience any particular problem with her race or origin. The pursuer also seems to offer her a particular advantage in that she has shown that she will take all reasonable steps to fortify Fiona's relationship with her mother. The advantages for Fiona of her present position are obvious. It is said that her long term future is being jeopardised. The long term is always difficult to predict. The Osborne family may move. Sensitive caring and appropriate help may avoid some of the possible future risks. Fiona may be able to continue a relationship with her mother and, of course, any present custody order is open to future adjustment. The sheriff has taken the view that the established lifestyle that the child presently enjoys, and which offers her present stability, happiness, and security is more conducive to the welfare of Fiona than a conjectural upbringing in Jamaica which could be unsatisfactory or even, I suppose, catastrophic. I cannot say that in the circumstances the sheriff's decision is other than reasonable and I do not see how he could be said to have erred.

I agree that subject to the conditions proposed by your Lordship in the chair the appeal should be dismissed.

LORD WYLIE —The whole facts in this case, which are not really in dispute, have been fully set out in the opinion of your Lordship in the chair, as has the history of this litigation, and it is not necessary for me to rehearse them. Suffice it to say that Fiona, who is the subject of the action, was born to the defender on 18 August 1992 in London and her father, like her mother, is also from Jamaica, and lives there. To begin with the defender looked after her but when Fiona was about a year old her mother began to sell crack cocaine on the streets in London. To enable her to do so she arranged for Fiona to be looked after during the day by the pursuer's elder daughter Deborah and later by another daughter Fiona, and when the child was some 18 months old, following an incident when the defender was held up at gun point in her own home, it was agreed that it would be better for the child to stay full-time in the pursuer's home. In about February 1995 the defender was arrested for selling drugs and remanded in Holloway Prison, and in the following month she gave birth to a second child, Crystal Matthan, of whom her co-accused is the father. In July 1995, along with her co-accused, she was convicted and sentenced to a term of imprisonment and required to forfeit £10,000 found in her possession as a result of her activities. The defender was released from her prison sentence on 7 August 1996 and an order for her deportation was signed. Pending the outcome of the case proceedings under this order have been stayed and through the good offices of her solicitor she was found a flat in Crieff and state benefits arranged for her. What is undoubtedly correct is that since the age of about 18 months Fiona has been looked after by the pursuer and her family, particularly her younger daughter, as if she was one of their own.

The main thrust of the argument advanced on behalf of the defender and appellant was that the sheriff, in awarding a parental right of custody in favour of the pursuer, failed to give appropriate weight to the fact that she was the mother of the child and the pursuer was in effect a stranger. The opening words of his Note make it clear that he treated the issues as finely balanced when, having regard to the status of the two parties, only a very sound reason would suffice to deprive the natural mother of her parental rights. We were referred in this connection to a line of English authority. In re K (A Minor) (Ward) a child, born to unmarried parents, lived with them in a council house until 1988 when the mother took her own life. The child thereafter went to live with the mother's half sister and her husband who, as plaintiffs, made the child a ward of court. They could provide a comfortable, stable home. On an application by the father an order was pronounced giving care and control of the child to the plaintiffs, with access to the father, on the ground that the child was likely to have the better home with the plaintiffs. On appeal it was held that the question was not where the child would have the better home but whether it was demonstrated that the welfare of the child positively demanded the displacement of the father from his normal role in the care and upbringing of the child. In the course of his judgment Fox LJ said at p 434: ‘The question was not where would R get the better home. The question was: was it demonstrated that the welfare of the child positively demanded the displacement of the parental right.’ He cited the observation of Lord Templeman in Re K D (A Minor) (Ward: Termination of Access) at p 812: ‘The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child's moral and physical health are not endangered.’ Lord Oliver of Aylmerton, at p 828 cited the observations of Fitzgibbon LJ in Re O'Hara at p 240 (also cited by Lord MacDermott in J v C at pp 706–707). ‘In exercising the jurisdiction to control or to ignore the parental right the court must act cautiously, not as if it were a private person acting with regard to his own child, and acting in opposition to the parent only when judicially satisfied that the welfare of the child requires that the parental right should be suspended or superseded.’ Waite J at p 437, after referring to the tragic impact of mental illness in the case, said it ‘made this a case in which the risk of physical or emotional damage to the child of a very high order would have been necessary to dislodge the primary claim upon R's welfare of an upbringing by his father’. It was argued that the sheriff in the present case had fallen into the same trap, in putting the quality of the home above the welfare of the child in the care of her natural parent. Likewise, in Re M (Child's Upbringing), a case with certain features analogous to those of the present case, it was held that the starting point for a court in wardship was the strong supposition, other thing being equal, that it was in the interests of a child that he should be brought up by his natural parents and not, as the judge had suggested, by his biological or his psychological parents according to the circumstances. At p 455 Ward LJ referred to an established line of authority which guided the resolution of competing claims of a psychological parent and a biological parent. In that case a Zulu boy was sent back to South Africa in order to maintain the necessary link with his own ethnic background. In this connection Ward LJ had this to say at p 462: ‘Thorpe J found—and was right to find—that P's development:

"must be in the last resort and profoundly, Zulu development and not Afrikaans or English development".

He cannot get that by remaining here. To deprive him of it is to negate the understanding which led him here. These parents would never have permitted him to leave South Africa had they known that the appellant would seek to adopt him or to keep him here permanently or so fundamentally deny him his heritage’ In re K (A Minor) (Wardship: Adoption) Butler-Sloss LJ, with whom Sir Patrick O'Connor and Purchas LJ agreed, followed Fox LJ but also said at p 62E:‘The mother must be shown to be entirely unsuitable before another family can be considered, otherwise we are in grave danger of slipping into social engineering.’

So the onus was on the pursuer to show, not on a fine balance that she was to be preferred but, so it was argued, that the natural mother was an entirely unsuitable person to have the care and control of the child. There was no evidence to this effect. Indeed the opposite was the case, and it was only towards the end of the defender's sentence, in July 1996, in anticipation that the defender might wish to take the child back with her to Jamaica that the pursuer raised proceedings in the sheriff court at Perth seeking the parental right of custody and interim custody of Fiona and interdict and interim interdict against the defender removing the child from her care and control or from Scotland. The defender would never have permitted the pursuer to have the care and control of the child had she appreciated that she would be prevented from taking her back to Jamaica, to where she knew she was likely to be deported, along with her other child Crystal. She had an extended family there, the offer of a good home, with steady employment in an ethnic environment which would present none of the problems which the child would face being brought up in a white environment, for which on the evidence the pursuer was ill equipped to cope.

Counsel for the pursuer and respondent began by submitting that this court could only interfere with the decision of the sheriff if they were satisfied that he had approached the issue upon a wrong principle or that his decision was so plainly wrong that he must have exercised his discretion wrongly. Provided that the decision was one which he was entitled to reach on the evidence this court would not be entitled to interfere. Reference was made to cases such as Britton v Central Regional Council and G v G at p 652 and to the acknowledged advantage of the court of first instance in Thomas v Thomas. The law to be applied was to be found essentially in sec 3(2) of the Law Reform (Parent and Child) (Scotland) Act 1986 which provided that:‘In any proceedings relating to parental rights the court shall have regard to 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.’

It was accepted that generally speaking, other things remaining equal, it was better for a child to be with the natural parent and the natural tie had to be taken account of as part of the evidence in the case. There was however no particular significance or a rule of law to the effect that the claim of the natural parent was paramount. What was paramount was the welfare of the child and in Re K (A Minor) (Ward) there was nothing about the father which militated against his claim in relation to that of the mother's half sister and her husband. Likewise, in Re K D (A Minor) (Ward: Termination of Access) the mother's claim to access, which might be termed a ‘right’ of which the court would be bound to take cognisance, and the assumption that the child would benefit from g continued contact with the natural parent would always be displaced if the interests of the child indicated to the contrary, because the court's primary concern in the exercise of its wardship jurisdiction was the welfare of the child. In Re M (Child's Upbringing) there was nothing about the natural parents which militated against the boy being returned to South Africa.

In Sanderson v McManus the weight to be attached to the parent-child relationship arose sharply. The natural relationship between a father and child was a fact of life which it was always proper to take into account but the importance which was attached to it varied and the question was whether contact with the parent was likely to be of benefit to the child's welfare. After observing that ‘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’, Lord Hope of Craighead later went on to say, at p 64: ‘The relationship between the natural father and the child can never be dismissed as irrelevant. 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 other 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.’ Lord Clyde, at p 65, said: ‘One factor which unquestionably has to be considered by the court from which a parent seeks an order is that of maintaining the link between parent and child. In many cases regarding opposed orders for custody or access that consideration will be at the heart of the dispute. In many cases it may well be proper to regard it as a factor of the very greatest weight. On the other hand the unusual case cannot be excluded where in all the circumstances it may be proper in the interests of the child to exclude access to a parent.’

In the present case it is clear that the sheriff took an adverse view of the defender and indeed in his Note he says in terms: ‘In fact there would be no reason whatsoever in this case for supporting the defender's claim to have custody of her child returned to her but for the question of race. The pursuer and her family are white; the defender and her children are black.’ He describes the passage of evidence concerning the defender's drug dealing as ‘profoundly disturbing’. She had begun dealing in crack cocaine on a daily basis in London from the age of about 18 years and pursued it in a thorough going and comprehensive manner. There was no sign of remorse for the consequences of her drug dealing and the evidence of the pursuer's daughter Fiona of her attitude towards customers who had insufficient money to pay for the purchase of drugs is most revealing. He had had the impression that her main regret was that she had been caught and concluded that she would readily take up this course of conduct again if she thought she would get away with it. It is of course true, as counsel pointed out, that Mr Osborne also had a criminal background and a problem of alcoholism on account of which the pursuer had at one stage separated herself from him and returned to live in Perthshire but this assessment of the defender was something which militated strongly against her claim for custody. Moreover, the sheriff was also satisfied that the defender's attitude towards and her wishes for Fiona were conflicting and until late in the day she had expressed the view that Fiona should remain in the care of the pursuer when she herself was deported to Jamaica. It was at best only a recent decision on her part that she should take her back to Jamaica, along with her other daughter Crystal.

The sheriff was clearly impressed by the evidence of the witness Shirley Millington, who came over from Jamaica to give evidence and who is the owner of a substantial property in Kingston which would be made available to the defender and her two children. She also had a number of business interests which appeared to include a number of stalls at Kingston market selling fruit and vegetables one of which was currently vacant and would be available to the pursuer, but the sheriff had serious reservations about the defender's commitment to avail herself on this support. She had never in fact discussed it with Miss Millington, whose offer had been made at the instigation of the defender's mother in the USA. It is clear that the defender intended to resume contact with Fiona's father when she returns to Jamaica, and apparently there is an arrangement whereby he will meet the defender at the airport. He is living in the pursuer's mother's house and ‘if he wants to see Fiona I take Fiona to see him’. He had completed a two year prison sentence for shoplifting at the time when the defender was sentenced. Crystal's father was also living in Jamaica having been deported there at the expiry of his four years sentence for his part in the drug offences for which the defender had been convicted.

In these circumstances it is not surprising, on account of the uncertainties which surround the defender's prospects on her return to Jamaica, that the sheriff concluded that it was not in Fiona's best interests ‘to be uprooted and sent to Jamaica’. This was the view reached by the sheriff after a full consideration of all the facts and circumstances in the case, including and notwithstanding the evidence of Professor Mullard and Ms Kwahali on the problems of race which can and probably would arise for a black child growing up in a white environment. There cannot be a perfect solution to Fiona's problem and this solution is the one which would cause the least harm to the child. For these reasons I also would refuse the appeal.