Brixey v. Lynas

The House of Lords upheld the decision of the Court of Session that, in a custody dispute concerning a very young child, the child's welfare is paramount under section 3(2) of the Law Reform (Parent and Child) (Scotland) Act 1986 and the advantage to an infant of remaining with her mother is a material consideration. The court rejected the sheriff's decision to remove the child from the mother's care where the mother was not criticised and the child had lived with her since birth. The sheriff had failed to address properly the benefits of maintaining the status quo and the availability of maternal care; that omission justified appellate interference.

This appeal concerned custody of a four year old illegitimate girl, K, born in May 1992. The mother (the appellant) and the father (the respondent) each sought custody; after proof the sheriff awarded custody to the father. The sheriff principal refused the mother's appeal. The First Division of the Court of Session (1994 SC 606) allowed the mother's appeal and awarded custody to her. The father appealed to the House of Lords.

The central issues were whether the sheriff had erred in principle by failing to take adequate account of (i) the advantage to a very young child of remaining in the care of her mother, (ii) the importance of the status quo where the child had been with the mother since birth, and (iii) likely future changes in the father's circumstances. The sheriff had been much influenced by the material and social advantages offered by the father's family but did not specifically address the benefits of maternal care or the consequences of disrupting the existing maternal relationship.

The House of Lords considered the applicable standard: the welfare of the child is paramount (Law Reform (Parent and Child) (Scotland) Act 1986, section 3(2)). The court accepted that, while there is no legal presumption, it is a legitimate and widely held consideration that in normal circumstances a mother is ordinarily better fitted to meet the needs of a very young child. That consideration varies with age and circumstances and yields to stronger competing advantages. Because the sheriff had failed to take proper account of the advantages of the status quo and maternal care, the First Division was justified in substituting its decision. The appeal was dismissed.

Relief sought: custody of the child; issues framed: the child's welfare and weight to be given to maternal care and the status quo; reasoning: where a very young child has lived with a fit mother since birth, only the strongest competing considerations will justify removal; omission by the sheriff to consider these matters was an error of approach.

Appeal dismissed. The House of Lords affirmed the Court of Session: the welfare of the child is paramount (Law Reform (Parent and Child) (Scotland) Act 1986, section 3(2)). The sheriff erred by failing to address adequately the advantages of maternal care and the status quo for a very young child; accordingly appellate interference and substitution were justified.

Sheriff, Glasgow and Strathkelvin at Glasgow: award of custody to father after proof (Sheriff G H Gordon, Q.C.). Sheriff principal (N D MacLeod, Q.C.): appeal refused. Court of Session, First Division: appeal by mother allowed, interlocutor of 24 June 1994 (1994 SC 606). Appeal to House of Lords: dismissed (02 July 1996, [1996] UKHL 17).