Sanderson v. McManus

The House of Lords dismissed an appeal by an unmarried father seeking access to his child. The court held that under section 3(2) of the Law Reform (Parent and Child) (Scotland) Act 1986 the welfare of the child is the paramount consideration and the onus is on the applicant to satisfy the court, on the balance of probabilities, that an order for parental rights (including access) will be in the child’s best interests. There is no presumption that the natural link with a parent must be maintained; that link is a factor to be weighed according to the circumstances. The court also held that spontaneous out‑of‑court statements made by a child, although inadmissible to prove the truth of their contents where the child is not a competent witness, may be taken into account as evidence of the child’s behaviour or state of mind and may colour other admissible evidence. The appellant’s challenge was limited to points of law; the House accepted the factual findings of the Sheriff and Sheriff Principal and concluded the lower courts were entitled to refuse access on welfare grounds.

This was an appeal by an unmarried father against interlocutors refusing him access to his child. The action originated in the Sheriff Court at Edinburgh after the parents separated; interim access had been granted but, after proof and by final interlocutor dated 19 August 1993, the Sheriff held it was not in the child’s best interests that access continue. The Sheriff Principal (28 January 1994) and an Extra Division (13 July 1995, with a dissent) upheld that decision. The appeal to the House of Lords was limited by statute to matters of law only, and the appellant accepted the factual findings made below.

The principal legal issues before the House were (i) the correct interpretation and application of section 3(2) of the Law Reform (Parent and Child) (Scotland) Act 1986 (the welfare test and burden on applicant), and (ii) the extent to which statements said to have been made by the child, but inadmissible as proof of their truth because the child did not give evidence, could be taken into account by the court.

The House reasoned that section 3(2) makes welfare the paramount consideration and places the evidential onus on the party seeking an order to show on balance that the order would be in the child’s interests. The natural link between child and parent is an important factor but gives rise to no legal presumption that access must be granted; its weight depends on the evidence. On the admissibility point, the court accepted that the child’s out‑of‑court statements could not be used to prove the truth of their contents where the child was not competent or did not give evidence, but they were capable of being considered as evidence of the child’s behaviour or state of mind and to ‘colour’ other admissible evidence so long as the trial judge distinguished between the fact the statement was made and the truth of what it asserted. Given the accepted factual findings—including incidents of violence and the child’s behaviour after access—the Lords concluded that the courts below were entitled to refuse access, and dismissed the appeal.

Procedurally the Lords observed that, where appeals are made many years after the proof and facts have changed or the child has grown, it is often preferable to return to the court of first instance for further inquiry rather than to pursue successive appeals.

Appeal dismissed. The House held that under section 3(2) of the Law Reform (Parent and Child) (Scotland) Act 1986 the welfare of the child is the paramount consideration and the applicant bears the onus of showing on the balance of probabilities that an order for parental rights (access) would be in the child’s best interests. The natural parental link is an important factor but not a conclusive presumption in favour of access. Statements by a child who did not give evidence cannot prove the truth of their content but may be considered as part of the child’s behaviour or state of mind and may be given weight accordingly. Applying those principles to the accepted findings of fact, the lower courts were justified in refusing access.

Sheriff Court (proof and final interlocutor 19 August 1993: refusal of access); appeal to Sheriff Principal (interlocutor of 28 January 1994, reported 1994 S.C.L.R. 537) refusing the appeal; Extra Division (13 July 1995, reported 1996 S.L.T. 750) refused the appeal (Lord McCluskey dissenting); appeal to the House of Lords [1997] UKHL 1 (this decision).