AA AGAINST BB

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AA AGAINST BB

DUMFRIES SHERIFF COURT

2015SCDUMF36

Case No: F186/11

JUDGMENT OF SHERIFFPRINCIPALBALOCKHART

NOTE OF APPEAL

in causa

Pursuer and Respondent;

against

Defender and Appellant:

Act: Wild, Advocate

Alt: Ardrey, Advocate

________________________________________________________________________

DUMFRIES: 10 December 2014

The Sheriff Principal, having resumed consideration of the cause, allows the appeal and recalls the Sheriff’s interlocutor of 13 April 2014; quoad ultra (A) amends the Sheriff’s findings in fact as follows:- (i) finding in fact 10 shall be renumbered as finding in fact 10(i); (ii) there shall be inserted as finding in fact 10(ii) “The defender was initially shocked and surprised and then pleased about the news of the pregnancy”; (iii) add new finding in fact 10(iii) “The defender was present at the birth of CC. He was as pleased as any father could be that the son had been born”; (iv) delete from finding in fact 18 the words “until she became aware at the time of his arrest for immigration offences in England his first name was BB”; (v) add at end of finding in fact 20 “Prior to CC’s birth the defender was home about half the time. The rest of the time he was away in England. After CC’s birth on DD until 25 August 2010 when he was arrested, the defender spent most of the time with the pursuer helping to look after the baby, doing the housework and some cooking. He played with him. He cuddled and changed CC. He did not take him out in his pram.” (B) deletes the findings in fact and law in the sheriff’s judgment and substitute in lieu: “Finds in fact and law (1) That it is in the best interests of CC that he has contact with the defender as directed by the Court. (2) It is in the best interests of CC that all the defender’s parental rights and responsibilities be suspended at this time, subject to the modification that the suspension of the defender’s right to maintain personal relations and direct contact with CC on a regular basis will be subject to such order regarding contact as the Court may make from time to time. (3) It would be better for CC that these orders be made than that none should be made at all.” Accordingly

(1) remits the cause to the sheriff to decide the nature and extent of such an order, having carried out such investigations and obtaining such reports as he considers necessary, on the understanding that, at least in the first instance, contact will be under supervision; (2) in terms of section 11(a) of the Children (Scotland) Act 1995, suspends meantime all the defender’s parental responsibilities in respect of the child CC born DD, namely to (a) safeguard and promote his health, development and welfare; (b) provide, in a manner appropriate to his stage of development, (i) direction and (ii) guidance; (c) maintain personal relations and direct contact with him on a regular basis subject to such contact order as the court may make in terms of this interlocutor; and (d) act as his legal representative and (3) suspends meantime all the defender’s parental rights in respect of said child, namely to (a) have him living with him or otherwise to regulate his residence; (b) control, direct or guide in a manner appropriate to his stage of development, his upbringing; (c) maintain personal relations and direct contact with him on a regular basis subject to such contact order as the court may make from time to time in terms of this interlocutor and (d) act as his legal representative; finds no expenses due to or by either party in respect of the action before the sheriff and this appeal; certifies the appeal as being suitable for the employment of junior counsel.

Note:

[1] On 13 February 2014 the sheriff issued an interlocutor in the following terms:-

“…in terms of section 11(a) of the Children (Scotland) Act 1995, Deprives the defender of all parental responsibilities in respect of the child ‘CC, born DD, namely to a) safeguard and promote his health development and welfare. b) provide, in a manner appropriate to his stage of development – i direction; ii guidance, c) maintain personal relations and direct contact with him on a regular basis and d) act as his legal representative; Deprives the defender of all parental rights in relation to the said child namely, a) to have him living with him or otherwise to regulate his residence. b) control, direct or guide in a manner appropriate to his stage of development, his upbringing. c) maintain personal relations and direct contact with him on a regular basis. d) act as his legal representative; Dismisses the defenders crave for contact order in respect of said child; Finds no expenses due to or by either party.”

That interlocutor is the subject of the present appeal. I should explain that the sheriff had issued an interlocutor and note on 21 January 2014 and appointed parties to be heard on the terms of a draft proposed final interlocutor appended thereto. A hearing took place before the sheriff in which he heard parties on the terms of his draft proposed interlocutor. He made no amendments thereto and the draft interlocutor was issued by him as a final interlocutor on 13 February 2014 in the terms noted above.

[2] An appeal was lodged on 19 February 2014 and an appeal was fixed for 26 June. An order was made for written submissions to be lodged. However an amended note of appeal was lodged on 3 June and I appointed parties to be heard at a procedural hearing on 23 June 2014. On that date I understood that the defender wished to lodge further grounds of appeal. I accordingly discharged the appeal hearing fixed for 26 June. I ordered the defender to lodge a final note of appeal and written submissions in support thereof by 7 July 2014. I ordered the pursuer to lodge written answers by 18 August and allowed parties to adjust the written submissions until 8 September 2014. The appeal hearing called before me in Dumfries Sheriff Court on 22 September, being the date allocated in my interlocutor of 23 June 2014 with 23 September reserved as a continuation date if required. On that date the counsel originally instructed by the defender was not present. I deal with the procedure which took place in court on that date in my note of 22 September 2014.

[3] A fresh diet of appeal was fixed for 10 and 11 November 2014. In the event both parties further adjusted their written submissions. Counsel for the defender commenced the proceedings on 10 November 2014 by submitting that this was basically a straightforward contact case. It had been raised by the pursuer as an action of deprivation of parental rights and responsibilities. Putting the issue broadly, it appeared that the defender was a good father, albeit an imperfect partner. He had committed significant crime in that he had been convicted of arranging sham marriages, but he wanted to stay in touch with his child. He was the child’s father and considered he could contribute something to the child’s well-being, in particular in relation to his being of mixed race. The point at issue was whether, in light of the evidence which was led over two days from the pursuer, her mother, her aunt, the defender, his aunt and his nephew, it was in the best interests of the child, who was born to the parties on DD that he should have contact with his father, the defender. In the event, for the reasons given by him the sheriff deprived the defender of all his parental rights and responsibilities and refused to make a contact order. It is necessary, before I deal with the various grounds of appeal in this case, to set out the basis of the sheriff’s decision.

[4] The sheriff made the following findings in fact in his interlocutor of 21 January 2014.

“1. The pursuer is AA who resides at EE.

The defender is BB who resides at FF.
The defender’s nationality is Ugandan.
The parties met in Mm in or around 2007.
The defender and pursuer were in a cohabiting relationship between 2008 and 2010. They separated on 25 August 2010.
The pursuer and the defender are not registered as a married couple in the United Kingdom.
The ceremony known as Nikah was undertaken by the pursuer and defender. This ceremony forms part of an Islamic marriage. This form of Islamic marriage is not recognised in the United Kingdom.
There is one child of the relationship namely, CC, born DD. The child’s sex is male.
The defender is registered on the birth certificate of CC as the father.
The pursuer’s pregnancy with CC was an unplanned pregnancy.
The defender was arrested on 25 August 2010 for breaches of immigration laws and was held on remand. While on remand, the pursuer visited the defender with CC in prison on one occasion.
The defender has been convicted on two occasions in respect of breaches of immigration laws. On the 14 April 2011, he was convicted at NN for conspiracy to facilitate a breach of immigration law and sentenced to 3 years imprisonment. On 11 January 2012, he was convicted of conspiracy to breach the UK immigration laws and sentenced to 30 months.
Whilst in prison, the defender sent cheques to the pursuer in order to provide something to CC’s upkeep.
Whilst in prison, the defender recorded a story book for CC which was sent to the pursuer in order for CC to hear his father’s voice. The defender also sent a card to CC.
The pursuer was released from prison on 28 August 2012, but was detained albeit at an Immigration Removal Centre by the UK Border Agency.
The parties moved together from MM to Dumfriesshire in August or September 2009 where they lived together until their separation in August 2010. During this period the defender frequently spent time away from the pursuer in England where he falsely told her he had a freight business.
In reality, he was engaged in the unlawful activity of arranging sham marriages in the United Kingdom, for which he was convicted and sentenced as recorded in finding in fact 12.
The pursuer knew the defender by the first name of GG until she became aware at the time of his arrest for immigration offences in England his first name was BB.
The defender told the pursuer that he was younger than he now claims to be. She believed he was born in 1980 whereas he claims to have been born in 1975.
The parties lived together in EE from after CC’s birth until the defender was arrested in London on 25 August 2010. During this time, the defender assisted with CC’s care.
The pursuer visited the defender on two occasions while he was in prison in late 2010. On the first occasion she took CC with her to visit the defender. This was the last occasion the defender had direct contact with CC.
CC has extended family in London, including his aunt HH and nephew II, both of whom would be supportive of the defender exercising contact with CC in London.”

The sheriff then made the following findings in fact and law:-

“1. The defender has parental responsibilities and rights in respect of CC as CC was born after 4 May 2006 and the defender is registered as his father in the United Kingdom.

It would be appropriate and in CC’s best interests either that the defender be deprived of some or all of his parental responsibilities and rights in respect of CC or that they be suspended.
It is not appropriate and not in CC’s best interests that any contact order is made in favour of the defender in respect of CC.
That further consideration requires to be given to the terms of the court’s final interlocutor to give effect to the foregoing findings in fact and in law.”

[5] In the note attached to his interlocutor of 21 January 2014 in the section entitled “Decision” the sheriff commented inter alia as follows:-

“[105] I have made a few additional findings in fact, numbers 16-22, based on what appears to me to be uncontroversial evidence in the case. The defender denied he told any lies to the pursuer but that in itself is false for the reasons hereafter explained and I have recorded these lies in these additional findings in fact.

[106] I have not made findings in fact on the basis of any material not put in issue at proof. Thus while I have been made aware of the deportation proceedings before the Asylum and Immigration Chamber of the First Instance Tribunal in Glasgow, the exact nature of these proceedings was not explored in the proof and thus I cannot make findings in fact relating to these proceedings.

[107] Similarly, I have not made any findings in fact in relation to productions not spoken to by witnesses during the proof such as 5/5 of process- the article from the MM Evening News regarding the defender’s criminal convictions.

[108] I have thus not taken into account or been influenced by any matter in the productions not spoken to in evidence. I have referred to some of this material in footnotes to this judgment, but I do not know whether, for example, there is any substance to the UKBA’s claims that the defender arranged his own sham marriage as claimed by the UKBA at 5/4 of process as that was not spoken to by witnesses during the proof. No evidence was presented to the court to confirm such a marriage.

[109] I have however taken into account the material from the UKBA at 5/4 of process as this was put to the defender in cross-examination, and the sentences passed on the defender and the co-accused as referred to in 5/2-5/4 of process, in assessing the credibility of his claims in his evidence that he was unaware of the conspiracy for which he was convicted.

[110] My first task is to assess the credibility of the accounts given to me by the pursuer and defender as to the nature of their relationship. I had the benefit of observing them give their evidence.

[111] In general, I found the pursuer to have been overly trusting of the defender, but to have been genuine in her position that she felt deceived by him when his criminal activities came to light. She did not, in my opinion, terminate contact between father and son because she was angry with the defender or because she thought he was having an affair, but because he had deceived her about his criminal activities in the UK, his name and his age.

[112] As JJ put it in her evidence, this was essentially a matter of trust. The defender, by his actions, betrayed that trust. That breach of trust destroyed the parties’ relationship and has given rise to grave concerns on the part of the pursuer, her mother and aunt that CC have contact with the defender which it is now for the court to resolve.

[113] The manner in which the pursuer gave her evidence and her reasons for seeking the deprivation order she seeks and resisting the defender’s application for a contact order persuaded me that she was a truthful witness and where the defender’s evidence conflicts with hers I have preferred her account to his. I have discounted as untrue any claims made by the defender which were not accepted by the pursuer or which are contradicted by her evidence.

[114] The defender I found to be a thoroughly dishonest witness- if indeed he had any concept of truth at all. He was full of self- justification for his actions towards the pursuer. For instance, he did not consider his relationship to the pursuer a sham as they were married together in Islam and had a child together, so he did not see any evidence to suggest that perception.

[115] The evidence for that perception comes from his lies to the pursuer that he spent time away from home involved in the freight, or as he put it, the cargo business when in fact he had been involved in arranging sham marriages.

[116] He said he had not lied to the pursuer because he did not tell her anything that was false. This is utterly disingenuous. By telling the woman he claimed to be his wife under Islamic law he was away on legitimate business, when he was not, was nothing less than a lie.

[117] Then he attempted to minimise his responsibility for these offences, claiming he had only been involved for one week and had been arranging air tickets as part of his legitimate business when it is plain from the UKBA information at 5/2 and 5/4 of process he was convicted of arranging a total of seven or eight sham marriages during 2008-2010.

[118] Further, in cross-examination he agreed he had become involved in criminal activity while seeking asylum in the UK but sought to minimise his responsibility for this by saying this was because ‘I was involved with the wrong guys’, with ‘people that I didn’t know were wrong’, that it happened because he was in London ‘with the wrong guys’.

[119] He even denied knowledge of the conspiracy for which he had been convicted, claiming he had been buying tickets for clients but did not know what they were involved in but it had been part of the conspiracy going back over a number of years. He claimed he did not know what the people he was involved with were doing because it was his business to purchase air tickets for them. He denied he was involved in a fraudulent scheme.

[120] This contrasts vividly with what the UKBA reported about his activities. At 5/2 of process, they refer to the defender as the person who arranged the particular marriage in question. His involvement was not peripheral. He was described as ‘the one pulling the strings’. He was at the intended ceremony. He kept the Dutch national’s ID on his person to stop her backing out. He ran away from the police before getting caught. He lied to the police by telling them he thought the marriage genuine- that could not be true as he was found guilty after trial of this conspiracy.

[121] At 5/4 of process, in relation to his second conviction, he was described as being involved in arranging ‘several other bogus marriages-including his own’. At 5/3 of process, the English Criminal Justice System confirmed the sentences of the defender and his co-accused in respect of these sham marriages –these sentences are also referred to in the UKBA article at 5/4 of process- with the defender receiving the highest sentence of 30 months. This might reflect his previous conviction, but it does not point to the defender as only incidentally involved in these crimes.

[122] The defender’s evidence about his convictions is therefore totally at odds with the UKBA reports. These not only demonstrate the defender is telling lies about his involvement in these offences, but that the defender was either unwilling to accept full responsibility for these crimes or had no appreciation of the reality of the deceit involved in these crimes.

[123] The defender went even further in trying to avoid responsibility for his crimes. He tried to blame the pursuer and her family for the breakdown of his relationship with the pursuer. He claimed the relationship broke down because the pursuer thought he had been having an affair and the pursuer stopped contact for that reason.

[124] I find this to be quite incredible. It is yet another example of the defender’s tendency to lie when it suits his purposes. I neither believe it nor his claim he has learned from his time in prison. If he had been truly repentant for his crimes, then he would have fully accepted the blame for his wrongdoing, not attempted to shift blame to the pursuer for their relationship ending and accepted the truth his lying had brought their relationship to an end.

[125] No issues arise in relation to the credibility of the other witnesses who seemed to me quite sincere in their opinions about the matters before the court. While I have had regard to their views, the decision lies with me as to what is in CC’s best interests.

[126] Turning now to that important issue, Scots law recognises the importance of a father in a child’s upbringing, but there is no presumption in favour of such contact to be rebutted by the person opposing contact. The issue is determined entirely by reference to what is in the best interests of the child. (See Sanderson v McManus 1997 SC (HL) 55; and White v White 2001 SC 609.)

[127] I agree with KK’S submission that it is unnecessary for me to examine whether Scots law complies with the ECHR or the UN Convention on the Rights of the Child as it has already been held to be so compliant.

[128] I am grateful to LL for his detailed researches in relation to English law, particularly in relation to deprivation, or termination orders as they are known in England and Wales. I am not however persuaded I should follow this line of authority, which introduces a presumption against making such orders and a test that they should be made on ‘solid grounds’. It proceeds on the basis of different legislation and is foreign to the Scottish approach which eschews presumptions in this area of the law.

[129] I am grateful to both KK and LL for their research suggesting the lack of any reported cases where a deprivation order has been made in Scotland under section 11(2)(a) of the 1995 Act. This may show that such orders are rare, or have never been made, but it does not infer any test in this case that such an order may only be made in exceptional circumstances.

[130] The considerations relevant to the making of the orders sought in this case- the deprivation order and the contact order- are to some extent entwined, but it does not follow that one must be granted if the other is refused. The paramount consideration in respect of both is what I consider to be in CC’s best interests. See Sanderson v McManus 1997 SC (HL) 55.

[131] There are a number of considerations in favour of preserving the defender’s parental responsibilities and rights in respect of CC and permitting contact. There is the general assumption a child’s father should be involved in his upbringing. Though now proved a liar about his business activities, the defender was thought to be a generally pleasant person by the pursuer’s mother and aunt.

[132] The defender appeared genuinely fond of CC when he gave his evidence and this appears to have been confirmed by his brief involvement with CC in the first two months of his life. He has the support of his sister and nephew in his attempts to have contact with CC.

[133] He wants to give him guidance during his upbringing. He could assist him in relation to his mixed ethnicity and dual Scottish-Ugandan nationality. He has inspired the confidence of his nephew in London.

[134] I agree with LL’s submission that the court ought not to proceed solely on considerations such as the defender is dishonest or a convicted criminal , but I do not agree the pursuer’s case is based on a dressing up of these criteria in a different way. He refers to 19^th century considerations disqualifying persons from contact with a child, such as being an adulterer or adulteress. I find his references to 19^th century case law of interest but such predate the Guardianship of Infants Act 1925, which introduced the paramountcy of the child’s welfare into Scots law, and it is that principle which is continued in the 1995 Act.

[135] The factors pointing the other way are that CC is settled with his mother and her wider family in EE. He is still very young. He is being adequately cared for by a loving mother. There is no perceptible need or benefit to CC in re-introducing him to his father at this stage in his life.

[136] Such introduction might be unsettling for him. If his father moved to Scotland, this would introduce an enormous change into his life and routine if he were to have weekly contact. If his father stayed in London, contact in such a very different setting might also be unsettling for CC. If the defender is deported from the United Kingdom, this would be of further disruption to CC in his young life.

[137] My favourite guidance on how a Scottish court should approach this important and delicate task is from Professor Clive:

‘It is inevitable that an assessment of what is going to be best for a child in the future should turn to a large extent on opinion. In forming his or her opinion a judge should attempt to put any personal prejudices aside but cannot be expected, in the absence of countervailing expert evidence, to put aside widely held and apparently sensible beliefs, based on practical experience, as to what is good or bad for children. Such beliefs- for example, that it is not in general good for a young child to be wrenched away from a loving parent who has been looking after the child well, or that there is, in general, value for a child in preserving contact between the child and both his or her parents whenever possible- are not matters of law. Nor, in most cases, are they matters of expert evidence. They are perhaps best regarded as folk-wisdom within judicial knowledge. The advantage of being clear that such beliefs are not propositions of law, whether in the form of rules or presumptions, is that the way is open for them to be modified in the light of changing experience and circumstances.’

[138] I have been critical as to the defender’s testimony. That is an inevitable part of my judicial function- to assess whether a witness has been truthful or not. I have paid attention to LL’s submission that I should have regard to the defender’s background in assessing his testimony and should not judge prejudicially based on those considerations. I have followed, in this regard, Professor Clive’s wise advice not to render judgment in this case based on any dislike of the defender on account of his lies to the court. My only consideration is –what is in my opinion best for CC?

[139] I am also guided by a provision of Scots law as section 11(7D) of the 1995 Act requires me to consider the appropriateness of making either of the orders craved. Although most parental responsibilities and rights may be exercised by one parent without reference to the other, I consider that if the defender were to continue to have those responsibilities and rights and/or contact with CC, there would require to a measure of co-operation between the parents. (^{^[1]} Clive, Law of Husband and Wife in Scotland, 4^th edition, paragraph 25.031).

[140] To my knowledge this sub-section appears to be untested in Scots law. At best it only introduces a factor to be taken into account in considering what is best for CC. It does not trump that principle. It is in my opinion the sort of ‘sensible belief’ referred to by Professor Clive that can be taken into account by the judge in relation to the application of best interests’ requirement in any given case.

[141] In my opinion, it can be said that young children have a vital need for a sense of stability, security and continuity. They have a need for love, affection and emotional ties to their mother and other responsible adults. CC is being brought up by his mother in a secure and loving environment. From the accounts given by his grandmother and great aunt he is thriving and very happy in his stable home environment in EE.

[142] CC’s mother is a very important person to him. It is from her that he derives his emotional support and his creature comforts. I accept his grandmother’s evidence that any unnecessary stress in his mother’s life will impact adversely on CC. The court does not need expert evidence about that. It conforms to the sort of ‘sensible belief’ referred to by Professor Clive and which is rooted in a consideration of what is best for a child.

[143] The defender is not just a dishonest person. He is a deceitful person who even now seeks to shirk full responsibility for his criminal activities in the UK. Such a person is not in my opinion a good role model for CC. Unlike the defender’s nephew, these things are too hard for CC to understand at his young age.

[144] The defender cannot in my opinion be trusted as the sort of person who possesses the insight into a young child’s emotional needs or the capacity or disposition to give the child the direction he needs. He seems to me to have little ability to understand the concept of truth, let alone teach that to an impressionable child.

[145] Nor in light of his deceitful attitude towards the pursuer, can she be expected to trust him again. It does not matter the objective reality of the fears he may take CC from her. The issue for her is she cannot believe anything he says now. The trust necessary for two adults to co-operate in these important matters has been shattered by the defender’s actions, and cannot be helped by his attempts at proof to minimise his responsibility for his criminal activities, or lay blame on the pursuer for the breakdown of their relationship.

[146] Such worries in the mind of the pursuer, her mother or aunt, who are closely involved in CC’s upbringing will only in my opinion work to undermine CC’s feelings of stability, security and continuity. Against that background I see no compelling need to allow contact so the defender can impart knowledge of CC’s cultural background. He does not need that at this stage in his life and if it were important just now, it is in my opinion outweighed by the need not to undermine CC’s sense of stability in EE.

[147] These factors on their own, when weighed in the balance point to it not being in CC’s best interests in making a contact order in favour of the defender at this stage in CC’s life. I am not persuaded it is better to make such order than none at all.

[148] I shall accordingly refuse the defender’s application for a contact order based on these considerations. It is for the Tribunal to decide on whether the defender is deported from the UK for his serious crimes. There is in my opinion no requirement based on CC’s best interests that the defender remains in the United Kingdom to exercise contact with his son. If he were deported, then any attempt to introduce contact, only then to see the defender taken from CC’s life at this stage, would be wholly destabilising for CC and is an additional reason for me to refuse to make a contact order in the defender’s favour.

[149] I see little benefit to CC in the defender continuing to exercise parental responsibilities and rights in relation to CC at this stage in his life. A deprivation order does not terminate these responsibilities and rights for all time. It does so for as long as the order is in force and may be reviewed at any time until CC is 16. The extent to which such order is made is in my opinion a matter of debate at this stage. KK raises the possibility of suspending any or all of these rights and responsibilities in her written submissions. Having regard to the Lord President’s comments in T v T 2000 SLT 1442 at paragraphs [58] and [59] as to the making of a deprivation order, I have appointed parties to be heard on the terms of the proposed final interlocutor, a draft of a possible order which I append to this Note.”

[6] It should be noted that the sheriff concluded that he saw little benefit to CC in the defender continuing to exercise parental responsibilities in rights in relation to CC at this stage in his life. A deprivation order did not terminate these responsibilities and rights for all time. He comments that it does so for as long as the order is in force and may be reviewed at any time until CC is 16.

[7] A hearing took place before the sheriff to consider the terms of his draft proposed final interlocutor. In fact the sheriff, after being addressed by parties, made no alterations to the proposed interlocutor. It was issued as a final interlocutor on 13 February 2014 as set out in paragraph 1 hereof. In the “Decision” section of the note attached to his interlocutor of 13 February 2014 the sheriff stated:-

“[12] I refused the defender’s application for a contact order based on the considerations set out in my Judgment. I indicated it was for the Tribunal to decide on whether the defender is deported from the UK for his serious crimes. There was in my opinion no requirement based on CC’s best interests that the defender remained in the United Kingdom to exercise contact with his son. If he were deported, then any attempt to introduce contact, only then to see the defender taken from CC’s life at this stage, would be wholly destabilising for CC and was an additional reason for me to refuse to make a contact order in the defender’s favour.

[13] At paragraph [149] of my Judgment, I stated that I saw little benefit to CC in the defender continuing to exercise parental responsibilities and rights in relation to CC at this stage in his life.

[14] I considered that a deprivation order did not terminate these responsibilities and rights for all time. It would do so for as long as the order was in force and may be reviewed at any time until CC is 16 (actually as will be noted infra in relation to a particular parental responsibility only until he is 18).

[15] The extent to which such order should be made was in my opinion a matter of debate at that stage. KK raised the possibility of suspending any or all of these rights and responsibilities in her written submissions.

[16] Having regard to the Lord President’s comments in T v T 2000 SLT 1442 at paragraphs [58] and [59] as to the making of a deprivation order, I appointed parties to be heard on the terms of the proposed final interlocutor, a draft of a possible order which I append to my Judgment

[17] I had thus already decided in principle for the reasons in my Judgment the court should restrict the defender’s parental responsibilities and rights; as LL correctly observed the purpose of the further hearing was to allow parties to make further submissions of the terms of the final interlocutor, as in T v T 2000 SLT 1442 the practice of making a ‘blanket’ order was disapproved.

[18] LL did not object to competency of an order suspending parental responsibilities and rights, a possibility mooted by KK in her written submissions. This would be an unusual order, but a competent one. I considered it would be of benefit to the court to have the parties’ further submissions on this point.

[19] The structure of Part I of the 1995 Act is firstly, in sections 1 and 2 to define the content of parents’ parental responsibilities and rights in respect of a child; secondly, section 11 allows the court to make orders inter alia in relation to parental responsibilities and rights.

[20] The court may by subsection 2 make any order it thinks fit in relation to parental responsibilities and rights, not just those listed in paragraphs (a) – (h). Some of the orders listed in those paragraphs are given names, such as a residence order or contact order. For the sake of convenience only I have referred to an order under section 11(2) (a) as a deprivation order- it is not given that name in the Act.

[21] The possibility of suspending, rather than depriving a person of his parental responsibilities and rights therefore derives from the court’s general power in section 11(2) to make any order it ‘thinks fit’ in relation to parental responsibilities and rights. But that is not an arbitrary power. All orders made by the court must be made with reference to the paramount consideration of the child’s welfare- the best interests principle- and the court must consider such an order is better for the child than none at all- the so called non-intervention principle- in terms of section 11(7)(a).

[22] Both KK and LL addressed me with reference to these two principles. In considering what order, if any to make, I adopted the following approach.

[23] I firstly identified the particular parental responsibility and any corresponding parental right; secondly I considered whether it was in CC’s best interests to make an order depriving the defender of that responsibility and right or suspending that responsibility or right; thirdly, I considered whether such an order should be made on the basis of the ‘non-intervention’ principle. The second and third stages blend with each other.

[24] In AY v MM and Warden curator ad litem, 26 July 2013, one of the cases referred to by LL in his submissions, Sheriff Principal Dunlop approved of the long-standing practice that when making orders in relation to parental responsibilities and rights, it was inappropriate in normal circumstances for the court to re-allocate the parents’ parental responsibilities and rights, such as by depriving the parent not allowed residence of the child of her right to regulate the child’s place of residence.

[25] I respectfully refer to that case, with which I respectfully agree. It is not the situation arising in this case. The pursuer has craved a deprivation order. I am obliged to consider whether, applying the best interests and non-intervention principles in respect of CC, such an order should be made in whole or part, or instead of making a deprivation order, the defender’s parental responsibilities and rights should be suspended in whole or part, or no such orders should be made at all.

[26] I refer in part to paragraph [12] of the Sheriff Principal’s Judgment in that case:

‘In expressing these views I am by no means saying that there may not be circumstances in which it is entirely proper in the interests of a child that the court should make an order depriving one or other parent of some or all of the parental responsibilities and rights given to them. Furthermore White v White 2001 SC 689 is authority for the proposition that the court can make an order even when no party seeks one. On the other hand it is clear that there must be an evidential basis for any order made by the court and in my view the attitude of the parties to the proposal that an order should be made is at least a relevant consideration, not least because the matter only comes before the court at the instance of the parties and in terms of section 11(7) the court is enjoined not to make an order unless it considers that it would be better for the child that the order be made than that none should be made at all’.

[27] Accordingly, I did not read AY v MM and Warden curator ad litem as suggesting the court cannot in any circumstances make a deprivation (or suspension) order. I take the following from this passage:

[28] As with all orders under section 11, such an order must be justified by reference to the section 11(7)(a) principles. There must be an evidential basis for it. No such order should be made unless the attitude of the parties to the proposal is ascertained. I consider that I have attempted to follow that approach in considering whether to make a deprivation or suspension order.”

The sheriff then referred to a decision of Sheriff Mann at Lerwick in December 2013, SAN v KJN and concluded that case, which was relied on by the defender did not lay down any general rule of law or general principle to be applied indiscriminately in all section 11 cases. The sheriff then continued:-

“[31] On that basis, I decided in the particular circumstances of CC as follows:

The parental responsibility to safeguard and promote the child's health, development and welfare

[32] It subsists until CC is 16. There is no corresponding parental right. Having regard to the serious crimes committed by the defender, his minimisation of responsibility for those crimes at proof and the possibility he will be deported from the United Kingdom, I did not consider it was in CC’s best interest the defender exercise this parental responsibility at this stage in CC’s life. Despite his nephew’s evidence, I did not think the defender was a fit person to continue to be entrusted with the parental responsibility to safeguard and promote CC’s health, development and welfare at this impressionable stage in his development.

The parental responsibility to provide, in a manner appropriate to the stage of development of the child, direction to the child

[33] This parental responsibility subsists until CC is 16. It is discussed with the next following parental responsibility and the following parental right.

[34] The parental responsibility to provide, in a manner appropriate to the stage of development of the child, guidance to the child

[35] This parental responsibility subsists until CC is 18. It is discussed with the following parental right.

The parental right to control, direct or guide, in a manner appropriate to the stage of development of the child, the child's upbringing

[36] This parental right subsists until CC is 16. It forms with the two foregoing parental responsibilities a group of closely corresponding parental responsibilities and rights.

[37] I considered for the reasons given in connection with the parental responsibility to safeguard and promote the child's health, development and welfare, it was not in CC’s best interests for the defender to give him guidance till he was 18 or to control and direct his upbringing till he was 16. While allowing for the possibility of a future change in circumstances, the court’s concentration had to be on the present stage of CC’s development.

[38] Things might change when CC is older, but for now, the defender had a parental right he could exercise without reference to CC’s mother (section 2(2)). I considered that would be fundamentally unsettling for CC, given the defender’s dishonest actings towards his mother and the defender’s unknown fate regarding deportation from the United Kingdom. I considered it both undesirable and impractical, in CC’s best interests that the defender continued to exercise this bundle of parental responsibilities and rights.

The parental responsibility and right if the child is not living with the parent, to maintain personal relations and direct contact with the child on a regular basis

[39] This parental responsibility and right correspond to each other. They both subsist until CC is 16. Given the possibility of the defender’s deportation from the United Kingdom, this was perhaps the most practical parental responsibility and right from the defender’s perspective. My decision was a contact order (of any sort) was not justified by reference to the section 11(7)(a) principles.

[40] I considered the existence of such a parental responsibility and right not to be in CC’s best interests at this stage in his development. His overwhelming need is for security and stability. Re-introducing the defender into his life would undermine that.

[41] When he is older and perhaps inquisitive about his roots, and the defender is perhaps deported from the United Kingdom, there may be the possibility of indirect contact, such as letters or Skype.

[42] But these were unknown factors at this stage and best addressed in the light of future circumstances. I considered the pursuer would be willing, from her evidence, to look at matters anew when CC was older. Meantime I saw no benefit to CC in preserving this parental responsibility and right in the defender.

The parental right to have the child living with him or otherwise to regulate the child's residence

[43] There is no corresponding parental responsibility. It subsists until CC is 16. It is in two parts. It includes the right to regulate CC’s place of residence. Its existence prevents the pursuer removing CC from the United Kingdom without the defender’s consent (section 2(3)).

[44] I considered the defender’s criminal conduct and dishonesty rendered it manifestly in CC’s best interests he lived with his mother. She had moved back to Scotland to have help from her family. There seemed no realistic prospect she would take CC permanently outside the United Kingdom. If deported, the defender will be far away from CC. It is not in CC’s best interests the defender should, even theoretically, be able to block holidays outside the United Kingdom for CC, as when CC gets older these may be to the benefit of his welfare.

The parental responsibility and right to act as the child's legal representative

[45] These correspond to each other and subsist until CC is 16. I could see no benefit to CC in the defender exercising this parental responsibility and right. The potential existed for conflict between him and CC’s mother. It was best for CC that his mother exercised this parental responsibility and right as she was best placed to do so and the possibility remained of the defender being deported from the United Kingdom and not able to do so.

Ought I make a Deprivation Order, a Suspension Order or No Order at all?

[46] I considered it was in CC’s best interests all the above parental responsibilities and rights were removed from the defender at this stage.

[47] It is in CC’s best interests, whatever happens with the deportation proceedings, that there is a reasonable degree of certainty in his life: that, at some point, it be known whether his father will be deported from the United Kingdom. Only until that is known can the pursuer understand, and explain to CC what has happened to his father and his whereabouts (in a child friendly way; but I am confident from her evidence that will be the pursuer’s approach) and respond to any change in circumstances in the future.

[48] Suspending the defender’s parental responsibilities and rights would introduce uncertainty into the immigration proceedings, leaving open the possibility of the Tribunal in London having to consider the effect of such an order made under Scots law: see paragraph [9] above.

[49] Its task is different from this court’s and it is ultimately of no concern to this court whether the defender is deported from the United Kingdom.

[50] But it would be wrong, and not in CC’s best interests, that any legal uncertainty should be put into the mind of the Tribunal.

[51] This court does not consider it in CC’s best interests for the defender to have contact with CC at this stage in CC’s development. In those circumstances I considered it better for CC to make a deprivation order in preference to a suspension order, or no order at all. In the event of a change in circumstances, which I do not envisage will arise until CC is a few years older and at a different stage of development the court is in a position, if any such application is made to it, to re-asses the position in relation to the exercise of parental responsibilities and rights by the defender.

[52] At that stage, it will know if the defender is in the United Kingdom or has been deported to Uganda- a highly relevant consideration to what the court might then do.

[53] So long as CC is habitually resident in Scotland, the court will retain jurisdiction. The defender need not therefore be present in the United Kingdom for him to approach the court at a later stage.”

[8] The written submissions and the oral argument before me at Dumfries Sheriff Court on 10 November 2014 were directed to the sections of the sheriff’s judgment which I have set out above.

The appeal
[9] It is significant to note that the sheriff concluded, notwithstanding that he had deprived the defender of all his parental rights and responsibilities that, in the event of a change in circumstances, which he did not envisage would arise until CC is a few years older and at a different stage, if any application was made to the court, it would be open to the court to reassess the position in relation to the exercise of the parental responsibilities and rights of the defender.

[10] The sheriff concludes at paragraph 50 of his note of 13 February 2014 that it would be wrong, and not in CC’s best interests, that any legal uncertainty should be put into the mind of the Tribunal. I was informed that the Immigration Tribunal, convened to consider whether the defender should be deported, had adjourned to await the decision in this case before making any decision. I do not think it is any of the court’s responsibility to have regard to the proceedings before the Immigration Tribunal. The task of the court, on the basis of the evidence before it, is to determine how the various craves should be answered. The court’s decision will no doubt in due course be considered by the Tribunal. However, in my view it is wrong that the court should take into account there is an Immigration Tribunal hearing to take place after this case has been dealt with as a factor in deciding whether (i) it is in the child’s best interests that a contact order be made; (ii) the defender should be deprived of all or any of his parental rights and responsibilities; and (iii) these rights and responsibilities should be suspended.

[11] I agree with counsel for the defender that the crucial issue before the sheriff was to decide whether it was in the best interests of the child that a contact order should be made. The sheriff decided that it was not in the best interests of the child that an order be made and he proceeded to deprive the defender of all his parental rights and responsibilities. At appeal I have to consider whether the sheriff erred in refusing to make a contact order. If I support the sheriff’s decision regarding contact, the separate issue then arises as to whether the sheriff erred in depriving the defender of all his parental rights and responsibilities. It was said that the appropriate course in the circumstances should have been for these rights to be suspended. If I held the sheriff did err in not making a contact order, the whole question of his parental rights and responsibilities would require to be reconsidered.

[12] I propose to deal with this appeal under the following heads:

(A) whether the sheriff erred in making finding in fact 18 (ground of appeal 1);

(B) whether the sheriff erred in refusing to make a number of proposed findings in fact (ground of appeal 2);

(D) the legal test for making a contact order and depriving a party of his or her parental rights and responsibilities (grounds of appeal 4, 5 and 6);

(E) whether the sheriff erred in refusing to make a contact order (grounds of appeal 9, 11 and 12);

(F) whether the sheriff erred in depriving the defender of all his parental rights and responsibilities (grounds of appeal 7, 8 and 10);

(G) whether the findings in fact and law should be amended (ground of appeal 3); and

(H) expenses.

I deal with these issues as follows:-

(A) Whether the sheriff erred in making finding in fact number 18, to the effect that the pursuer knew the defender by the first name of GG until she became aware when he was first arrested (viz 25 August 2010) that his first name was BB in circumstances where the extract of an entry in the register of births (said entry being dated 9 June 2010) in relation to the child CC had been lodged in process and bore that the defender’s name was given at that time as “BB” and the entry had been signed by both the defender and the pursuer.

[13] It was submitted on behalf of the defender that there was no objection to this finding in fact insofar as it states “The pursuer knew the defender by the first name ‘GG’.” The GG/BB issue first arose in re-examination of the pursuer (without objection). There was no evidence when the pursuer became aware of the defender’s first name of BB, which was on the child’s birth certificate. It was put to the pursuer in evidence by her solicitor that BB was named on the birth certificate as the father. No point was then raised about the fact that the name on the birth certificate was “BB” and the pursuer knew the defender as “GG”. The birth certificate was signed by the pursuer. This was before any issue arose with immigration offences. It appeared to be the pursuer’s position that the appellant’s use of the name GG was one aspect of his deception. There is no record to the effect that she did not know his original name. It was not put to the pursuer that she had not known until the defender’s arrest that his first name was BB, not GG. It was said there was no evidential basis on which the sheriff was entitled to find that this pursuer knew the defender as GG until she became aware at the time of his arrest that his first name was BB.

[14] I have read the whole transcript of evidence. The evidence on this issue was far from satisfactory. I must confess that I would have thought that, if it was part of the pursuer’s case that the defender concealed from her that his real name was BB, despite the fact that it was on the birth certificate which she signed, this would, in fairness, have been put to the defender for his comment. It was perhaps significant that the defender’s aunt, who had spent some considerable time with the pursuer referred to the defender as “BB” and not “GG”. Taking the evidence as a whole, and in the absence of the issue being specifically put to the defender for his comment, I find the sheriff erred in concluding, and making a basis for his decision, a finding in fact that the pursuer claims she did not know that his name was BB until the time of his arrest. I shall accordingly amend the finding in fact 18 to read “That the pursuer knew the defender by first name of GG”.

(B) Proposed additional findings in fact on behalf of the defender. - The sheriff erred in refusing to make the following findings in fact et separatim said findings in fact should be added to the judgment.

[15] The defender proposed 17 new findings in fact. An Appeal Court must be slow to add additional findings in fact to those of the sheriff, who has had the opportunity of hearing and assessing the evidence. I am prepared to add the undernoted additional findings in fact as they relate to the evidence given by the pursuer, which the sheriff stated that he accepted:

(i) The defender was initially shocked and surprised and then pleased about the news of the pregnancy

There is clear evidence of this from the pursuer herself. The defender indicated that the pursuer had been taking injections to avoid pregnancy. He was not cross-examined on this point and it must be taken to be agreed. This no doubt accounted for the defender’s shock and surprise. The pursuer stated the defender was pleased about the news of the pregnancy. I shall re-number finding in fact 10 (see paragraph 3 hereof) as 10(i). This amendment will be numbered 10(ii).

(ii) The defender was present at the birth of CC. He was as pleased as any father could be that the son had been born.

Again this evidence came from the pursuer. This will be inserted in the findings in fact in paragraph 3 as 10(iii).

(iii) Prior to CC’s birth the defender was home about half the time. The rest of the time he was away in England. After CC’s birth on DD until 25 August 2010 when he was arrested, the defender spent most of the time with the pursuer helping to look after the baby, doing the housework and some of the cooking. He played with him. He cuddled and changed CC. He did not take him out in his pram.

Again this evidence comes from the pursuer and in my opinion it is proper that it should be recorded in these findings in fact. This amendment will be added at the end of finding in fact 20.

[16] I am only prepared to amend the sheriff’s findings in fact as noted above. For the sake of completeness I record that the findings in fact should now read:-

“1. The pursuer is AA who resides at EE

The defender is BB who resides at FF
The defender’s nationality is Ugandan.
The parties met in Mm in or around 2007.
The defender and pursuer were in a cohabiting relationship between 2008 and 2010. They separated on 25 August 2010.
The pursuer and the defender are not registered as a married couple in the United Kingdom.
The ceremony known as Nikah was undertaken by the pursuer and defender. This ceremony forms part of an Islamic marriage. This form of Islamic marriage is not recognised in the United Kingdom.
There is one child of the relationship namely, CC, born DD. The child’s sex is male.
The defender is registered on the birth certificate of CC as the father.
10.(i)The pursuer’s pregnancy with CC was an unplanned pregnancy.
(ii) The defender was initially shocked and surprised and then pleased about the news of the pregnancy.

(iii) The defender was present at the birth of CC. He was as pleased as any father could be that a son had been born.
The defender was arrested on 25 August 2010 for breaches of immigration laws and was held on remand. While on remand, the pursuer visited the defender with CC in prison on one occasion.
The defender has been convicted on two occasions in respect of breaches of immigration laws. On the 14 April 2011, he was convicted at NN for conspiracy to facilitate a breach of immigration law and sentenced to 3 years imprisonment. On 11 January 2012, he was convicted of conspiracy to breach the UK immigration laws and sentenced to 30 months.
Whilst in prison, the defender sent cheques to the pursuer in order to provide something to CC’s upkeep.
Whilst in prison, the defender recorded a story book for CC which was sent to the pursuer in order for CC to hear his father’s voice. The defender also sent a card to CC.
The pursuer was released from prison on 28 August 2012, but was detained albeit at an Immigration Removal Centre by the UK Border Agency.
The parties moved together from MM to Dumfriesshire in August or September 2009 where they lived together until their separation in August 2010. During this period the defender frequently spent time away from the pursuer in England where he falsely told her he had a freight business.
In reality, he was engaged in the unlawful activity of arranging sham marriages in the United Kingdom, for which he was convicted and sentenced as recorded in finding in fact 12.
The pursuer knew the defender by the first name of GG.
The defender told the pursuer that he was younger than he now claims to be. She believed he was born in 1980 whereas he claims to have been born in 1975.
The parties lived together in EE from after CC’s birth until the defender was arrested in London on 25 August 2010. During this time, the defender assisted with CC’s care. Prior to CC’s birth the defender was home about half the time.The rest of the time he was away in England.After CC’s birth on DD until 25 August 2010 when he was arrested, the defender spent most of the time with the pursuer helping to look after the baby, doing the housework and some of the cooking.He played with him.He cuddled and changed CC.He did not take him out in his pram.
The pursuer visited the defender on two occasions while he was in prison in late 2010. On the first occasion she took CC with her to visit the defender. This was the last occasion the defender had direct contact with CC.
CC has extended family in London, including his aunt HH and nephew II, both of whom would be supportive of the defender exercising contact with CC in London.”

(C) The approach of the Appeal Court to discretionary decisions

[17] The decision which the sheriff made is a discretionary one. It is well settled that there are only certain situations where an appellate court is entitled to intervene. I refer to MacPhail’s Sheriff Court Practice paragraph 110 where the learned author states:

“the appellate court may intervene...if his conclusion is such that, though no erroneous assumption of law or fact can be identified, he must have exercised his discretion wrongly. Expressions which have been judicially employed to describe such a conclusion include ‘completely’ or ‘plainly wrong’; ‘wholly unwarranted’; ‘manifestly inequitable’; ‘unreasonable’; and ‘unjudicial’.”

At paragraph 18.111 the learned author stated

“The appellate court may also intervene where, although the judge has not erred in law, misapprehended or misused the facts, considered any irrelevant matter, or left out of account any relevant matter, the court is satisfied that his conclusion is vitiated by an error in weighing the relevant considerations, by giving too little or too much weight to one or more of them. The weighing of the relevant considerations has been called ‘the balancing exercise’. If the court is satisfied that there has been an error in the balancing exercise, or that the judge’s conclusion is so plainly wrong that there must have been such an error, the court may interfere...”

I require, in considering this appeal, to adopt that approach to the balancing exercise which the sheriff carried out in light of the amended findings in fact which I have set out in paragraph [16] hereof.

(D) The test to be applied in dealing with making a contact order and deprivation of parental rights and responsibilities (grounds of appeal 4, 5 and 6).

[18] It is my opinion that the only test is whether it is in the best interests of CC that the defender have contact with him and whether it is better that an order regulating contact should be made than no order be made. I refer to the terms of the Children (Scotland) Act 1995, section 11(7) provides:

“…in considering whether or not to make an order … and what order to make, the court—

(a) shall regard the welfare of the child concerned as its paramount consideration and shall not make any such order unless it considers that it would be better for the child that the order be made than that none should be made at all”

In my view, this is well settled and the sheriff was correct to observe at paragraphs 125 and 126 of his note of 21 January 2014:

“[125] …the decision lies with me as to what is in CC’s best interests.

[19] It was argued on behalf of the defender in ground of appeal 4 that in the circumstances of the instant case the rights of the defender and CC to respect for their family life in terms of article 6 of ECHR had been contravened. It was said in ground of appeal 5 that the sheriff misdirected himself in finding it unnecessary to examine whether Scots law complies with the ECHR or the UN Convention on the rights of the child as it already had been held to be so compliant. It was argued that there was no issue as to whether the 1995 Act was compliant with the aforesaid conventions in abstracto but rather whether a deprivation order in this case was compliant with the Convention and further what factors could be taken into account to ensure Convention compliance. It was also said the sheriff erred (in ground of appeal 6) in holding that neither Scots law nor the ECHR required there to be “solid grounds” or “exceptional circumstances” in order to (a) make a deprivation order or (b) refuse to permit any contact between the defender and the child.

[20] The sheriff comments in his note of 21 January 2014 as follows:

“[127] I agree with Mrs Guthrie’s submission that it is unnecessary for me to examine whether Scots law complies with the ECHR or the UN Convention on the Rights of the Child as it has already been held to be so compliant.

I agree with the sheriff. In my opinion, the only test to be applied in respect of the making of a contact order or deprivation order is whether it is in the best interests of the child (i.e. have regard to the welfare of the child concerned as the paramount consideration) and that it would be better for the child that an order be made than that none should be made at all. I refuse grounds of appeal 4, 5 and 6.

(E) Whether the sheriff erred in refusing to make a contact order in favour of the defender (grounds of appeal 9, 11 and 12).

[21] This issue requires to be decided in light of the findings in fact which the sheriff made. I refer to MacPhail paragraph 17.05:

“The findings in fact should be stated in sufficient detail to explain and justify the decerniture. They should include all the facts material to the contentions of either of the parties … the sheriff should always express a conclusion on all issues regarding the facts which have been argued before him and which are being capable of being raised on appeal. The sheriff should also always express a conclusion on all issues regarding the facts which have been argued before him and which are capable of being raised on appeal. Accordingly, if on the sheriff’s view of the case it falls to be decided on one issue and the other questions of fact argued before him are thereby superseded, he should nevertheless state findings on these other matters so that if an Appeal Court holds that his judgment is incorrect, it will have in the interlocutor all the material facts which it may consider necessary for the correct disposal of the case.”

Further at paragraph 17.07 the learned author states:

“The interlocutor should be coherent and self-sufficient if read separately from the note, the function of the note being to explain, not to control or complete, the findings in the interlocutor. The interlocutor should not refer to or incorporate the terms of the note, and it should not be necessary for a reader to refer to the note in order to ascertain the sheriff’s finding on any matter of fact or law which has been in issue.”

Accordingly, it is to the findings and fact, as now amended, which I have set out in paragraph [16] hereof, to which I require to have regard in deciding whether the sheriff erred in refusing to make a contact order.

[22] It was argued for the defender that there were no sustainable grounds for refusing to make a contact order. It was submitted (a) the sheriff improperly placed great weight on the alleged stress that would be caused to the mother by allowing the father to remain involved in CC’s life. There were no findings in fact to this effect; (b) the sheriff placed far too great weight on the father’s two convictions; (c) the sheriff placed insufficient weight on the aim of retaining the parent-child link between father and son; (d) the sheriff placed insufficient weight on the principle that where a child is born to ethnically mixed parents, it was considered of particular importance that the child had contact with both parents so that they could understand both elements in their genetic makeup; (e) the totality of the findings in fact did not support the findings that it was in CC’s best interests that a contact order should not be made; (f) the sheriff erred in his statement (second supplementary note paragraph 48) stating that it would be wrong that any legal uncertainty should be put into the mind of the Immigration Tribunal.

[23] It was submitted for the pursuer that the sheriff’s approach in considering whether or not a contact order should be made was correct. The sheriff had given appropriate consideration to all matters and in the supplementary note issued following the intimation of the appeal, he clearly set out the considerations in respect of the defender’s individual rights and responsibilities and his right to contact and he concluded properly that the defender should be deprived of each of those rights and responsibilities and that contact should be refused. The sheriff gave full and proper consideration to all issues. He stated at paragraph 134 of the principal judgment

“I agree with LL’s submission that the court ought not to proceed solely on considerations such as the defender is dishonest or a convicted criminal, but I do not agree that the pursuer’s case is based on a dressing up of these criteria in a different way.”

The sheriff had considered the facts enumerated by the defender, namely stress (albeit there were no findings in fact), the defender’s convictions, the parent-child link and ethnicity. It was submitted that the sheriff had considered all the evidence and made an appropriate balance on all the matters at issue. He pronounced himself not persuaded that it was better to make an order than none at all in respect of contact.

[24] In my opinion, the sheriff attached too little weight to the parent-child relationship and too much weight to the defender’s two convictions. There is nothing in the findings in fact to allow the conclusion to be drawn that the conduct of the defender as far as the pursuer and the child were concerned prior to his arrest on 25 August 2010 caused any concern. On the contrary although initially shocked and surprised he was then pleased about the pregnancy and happy when the child was born. After the birth he helped to look after the baby, did housework and cooking, and cuddled and changed CC. Indeed while on remand the pursuer visited the defender with the child in prison. While in prison the defender sent a card to the child. He recorded a storybook which was sent to the pursuer in order that the child might hear his father’s voice. He regularly sent contributions from his prison earnings to the pursuer.

[25] There was no evidence to indicate that the defender would be other than a supportive father. However, his convictions revealed that he was an imperfect partner. He is a man with a criminal past who wanted to stay in touch with his child. The defender did not reveal to the pursuer that he was involved in arranging sham marriages in England. He falsely told her he had a freight business.

[26] In his note, the sheriff summed up the considerations pointing either way at paragraphs 131 to 136 of his note of 21 January inclusive where he said:

“[131] There are a number of considerations in favour of preserving the defender’s parental responsibilities and rights in respect of CC and permitting contact. There is the general assumption a child’s father should be involved in his upbringing. Though now proved a liar about his business activities, the defender was thought to be a generally pleasant person by the pursuer’s mother and aunt.

[27] I refer again to the sheriff’s comment at paragraph 134 of his initial judgment “The court ought not to proceed solely on considerations such as the defender is dishonest or a convicted criminal”. In my opinion that is exactly what the sheriff has done in this case. The totality of the findings in fact both originally as found by the sheriff in his judgment, and even more so as amended by myself, are insufficient to support the pursuer’s plea that contact should be refused. On the contrary, in my view they are sufficient to allow me to sustain the defender’s plea‑in‑law that a contact order should be put in place. If one looks at the findings in fact in paragraph [17] hereof, the only adverse ones are 11 and 12 (which relate to his convictions), 16 (where it is recorded that the defender falsely told the pursuer that he had a freight business) and 17 (which records that he was in fact engaged in the unlawful activity of arranging sham marriages). There is nothing else in the findings in fact.

[28] I consider, on the basis of these findings in fact, that it could be said that the defender had been an imperfect partner to the pursuer. He has been dishonest and deceitful. But, until the discovery of the defender’s criminal activities, there was no evidence from which any conclusion could be drawn that the defender was other than a good partner to the pursuer and good father to the child. There is no evidence to suggest he might harm the child. He has repeatedly sought contact in court, but has been refused. The card, recording and money which he sent from prison suggest a man concerned for his child. His conduct before his arrest while in family with the child does not cause concern. He is anxious to see his child and in particular to explain his mixed ethnic origin to him. He will present a father figure to the child as he starts school. I take the view it could not be said – and there is no finding in fact to this effect – that the defender impregnated the pursuer to enable him to avoid deportation. There was uncontested evidence that the pursuer was having birth control injections and both parties were surprised when she became pregnant. On the other hand, there is the deceit and dishonesty by the defender in respect of his criminal activities. The pursuer does not trust the defender.

[29] In my opinion, the sheriff erred in his consideration of the balancing exercise. I am satisfied, following MacPhail at paragraph 18.112, that the sheriff’s conclusion is vitiated by an error in weighing the relevant considerations. He gave too little weight to (i) the retaining of the parent‑child link between father and son, (ii) where a child is born to ethnically mixed parents it is considered of particular importance that the child has contact with both parents so that they understood both elements of their genetic makeup and (iii) the fact that prior to his convictions being revealed the defender was a supportive father and there was no evidence to suggest he would be other than that if allowed contact. On the other hand, the sheriff placed too much weight on (i) the alleged stress which would be caused to the mother by allowing the father to be involved in the child’s life (of which there is no finding in fact), (ii) his two convictions, and (iii) the fact that there was a pending Immigration Tribunal which the sheriff considered caused uncertainty. In particular, I agree with the submission for the defender that the findings in fact, taken as a whole, do not support the conclusion that it is in the child’s best interests that no order of contact should be made.

Contact arrangements
[30] I can only in this judgment go so far as to direct there should be contact between the defender and the child CC. The nature and extent of that contact will require to be decided by the sheriff after the obtaining of such reports as are appropriate and, if necessary, hearing evidence. I take the view that the appropriate course is for me to remit the cause to the sheriff to carry out such investigations as are necessary to put a contact order in place. In view of the conclusions which the sheriff in the case to date has made, I consider it preferable that further procedure be dealt with by another sheriff. While I would not wish to fetter the sheriff’s discretion when he or she had received all the up to date and relevant information, I would express the view that it would be appropriate at least in the early stages for the contact to be supervised. Consideration should be given to professional assistance being involved to assist in initial contact and explaining to the child why the defender has not been available for contact until this time. I have no doubt that the sheriff will carry out a very full investigation before making any interim arrangements and have regard to the fact that the pursuer alone has, subject to one modification, all the parental rights and responsibilities at this time (as I shall so find later in this note). The welfare of the child is paramount. Contact requires to be very closely monitored in view of the defender’s dishonesty and deceit regarding his criminal activities. It is up to the defender to demonstrate he can be an influence for good in the child’s life. Any extension of contact arrangements would only be (a) if the court were satisfied that such a course would be appropriate and (b) in the best interests of the child. My interlocutor reflects this position.

(F) The sheriff erred in depriving the defender of all his parental rights and responsibilities.
[31] As a result of the decision which I have made in respect of contact, the order made by the sheriff to deprive the defender of his parental responsibilities and rights requires to be reviewed. The child is not living with the defender. In my opinion, in the circumstances now pertaining, there is no necessity to deprive the defender of all his rights and responsibilities. I take the view that the proper course should now be to suspend rather than deprive the defender of his parental rights and responsibilities. The court is entitled to make such order as it thinks fit in terms of section 11(2) of the Children (Scotland) Act 1995.

[32] In view of the obvious concerns about the defender’s deceit and dishonesty, as I have said, I consider it is appropriate that the defender’s contact with the child should be closely monitored. As far as the suspension of his parental rights and responsibilities to maintain personal relations and direct contact with the child on a regular basis is concerned, I propose to suspend these rights and responsibilities subject to such order as the sheriff may make from time to time regarding contact. This would emphasise to the defender that he can only have contact with the child as regulated by the court.

[33] I do not think it is right at this stage that the defender be involved with the pursuer in any decisions regarding the child’s welfare. The pursuer will make all decisions regarding the child and what is in his best interests. Standing the background, the defender at this stage should not have a say in what is best for the child. It is accordingly proper that his parental rights and responsibilities be suspended at this stage, subject to the modification which I have set out in paragraph [32] hereof. It is up to the defender to convince the sheriff and those entrusted with supervising contact it is proper that any initial contact, the nature and extent of which would be determined by the sheriff as being in the best interests of the child, be extended at some future date. If progress continues satisfactorily, consideration can then be given by the court to restoring all or any of his parental rights and responsibilities. It is up to the defender to demonstrate that he can be an influence for good in his son’s life in the arrangements which I have put in place.

[34] I shall accordingly suspend meantime all the defender’s present parental rights and responsibilities but in respect of his parental right and responsibility to maintain personal relations and direct contact where the child is concerned, this will be subject to such order as the court may make from time to time regarding contact. I shall remit the cause to the sheriff to put in place such contact arrangements as the sheriff considers appropriate, standing what I have written at this time, in light of the evidence placed before him.

(G) Findings in fact and law
[35] In light of the decisions which I have made, it is appropriate that the sheriff’s findings in fact and law be recalled and there should be substituted in lieu:-

1. It is in the best interests of CC that he has contact with the defender as directed by the court.

2. It is in the best interests of CC that all the defender’s parental rights and responsibilities be suspended at this time, subject to the modification that the suspension of the defender’s right to maintain personal relations and direct contact with CC on a regular basis will be subject to such order regarding contact as the court may make from time to time.

3. It would be better for CC that these orders be made than that none should be made at all.

(H) Expenses
[35] I understand that both parties are on legal aid and it was proposed by both parties that I should make an order of no expenses due to or by either party. I am prepared to accede to this motion, the issue of the failure of counsel to appear in Dumfries Sheriff Court on 22 September 2014 having been resolved. I have certified the causes suitable for the employment of junior counsel.

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