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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
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Lord Osborne
Lord Nimmo Smith
Lord Carloway
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[2007] CSIH 77
XA214/06
OPINION OF THE COURT
delivered by LORD OSBORNE
in
APPEAL
from the Sheriffdom of Glasgow
and Strathkelvin at Glasgow
in the cause
THOMAS LOGAN MUIRHEAD
Pursuer and Appellant;
against
M.C.G.
Defender and Respondent:
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Act: Party (Pursuer and Appellant)
Alt: Miss Dowdalls, Advocate; Balfour &
Manson, Edinburgh (for Levy & Macrae, Glasgow) (Defender and Respondent)
31 October 2007
The background
circumstances
[1] From about
February 1999 until about August 1999 the appellant and the respondent had a
relationship. In or about November 1999
the respondent discovered that she was pregnant. She gave birth to a female child, E, who was
born on 15 May 2000. It is common
ground that E is the daughter of the appellant who is named as her father in the
Register of Births. In or about December
1999, the appellant travelled to Australia, remaining there for a period of
time. However, about one week after the
birth of E, the appellant visited the respondent and the child. Thereafter he had contact with the respondent
and E on several occasions in relation to the carrying out of DNA testing, at
the appellant's request. Subsequently,
the appellant returned to Australia.
Prior to his departure, he informed the respondent that he had decided
to return to Australia for two years. He said that he did not wish to be involved
in E's care and upbringing for the first two years of her life. He stated that discussions about E's future
would take place upon his return in two years' time. Thereafter there was no contact between the
appellant and the respondent until about July 2001 when the appellant
telephoned the respondent to request contact with E. She agreed to that request. The appellant spent several
hours with E in the company of mutual friends.
Thereafter the appellant informed the respondent that he would see E
again in about one year's time. In or
about May 2002, the appellant again telephoned the respondent, seeking to
discuss E's future. Because of the
particular circumstances at the time when this telephone call was received, the
respondent was not able to discuss these matters. Following upon that, e-mails were exchanged
between the appellant and the respondent.
There was no further direct contact between them until December 2002,
when a meeting was arranged to take place at the respondent's father's home to
discuss future contact arrangements. The
meeting lasted about one hour. The
appellant saw and spent some time with E then.
The appellant's attitude at the meeting was assertive and dogmatic. He insisted upon an equal sharing of E's
care. Eventually the respondent asked the appellant to leave.
Since then, all correspondence relating to E has been conducted through
solicitors. The appellant has had no
contact with E since December 2002.
[2] The
respondent became friendly with one T.M., during her pregnancy with E. Their relationship deepened and, after about
a year, they set up home together. The
respondent gave birth to T.M.'s son, H, on 13 January
2004. The respondent and T.M. were married on 6
January 2005. He is a chartered surveyor aged 35
years. E regards T.M. as her
father. She has no knowledge of the
existence of the appellant.
[3] In the
present action, raised in the Sheriff Court in Glasgow, the appellant seeks principally two
remedies. The craves
concerned are in the following terms:
1. To make an
order imposing upon the pursuer all parental responsibilities and
giving to him all parental rights as
provided for in sections 1, 2 and 11 of the Children (Scotland) Act 1995 in respect of the child E
G M and to make such an order ad interim.
2. To make an
order allowing the pursuer to have direct contact with the said
child E G M each Wednesday and/or Saturday
between the hours of 2 p.m. and 4 p.m. or during such other periods as the
court sees fit.
The action was defended by the respondent.
[4] Following the
raising of the action, quite elaborate pleadings were prepared. The respondent tabled two preliminary pleas,
but these were not debated. A proof
before answer before the sheriff was held over a period of days, commencing on 14 July
2005. The procedure followed was that, at the
outset, the sheriff canvassed the suggestion of ordaining the respondent to
lead at the proof. She narrates in her
judgment that she did this since she considered that the appellant would have
been disadvantaged had he been required to do so. She records that it was agreed that the
ordaining of the respondent to lead was appropriate. Evidence was heard from the respondent
herself, from Mr. T M, from B M, a close friend and former flat-mate of the
respondent, and W G, the father of the respondent. Surprisingly, in view of the nature of the
appellant's action and the state of the pleadings, in which a range of matters
were formally the subject of dispute, the appellant elected not to give
evidence. He led no evidence from any
witness. It is therefore no surprise
that the sheriff observes in her Note at page 87 of the appeal print:
"I know nothing about E's biological
father other than the facts revealed in the course of the evidence for the
defender and from the productions referred to in evidence."
[5] In her
judgment the sheriff makes 34 findings in fact, inevitably based upon what was
admitted and upon the evidence that she heard, described above. These findings in fact deal with a range of
matters, including the contact between the parties and between the appellant
and E. The sheriff also makes two
findings in fact and law in the following terms:
"(1) That
an order imposing upon the pursuer all parental responsibilities and giving to
him all parental rights as provided for in sections 1, 2 and 11 of the Children
(Scotland) Act 1995 in respect of the child E G M should not be made.
(2) That an order allowing the pursuer to
have contact with the said child E G M should not be made."
[6] The sheriff
has also furnished a Note in which she clearly explains the reasons for her
decision. At page 87B-C the sheriff
observes:
"The present arrangements for E's
care and upbringing are entirely satisfactory.
E is a happy child and she has all the advantages of a child-centred
family unit. E regards Mr. M as her
father and he treats her as his child.
Mr. M presented as a mature, well balanced individual, who takes the
responsibilities of family life seriously and whose primary concern is for the
welfare of his wife and family. E has a
close bond with her maternal grandfather who spoke with great tenderness and a
sense of humour about her strength of character. E loves her mother, whose love for E is unconditional."
Dealing with the position taken up by the appellant at the
proof, the sheriff records at pages 86D-87B of the appeal print:
"The pursuer explained that the
reason he had chosen not to give evidence and not cross-examine the defender's
witnesses was that he recognised that positive things had emerged from the
defender's evidence. In particular, he
said he was pleased that the defender acknowledged he behaved 'impeccably' when
he had contact to [sic] E in July
2001. Furthermore he was pleased that
the defender wanted E. to know who her father is and to know him as a
person. The only outstanding question,
the pursuer submitted, was when and how E should be told about him. He submitted that the process should start
immediately. The process would be
handled sensitively and properly by all those involved, including himself, and in a way that would serve E's best
interests. The goal was to get him
together with E as soon as possible, hopefully within the next four to five
weeks. ...
The pursuer submitted that a Parental
Rights and Responsibilities Order in his favour was appropriate having regard
to the following factors: (a) financial
support; (b)
pursuing contact; (c) keeping
arrangements; (d) presence at
birth; (e) having his name on the birth
certificate; (f) involvement in E's
education; (g) degree of attachment
between father and child; (h) the reason
for his application. It was plain, he
submitted, that he should be involved in discussions in relation to E's welfare
and that he should actively participate in making decisions about her welfare."
[7] The sheriff,
in deciding to reject the appellant's claim, expressed the following views at
page 87D of the appeal print:
"The pursuer either cannot see, or
chooses not to see that his behaviour is incompatible with the behaviour of a
responsible and caring parent. The fact
that he relied upon the factors listed (a) to (h) supra in support of his application for a Parental Rights and
Responsibilities Order demonstrates his blindness to the history of his
attitude towards E. I shall deal with
each of these factors in turn.
(a) Financial
Support
It can be said - and should be said -
in the pursuer's favour that he contributed a lump sum payment of £2,000
towards preparation for E's birth and that he made payments of £600 per month
as maintenance for E for about two years.
(b) Pursuing
Contact.
The pursuer made it plain to the
defender from early on that he had chosen not to participate in E.'s care and development for the first two years of her life. He saw her on a handful of occasions in the
weeks following her birth;
on one occasion in July 2001;
and on another occasion in December 2002.
(c) Keeping
Arrangements.
There were few arrangements to keep
other than the pursuer's self-imposed exile from the first two years of E.'s life.
(d) Presence
at Birth.
The pursuer was absent.
(e) Having
his Name on E.'s Birth Certificate.
The pursuer would not countenance E.'s registration until DNA testing confirmed that he was
her father.
(f) Involvement
in E.'s Education.
There has been no involvement other
than the pursuer's unsuccessful attempt to collect E. from nursery.
(g) Degree
of Attachment.
E. has no awareness of the pursuer's
existence.
(h) Reason
for Application.
The reason appears to be that the
pursuer wants E. to know about him now and to have contact with him now.
Unless and until the pursuer faces
and deals with the reality of the catalogue of errors and misjudgements he has
made in the past as a father, I can have no confidence that he has the ability
to make appropriate decisions in relation to exercising parental rights and
responsibilities. The pursuer has an
almost astonishing lack of awareness or insight into the actual and potential
consequences of his behaviour upon E.'s care and emotional
and psychological development. I
consider that the defender has dealt with the pursuer's behaviour with
remarkable equanimity. I doubt that she
could have shown such open-mindedness and tolerance but for her confidence in
the stability and depth of her relationship with Mr. M.
The pursuer's
crave for the full range of parental rights and responsibilities is inept. The facts and circumstances of this case
demonstrate that the pursuer is unable or unwilling to consider E.'s best interests.
In particular, the fact that he would have her be
told now of her paternal parentage amply demonstrates a complete lack of
understanding of and respect for E.'s innocence and
sense of security. E. is entitled to be
shielded from information with which she is too young to cope. I have no doubt that it is not in E.'s best interests to be informed of her paternal
parentage at this stage of her life. It
is not possible to say, with any certainty, when she might be sufficiently
mature, emotionally and intellectually, to be made aware of this
information. One can only speculate as
to what her reaction to the information might be. I have every confidence that the defender and
T.M. will deal with this sensitive issue in an appropriate, child focused
manner."
The sheriff's decision was issued on 27
July 2005.
[8] Being
dissatisfied with the sheriff's decision, the appellant appealed to the sheriff
principal. In his judgment, extending to
19 pages, he gives details of the attack mounted by the appellant on the
sheriff's findings in fact in that appeal.
He deals with each point in turn, rejecting them all. He also deals with a range of other arguments
advanced to him by the appellant. The
sheriff principal refused the appeal to him.
The appellant has now appealed to this court against the decision of the
sheriff principal.
The hearing before us
[9] Before us,
the appellant sought to support his extensive written grounds of appeal, which
were focused almost exclusively on the decision of the sheriff, as opposed to
that of the sheriff principal from which the appeal has, of course, been taken. He began by contending that the sheriff had
erred by refusing to allow the appellant to object to evidence led by the
respondent, under reference to what is recorded at page 49 of the extended
notes of evidence at the proof. Looking
at those notes, it is clear to us that what was attempted at that stage on the
part of the appellant was an objection, not to a question, or even to a line of
evidence, but rather to an answer, with which it seemed that the appellant
disagreed, to a question which had been put to the respondent. Quite rightly, the sheriff rejected that
objection. Her action, in so doing, in
our opinion cannot be characterised as a refusal to allow any objections to be properly
taken by the appellant. Nor can her
decision be seen as indicative of bias on the part of the sheriff against the
appellant, as he contended.
[10] The appellant
also complained of the decision of the sheriff to order that the respondent
should lead at the proof. In our view,
having regard to the explanation given by the sheriff concerning that, her
decision is redolent of her concern for the position of the appellant. In any event, the appellant agreed to the
course suggested at the time. The suggestion
that the sheriff was biased against him on that account and that a fair-minded
and impartial observer of the proceedings would have so concluded is without
any rational basis, in our opinion.
[11] The appellant
went on to contend that, at the proof, he had been prejudiced by lack of fair
notice in the respondent's pleadings of her position. The particular complaint was that there was
no fair notice of the position taken up in evidence by the respondent that, in
principle, she was not opposed to contact, but that contact would be premature
until E. developed sufficient maturity to be able to understand human biology
and the fact that her step-father, with whom she lived in family and whom she
regarded as her father, was not her natural father. In our opinion, this submission possessed no
merit whatsover.
In the first place, in Answer 14 for the respondent in the record, at
pages 23 to 24 of the appeal print, that very position of the respondent is
outlined. It is there said:
"The pursuer has failed to maintain
any relationship with E. He is a
stranger to said child. His
re-involvement in E.'s life would only serve to
confuse and upset the said child who is too young to be able to understand the
concept of biological father."
We regard it as clearly implicit in those averments that the
appellant's re-involvement in E.'s life could become
appropriate when the child reaches more mature years. Furthermore, if the appellant considered that
the respondent's pleadings did not disclose the nature of her defence, he could
have taken a plea to that effect, which he did not do. More particularly, the appellant could have
objected to the line of evidence concerned, if he felt that he was prejudiced,
or even sought an adjournment of the proof, to enable him to consider the
implications of what had been said by the respondent. Finally, we consider that this submission
possesses little force in a context in which the appellant elected not to give
or to lead any evidence at all.
[12] The appellant
also made certain submissions concerning alleged errors in the sheriff's
findings in fact. It is our opinion that
the sheriff was well entitled to make the findings that she did upon the basis
of the uncontroversial features of the case, as they were revealed in the pleadings,
and on the basis of the evidence led for the respondent, which the sheriff, not
surprisingly, felt able to accept, there being no competing evidence. We reject the appellant's criticisms of the
sheriff's findings in fact, agreeing with the sheriff principal's reasoning in
this matter.
[13] The appellant
sought to persuade us that the proof before the sheriff did not constitute a
"fair and public hearing ... by an independent and impartial tribunal" within the
meaning of Article 6(1) of the European Convention on Human Rights and
Fundamental Freedoms, despite the fact that he also sought to contend that the
Human Rights Act 1998 was, in some way, "invalid" as in conflict with European
Community law. His contention appeared
to be that European Community law had had the effect of incorporating the
Convention in its entirety into British law upon the accession of the United Kingdom as a member of the Community.
[14] The Article 6
challenge advanced by the appellant appeared to be based, in large measure, on
the sheriff's preparedness to allow the respondent to furnish her address in
writing, as opposed to in oral evidence.
We consider that that was an entirely unexceptionable exercise by the
sheriff of her discretion, in all the circumstances. Had the appellant had any good reason to
object to such a procedure, in our opinion, he should have done so, but did
not. A further basis for the
Article 6 challenge was the allegation that the sheriff had declined to allow
a legitimate objection by the appellant to evidence. We have already rejected that same contention
in another context.
[15] The appellant
sought to base his Article 6 challenge on a range of other considerations none
of which possess merit in our opinion.
For example, he criticised, in this context, the decision of the sheriff
to ordain the respondent to lead at the proof, although that was plainly to his
advantage and, in any event he agreed to it.
[16] The appellant
went on to challenge the lawfulness of section 3 of the Children (Scotland) Act 1995 and section 14 of the Registration
of Births, Deaths and Marriages (Scotland) Act 1965, upon a basis which, so
far as we understood it, in our opinion, possesses no legal merit and is completely
misconceived. The basis appeared to be
related to the terms of Article 18 of the European Community Treaty. Both of the enactments challenged, however,
are legislative provisions of the Parliament of the United Kingdom, which we are bound to apply in this
court. In any event, we do not consider
that either of these provisions has a bearing on any issue properly arising in
the present case.
[17] In the course
of his submissions the appellant also sought to persuade us to make a reference
to the European Court of Justice under Article 234 of the European Community
Treaty. That Article provides, inter alia, as follows:
"The Court of Justice shall have
jurisdiction to give preliminary rulings concerning: (a) the interpretation of this Treaty; (b) the validity and interpretation of acts
of the institutions of the Community and of the ECB; (c) the interpretation of the statutes
of bodies established by an act of the Council, where those statutes so
provide. Where such a question is raised
before any court or tribunal of a Member State, that court or tribunal may, if
it considers that a decision on the question is necessary to enable it to give
judgment, request the Court of Justice to give a ruling thereon."
[18] In our
opinion, in the circumstances of this case, and having regard to the terms of
that Article no referable issue has arisen in this litigation. In particular, we do not consider that any
issue concerning the interpretation of the Treaty has arisen. No other possible basis for a reference was
suggested. Thus, we consider that no
reference could competently be made in this case. Further, under Rule of Court 65.2, the making
of such a reference is a matter for our discretion. Having considered all that the appellant has
said on this matter we decline to make a reference. The test we have to apply is whether a decision
on a referable question of Community Law is necessary to decide the dispute
between the parties. The question
proposed by the appellant was in the following terms:
"Is the European Community Treaty to
be interpreted as meaning that, whenever alleged inconsistencies with the
European Community Treaty arise in an appeal, any national rule, procedural or
otherwise, must be set aside to allow these alleged inconsistencies to be
argued in front of the national courts?"
In our opinion, that question formulated by the appellant
does not in fact raise a referable issue which is necessary for the decision in
this case.
[19] The appellant
went on to submit that a devolution issue had arisen in the present case,
although no attempt has been made by him to raise such an issue by the appropriate
means. So far as we understood what he
was saying in relation to this matter, the contention appeared to relate to an
alleged failure by the Scottish Parliament to enact legislation putting the
unmarried fathers of children on the same basis as regards parental
responsibilities and rights as would be a married father, until the enactment
of the Family Law (Scotland) Act 2006, which did not have retrospective effect
in relation to fathers whose status had been the subject of registration prior
to the commencement of certain provisions of that Act. We are at a loss to understand how a failure
on the part of the Scottish Parliament to legislate can be seen as giving rise
to a devolution issue within the meaning of Schedule 6 to the Scotland Act 1998
which, in any event, at least at one stage in his argument, the appellant
contended was "invalid".
[20] Finally, the
appellant contended that section 3 of the Children (Scotland) Act 1995 was in conflict with Article
XVIII of the Treaty of Union of 1707. No
authority was put before us which satisfied us that
this issue was justiciable before this court.
In any event, we do not accept that that issue has any bearing on the
resolution of the only issue in the present case, that is to say, whether it
was in the best interests of the child E. that the appellant should have
contact with her, when that issue was litigated before the sheriff in 2005.
[21] Counsel for
the respondent submitted that the appeal should be refused. She dealt with all of the submissions made by
the appellant and demonstrated to our satisfaction that they possessed no
merit. In the whole circumstances we
shall refuse this appeal.
Some observations by
the court
[22] In Sanderson v McManus 1997 SC (HL) 55, the House of Lords had occasion to
deal with a case involving an unmarried father, who had brought an action in
the Sheriff Court for access in respect of his child. At pages 57 and 58, Lord Hope of Craighead
made certain observations which, we consider, deserve to be repeated and emphasised
in the present case:
"The resolution of a dispute about
access is in almost every case a matter for the court of first instance. So much depends on the facts and on the
impression which is made on the judge by the parties to the dispute when they
come to give evidence. An appeal court
which has not had the advantage of seeing and hearing the witnesses will always
be slow to disturb the decision which has been taken on the facts by the
judge. The rules defining the proper
approach of an appellate court to the consideration of a decision on fact by
the court of first instance were described by Lord Macmillan in Thomas v Thomas at page 59. That was
an action of divorce, but what he said in that case applies with just as much
force in dispute about access. If there
is a succession of appeals, the passage of time is likely also to give rise to
difficulty. Decisions in these cases are
taken in the light of the facts and circumstances as presented to the judge at
the time of the proof. But circumstances
change as the child gets older, and the parties to the dispute may change their
ways and form new relationships. The
greater the interval between the taking of the evidence from the witnesses and
the hearing of each appeal the more unsatisfactory the situation is likely to
become. The stronger will be argument
that the appellate court should not disturb the status quo, as can be seen from the decision of your Lordship's
House in Brixey v Lynas.
This is especially so where, as in this case, the effect of the order
which was made at first instance was to refuse access. The child who is at the centre of this
dispute was four years old when he last saw the pursuer. He is now aged seven, and he will be eight years
old in a few months' time. It would not
be right for your Lordships, if minded to allow this appeal, simply to reverse
the decision of the judge at first instance and order that the pursuer be
awarded access to the child. At the very
least some further enquiry would be necessary.
This may bring new facts to light which may show that, whatever the
position may have been four years ago, it would not now be in the interests of
the child that the pursuer should be awarded access. So in almost every such case it is likely to
be preferable, rather than pursing a succession of appeals through the courts,
to make a fresh application for access to the judge at first instance on the
ground of a change of circumstances. It
should be noted that, except in the case of an adoption order, no decision
about parental rights is a final decision, but because the child's welfare
remains open to further consideration by the court throughout his childhood."
[23] The same general
point was made in D v D 1998 S.C. 259 by Lord Justice Clerk
Cullen at page 262. There he said:
"Standing the lapse of time since the
proof and the fact that on any view there would still have to be enquiry into
the new circumstances alleged by the pursuer in the grounds of appeal, we were
entirely satisfied that the hearing of the appeal in so far as directed to
criticisms of the sheriff would be a sterile exercise which would not advance a
determination of what was in the best interests of the children."
[24] In our
opinion, the appellant's conduct in this case, by appealing to the sheriff principal
and subsequently appealing to this court, demonstrates his complete failure to
appreciate the force of the observations just quoted. The sheriff in this case made her decision on
27 July 2005. More than two years
have now elapsed since that decision was made.
Even if this court had been persuaded that her decision was flawed, the
result would not have been that this court would immediately order contact to
the appellant. After the passage of such
a period of time, it would have been necessary for some further enquiry to have
been made before any court could contemplate making such an order. At an early stage in the course of the
hearing before us, this point was made to the appellant both by the court and by
counsel for the respondent, but he was deaf to it and resolved to insist in his
appeal regardless.
[25] We have no
hesitation in characterising the appeal argued before us by the appellant as a completely
sterile exercise. He indulged in
presenting numerous legal arguments to this court, many of which were
completely misconceived and others of which related to issues which were
irrelevant to the resolution of the only true issue in the case. The appellant, at times, seemed to us to have
the purpose, not of persuading us to make an order which might have had the
effect of bringing about a review of the issue of contact in the light of the circumstances
as they now are, but rather of ventilating the arguments which we have
described merely by way of a protest at the decision of the sheriff, which he
found unpalatable. If the appellant is
seriously minded to endeavour to establish a relationship with his daughter, he
would be well advised to consider carefully the possibility of making a fresh
application for a contact order at some appropriate time in the future, when
the child will be mature enough to be able to understand the appellant's status
as her biological father. We would doubt
whether that stage has yet been reached, since the child is, even now, only seven
years old.
[26] Finally, we have
to record that the time of this court was occupied for a period of three days
in considering the present appeal. As
will be evident from what we have said concerning it, we are firmly of the view
that it possessed no arguable merit whatsoever.
We feel bound to observe that the present arrangements, under which this
court, from time to time, is obliged to hear appeals which possess no arguable
merit at all are profoundly unsatisfactory. One obvious consequence of those arrangements
is that scarce public resources are wasted and the hearing of the appeals of
deserving appellants is delayed. We
consider that urgent consideration should forthwith be given by those having
responsibility in the matter to the introduction of legislation under which
leave to appeal to this court would be required by all appellants. Only by such means can the waste of scarce
public resources, such as has occurred in this case, be avoided.
