Sheriffdom of Grampian, Highland and Islands at Wick

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Act: Mr. James Donald, Solicitor, Nairn

Alt: Mr. Eric Baijal, Solicitor, Thurso

Wick, April 2010

The Sheriff, having resumed consideration of the proof, productions, Joint Minute of Agreement (No. 17 of Process), and the whole cause,

Finds in Fact that:-

1. The aftermentioned child to whom the action relates is habitually resident within the Sheriffdom of Grampian, Highland and Islands, and the parties are unaware of any other proceedings continuing or concluded in Scotland or elsewhere which relate to him.

2. About January, 2003, the parties commenced to cohabit with each other, latterly in Blackburn, Aberdeen.

3. On 20 July, 2004, the Defender gave birth to a male child, R.H.. In the birth certificate (No. 5/4 of Process) the Pursuer is noted to be R's father and is signed by him in addition to the Defender.

4. Initially the parties' cohabitation was relatively harmonious, they contemplated marriage and the Defender's pregnancy and R's birth were welcomed by both.

5. The parties separated on 11^th May, 2008, having never been married to each other at the time of R's conception or subsequently.

6. When the parties separated R remained with the Defender and they now reside at 8 Coghill Street, Wick, the home of the Defender's parents. The Defender is employed as a staff nurse at Caithness General Hospital, Wick.

7. After the separation the Pursuer continued initially to reside in Blackburn, aforesaid. At that time he was employed as a senior branch manager by Welcome Finance, a financial services business. The distance between Aberdeen and Wick by road or rail exceeds 200 miles. When the Pursuer exercised residential contact with R, this involved him in driving from Aberdeen to Wick to collect him and making a similar journey at the end of each contact period to return R, an overall distance in excess of 800 miles. In order to avoid the inconvenience, expense and time, the Pursuer moved to Balloch, Inverness. He is now employed as an operations manager by British Telecommunications plc in respect of which he earns about £19,000 less per annum than in his former employment.

8. While the Defender has never opposed the Pursuer's having contact with R, the Pursuer and she had not agreed the specific arrangements for contact at the time when this action was raised on 22 August, 2008. On 3 June, 2009, however, the parties agreed terms of contact in terms of the Joint Minute No. 17 of Process, to which on said date the Court interponed authority and made a contact order in the Pursuer's favour.

9. The Defender continued and continues to oppose the granting of a parental responsibilities and rights order in the Pursuer's favour.

10. The arrangements for the care and upbringing of R are satisfactory, and the accommodation which the Defender and he occupy at Wick, is suitable.

11. The arrangements for R's care during contact with the Pursuer are also satisfactory, as is the accommodation which they occupy during such periods.

12. Prior to the parties' separation the Pursuer occasionally behaved irresponsibly. Over a period of months he indulged in online gambling as a result of which he sustained losses of about £8,000 in total. This was broadly offset by a bonus payment from the Pursuer's employers, whereby the family's standard of living was affected adversely only negligibly if at all. On about two occasions the Pursuer indulged in the consumption of alcohol to excess and returned home under its influence, to the distress and annoyance of the Defender.

13. Since the parties separated the Pursuer has exercised contact with R regularly at fortnightly intervals. In this the Pursuer has been consistent despite the distance separating him from the Defender, and he has so exercised contact willingly and conscientiously.

14. R has enjoyed and continues to enjoy such contact and looks forward keenly to his meetings with the Pursuer. There is a warm and affectionate bond between the Pursuer and R.

15. An independent report on R and the arrangements for his care and upbringing was prepared by Mrs. Angela Simpson, Solicitor, Inverness (No. 9 of Process). Mrs. Simpson concluded that it was in R's best interests that the Pursuer should have parental responsibilities and rights in relation to him, and better that an order to that effect be made than that no order be made.

16. In character the Pursuer was more extrovert and decisive than the Defender who tended to be indecisive and timid.

17. Both parties are genuinely devoted to R and have been constant in their attention to and support for him. R for his part has a very strong and loving relationship with each party. He is happy, boisterous and well adjusted.

18. The Pursuer's motivation in seeking an order for parental responsibilities and rights is to permit him to have prompt and direct access to R's school reports and take a direct part in any discussion about R with the school authorities; to have direct and prompt access to R's medical records and direct access to his doctors if necessary; and to liaise with the Defender regarding holiday arrangements and the like. The Pursuer considers that in the absence of his having such responsibilities and rights he is denied the opportunity to contribute as he would wish to R's upbringing and development.

19. The Defender's reservations about the Pursuer's having such responsibilities and rights are that she apprehends that he would abuse same by seeking to impose his own views and ignore her views and wishes; and in the Defender's perception there are no sufficient reasons for the Pursuer's being granted the order which he seeks.

20. R is too young at present for his views to be ascertained but ex facie of Mrs. Simpson's report and aliunde in the evidence it is to be inferred that he would not be upset or disturbed by the granting of the order sought.

21. The Defender's apprehensions regarding the order which the Pursuer seeks will be reduced by the Pursuer's refraining from interventions in day to day matters.

Finds in Fact and in Law that:-

1. The Court has jurisdiction.

2. It is in R's best interests that the Pursuer have parental responsibilities and rights in relation to him and it is in his better interests that such an order be made than that no such order be made.

Finds in Law that:-

1. It is unnecessary to take further measures to ascertain R's wishes, having regard to his tender years and the information deduced from Mrs. Simpson's report and aliunde in evidence.

2. The Pursuer is entitled to parental responsibilities in respect of R in terms of Section 11(1)(a) and (b) of the Children (Scotland) Act, 1995, as amended.

THEREFORE Sustains the Pursuer's first plea in law; Repels the Defender's first plea in law; Finds it unnecessary to deal with the Pursuer's second plea in law in respect that it has been superseded; Orders that the Pursuer shall have parental responsibilities and rights in relation to the child R I.M. in terms of Section 11(1)(a) and (b) of the Children (Scotland) Act, 1995, as amended; Finds it unnecessary to deal with the Pursuer's second crave; Dispenses with intimation of the Initial Writ and these proceedings on the said child in respect that he is too young to understand their purport adequately; and Reserves meantime all questions of liability for expenses.

Sheriff

NOTE:-

1. GENERAL:-

1.1 In this case the Pursuer sues the Defender. They are the unmarried parents of R, who lives with the Defender. There was no dispute that R should continue to live with the Defender. Further, there was no issue that the Pursuer should have regular contact. At the time when the action was raised, the specific details of contact were still in issue, but these have now been agreed in terms of the Joint Minute, No. 17 of Process, to which authority was interponed on 3 June, 2009. The only matter remaining in dispute and in issue at the proof was whether the Pursuer was entitled to parental responsibilities and rights in relation to R under Section 11(1)(a) and (b) of the Children (Scotland) Act, 1995, as amended.

1.2 Evidence was led on 3 June and 9 September, 2009, and submissions in evidence were heard on 11 March, 2010. (This last-mentioned diet had been scheduled for December, 2009, but unfortunately had to be postponed on account of my unavailability due to illness at that time, which I regret).

1.3 The Pursuer was represented by Mr. James Donald, Solicitor, Nairn, and the Defender was represented by Mr. Eric Baijal, Solicitor, Thurso.

2. EVIDENCE:-

2.1 Evidence for the Pursuer was led from the Pursuer.

2.2 Evidence was led for the Defender from (i) the Defender and (ii) I.S.M. (the father of the Defender).

2.3 As the notes of evidence have been extended and are now available for reference in Process in two volumes (as Nos. 19 and 20 of Process), it is unnecessary for me to rehearse the evidence in detail. References in parentheses hereinafter are to the pagination and lineation of the notes of evidence where the context so admits.

3. THE LAW:-

3.1 Statutory Provisions:-

(i) Children (Scotland) Act, 1995 ("the Act of 1995"); and

(ii) Family Law (Scotland) Act, 2006 ("the Act of 2006").

3.2 Cases:-

(i) White v White, 2001 S.C., 689; and

(ii) W.T. v R.M., 2007 S.C.L.R., 447.

3.3 The action was raised on 22 August, 2008, and, in respect that R was born prior to the change brought about by the operation of the Act of 2006, the Pursuer qua father had no automatic parental responsibilities or rights in respect of R. He was not (and never) married to the Defender qua mother; and even although the Pursuer was named in the birth certificate as father, as the change did not have retrospective effect.

3.4. In White v White the First Division ruled that making an order under inter alia Section 11 of the Act of 1995, the Court is required to have regard to the welfare of the child as the paramount consideration, and it will generally be conclusive regarding the welfare of the child if the absent parent maintains personal relations and direct contact with the child on a regular basis (5.1 of Act of 1995). In that case Lord McCluskey (at p.703) expressed the two important principles at paras. 9 and 10 respectively as follows:-

" 9 It follows that the possibility and the advantages of maintaining the link between the father and his daughter fall to be taken into account when the court comes to make the judgment required of it under the 1995 Act; but, however its importance may be assessed in the circumstances of any particular case, it is one factor among many. It may be determinative; it may not. It must always be a matter of weighing all the material bearing upon welfare and the interests of the child. It would be impossible to list all the other matters that might be relevant, because life constantly throws up unprecedented circumstances; and the law has to be flexible enough to cope with the unforeseen.

10 On the matter of onus of proof, it is inconceivable that a court, charged with the duty in such a case of making a decision about the interests and welfare of a child and having heard the evidence of the parents and others, whether family friends, or relatives, or professionals such as teachers or psychologists, would make its judgment on the basis of the failure of one party or the other to discharge the onus of proof. To do so would be to abdicate the responsibility that the Act has laid upon the court to decide on the basis of the welfare and the interests of the child, and not upon technical considerations that have nothing directly to do with welfare or the interests of the child. After all, the child commonly has nothing to do with the presentation of the case to the court, whether by the parent or by any other person. The law, as your Lordship has demonstrated, gives a potential value to the maintaining of the link between the child and each of her natural parents. The judge who approaches the issues raised in an application for a sec 11 order does not do so value-free. Once that is recognised, it can be seen that in the real world, under the 1995 Act, there is no conceivable circumstance in which the court will have to decide such an important matter as the future of the relationship between a child and her natural parents on the basis of the onus of proof."

3.5 In W.T. v R.M. Sheriff Morrison made a very full and careful analysis of the criteria for the granting of an order for parental responsibilities and rights which I respectfully adopt. After affirming that the welfare of a child is not to be determined by the technical question of discharge of onus of proof, but by an assessment from the whole evidence of what was in the best interests of the child, he went on to enumerate eight criteria (not necessarily inclusive) which were paramount to consideration of the welfare of the child. I shall return infra to these individually, including whether it is better in R's interests to make the order than not to make any order. Although it was pointed out and accepted in the course of submissions that the decision of Sheriff Morrison qua brother Sheriff was not binding but merely persuasive, I make it clear that I accept his analysis of the law in all respects, and in reaching my decision I have sought to apply his reasoning.

4. SUBMISSIONS FOR THE PURSUER:-

4.1 As the Pursuer's Solicitor has been considerate to lodge his submissions (including proposed Findings in Fact) in written form, I have adopted the expedient in the interests of accuracy and completeness of reproducing these (as Appendix "A") to this Note.

4.2 The general thrust of the submissions for the Pursuer was as follows. In an application of this nature the matter was not to be determined by discharge of onus of proof but upon the whole facts and circumstances touching upon R's welfare. Further, R's welfare was the paramount consideration and the factors advanced in the Pursuer significantly outweighed those established against him. Finally in this connection, the Court was statutorily directed to have regard to whether it was in the child's better interests that an order be made than that no order be made.

5. SUBMISSIONS FOR THE DEFENDER:-

5.1 The Defender's Solicitor was also considerate enough to lodge his submissions (including proposed Findings in Fact) in written form. Again I have adopted the expedient in the interest of completeness and accuracy of reproducing these as Appendix "B" to this Note.

5.2 In supplement of his written submissions the Defender's Solicitor laid particular emphasis upon the likelihood of the parties failing to co-operate as a reason to refuse the Pursuer's application. He referred to the passage in Lord McCluskey's judgment in White v White to which I have referred. He accepted that the facts in that case were not identical to those in the present case, but drew to attention that no order for parental responsibilities and rights was made. He went on to pose the entirely apposite questions of what prejudice there would be to R if the order craved and what benefit would accrue to R if it were refused, and suggested that "none" was the answer to both these questions. Even if the Pursuer were to obtain prompt and direct access to any reports relating to R's health, it was difficult to understand how that might be of clear benefit to R. He stressed that the overriding consideration was benefit to the child, a test which the Court was required to approach in a structured way.

6. ASSESSMENT OF CREDIBILITY, RELIABILITY AND CHARACTER OF WITNESSES:-

6.1 Both parties impressed me as intelligent and genuinely very fond of and attached to R with his best interests in mind. It is correct that they differed to some extent in their recollections of their time together before they separated, with a tendency to express inferences adverse in relation to the other; I do not consider that either was deliberately misleading or seeking to mislead the Court, but simply seeking to present their own respective positions in best light. The Pursuer impressed me as the more extrovert, self confident and decisive, while the Defender seemed shy, hesitant and indecisive. I formed the impression that the Defender's reluctance to share parental responsibilities and rights with the Pursuer was probably indicative of her being somewhat over-protective of R.

6.2 I.S.M. is the father of the Defender and he was the only other witness. He opined against granting a parental responsibilities and rights (20/109C-D) and he gave as the reason for his apprehension that the Pursuer would be manipulative and excessively controlling. He mentioned an occasion when the Pursuer shouted angrily at the Defender in R's presence (20/111B-F and 112A). This of course was very ill considered but, given the passage to which I am about to refer, it does not appear to have had any scarring or lasting psychological effect on R. Mr. M went on to say that, like the Defender, he welcomed the Pursuer's having continuing direct contact with R (20/118D - 120A). The witness was therefore in the position of approving and indeed welcoming continuing contact but resisting the Pursuer's having parental responsibilities, all on the assumption that the Pursuer would seek to dominate the Defender.

7. CONCLUSIONS:-

7.1 In W.T. v R.M. Sheriff Morrison identified eight criteria which should be considered in determination of an application for parental responsibilities and rights (although there might be others). I shall consider these individually, and for convenience I shall adopt the same sequence as was applied in W.T. v R.M.

7.2.1. The first criterion to which Sheriff Morrison referred was the degree of commitment by the applicant to the child. The Court held that although the relationship between father and daughter had broken down over a period, there was no doubt the Pursuer "..... is very committed to [his daughter] and to have a relationship with her. He has been devoted to her. He has always wanted to have contact with [his daughter]". In the present case there can be absolutely no doubt whatsoever of the quality and constancy of the Pursuer's commitment to R. I say this on the basis that, whatever differences may have developed between the parties, the Pursuer very commendably has always maintained contact with R. This extended throughout the period since the parties separated up to the present. This occurred while the Pursuer was still living and working in Aberdeen, while R had moved with the Defender to Wick. It must be kept in mind that this involved a return journey of some 400 miles at the commencement of a weekend contact period and a similar journey to return R to Wick at the end of each such period, a formidable and daunting total of some 800 miles per direct contact period, once a fortnight. This in itself speaks eloquently of commitment. That apart, however, on the whole evidence the Pursuer has been firmly and consistently committed to maintaining contact, both directly and by telephone, and to a close paternal interest in R, while for his part R has been consistent in his affection for the Pursuer.

7.2.2. The next issue to be examined is the degree of attachment between the Pursuer and R. In contrast to the facts in W.T. v R.M. where the relationship had broken down for a significant period, that between the Pursuer and R has been continuous. There was really no dispute that the Pursuer is quite devoted to R. The depth of that devotion is demonstrated by (i) his persistently maintaining regular contact despite the considerable distance separating him from R, to which I have already referred; (ii) the comment of Mr. M: "R loves his father"; (iii) the Pursuer's pursuit of the action, clearly involving significant expense, apparently without the benefit of Legal Aid; and (iv) the Pursuer's preparedness for the sake of R to move home and employment from Aberdeen to Inverness, and that with a substantial reduction in his income.

7.2.3. The third criterion identified by Sheriff Morrison was the importance of commitment and attachment for the child's welfare. In the present case, in contrast to the decision which has been cited, there was no independent evidence from an expert such as a psychiatrist or a psychologist. In reaching a decision I do not think that in the circumstances this places me at any significant disadvantage. I take that view on the basis that by all accounts R is a lively, happy boy. He has a good home with the Defender, and in the person of his grandfather who provides a masculine influence, with the Defender and her parents there is a responsible and caring environment and there is appropriate provision for all his material needs. Nevertheless there exists between R and the Pursuer a close and genuine bond, nurtured over the years, to which I have already referred, and there can be no doubt on the whole evidence, it is not difficult to imagine how distressing and possibly harmful it would be to R if this was to break down. He would suffer psychologically. While R has experience of and is acquaint with contact, the concept of parental responsibilities and rights is a more abstract and indefinite concept which may well be beyond his comprehension at present. Even so, and even if regular face to face and telephone contact could continue in conjunction with a denial of parental responsibilities and rights to the Pursuer, this would clearly have a tendency to make the Pursuer feel less engaged and committed, to R's potential disadvantage.

7.2.4. The fourth criterion identified by Sheriff Morrison was identification of the applicant's motives. Although the Defender was inclined to attribute to the Pursuer a desire to interfere with and manipulate her in arrangements for R's care, I consider this was somewhat unfair and uncharitable when viewed against the great commitment to and efforts which the Pursuer has demonstrated to R and to which I have referred supra.

7.2.5. The Pursuer's motives in pursuing the application are important. Are they, as the Defender suggested, the Pursuer's means of endeavouring to manipulate and control her? The whole evidence, e.g. the time, inconvenience and expense incurred by the Pursuer in maintaining regular direct contact with R, pointed to genuine attachment, and not to any ulterior objective. Further, it is not without significance that the present action was raised in 2008, a relatively short period after the parties separated. The Pursuer does not have the cushion of being legally aided and it would be curious and bizarre if he were to pursue an action of this nature at doubtlessly considerable personal expense not on account of R but as a Machiavellian means of controlling and manipulating the Defender. I did not form that impression of the Pursuer.

7.2.6. The Pursuer has always declared his willingness to do his best for R. No doubt R would readily indicate that he enjoyed and wished contact with the Pursuer to continue, but he is too young to understand fully the more subtle and complex concept of parental responsibilities and rights. In this regard, however, I think that it is legitimate that R's wishes may be in inferred from the whole evidence. In the present case, in contrast to the facts in W.T. v R.M., contact has never broken down. R is still quite young, but there was nothing convincing in the evidence to indicate that the Pursuer would not listen to his wishes, rather than to assert his perceived rights qua parent. As Sheriff Morrison points out, to listen to and have regard to a child's wishes is not the same as to give a child power to decide his or her own best interests. If the Pursuer is to have parental responsibilities and rights, he will require to resist any temptation to flaunt his authority and to behave sensitively and responsibly towards R, and to refrain from seeking to interfere or impose views on minor matters upon the decisions of the Defender qua parent with day to day care.

7.2.7. The penultimate matter to which Sheriff Morrison referred was the protection of the child from any distressing conduct. Under reference to the preceding Findings in Fact, there were accounts of the Pursuer's having shouted at the Defender (before the parties separated) also (per Mr. M) of the Pursuer's having shouted on another occasion. It is unclear what lay behind these episodes but that matters not. What does matter is the fact that parental discord can be enormously distressing to a young child, and possibly perceived by the child as a matter of enormous gravity even although possibly quite trivial in reality. Further, even if there is no overt parental discord and discontent parents simulate harmony in the presence of the child, even a very young child can sense that all is not well. I am confident that both parties, both intelligent persons, are capable with a little reflection of putting their differences aside for R's sake. In any event, having regard to the time which has elapsed since the separation and resolution of the parties' financial affairs, it is not unreasonable to expect that henceforward friction between the parties would cease or be greatly diminished. A party minded to ignore this admonition should be aware that his or her retention of such rights will be at risk. I believe that there is no good or compelling reason why now the parties should not co-operate on matters such as R's health or education, and resolving any issues by mature and civil discussion rather than by hostile argument. I urge the parties to show flexibility, goodwill, a willingness to compromise and to use common sense. (In W.T. v R.M. the parties appeared to have been much more entrenched in their respective positions).

7.2.8. The final criterion is whether it is better to make the order sought than to make no order. This is a matter of great importance to which the Act of 1995 requires the Court to have regard. This involves a balancing exercise in which the Court requires to exercise its discretion. In my view after examining the whole evidence and circumstances that, having regard to the facts of the case of W.T. v R.M., the parties differences are very significantly less.

7.3 It will be apparent from the foregoing that I am disposed to grant the Pursuer's application. I have decided to do so after giving the whole matter very full and anxious consideration. I would, however, expect the Pursuer to fulfil the following undertakings:-

(i) To restrict seeking to intervene in R's upbringing by confining such interventions to matters of significant importance affecting R's health, education, welfare or the like. I trust that both parties will have regard to the warning given supra.

8. EXPENSES:-

8.1 After some discussion the parties' Solicitors made a joint motion that all questions of expenses be reserved pending my decision on the merits. This I have done.

9. SUPPLEMENTARY:-

9.1. I would like to take this opportunity to thank both Solicitors for the thorough preparation and careful presentation which they had devoted to this case.