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Professor Norrie's Commentaries on Family Law$

Kenneth Norrie

Print publication date: 2011

Print ISBN-13: 9781845861193

Published to Edinburgh Scholarship Online: September 2015

DOI: 10.3366/edinburgh/9781845861193.001.0001

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April 2000

April 2000

Mothers who Love Women

Chapter:
(p.23) Commentary No 5: April 2000
Source:
Professor Norrie's Commentaries on Family Law
Author(s):

Kenneth McK Norrie

Publisher:
Edinburgh University Press
DOI:10.3366/edinburgh/9781845861193.003.0005

Abstract and Keywords

Discusses two cases, one from the European Court of Human Rights and one from the Sheriff Court at Dunfermline. In Da Silva Mout v Portugal the European Court finally accepted that article 14 of the Convention prohibits sexual orientation discrimination: it is “intolerable” to the Convention even although not explicitly mentioned in article 14. In R v F the question was who had title to seek an order over children under section 11 of the Children (Scotland) Act 1995.

Keywords:   Sexual orientation discrimination, Title to seek contact order, section 11 orders, No-order principle

There are two issues that deserve our attention this quarter: entirely separate in principle, but with a coincidental factual link.

Early v Early is dead

In Early v Early 1989 SLT 114 (OH); 1990 SLT 221 (IH) an 8-year-old male child was removed from his mother with whom he had always lived and custody awarded to the father with whom he had never lived and who had two convictions for child neglect. A major part of the reason for doing so was that the mother had entered into a lesbian relationship and the Lord Ordinary felt that this created two disadvantages for the child: it deprived him of any male role-model in his upbringing, and if the truth of his home life became known to his school friends he might be subjected to teasing at school. The first reason is insubstantial – any award of sole residence to a single mother deprives the child of a male role model. The second reason is speculative – it is as absolutely true that the child might suffer teasing as it is that the child might be horribly mutilated and ritualistically killed by his or her parent, but the courts should not take such truth into account unless there is reason to suggest that the fear is relevant in the instant case. Nevertheless, on appeal the Inner House held that the judge’s reasoning was not such that no rational judge could have considered these reasons to outweigh the father’s convictions and the child’s settlement with the mother. The case has always left the impression that the judges were influenced by unspoken but very real prejudice against the mother’s lifestyle. The case received a significant blow 6 years later in T, Petitioner 1997 SLT 724 where the First Division warned judges very strongly against allowing their own prejudices against lesbians and gay men to influence them. It was no longer acceptable, the court held, to assume that a child living (p.24) in a homosexual environment would be harmed, though it is of course always open to any party to lead evidence to prove that harm is likely.

Early has now been killed off completely by a recent decision of the European Court of Human Rights: Salgueiro da Silva Mouta v Portugal (2001) 31 EHRR 47. The long term significance of this case will lie in the fact that, for the first time, the European Court has held that discrimination on the basis of sexual orientation (rather than simply on the basis of sex) is prohibited by Art 14 of the ECHR.

In da Silva Mouta the father was a gay man who, on the break-up of his marriage, was granted parental responsibility for (in our terms, residence of) the child of the marriage. The mother then abducted the child and appealed to the Lisbon Court of Appeal. That court granted parental responsibility to the mother and limited contact to the father. The child, the Court of Appeal held, “must live in a traditional Portuguese family”. Homosexuality, they held, was an abnormality and children “must not grow up in the shadow of abnormal situations”. The father was permitted contact with his child, but on the condition that he hid the nature of his relationship with the man with whom he lived from the child.

The European Court of Human Rights unanimously held that the Portuguese court’s decision constituted a violation of Art 8 (right to respect for private and family life) taken together with Art 14 (prohibition of discrimination). Regarding a homosexual orientation less favourably than a heterosexual orientation in a child custody dispute was not justified by the legitimate aim of protecting the child’s health and rights since there was no evidence to suggest that the child would be in any way harmed by the father’s homosexuality. For the same reason Early v Early would be considered a breach of Arts 8 and 14, for there the mother’s lesbian orientation was assumed to be a negative factor in the custody dispute while the father’s heterosexuality was assumed to be a positive factor. But as in da Silva Mouta, no legitimate aim could be served by making these assumptions in the absence of any indication of (likely rather than speculative) harm.

Section 11 orders: title and onus

Lesbians featured also in an unreported decision from Dunfermline Sheriff Court, R v F (discussed by J Fotheringham at 1999 SLT (News) 337). Here, the sheriff questioned whether a lesbian ex-cohabitant had title to seek a s 11 order in relation to a child her ex-partner had given birth to while the two women lived together (though after debate he was persuaded that she did have title). So resurfaces that hoary old question (p.25) whether persons other than parents have title to seek an order relating to parental responsibilities and parental rights. The pre-1995 answer was clearly yes, though much judicial ink was spilt getting to that result (see, in particular, F v F 1991 SLT 357). Most people (including me) have assumed that the Children (Scotland) Act 1995 did not change this – indeed made it clearer by providing that any person who claims an interest has title. Yet obviously some doubt remains, as is clear both from this case and from certain statements of Sheriff Principal Nicholson in White v White 1999 SLT (Sh Ct) 106, discussed below.

The problem seems to be that while s 11(3) permits any person claiming interest (other than those expressly denied title under s 11(4) and (5)) to seek an order under s 11(1), s 11(1) itself limits the court’s power under s 11 to make orders relating only to “parental responsibilities, parental rights, guardianship or the administration of a child’s property”. An order designed to deal with any other matter is not a s 11 order and so an applicant cannot rely on the liberal title provisions in s 11. The question is whether an order relating to contact between a child and a stranger is an order relating to “parental responsibilities” when, ex hypothesi, the stranger – be it ex-cohabitant, grandparent, sibling or whomsoever – has no parental responsibilities. On innumerable occasions before the 1995 Act, and doubtless often since, grandparents and even blood strangers have sought and obtained orders relating to, typically, contact. A careful (if somewhat convoluted) approach to statutory interpretation supports the competency of strangers seeking an order regulating the contact they have with children, or any other s 11 order.

Section 11(2)(d) of the Children (Scotland) Act 1995 permits an order regulating the arrangements for maintaining personal relations and direct contact between a child and a person with whom the child is not living. This reflects the parental responsibility contained in s 1(1)(c) but in itself s 11(2)(d) is not limited to that particular parental responsibility. The problem, as explained above, lies in s 11(1) which limits the scope of s 11 to (inter alia) parental responsibilities. But what are “parental responsibilities” in this context? Section 15, the interpretation section for Pt I of the 1995 Act, provides that “parental responsibilities” has the meaning given by s 1(3); s 1(3) defines the phrase to mean “the responsibilities mentioned in paragraphs (a) to (d) of” s 1(1). The escape for grandparents, ex-cohabitants and the rest is the fact that these paragraphs are merely descriptive and “parents” do not appear except before the paragraphs open. In other words, paragraphs (a)–(d) describe what parents have but do not limit their effects to parents.

(p.26) A rather simpler approach is to remind ourselves of what the First Division said in Girvan v Girvan 1988 SLT 866 at 871D: “In a case such as this when the welfare of a child is the paramount consideration procedural and legal niceties must give way to common sense and reality.” The traditional approach of the Scottish courts has been to be more concerned with the substantive issue of welfare rather than the procedural niceties of title and interest. So the Gordian knot tying title into the concept of “parental responsibilities” can simply be cut, by recognising that there is no necessary connection between “parents” and “parental responsibilities”. The phrase “parental responsibilities” is simply shorthand to describe what parents do and have but it contains no implication that only parents can do and have these things.

Sheriff Principal Nicholson adopted a rather different approach in White v White 1999 SLT (Sh Ct) 106 where he interpreted s 11 to require a person, who did not have parental responsibilities and parental rights but who sought a s 11 order relating to contact, to seek an order granting such responsibilities and rights before seeking an order for their regulation. This strikes me as clumsy and unnecessary if an open view of title is taken. Contact is both a factual and a legal matter, and both, in my view, may be regulated by an order under s 11(2)(d). So grandparents who are being denied contact in fact with a grandchild by a parent can seek a s 11 order regulating the arrangements for factual contact and there is no requirement that the grandparents first seek an order conferring upon them the legal responsibility and right of contact.

Apart from that obiter oddity, Sheriff Principal Nicholson’s careful analysis of the issue of onus, the real point of the case and another hoary old problem discussed interminably under the pre-1995 law and not changed by the 1995 Act, deserves close attention. The case involved a father who after divorce from the mother sought contact with his child which the mother was, in fact, not permitting. As a divorced father, statute imposed upon him the responsibility and right to maintain personal relations and direct contact with his child on a regular basis. The sheriff had taken from this statutory imposition of responsibility a presumption that contact between a father (at least one with parental responsibilities) and a child was in the child’s interests with the result that the onus was on the mother (as the resident parent in this case) to show why a contact order should not be made. On appeal the sheriff principal disagreed with this approach. He found nothing in the 1995 Act that created a presumption in favour of contact such as would shift the onus to the party wishing to deny it. In this he is right.

The first thing to note is that the father was not seeking an order conferring the responsibility and right of contact on him, for statute (p.27) had already done so. Rather, the order he was seeking was one to force the mother, who was refusing to allow him to fulfil his responsibilities, to give him access to the child. One might argue that prima facie the mother was in the wrong and it may be that this is the element which encourages the belief that she it is who should have the onus to justify her position. But the 1995 Act does not place the onus on the party “in the wrong”. Rather, it places the onus on the person seeking the order, in this case the father. The no-order principle contained in s 11(7)(a) – often overlooked, though not by Sheriff Principal Nicholson – places the onus not on the person who cannot rely on a presumption but on the applicant to show why the order is necessary. The real presumption is in favour of making no order. Now, one of the effects of this is that the distinction between the married and the unmarried father, so deliberately and maliciously made by Parliament in 1995, is rendered (at least for purposes of onus) illusory. The married father who is, in fact, being denied contact by the residence parent has the same onus as the unmarried father who is seeking contact with his child: both must show why making an order would be better for the child than making no order at all. A married father would not satisfy this onus simply by saying “I have an obligation to maintain contact; my ex-wife is not permitting it; I therefore need an order to force her to permit it”. Such a father is likely to need to show something further and in particular some good accruing to the child. The assumption of benefit from contact between children and their parents, statutory in the case of mothers and married fathers, and judicial in the case of unmarried fathers (Sanderson v McManus 1997 SC (HL) 55) will play but little role in establishing a benefit from contact between a particular child and a particular person. The onus is firmly on the applicant to show why there is good for the child who is the subject of the application. This is not new law and was effectively the position as stated in Porchetta v Porchetta 1986 SLT 105. One drawback with this approach is that it gives greater practical power to the residence parent than the opposite approach would do; one advantage is that it minimises one of the iniquities of Scottish child law, the difference in treatment between the married and the unmarried father. Either way, it is an inevitable consequence of the no-order presumption.

Update

The European Court of Human Rights has subsequently built upon the foundations laid in da Silva Mouta and has held, in particular, that especially serious reasons need to be put forward by the state which seeks to (p.28) apply different legal rules to people depending upon their sexual orientation: Karner v Austria (2004) 38 EHRR 24. A mere 10 years after da Silva Mouta, Portugal so moved away from its position on homosexuality that it became the fourth European country to open marriage to same-sex couples.

Title to seek a s 11 order continued to trouble the courts well into the new decade. In X v Y 2002 SLT (Sh Ct) 161 the mother’s lesbian partner was held by the sheriff to have no title to seek an order granting her parental responsibilities and parental rights, because same-sex couples did not have a right to family life under Art 8 of the European Convention. This is a non sequitur, because the determination of title to seek a s 11 order is not dependent on possessing Art 8 rights, and in any case the European Court has now held that same-sex couples do indeed have Art 8 “family life” rights: Schalk & Kopf v Austria 24 June 2010, ECtHR.

White v White went to the Inner House, which produced a hugely important judgment: see Commentary 8 below. They held that the no-order principle did not create any presumption one way or another and that there was no onus on either party in a dispute over a s 11 order: the matter was to be determined by the welfare of the child and not on the issue of who had the onus of proving their case. Courts remain reluctant to accept that a s 11 order is available to people who are not parents,but in Authority Reporter v S 2010 SLT 765 the Inner House accepted that a s 11 order could be made so long as it “relates” to parental responsibilities and parental rights and that an order regulating contact arrangements between a child and someone who had no parental responsibilities and parental rights was, therefore, a competent s 11 order.