SCTSPRINT3

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 152

F180/09

OPINION OF LORD BRAILSFORD

In the cause

AH

Pursuer & Respondent

against

CH

Defender & Minuter

Pursuer:  Loudon;  Johnson Legal

Defender:  Ardrey;  Russel + Aitken LLP

28 October 2016

[1]        This matter concerns a male child EFH who was born on 18 April 2007.  The defender and minuter (hereinafter “the minuter”) is the child’s father and the pursuer and respondent (hereinafter “the respondent”) is his mother.  The minuter and respondent were married in Tunisia on 15 December 2006 and divorced by interlocutor of this court dated 12 March 2013.  The Minute presently before the court was presented in 2014 and a Proof on the Minute and Answers ultimately heard in February 2016.  In the Minute the minuter seeks variation of the decree of divorce of 12 March 2013 by removing certain conditions placed upon the minuter’s exercise of contact with EFH and, further, providing for additional and extended contact between the minuter and EFH.

[2]        The issue of contact between the minuter and EFH has been a source of contention between the parties since at least 2009.  This issue has been the subject of protracted litigation and discussion in this court.  In order to place the proof in some context, it is desirable that I outline the essentials of the history of litigation between the parties.

[3]        The parties separated in July 2008 and did not live together thereafter.  Following separation, EFH resided with the respondent, an arrangement which the minuter appears to have approved.  The minuter had contact with the child on an informal basis.  Divorce proceedings were signetted on 23 November 2009.  By interlocutor dated 24 November 2009 the minuter was interdicted ad interim (i) from removing the child from the care and control of the respondent or outwith the jurisdiction of the court and (ii) from molesting the respondent.  In December 2009 the minuter sought interim contact with EFH and by interlocutor dated 23 December 2009 the court ordered a report from a member of the Bar relative the welfare of the child and any specific arrangements that might be appropriate for contact.  A continued hearing of that motion following receipt of the report was scheduled for 30 April 2010 but the court made no order on that date “on the basis that parties have reached agreement thereon”, the nature of that agreement being recorded in the Minute of Proceedings.  Notwithstanding that agreement the issue of contact came before the court again  on 8 July 2010 at which time an order in favour of the minuter was made permitting supervised contact with EFH for two hours every alternate Saturday at a designated contact centre.  By interlocutor dated 15 October 2010 the court ordered an updated report from the same member of the Bar who had prepared the initial report dealing with how the interim contact arrangements between the minuter and EFH were proceeding and further to consider whether any other arrangement for contact might be appropriate, including the question of increased contact and unsupervised contact.  By interlocutor dated 20 January 2011 the court made a further order for supervised contact between the minuter and EFH for periods of two hours each fortnight for a period of 16 weeks.  On 28 April 2011 the court made an order allowing the minuter one period of contact with EFH at a play centre in Edinburgh for a period of two hours.  On 27 May 2011 a further order for contact was made for two hours supervised contact each fortnight.  On 13 June 2012, the court ordered that contact be reduced to nil and at the same time remitted to Professor T MacKay to enquire into and report to the court on all the facts and circumstances in relation to the issue of contact.  The report ordered by the interlocutor of 13 June 2012 is dated 5 November 2012 and is number 20 of process.  The recommendation of the report, albeit expressly stated to be provisional, was that contact be reduced to once per month and that it be “strictly supervised.” [1]  By interlocutor dated 13 December 2012 the court “... allows close supervised contact, by a worker between the said child and the [minuter] once per month for two hours.”  As already noted, decree of divorce was pronounced on 12 March 2013.  Decree of divorce was pronounced of consent and in terms of a Joint Minute entered into between parties.  The court ordered that the minuter should have supervised contact with EFH for two hours each month at a stipulated contact centre.  Notwithstanding this interlocutor, the minuter has had only one contact since March 2013.

[4]        At the proof on the Minute and Answers on the motion of the minuter  the respondent led.  The respondent gave evidence on her own behalf and adduced supporting evidence from her brother, JA, her mother, MA, and Professor MacKay.  With the exception of Professor MacKay all witnesses provided affidavits which were supplemented by brief examination in chief and subsequent cross-examination.  Professor MacKay spoke to the seven reports he has prepared in this matter.[2]  The minuter gave evidence on his own behalf and adduced evidence from Alison Small a social worker employed at a contact centre who had witnessed a contact session between EFH and the minuter.

[5]        The respondent’s evidence was that she had met the minuter in Edinburgh in 2004.  Thereafter she met him on a social basis a few times before commencing a relationship with him in April 2005.  At that time the respondent resided in Edinburgh and the minuter worked in that city.  In late 2005, the minuter commenced cohabitation with the respondent in her flat in Edinburgh.  In the summer of 2006 the respondent discovered she was pregnant.  She states that she was very happy and excited by this and that these feelings were, so far as she was aware, reciprocated  by the minuter.  At this time the parties decided that they wished to be married.  The respondent maintained that it was at this time that the minuter disclosed to her that he was an illegal immigrant residing in the UK without a valid visa.  The respondent’s position was that she was worried and upset by this but nevertheless wanted to proceed with the marriage which was scheduled to take place in Tunisia, the minuter’s country of origin, in December 2006.  She also said that the minuter agreed with her that he would apply for a new visa and regularise his status in the UK whilst the parties were in Tunisia for their marriage.

[6]        The marriage proceeded in Tunisia in December 2006 and the respondent stated that in accordance with his agreement with her the minuter made an application to UK immigration authorities in Tunisia for a visa at this time.  The visa was refused on the ground that UK immigration authorities did not accept that the marriage was genuine albeit it was the respondent’s evidence that British Embassy staff in Tunisia believed her position to be genuine.  The respondent further deponed that at this time she was told by a friend of the minuter that the minuter’s intention had been since the time he met the respondent to deceive her into marriage in order to obtain a visa entitling him to remain and work in the United Kingdom.  The respondent’s position was that she was “extremely upset” by all these events.  She returned to the UK on her own, and, notwithstanding her upset at finding out that she had been to her mind deceived by him, she and her family made efforts with the relevant authorities to obtain a visa entitling the minuter to return to the UK and work in this country.

[7]        The respondent’s efforts on behalf of the minuter met with success and he was granted a visa and returned to the UK on 24 January 2007.  The respondent met the minuter at the airport and, according to her, immediately noted a change in his attitude towards her.  Whilst previously he had been solicitous and loving, he was now less interested in her and showed little appreciation for her efforts on his behalf.  Following the birth of the child in April 2007 the respondent’s position was that the minuter “had no regard for my welfare”.  After about a fortnight the respondent stated that the minuter “said he could not handle the responsibility of a wife and a child and he did not like having to pay the bills”.  He indicated that he was going to leave.  The respondent “begged him to stay”.  He did stay but the respondent’s position was that “he changed completely from that day on and he seemed to just switch off”.  In essence her evidence was that the minuter had little to do with her.  He worked nightshift.  On his days off he would go out on his own ignoring the respondent and the child.  In her affidavit the respondent went into considerable detail as to the minuter’s behaviour.  Whilst it is understandable that the respondent would wish to record this material, it is not of direct relevance to the issue before me and I do not rehearse it.  The respondent’s evidence was that the minuter continued to behave in an offhand and distant manner until he finally left on 31 July 2008.  The parties have not resided together since that date.

[8]        In relation to post-separation contact, the respondent’s position was that shortly after he had left, the minuter began to take an interest in the child in a manner which he had not when the parties had resided together.  She stated that she “felt he was becoming obsessive in an unnatural way”.  She said that he would:

“call and text all the time saying one minute he was going back to his country, (he said he had a flight booked and wished us a good life), to then saying he would not leave without his son and then saying he would take [EFH] and bring him back to me a Muslim and Tunisian”.

 

The respondent said that she immediately sought legal advice in relation to this behaviour and in this regard I observe that in terms of an interlocutor dated 24 November 2009, the respondent obtained interim interdict preventing the minuter from removing or attempting to remove the child from the care and control of the respondent or outwith the jurisdiction of the court.  Notwithstanding these concerns the respondent’s position was that she encouraged the minuter to settle down and obtain accommodation for himself.  She said that she would take the child into Edinburgh on Saturdays to visit his father.  She said that such visits were not a success.  Her position was :

 “Generally, he was not in any state to interact with [EFH] and again [EFH] was often ignored.  He would have no plans to take [EFH] anywhere or play with him, he only wanted to sit in coffee shops and talk on his phone.”

 

The respondent’s view was that these visits were a waste of time and that the minuter’s behaviour and attitude persuaded her that he was “clearly not interested” in the child.  These visits always took place in public places such as a museum, soft play areas or the zoo.

[9]        As I understand it this pattern of contact appears to have persisted until the divorce proceedings were raised in 2009.  Thereafter contact was always regulated by the court.  It was always on a non-residential basis for a period of hours in a contact centre.  Notwithstanding these precautionary measures, the respondent’s concerns about the minuter and in particular her belief that it was his intention to abduct the child and remove him from her care did not abate.  The respondent was of the view that the minuter was using contact to attempt to influence the child in his favour.  In her words:  “I believe he has a motive and agenda to gain [EFH’s] trust and groom him to remove him from my care.”  Beyond this the respondent noted that the minuter passed inappropriate quantities of presents to the child.  She was suspicious when the minuter provided the child with a card listing all the members of the minuter’s family.  She was also suspicious that the minuter was showing the child photographs during contact sessions and, contrary to specific rules in place at the contact centre, attempting to use his mobile phone to take photographs of the child during contact.  At 2012 her position was that she believed “there was a heightened risk of abduction”.  Her concerns became so great that she temporarily left her accommodation and, accompanied by the child, went to reside for a short period with her sister in London.  She sought advice on this matter from a children’s worker at Women’s Aid.  At this stage her concerns caused her to return to court seeking to vary contact to nil, which was ordered by the court on 13 June 2012, albeit “close supervised contact” was reinstated by order of the court on 13 December 2012.

[10]      A  proof was scheduled in the divorce action for March 2013.  By this stage Professor MacKay, a Child Psychologist, was actively involved in attempting to assist in alleviating and resolving the problems occasioned by contact. In this regard arrangements were made for contact to take place on two occasions in February 2013 at a contact centre.  The respondent’s evidence was that these did not go ahead as, according to her, the child refused to see his father.  Following the proof, the respondent’s evidence was that further arrangements were made for contact at the same contact centre.  The supervisor at the contact centre had agreed to be involved.  This person was known to the child.  On the day of the first contact after the proof, the child was “very wary” but happy to leave the respondent and go with the supervisor to the contact centre.  The respondent’s evidence was that at the end of the contact, some two hours later, the child’s attitude had changed, he would not speak and “he looked ready to cry”.  The respondent’s brother, JA who gave evidence, had agreed to accompany the respondent to and from the contact centre.  He confirmed that whilst he was in the car the child was “quiet and inward”.  The respondent’s position was that after she had dropped her brother at his home  the child started screaming and shouting hysterically and maintained that during the course of contact he had repeatedly asked for his mummy.  The respondent’s position was that similar upsetting circumstances surrounded the second attempt at contact after the divorce decree.  On the occasion of the third attempt at contact after the divorce decree she stated the child simply refused to attend.  He was taken in a car to the contact centre.  After considerable effort the respondent managed to persuade him to go into the centre but only on the undertaking that he would not be made to do anything if he did not want to.  The respondent’s position was that the supervisor spoke to the child and the respondent and asked him if he wanted to see his father.  The respondent said that the child replied in the negative.  At this stage the supervisor said that contact should not take place and the respondent took the child home.  There has been no contact since that time.  The respondent’s position is that the child has become more happy and settled since contact terminated.

[11]      The respondent’s position was that she opposed direct contact for two reasons.  Firstly, because the minuter has by his behaviour failed to take the opportunity of contact seriously.  Secondly, the respondent was unshaken in her view that the risk of abduction remained real.  She did not believe that the minuter’s intention towards the child was genuine.  She did not trust the minuter.  Both in cross-examiantion and in questions put directly by myself, it was suggested to her that the court could take steps to allay any fears she might have regarding possible abduction by the minuter.  She remained unconvinced that the court could put in place protective measures which would be capable of allaying her fears in this regard.  I put to her directly that her concerns might not have any rational basis in fact.  She accepted that possibility but notwithstanding that, remained of the view that there was a significant risk to the child if contact were permitted.  She was not even prepared to contemplate contact by means of a video link expressing the view that there might be clues in the background to the child on screen which would enable the minuter to ascertain where the child was and thereby facilitate abduction.

[12]      As already noted the respondent’s brother JA gave evidence.  He stated that whilst the respondent was in Tunisia for her wedding in 2006 she contacted him by telephone.  She was in what he described as a hysterical state and explained to him that she had discovered that the minuter had been telling lies to her and that he was an illegal immigrant.  He further confirmed that when the respondent returned home, she was “distraught”.

[13]      The pursuer’s mother, MA gave evidence.  MA also stated that she had been contacted by the respondent from Tunisia in 2006.  She also said that she had been informed by the respondent that she had discovered that the minuter was an illegal immigrant.  For her daughter’s sake MA contacted the British Embassy in Tunisia and attempted to assist.  She also confirmed that in January 2007 the minuter was granted a visa enabling him to return to the UK, she thought for a period of one year.  MA spoke to her noticing a change in the attitude of the minuter towards the respondent after his return to the UK from Tunisia in January 2007.  She said that after this the minuter “was no longer interested in us as a family and didn’t speak to us.”

[14]      The respondent’s final witness was Professor MacKay.  Albeit adduced by the respondent Professor MacKay gave evidence as an independent expert.  In these circumstances I propose to deal with the evidence of the Professor after outlining the evidence of the minuter’s witnesses of fact.

[15]      The minuter gave evidence on his own behalf.  He did not appear to dispute the respondent’s account of their relationship prior to their marriage albeit that he did not provide any significant evidence about the period between 2005 and 2007.

[16]      In relation to his immigration status, he denied ever misleading the respondent about this, but equally was unable to provide any particularly coherent account of the circumstances in which he came to initially live and work in the UK or to the circumstances of his disclosure that he was an illegal immigrant.  I note both his own counsel and myself pressed him in relation to the matter of his immigration status in 2006 and what exactly he told the respondent about this.  I do not consider that there were satisfactory answers to those questions.  In particular he was unable to provide any explanation in relation to documents emanating from the UK immigration authorities which plainly show that he had no legal right to remain in the UK.[3]

[17]      So far as the post 2006 position is concerned, the respondent maintained that he had returned to the UK in early 2007 on a temporary visa.  This position had pertained until May 2010 when he was granted permanent resident status in the UK.  He says he became a British passport holder, that is a UK subject, in 2013.  I did not understand any of that evidence to be disputed.

[18]      The minuter’s position was that he had been employed as a warehouseman in Edinburgh by the same company since 2007.  He said that he was “solidly settled” in Scotland and was happy here.  He maintained that he was integrated and assimilated into Scottish society and had a number of Scottish friends and acquaintances.  He had a two bedroomed flat which was well furnished and provided sufficient accommodation for EFH should contact be allowed on an overnight basis.  The accommodation in the flat would allow EFH to have a bedroom of his own.

[19]      He denied the respondent’s account of his attitude towards her and the child following the birth when the parties still lived together.  He maintained that he assisted and participated in the care of the then baby.  His position was that for whatever reason the respondent’s attitude towards him changed.  He also maintained that the respondent’s family’s attitude towards him changed after the marriage.  They became very negative towards him.

[20]      He accepted that the separation had occurred at the time stated by the respondent.  His overall position was however, as I understood his evidence, that he was more focussed on looking forward and had no desire to dwell on past events which he did not appear to regard as being of material significance in the context of the dispute currently before the court.

[21]      So far as contact is concerned he said that in the period immediately following separation contact was “more easy going”.  He accepted that the respondent would accompany the child to contact but said that “from time to time, indeed most times” the respondent would then go out leaving the minuter alone with the child.  His position was that when he was with the child they did what he described as the usual things such as playing football and so forth.  He also maintained that there were occasional overnight stays at the respondent’s flat and that these all went satisfactorily.  His position was that it was the respondent who stopped contact on her own volition in June 2012.  Up until that time he said there were no problems between him and his son and they got along together very well.

[22]      In relation to direct complaints about contact made by the respondent the minuter’s position was that he did, when asked, give the child details of his Tunisian background and family.  On occasion he attempted to teach him a number of words in Arabic.  He accepted that he gave the child gifts but did not think there were too many or were disproportionate.  He accepted that he had enquired of the contact centre whether he could take photographs with his mobile phone of his son.  He saw nothing wrong with this but now recognises that it was against the policy and rules of the contact centre.  He accepted that he had, again against the rules of the contact centre, given the child a card.  His position was however that he only had his son’s best interests at heart.  He had no intention of abducting the child.  He accepted that the child was well looked after and cared for by his mother, the respondent.  He could not understand the respondent’s fears of abduction.  He had never threatened to abduct the child and the question of abduction had only been raised by the respondent.  He had no intention of returning to Tunisia.  He regarded himself as materially better off in Scotland than he would ever be in Tunisia,  He regarded Scotland as his permanent home.  He wished to resume contact and rebuild his relationship with his son.

[23]      Alison Small also gave evidence.  She is a registered social worker employed by the care centre where contact was attempted in 2013.  She spoke to the minuter in January 2013, at a time when he had not seen his son for some 8 or 9 months.  She thought it “... fair to say that he appeared desperate to have contact with him ...”.  She also spoke to the respondent before any contact took place.  She said that the respondent “... expressed how concerned she was about [EFH’s} safety and emotional wellbeing”.  Ms Small spoke to two contact visits, on 23 February and 23 March 2013.  The contact arranged for 23 February did not proceed because “[EFH] repeatedly stated that he did not want to see [the minuter] and did not respond to the encouragement and reassurance I gave him”.  So far as 23 March was concerned she said before contact started [EFH] played with her in the contact room and, after initial apprehension, relaxed.  The contact proceeded and the child “enjoyed himself”.  She said [EFH] had a great time with his father and they played together.   [EFH] instigated physical contact and he responded positively to his father ‘s “demonstration of affection.”  On the basis of her dealings with the respondent she thought the respondent “completely opposed” to contact.  She stated that the respondent said that the minuter intended to abduct the child and that he would not be safe with his father.  She said that the respondent was not willing to:

“accept any alternative view of the situation and she was not able to manage her feelings about the contact visits.  It did not appear to me that she encouraged or promoted the contact visits”.

 

Ms Small further thought that the respondent:

“... was not open to discussing whether [EFH] might benefit from having a relationship with his father.”

[24]      I turn to the evidence of Professor MacKay.  Professor MacKay is an educational and child psychologist of very considerable experience.  His full CV was provided to the court which confirms his qualifications to assist the court in this case.[4]  At the time of his giving evidence he had prepared six reports in relation to the issue of contact in this case.  On my request he prepared a seventh report after his evidence was part heard.  In this last report he was asked specifically to consider his view on the options for the child in relation to contact with his father and his understanding of the risks associated with these options.

[25]      For the purposes of preparing his reports Professor MacKay had met the child on a number of occasions and had also interviewed the respondent and the minuter.

[26]      At the time of initially giving evidence, Professor MacKay spoke primarily to his report dated 2 December 2015, stressing however that he considered that regard should be had to all his previous reports in the case as they explained both the context of his current views and the evolution of his thoughts on the issues about which he has been asked to report.  In the report of 2 December 2015 the Professor had concluded that as a result of his meeting with the child he was aware that the child expressed in clear terms that he wished no direct contact with his father.  This view had been expressed as soon as the child began to talk with the Professor and had been maintained throughout the interview.  Notwithstanding these negative expressions the child had also spoken to the Professor in positive terms about indirect contact with his father in the form of receiving cards, presents and photographs.  He had also expressed a positive view about responding to his father in writing.  He also indicated that he “wouldn’t mind” having a video clip sent by his father in the form of a DVD.  He did not wish to reciprocate by sending video clips back to his father and said further that he did not wish to have live contact by means of Skype or some other form of internet communication.

[27]      It was the Professor’s opinion that these views expressed by the child were genuine, “but that they are not independently formed views”.  The Professor explained that these views had to be understood in the historical context of the dispute about contact between the parents which had gone on for many years.  That context was primarily that the respondent continues to hold what the Professor described as:

“... an unflinching view that [the minuter’s] intentions are not arising from a genuine interest in contact with [EFH] but rather from an aspiration to abduct him.”

 

His view, as expressed in earlier reports, was that the child had clear knowledge of his mother’s negative views towards his father.  As a result the child had formed negative views towards contact based upon what was said and done by his mother, whether intentionally or not.  The Professor believed that the child would be extremely concerned that any acceptance of his father by him would cause upset to his mother and this was something he would be anxious to avoid doing. 

[28]      As already noted after hearing part of his evidence I invited Professor MacKay to consider any options which might exist that might facilitate a resumption in contact.  He initially considered this matter over the luncheon break and on his return requested more time to consider the matter more formally.  Neither party took objection to this course and accordingly his evidence was continued to a further diet.  For the purposes of the continued diet Professor MacKay produced a further report dated 3 February 2016.[5]  On resuming evidence the Professor stated that he had considered three options, first, indirect contact as a standalone, second, what he described as a “routine order” for direct contact and third, an order for direct contact associated with a strong compulsitor.

[29]      In relation to indirect contact alone the Professor considered this could function relatively easily as both the respondent and the child had no obligation to this form of contact.  Further, he considered there would be some benefits from this type of contact providing it operated within certain boundaries.  Such a link would better than no link at all.  It would maintain for the child the idea that there was still something positive about having a link with his father which would, in the Professor’s opinion,

“... help to mitigate, albeit only in a very small way, the dominant and indeed overwhelming discourse regarding his father, namely, [the respondent’s] view that she does not believe [the minuter’s] intentions to [EFH] are genuine”

 

Third, this option would increase the chance of renewed contact at some future date.  The fourth benefit would be that the child would “feel empowered by knowing that his own views have been listened to”.  The fifth and final benefit was that in the short term the Professor thought that the child would present as better adjusted because a significant source of conflict in his life would have been removed.  The principal risk identified with this option, which also existed in the other options, was that in the medium to long term children who do not have contact with both their parents have, as an overall group,  poorer long term outcomes, in academic, emotional, and behavioural terms and in terms of their ability to form stable relationships, than those that do.

[30]      So far as a “routine order” for direct contact was concerned, the Professor’s opinion was that orders of this kind, in difficult and entrenched cases such as this, often do not work.  Despite attempts to bring children to contact centres, incidents arise which make contact unworkable from a practical point of view.  Adverse emotional and behavioural responses by children in such conflictual situations create “an unmanageable context.”  Contact centres will not force distressed children into contact.  Having regard to those considerations the Professor considered that direct contact within these routine arrangements would be “very  likely not to work”.  Against that background the Professor’s view was that the potential benefits from contact, which were the same as for indirect contact, would be likely to be lost.  Further, he considered there were additional risks with this option.  The likely breakdown in contact would be associated in the child’s mind with “negative associations and experiences”.  The child would again be placed in a conflictual situation which would be a source of upset to him.

[31]      So far as contact with a strong compulsitor was concerned, the Professor’s difficulty appeared to be what he saw as a practical difficulty that is in devising a compulsitor which would he sufficiently strong to work but did not carry possibly greater risks than the ultimate risk of contact not taking place.

[32]      Against the foregoing evidential background, the respondent’s submission was that there was, in the end of the day, little dispute on factual matters between the parties.  There were only two areas where it was submitted there was scope for divergent views in relation to the facts.  First, in relation to the minuter’s immigration status in 2006.  In regard to that matter, the court was invited to prefer the evidence of the respondent which was supported by the evidence of her brother and mother.  Moreover documentation produced also supported the respondent’s position.  The second area of dispute was whether or not the respondent’s fear of abduction of the child by the minuter was genuinely held.  Following on from this was a further issue as to whether or not the belief, whether genuine or not, was based on any objectively verifiable evidence.  The submission on behalf of the respondent was that because of the minuter’s deceit in relation to his immigration status the respondent had, rationally or otherwise, developed a genuine belief in his intention to abduct her child.  This belief was entrenched and, effectively, could not be shaken.  There was no evidence ,it was submitted, that the respondent had deliberately sought to influence the child adversely against his father.  Any influence she had exerted was at a subconscious level and as such should not be held against her.

[33]      Turning to the evidence of Professor MacKay, the submission was that he had recognised that there was no intentional attempt by the respondent to influence the child against his father.  He had accepted that any influence which the respondent exercised, it being accepted that such influence did exist, was at a subconscious level.  The effect of that had been that the child quite genuinely had no desire to have direct contact with his father.  The Professor’s opinion in relation to both forms of direct contact was that it would engender great stress to the child and, as a consequence thereof, would be unlikely to work at a practical level.  Having regard to these considerations what was characterised as “the least worse option” was to order indirect contact.

[34]      The submissions for the minuter did not dwell on the factual evidence.  As I understood it there was little if any attempt to demur from the body of evidence which suggested that the minuter was an illegal immigrant when he commenced his relationship with the respondent.  Moreover there was no real challenge in submission to the body of evidence supportive of the respondent’s position that she had been misled about this by the minuter.  Equally, there was little in the way of submission about the relatively modest amount of evidence in relation to events at contact.  At highest it seemed to be submitted that any infractions of the rules of contact centres in relation to taking photographs and passing messages were the result of lack of understanding on the part of the minuter rather than a deliberate attempt to elide rules.  More positively it was however submitted that the evidence all showed that the minuter was now a British subject who was settled, with a steady job and a permanent place of residence, in Scotland.  There was no evidence of any intention to abduct the child and remove him to Tunisia.  Further, the evidence from Alison Small and, at least to some extent, Professor MacKay supported the proposition that the minuter was a caring and loving father who got on well with his son and who had his son’s best interests at heart.  Counsel for the minuter did not accept that the respondent’s views on abduction were the result of a belief genuinely held even if unsupported by objective evidence.  His submission was that these were simply a device used because her purpose and intention was to prevent the minuter having contact.  The position was stated as being that the respondent had:

“... simply decided that, irrespective of [EFH’s] interest, she will not allow contact, irrespective of any order of the court.”

 

This last submission appears to have been made on the basis of an answer given by the respondent to a question put to her whether she would obtemper an order for direct contact if made by the court.  In response to this question she said:  “I would do what was best for my son”.

[35]      So far as Professor MacKay’s evidence is concerned, the submission was that the balance of his evidence favoured direct contact.  As between direct contact simplicitor or direct contact with a compulsitor, the submission was that any interlocutor granting contact should not come with specific sanctions attached.  It would be sufficient that parties were made aware that the court would enforce any order it made.

[36]      Counsel for the minuter drew my attention to Article 8 ECHR which provides, in general, for a right to respect for family life.  Beyond that, a number of cases were referred to:  Gnahore v France [2004] 1 FLR 800;  Kosmopoulou v Greece [20014] 1 FLR 800;  M (Children) [2013] EWCA Civ 1147;  in re:  M (Children) [2012] EWHC 1948 (Fam);  C (a child) [2011] EWCA Civ 521;  X v Y 2002 SLT 161;  re M (Contact – supervision) [1998] 1 FLR;  re OO (Contact – imposition of conditions) [1995} 2 FLR 124;  V v V [2004] EWHC 1215 (Fam);  TE v SH & S [2010] EWHC 192 and re A (intractable contact dispute – Human Right Violations) [2014] FL 1185, all under recognition that in the context of family law, cases tend to turn on their own facts.

[37]      In determining the issues before the court, I would initially, and briefly, deal with the issue of reliability and credibility.  In relation to that issue I deal with the minuter and respondent separately from the other witnesses.  So far as the witnesses other than the minuter and respondent are concerned, I have no basis to consider them other than reliable and credible.  They all gave evidence in a straightforward manner and appeared to be attempting to recall events about which they were asked to the best of their ability.  So far as the minuter and respondent are concerned, I take no issue with their reliability and credibility in general.  I do, however, require to consider the issue of their reliability and credibility in the context of the minuter’s immigration status in 2006 and the genuiness or otherwise of the respondent’s fears regarding child abduction.  I now turn to consider that issue.

[38]      In relation to the first of these issues, the minuter’s immigration status, I am satisfied that the respondent’s evidence is to be preferred.  She was clear, both in her affidavit and in her oral evidence that she had no knowledge that the minuter was an illegal immigrant until she discovered she was pregnant and she and the minuter decided to marry in 2006.  Her account of these events is, in my view, supported by the, again clear, evidence of her mother and brother both of whom spoke to her contacting them contemporaneously and in great distress about the situation when she discovered whilst in Tunisia for her wedding that that UK immigration authorities did not consider the marriage genuine.  I am also inclined to believe the respondent’s evidence that the minuter’s attitude towards her changed when he returned to Edinburgh in January 2007, a caring and solicitous person becoming a distant and uncaring one.  This could, regrettably, be consistent with the behaviour of someone whose real intention had been to marry and thereby gain a right to remain in the United Kingdom.  It is in my view less likely to be consistent with someone who had been frank about his immigration status with the respondent from the outset.  There is however one further tranche of evidence supportive of the respondent’s position.  This is the documentation from the UK immigration authorities.[6]  I find the terms of this material unequivocal and supportive of the respondent’s position.

[39]      It follows that I consider that the minuter was, in relation to his immigration status, an unreliable witness.  I further consider that he was deceitful in this respect towards the respondent at the outset of their relationship, at the time they decided to marry and up until the time of their marriage.  I consider that such conduct could well, as was suggested by the respondent, engender an underlying feeling of distrust towards the minuter.  I have already mentioned his change in behaviour towards the respondent following his return to Edinburgh in 2007 and I conclude that the relationship between the parties was not a trusting one after that time.

[40]      This leads in to the second issue, whether or not the respondent’s fear of abduction, even if objectively irrational, was genuinely held.  I consider this a most difficult issue to determine.  I observe that I did not have the benefit of any psychological evidence about the respondent.  It appears to me likely that the issue of whether or not a belief she held is genuine or not would, at least as a matter of probability, be a question where input from a psychologist could be of assistance.  However, in the absence of such assistance, I have to attempt to answer the question on the basis of the evidence available to me.  That evidence essentially comes from the respondent herself, albeit that Professor MacKay, who made it clear he had conducted no psychological evaluation of the respondent, at least accepted that her fears of abduction were genuine even if irrational.  Against the background of significant deceit by the minuter in the early part of the relationship and the respondent’s own evidence that because of this she could no longer trust the minuter, I incline to the view that the respondent’s expression of fear of abduction of her son is genuinely held.  I do however go further and express the view that even if that belief is genuinely held there is no objective or rational basis for it at the present time.  I say this because the minuter has now been permanently resident in Scotland for nine years, throughout which period he has held a steady job with the same employers, has a permanent place of residence, considers himself materially better off in Scotland that he would be in Tunisia and where there is no evidence of any effort on the part of the respondent since the parties’ separation to plan or effect an abduction of the child.  I also have regard to the consideration that there are a variety of protective measures available to the court designed to prevent abduction of children from this jurisdiction.  A party such as the minuter with links to a foreign country can be ordered to surrender his passport to the court during any period of contact.  “Port Alert Orders” can be made and put into effect at all UK sea ports and airports.  Whilst I do not suggest it would be appropriate in the present case monetary caution can, in appropriate cases, be ordered.  The fact that the availability of these measures were made known to the respondent and did not assuage her fears persuades me that even if the belief she has is genuine, it is irrational.

[41]      Having determined the two issues of fact relevant to determination of this case, there remains the issue of contact.  In my view, the choice is between direct or indirect contact.  I understand why Professor MacKay suggested as a third option which he termed direct contact with a strong compulsitor, but do not think that is an appropriate order to consider.  I agree with the submission by counsel for the minuter that any order of the court requires to be obtempered and that remedies exist for any failure to comply with a court order.  I see no attraction, or indeed merit, in the creation of a “strong compulsitor”, even assuming such could be legally devised.[7]  I believe that what may have been in mind when this was suggested was the possibility of an order for direct contact with the court making it clear that any failure to comply with such order would result in the transference of primary residence from the parent failing to comply with order to the other parent.  With great respect, I would regard that as no more than a threat and would be reluctant to sanction such measures by a court.

[42]      On the basis of Professor MacKay’s evidence, it is plain that there is no present detriment to an order for indirect contact.  From the standpoint of the child a number of benefits were identified as flowing from this approach.  The negative effect of limiting contact to an indirect type is, on the Professor’s evidence, long and medium term psycho-social disadvantages which have been evidentially demonstrated in groups of children who do not have contact with both parents.  These negative or deleterious long term effects are, in my view, very significant.  If I understand the Professor correctly the implication is that a child who does not have contact with both parents is at risk of sustaining harm which can have lifelong effect.  That consideration requires to be viewed in conjunction with the general principle in support of family life enunciated in Article 8 ECHR and the frequently judicially expressed view that contact with both parents should be achieved,[8] unless there are very cogent reasons why this should not occur.  It follows from these considerations that I would only be prepared to limit contact in this way if I were satisfied that direct contact was impossible in the sense that it carried a greater risk of harm to the child than the risk identified by the Professor in cases where the only contact was indirect.

[43]      So far as direct contact is concerned, I have already made it clear that I accept that the respondent’s fears about abduction are genuine, albeit I consider them to be irrationally held.  However I have also made clear that notwithstanding the respondent’s attitude, sufficient protective measures can be put in place to override any fears the respondent may have.  This leaves what are plainly the most important questions, that is the attitude of the child.

[44]      It is plain from Professor MacKay’s report that the child has expressed quite genuinely that he does not wish to have contact with his father.  It is also however equally plain that that belief is the result of influences upon the child engendered by his mother, subconsciously or otherwise.  There is, in my view, another factor to be considered.  That is the evidence of Alison Small and, to a lesser extent of Professor MacKay, to the effect that the child enjoys contact with the minuter and interacts well with him.  In Ms Small’s case this was seen at direct contact in 2013, Professor MacKay gives similar evidence relative to indirect contact since 2013.

[45]      I would be reluctant to impose direct contact upon a child who did not wish it but for the overriding requirement to have regard to his best interests which must, in my opinion, include his psycho-social development.  It is very clear from Professor MacKay’s evidence that there are significant disadvantages to this child if he does not have contact with both parents.  As I have already noted, Professor MacKay expresses the view that evidence shows that children that do not have contact with both parents have, as a group, a greater propensity to experience difficulties academically, psychologically, emotionally and in future relationships in later life.  These are, again in my opinion, very significant considerations which the court cannot ignore.  I have to weigh the potential for adverse effects in later life against a child’s currently expressed opinion against contact, always bearing in mind that that expression of view has been engendered by his mother’s attitude and that when he actually experiences contact he enjoys meeting his father. 

[46]      There is one further factor which I require to consider.  Professor MacKay made it clear that the stressor on the child was that he felt the need to please his mother, the respondent, and did this by expressing views which were hostile to his father and to contact with his father.  This is a very serious matter which has the potential both to cause harm to the child and to affect the chance of future contact operating successfully.  It is, regretfully, in my experience, a not uncommon feature of contact disputes, particularly those of an intractable nature.  In my opinion the best, and possibly the only, way to address this lies in the hands of the parents.  They have in my opinion an overriding duty to put aside any antipathy, distrust or resentment held towards a former spouse in order to ensure that their child is not exposed to the sort of risks identified by Professor MacKay in his evidence.  I would advise the respondent to take this fact on board in the current case.

[47]      Taking all these considerations into account, I have concluded that it is in the best interests of this child if direct contact with his father can re-established.  I accept that considerable care requires to be taken to devising a plan aimed at re-establishing direct contact.  My view is that contact by means of Skype, or similar electronic means, should be the first step.  An appropriate period for this would, in my view, be relatively short, say three or four sessions.  This would be followed by a number of sessions of supervised direct contact, my view would be for a period of approximately three months with sessions at fortnightly intervals.  Thereafter, and if the foregoing was successful unsupervised contact could be commenced.  I would propose to put the case out By Order to discuss timing for contact on this basis.

 



[1] No 20 of process at page 16

[2] (dated 28 November 2011, number 6/13 of process, 11 June 2012, number 6/12 of process, 5 November 2012, number 20 of process, 11 March 2013, number 29 of process, 26 December 2014, number 34 of process, 2 December 2015, number 6/18 of process, and 3 February 2016 number 51 of process)

[3] Number 6/5 of process

[4] Professor MacKay’s CV is appended to each of his reports in this case, all of which are lodged as productions.

[5] No 51 of process

[6] No 6/5 of process

[7] See the observations on the subject by McFarlane J in Re A (Intractable Contact Dispute:  Human Rights Violations) [2014] 1 FLR 1185

[8] Examples of this are to be found in the authorities cited by counsel for the minuter and noted in paragraph [36]