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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
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Lord Macfadyen
Lord Kingarth
Lord Marnoch
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[2006] CSIH 29
XA28/05
OPINION OF THE COURT
delivered by LORD MACFADYEN
in
APPEAL
by the Pursuer
in the cause
C.C.
Pursuer and Appellant;
against
S.N.
Defender and Respondent:
__________
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Act: J.J. Mitchell, Q.C.; Russel & Aitken
Alt: Speir; Erskine Macaskill
30 May 2006
Introduction
[1] The pursuer
and the defender are respectively the father and the mother of ACN ("the
child"), who was born on 29 December
1999. They are not and never
have been married to each other. The
child has always resided with the defender.
In 2002 the pursuer raised an action in Jedburgh Sheriff Court in which
he craved inter alia (1) an order
under section 11(1)(a) and (b) and 11(2)(b) of the Children (Scotland) Act 1995
("the 1995 Act") conferring on him parental responsibilities and rights in
respect of the child and (2) an order in terms of section 11(2)(d) of the 1995
Act finding him entitled to have contact with the child.
[2] By
interlocutor dated 3 February 2005 the sheriff, having heard parties at a child
welfare hearing, dismissed the pursuer's craves. The pursuer has appealed against that
interlocutor.
Procedural History
[3] In the course
of proceedings, the defender introduced into her pleadings averments to the
effect that the child had been sexually abused by the pursuer in the course of
unsupervised contact during 2003.
Unsupervised contact had been allowed by the court by interlocutors
dated 13 December 2002,
and 4 April and 16 May 2003. Following the emergence of the allegation of
sexual abuse, unsupervised contact ceased.
In the course of 2004, however, the court allowed supervised contact by
interlocutors dated 1 April, 7 May, 11 June and 13 August 2004.
[4] At a
continued child welfare hearing on 13
August 2004 the court pronounced an interlocutor which was in inter alia the following terms:
"The Sheriff, having heard parties, continues consideration
of the cause to a further child welfare hearing on 15 November 2004 ...; Directs
that evidence may be led at said hearing, said evidence being anticipated to
last five days; directs that the matters for proof at said hearing are to be
restricted to whether or not the child ... has been exposed to sexual abuse by
the pursuer ...".
[5] The further
child welfare hearing took place between 15 and 19 November 2004.
Thereafter, by interlocutor dated 5
January 2005, the sheriff made a number of findings in fact about
things said and done by the child. These
findings are set out on pages 39 to 41 of the appeal print. In the light of his findings of primary fact,
the sheriff went on the reach the following conclusion:
"THEREFORE finds that said child has been exposed to
sexualised behaviour by the pursuer in the course of the exercise of contact
with said child".
The sheriff accordingly remitted the cause to a further child
welfare hearing "for the hearing of submissions by the parties as to the
consequences which should result from the foregoing findings in fact".
[6] The further
child welfare hearing took place on 3
February 2005. That hearing
resulted in the interlocutor which is the subject of this appeal. The sheriff's Note attached to that
interlocutor records the submissions which he heard in the following terms:
"[The solicitor] for the pursuer moved that supervised
contact should continue. It was
submitted that it was in the best interests of the child that that should
happen and that it was important that the child should maintain contact with
the pursuer. It was realistically
recognised that in the light of [the] findings [in fact dated 5 January 2005] the pursuer could not
seek an order conferring parental responsibilities in terms of his first crave.
[Counsel] for the defender renewed his motion that the
application for contact should be dismissed.
It was submitted that the substance of the issues between the parties
had been decided. There was no evidence
that contact was in the best interests of the child and reference was made to
the final paragraph of Doctor Edward's report which was production 6/23/7. It was said that there should be no contact
unless there is a change of circumstances.
There was some discussion as to what could constitute such change of
circumstances. This submission concluded
with the invitation that I should dismiss the action entirely.
[The solicitor] for the pursuer likewise invited me to
pay careful attention to the terms of Doctor Edward's report which, it was
said, proceeded on the basis of a hypothesis that there had been actual sexual
abuse which the court has not been able to find. It was indicated that if supervised contact
were to continue an undertaking would be given that no application would be
made for a period of 2 years to extend that contact. I was reminded that the test was what is in
the best interests of the child."
[7] Having
recorded the submissions which were made, the sheriff set out his decision in
the following terms:
"I concluded that the existing contact arrangements
should cease in order to enable a significant lapse of time for the child to be
placed beyond the exposure which I have found occurred. I also had regard to the nature of the
conclusions expressed by Doctor Edward in the concluding passage of her report.
... It was
recognised that ... crave [1] could not be advanced in the light of the findings
in fact which I have made.
In the light of my findings in relation to the question
of sexual abuse I was satisfied that it was not in the best interests of the
child that the existing contact arrangements should remain in place.
I accordingly dismissed the action."
[8] The passage
in Dr Edward's report which was referred to in submission and in the sheriff's
decision was in the following terms:
"Under 'normal' circumstances I would suggest that
contact with both parents be fully supported.
In this case, however, I must reiterate my clinical opinion that [the
child] displays significant evidence of having experienced actual sexual abuse
by [the pursuer]. I, therefore, believe
that unsupervised contact would place [the child] at risk of further abuse, and
that supervised contact would continue to place her under unnecessary stress
and may have a detrimental effect on her ability to recover from her experiences.
When abuse takes place it is common that some form of
coercion or manipulation has also takes (sic)
place to prevent disclosure. As third
parties are unable to be fully aware of what form such coercion might have
taken, I would suggest that it would not be possible to ensure that this would
not continue through indirect (telephone or letter) contact. It is my opinion, therefore, that continued
contact of any type (including telephone or letter) with [the pursuer] would
not be in [the child's] best interests."
The grounds of appeal
[9] In his
amended grounds of appeal the pursuer accepts that the sheriff was entitled to
find on the evidence before him that the child had been exposed to
inappropriate sexualised behaviour between May and September 2003 while the
pursuer exercised unsupervised contact.
It was further accepted that on that basis the sheriff was entitled to
find that it was not in the child's best interests that the pursuer should have
unsupervised contact.
[10] The ground of
appeal maintained on the pursuer's behalf was therefore confined to the
proposition that the sheriff erred in refusing supervised contact. In support of that proposition the pursuer
placed reliance on five considerations.
They may be summarised as follows:
(a)
Supervised contact had taken place between April and
November 2004, and there was no evidence that it had not worked well, or had
put the child at risk or been against her best interests.
(b)
The hearing in November 2004 had been restricted, in
accordance with the interlocutor of 13
August 2004, to the question of sexual abuse. Accordingly evidence was not led on the
general question of the best interests of the child, or in relation to the
working of supervised contact. The
pursuer had thus had no opportunity to place before the sheriff evidence on the
substance of his application.
(c)
The sheriff had rejected the contention that the
pursuer had sexually abused the child.
He was prepared to accept that there was or might be a benign
explanation for the majority of the specific points in finding 7 of his
interlocutor of 5 January 2002. The sheriff had only found that the child had
been exposed to sexualised behaviour, and that the circumstances in which that
had occurred could not be established.
(d)
The sheriff had assumed that it was likely that there
would be contact in the future.
(e)
The sheriff's only reasons for refusing supervised
contact were (1) to allow a significant lapse of time for the child to be
placed beyond the exposure to sexualised behaviour, and (2) the conclusions
expressed by Dr Edward at the end of her report. The first of these was a non sequitur, since supervision would place her beyond such
exposure. The second was a bad reason,
because Dr Edward's view was based on her conclusion that actual sexual abuse
had taken place, which the sheriff had not accepted. There was no evidence that supervised contact
might be unnecessarily stressful.
Discussion
[11] It is
convenient to deal with the factors relied upon by the pursuer in a different
order from that in which they appear in the grounds of appeal. We deal first with the point made in
sub-paragraph (c) of the ground of appeal.
On a fair reading of the sheriff's interlocutor of 5 January 2005 it cannot in our view be said
that the sheriff "rejected the suggestion ... that the pursuer had sexually
abused the child". The dichotomy which
was maintained on the pursuer's behalf, between "actual sexual abuse" on the
one hand and "inappropriate sexualised behaviour" on the other, is not in our
view sound. The exposure of a female
child of four to inappropriate sexualised behaviour is, in our view, plainly a
type of sexual abuse. What the sheriff
has declined to find is that there was sexual abuse in the form of genital
contact, but that is not properly to be construed as a finding that there has
only been something less than sexual abuse.
The sheriff's observation that some of the things said and done by the
child are open to a benign explanation was made with the express qualification
"when each is considered in isolation".
The sheriff's analysis of what the child said and did proceeds through
various categories of event. It
culminates in the identification of two findings which relate to express
reference by the child to sexual activity which is age-inappropriate (findings
7(f) and (n)). The sheriff goes on to
say (appeal print, page 88):
"When the whole range of things said and done is then
examined cumulatively and particularly in the light of the views which I have
expressed in relation to (n) and (f) above, the conclusion to which I have come
is that the child has been exposed to sexualised behaviour."
In other words, the potential benign explanation of some of
the factors is elided when those factors are taken along with others which will
not bear a benign explanation.
[12] We take
sub-paragraph (d) and the first part of paragraph (e) of the grounds of appeal
together. It is correct that the sheriff
recognises that it is likely that there will be contact in the future. It is no part of the sheriff's reasoning that
supervised access should be refused because there is no prospect that it will
ever be in the child's best interests.
One reason for the sheriff's refusal of supervised access was that there
should be a lapse of time during which the child would not be subjected to
circumstances that would remind her of the inappropriate sexualised behaviour
which was found to have taken place.
That is not, as the ground of appeal suggests, a non sequitur. Even if
supervision could be taken as protecting the child from further exposure to
inappropriate sexualised behaviour, the sheriff was entitled to take the view
that it would not be in her best interests immediately to have even supervised
contact with the person responsible for that exposure.
[13] So far as the
second part of sub-paragraph (e), referring to the evidence of Dr Edward,
is concerned, it is no doubt right that part of the background to her
conclusions was her view that there had been "actual" sexual abuse. We do not consider, however, that the fact
that the sheriff did not feel able to go so far as to find that there had been
genital contact, precluded him from accepting the view that supervised contact
would place the child under unnecessary stress.
In that connection, regard has to be had, in our view, to the sheriff's
finding 7(p) about the child having a secret.
[14] The main
thrust of the submissions made on the pursuer's behalf was that the sheriff's
decision had been taken without regard to evidence relating to the child's best
interests generally, and in particular as to the working of supervised access
over the summer of 2004. It is
undoubtedly right that by the interlocutor of 13 August 2004 the scope of the evidence to be heard at
the child welfare hearing beginning on 15 November was restricted to "whether
or not the child ... has been exposed to sexual abuse by the pursuer". The sheriff sought, at various points in the
course of the hearing, to enforce that restriction. In various ways, however, it was not, and
could not have been, absolutely enforced.
For example, Dr Edward's evidence about her conclusions as to whether
the child's behaviour bore out the suspicion of abuse was based in substantial
part on her observation of supervised contact.
In his interlocutor of 5 January
2005, however, the sheriff did observe the restriction, and made
findings only on the question of sexual abuse.
It is therefore correct that, by the time he heard parties again on 3 February 2005, the sheriff had made
findings only on the restricted issue identified in the interlocutor of 13 August 2004, and had not heard all
the evidence that might have been available on other aspects of the case.
[15] We note,
however, that although the sheriff restricted himself in that way in the
findings that he made on 5 January 2005, it had been made clear by counsel for
the defender on 19 November 2004 that the defender's contention would be that
the findings on the subject of sexual abuse would preclude any order for
contact, supervised or unsupervised (appeal print, page 80). It is against that background that the
hearing on 3 February 2005
took place. The pursuer's solicitor
accepted that unsupervised contact was out of the question, as was an order
conferring parental rights and responsibilities. He did, however, make a motion for supervised
contact. That was opposed by counsel for
the defender, who argued that the pursuer's application for contact should be
refused. He added that there was no
evidence that contact would be in the child's best interests. The pursuer's solicitor responded, making the
point that Dr Edward's conclusions were based on a view of sexual abuse which
the sheriff had not supported. He
further offered an undertaking, if contact were ordered, not to seek an extension
for two years. What is, in our opinion,
of crucial significance is that he did not at any stage suggest that the
sheriff should hear further evidence before reaching a decision on the
matter. In particular he did not ask for
an opportunity to lead general evidence about supervised contact being in the
child's best interests, or about the working of supervised contact during the
summer of 2004. We do not express any
criticism of the pursuer's solicitor for having adopted that approach. It seems to us that that could well have been
the exercise of a sound judgment. Be
that as it may, what matters, for present purposes, is that the opportunity to
ask the sheriff to hear evidence on these matters was available, and was not
taken. There is, in our view, no
question of the pursuer having been deprived of the opportunity of tendering
such evidence.
[16] In Calleja v Calleja 1996 SC 479 at 489B Lord President Hope, delivering the
opinion of the court, said:
"In the normal case, of course, there would be no
question, even in a matter affecting the welfare of a child, of allowing a
party a second opportunity to lead evidence which he had refrained from leading
in the knowledge of the nature of the issue with which a proof was concerned."
That observation is, in our opinion, applicable to the
circumstances of the present case. It
was obvious that at the hearing on 3
February 2005 the sheriff was going to address what should be done
in the light of his findings on the sexual abuse issue. It was obvious, from what he had said on 19 November 2004, that counsel for
the defender was going to ask the sheriff to refuse the pursuer's application
for contact outright. It was thus
obvious that, if more general evidence of the child's best interests or about
the working of supervised contact was to be put forward in support of the claim
for contact, the hearing on 3 February was the time at which the possibility of
leading such evidence should have been raised.
There was in the circumstances nothing like the misunderstanding of the
scope of the proof which led the court to take the exceptional course which it
did in Calleja. In these circumstances, we are of opinion
that there is no merit in sub-paragraphs (a) and (b) of the ground of appeal.
Future procedure
[17] We heard
submissions bearing on the scope of any further application for contact which
the pursuer might present, how far the factual issues determined by the sheriff
in this process might be revisited in such future proceedings, and what would
constitute a change of circumstances justifying reconsideration of the matter
of contact. We do not consider that this
process is the proper place for discussion of these issues, and we therefore
say nothing more about them.
Result
[18] For the
reasons which we have set out we are of opinion that the pursuer's ground of
appeal is not well founded. We therefore
refuse the appeal and adhere to the sheriff's interlocutor of 3 February 2005.
