The Unequal Struggle - Fathers and Children in Scots Law Brixey v. Lynas and Sanderson v McManus
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Fathers and children in Scots law
Brixey v Lynas and Sanderson v McManus
Elaine E. Sutherland, Senior Lecturer, University of Glasgow
INTRODUCTION
While appeals from Scotland make up a surprisingly large proportion of the cases reaching the
House of Lords,' those on child law matters are comparatively rare.2 In the course of 1996,
however, their Lordships have had the opportunity to consider two controversial child law
cases from Scotland. The verdict on their Lordships' contribution to Scots child law has to be
that it has been something of a curate's egg.
As the cases discussed below demonstrate, fathers in Scotland face special difficulties in
gaining a residence order and, when the father is 'unmarried',3 he must overcome an additional
burden to maintain contact with a child. The suggestion that a modern legal system might be
driven by implicit gender bias in reaching decisions about the future arrangements for children
is one which might be greeted with concern. That such a system should be quite explicit in
adopting this prejudice is astonishing. None the less, when the Inner House of the Court of
Session resurrected the maternal preference in a custody decision in Brixey v Lynas4 in 1994, it
did so quite unashamedly. The House of Lordss went on to affirm the decision and endorse
'maternal preference' in graphic terms. The second case discussed below, Sanderson v
McManus, concerned the position of unmarried fathers in Scots law - a position that this
article will argue strongly is an invidious one. The legislation governing their position might
be described as achieving a 'hat trick' by demonstrating, as it does, gender bias, discrimination
on the basis of the child's birth status and discrimination on the basis of the parents' marital
status - all prohibited by the UN Convention on the Rights of the Child. None the less,
members of the judiciary at all levels were able to provide incisive and lucid discourse on the
nature of children's rights and have given invaluable guidance for future cases, thus proving
that, even when Parliament gets it wrong, something can be salvaged.
Some comfort might be drawn from the fact that the legislation under which these cases
were decided7 was soon to be replaced, in large part, by the long-awaited Children (Scotland)
Act 1995, the Scottish equivalent to the Children Act 1989. However, not only is it unlikely
Of the 72 appeals presented and disposed of by the House of Lords in 1995, 14 (19 per cent) came from
Scotland. Since the House of Lords does not have jurisdiction over Scottish criminal law, it might give a more
accurate picture to note that, of the 54 civil appeals, the Scottish cases represented 26 per cent. See Lord
Chancellor's Department, Judicial Statistics, England and Wales for the Year 1995 (1996), Cm 3290, at
table 1.4.
2
Of the 54 civil appeals presented and disposed of by the House of Lords in 1995, three (five and a half per cent)
were classified as raising a Family Law matter. Child Law is not a separate classification and the subject matter
of the Scottish appeals is not provided. See Lord Chancellor's Department, Judicial Statistics, England and
Wales for the Year 1995, op cit, n 1, at table 1.5.
The term 'unmarried' father is used here to describe the father of a child who is not married to the child's
4 mother. Of course, he may be married to someone else.
1994 SLT 847.
6 [1996] 2 FLR 499.
1995 SCLR 902; sub nom S v M (Access Order) [1997] 1 FLR No 6, HL (forthcoming).
Law Reform (Parent and Child) (Scotland) Act 1986.
Child and Family Law Quarterly, Vol 9, No 2, 1997
191](ViewImageLocal?handle=hein.journals/chilflq9&div=21&collection=journals&method=preview&ext=.png&size=3)
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The Unequal Struggle - Fathers and Children in Scots Law Brixey v. Lynas and Sanderson v McManus
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