An order had been made refusing an unmarried father access to his child by the court after evidence that it would not be in the child’s best interests. The father appealed.
Held: The father could not appeal on a question of fact alone. There had been delay in the matter coming before the House. The Sherriff’s decision was criticised as having been made on the basis of hearsay. He had not considered whether the child was old enough to be competent to give evidence, but the Sherriff Principal had excluded reliance upon the child’s evidence in his own consideration. Section 3(2) of the 1995 Act gave the court a wide discretion to as to the considerations pointing one way or the other which it may take into account, subject to the need to give effect to the welfare of the child. Contrary to appearance, the order did not sever links with the child permanently. The father could make a renewed application. ‘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. ‘ Here, the Sherrif had found that the ‘pursuer was thinking in terms of his own rights as the child’s natural father, rather than what was best for the child. It is implicit in his criticism of the pursuer and his whole approach to the case that he understood that the point of the pursuer’s application was his wish as the child’s father to preserve the natural link. The issues to which the Sheriff and in his turn the Sheriff Principal directed their attention were the issues which related to the fundamental question as to whether it was in the best interests of the child that access should be allowed in order that this link should continue. ‘ The appeal was dismissed.
Judges:
Lord Goff of Chieveley Lord Mustill Lord Slynn of Hadley Lord Hope of Craighead Lord Clyde
Citations:
[1997] UKHL 1, 1997 SC (HL) 55
Links:
Statutes:
Civil Evidence (Scotland) Act 1988 2(1)(b), Court of Session Act 1988 32(5), Children (Scotland) Act 1995 3(2), Law Reform (Parent and Child) (Scotland) Act 1986
Jurisdiction:
Scotland
Citing:
Cited – Watt (or Thomas) v Thomas HL 1947
When Scots Appellate Court may set decision aside
The House considered when it was appropriate for an appellate court in Scotland to set aside the judgment at first instance.
Lord Thankerton said: ‘(1) Where a question of fact has been tried by a judge without a jury, and there is no question . .
Cited – Brixey v Lynas HL 2-Jul-1996
Delay after a hearing will increase the reluctance of an appellate court to interfere with the decision of a court on the evidence. . .
Cited – Watt (or Thomas) v Thomas HL 1947
When Scots Appellate Court may set decision aside
The House considered when it was appropriate for an appellate court in Scotland to set aside the judgment at first instance.
Lord Thankerton said: ‘(1) Where a question of fact has been tried by a judge without a jury, and there is no question . .
Cited – F v Kennedy (No. 1) 1993
The evidence of a child who is not a competent witness is not admissible. . .
Cited – M v Ferguson 1994
The court looked at whether a young child was competent to give evidence. . .
Cited – Porchetta v Porchetta 1986
Before the Act of 1986 was enacted, a father did not have an absolute right to access to his child. He is only entitled to access if the court is satisfied that that is in the best interests of the child, and that the onus to show that is on the . .
Cited – Montgomery v Lockwood 1987
The pursuer had no right of access to the child unless the court granted it and that the court could not make any order unless it was satisfied that to do so would be in the interests of the child. . .
Cited – Russell v Russell 1991
. .
Cited – M v Kennedy 1993
Competency of young child to give evidence. . .
Lists of cited by and citing cases may be incomplete.
Children
Updated: 23 May 2022; Ref: scu.135029