Notes from FLaG Conference held on 22 September 2008

Posted On: 06 October 2008

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DEBATE – 22 SEPTEMBER 2008

"SCOTS LAW HAS NO EFFECTIVE MEANS OF DEALING WITH MOTHERS WHO WILL NOT ALLOW CONTACT?"

Chairman Professor J R G Furnell, Advocate

For the motion: Ross Macfarlane, Advocate

Porchetta v Porchetta 1986 SLT 105 (decision of 27th April 1984)
Lord Dunpark (refusing the father's application for access): "The father's application for access was made by him on his own admission, because he is the father.  He gave no other reason for his application.  A father does not have an absolute right of 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."

Law Reform (Parent and Child) (Scotland) Act 1986
Section 3(2): In any proceedings relating to parental rights the court shall regard the welfare of the child involved as the paramount consideration and shall not make any order relating to parental rights unless it is satisfied that to do so will be in the interests of the child.

Russell v Russell 1991 SCLR 429
Sheriff Gordon: "As I see the general picture, there is nothing that can be said against the pursuer [father] which would actively disentitle him from exercising a parental right of access…I have formed a much more favourable impression of the pursuer [father] than I have of the defender [mother], but I doubt if that takes the pursuer very far...Even if the defender [mother] has acted unfairly towards the pursuer, she may still have created a situation in which the interests of the child require that the pursuer [father] be denied access…"

Sanderson v McManus 1997 SC (HL) 55 (still under the 1986 legislation)
Lord Hope of Craighead: "…I consider the effect of section 3(2) of the Act of 1986 is to show that the approach taken by Lord Dunpark [in Porchetta] is the one which should now be adopted by the court.  This was the approach which was accepted by Sheriff Gordon in Russell v Russell…"

(Continued.  For full notes please download using link at the top of the page.)