Sanderson v McManus

In proceedings concerning parental rights, the child’s welfare is paramount. The applicant must satisfy the court, on the balance of probabilities, that the requested order serves the child’s best interests. If the court cannot reach that conclusion, it must make no order.

The natural relationship between parent and child is always relevant and may carry great weight. It creates no presumption in favour of contact and must yield to the child’s welfare. A child’s spontaneous statements, though inadmissible to prove their contents, may be considered as evidence of the child’s behaviour and state of mind, provided the court keeps those distinct uses separate.

An unmarried father sought access to his son. Following proof, the Sheriff held that access was not in the child’s best interests. The Sheriff Principal, after hearing further evidence and removing findings improperly based on hearsay, refused the father’s appeal: 1994 S.C.L.R. 537. By a majority, the Extra Division refused a further appeal: 1996 S.L.T. 750.

Under Section 32(5) of the Court of Session Act 1988, the appeal to the House was confined to matters of law. The issues were whether Section 3(2) of the Law Reform (Parent and Child) (Scotland) Act 1986 created a principle favouring preservation of the natural parent-child relationship, and whether the court could consider the fact and character of the child’s statements when their contents were inadmissible hearsay.

1. Appeal dismissed unanimously. Lord Hope of Craighead delivered the leading speech. Lord Goff of Chieveley, Lord Mustill and Lord Slynn of Hadley agreed with his reasons. Lord Clyde agreed and added observations on the principal issue.

2. Per Lord Hope, Section 3(2) of the Law Reform (Parent and Child) (Scotland) Act 1986 gives the court a wide discretion over relevant considerations, but every consideration must yield to the child’s welfare. The applicant bears the onus of showing, on the balance of probabilities, that the requested order is in the child’s best interests. Once the evidence is before the court, the issue ordinarily becomes one of overall impression. If the court cannot conclude that the order serves the child’s interests, it must make no order.

3. Per Lord Hope, Section 3(2) removed any rule that the natural parent-child relationship must be preserved unless strong reasons justify the contrary. The relationship is always a proper consideration, and continued contact may normally be assumed to benefit the child. Its weight nevertheless depends upon the evidence. Contact may offer no benefit or may be harmful. The question must be examined from the child’s viewpoint without applying a presumption.

4. Lord Clyde agreed that maintaining the parental link must be considered and may carry the greatest weight. He emphasised, however, that access may exceptionally be refused where the child’s interests require it. Section 3(2) imposes at least an evidential burden on the applicant, although formal questions of proof usually recede after inquiry.

5. Per Lord Hope, evidence that the child made spontaneous statements was itself admissible because the witnesses described what they had observed. Although the statements could not prove the truth of their contents, they could reveal the child’s behaviour or state of mind. The fact-finder could consider them with the surrounding circumstances, while carefully distinguishing their making from their truth and deciding what weight they deserved.

6. Per Lord Hope, access decisions are predominantly for the first-instance judge, who sees and hears the witnesses. An appellate court should be slow to disturb factual findings. The Sheriff and Sheriff Principal had permissibly concluded that access would not benefit the child and might cause harm. The Court of Session therefore had no proper basis to interfere, and its interlocutor was affirmed.

1. House of Lords: Unanimously dismissed the father’s appeal and affirmed the interlocutor of the Court of Session: [1997] UKHL 1.

2. Extra Division of the Court of Session: By a majority, Lord McCluskey dissenting, refused the appeal from the Sheriff Principal: 1996 S.L.T. 750.

3. Sheriff Principal: After hearing further evidence and varying findings founded on inadmissible hearsay, agreed that access was not in the child’s best interests and refused the appeal: 1994 S.C.L.R. 537.

4. Sheriff Court at Edinburgh: Following proof, held that access was not in the child’s best interests and brought interim access to an end.