D.T. v. G.G.


Case No: F55/09




Sheriff of Grampian, Highland and Islands at Inverness

in causa






Act: Jack, Advocate, Cowan Douglas Law, Solicitors, Inverness

Alt: MacPherson, Advocate, Macleod & MacCallum, Solicitors, Inverness

INVERNESS, 19 July 2012

The Sheriff, having resumed consideration of the cause, finds the following facts admitted or proved:-

(1) The pursuer and the defender are the natural parents of the child "R", born [day and month] 2008 ("the child").

(2) The pursuer has no other children. The defender has four other children from a previous marriage.

(3) The pursuer and the defender each have parental responsibilities and rights in respect of the child arising from the Children (Scotland) Act, 1995.

(4) The parties cohabited between around October 2006 until 27 December 2008 in the pursuer's property at "BC" in [named location]. They were never married to each other.

(5) The child was planned and wanted by both parties.

(6) From her birth until the parties separated in December 2008, the pursuer was fully involved in the daily care needs of the child.

(7) Neither party is currently in paid employment. The pursuer is of independent means. He derives his income from his family business interests, in particular income from rental properties.

(8) The defender is a full time mother. She gave up work when her oldest child was born. She did not work for around 16 years. When her fourth child started school she took on a part-time job as a playground assistant and learning support auxiliary at that child's school, "G" Primary. She left that employment and since the child's birth, has not worked. She currently carries out voluntary work for a few hours one day a week. Her income is solely derived from benefits and maintenance paid to her by the fathers of her children.

(9) The parties planned to marry in September 2008. A prenuptial agreement was prepared on behalf of the pursuer and presented to the defender. The agreement was never signed and the wedding was cancelled.

(10) In December 2008 the pursuer ended the relationship. He moved from the parties' residence at "BC" into an adjacent flat. The defender's 18 year old son had been living in the flat. He vacated it and returned to "BC" to live with his mother and siblings.

(11) From December 2008 until March 2009 the pursuer spent between six and nine hours a day at "BC" exercising contact with the child. The defender allowed him to enter the house and exercise such contact.

(12) In or around March 2009 the defender removed herself, the child and her other children from "BC" but did not advise the pursuer of their whereabouts. This disrupted the contact between the child and the pursuer for some time.

(13) The defender and her children resided at "BF" between March and April 2009.

(14) In or around April 2009 the defender moved to Inverness. She registered the child at [a named medical practice] on 14 April 2009 without consulting the pursuer.

(15) Court proceedings were raised by the pursuer in April 2009.

(16) At a Child Welfare Hearing on 8 April 2009 interim non residential contact was awarded to the pursuer from 9.30 am to 2.30 pm 4 days a week on a two weekly cycle. A report was ordered from a court reporter.

(17) After further procedure, including a number of child welfare hearings, an interim order was pronounced by the court on 1 July 2009 which provided for residential and non-residential contact for the pursuer. Non residential contact was extended to 9.30 am to 5pm, 3 days a week with one overnight stay per fortnight from 9.30am one day until 12 noon the following day. When the pursuer was not exercising contact on a residential or non-residential basis, the child was to be in the care of the defender. An interim residence order was made in favour of the defender.

(18) The interlocutor of 1 July 2009 also ordered that a "book of the child's routine" be completed by both parties. This book was to travel with the child as and when contact took place. The defender made the initial suggestion to use the book. Subsequently the defender unilaterally stopped using the book, contrary to the court order and without any reference to the pursuer.

(19) In May 2009 the pursuer, when exercising contact, noticed a mark on the child's foot and on returning the child to the defender, asked her about it. On or about 15 May 2009 the defender consulted the GP with the child. The defender was distressed and advised the GP, in the presence of two of her other children, that she could not rule out the pursuer causing non-accidental injury to the child. She alleged that the pursuer was responsible for the injury.

(20) At said consultation the child was stripped down completely. The doctor checked the child but found no other lesions, and told the defender it was not a new injury. The defender caused a Child Protection Investigation to be instigated concerning the child. Nothing of a Child Protection nature arose as a result of this investigation. The defender then failed to make the child available for one contact session, contrary to the court order.

(21) At a Child Welfare hearing on 7 October 2009 a further interim order was made increasing the pursuer's contact to include 2 overnight stays per fortnight. That order has remained in force without variation until the proof.

(22) On or about 15 March 2010 the child burnt her foot by stepping on hair straighteners lying on the floor, while in the care of the defender. The injury required medical attention.

(23) In or about March 2011, through his solicitors, the pursuer requested an increase in contact.

(24) In or about March 2011 the defender instigated another Child Protection Investigation in respect of the child. She raised matters of alleged sexual impropriety by the pursuer against the child ("the "s" incident"). As a result of these allegations the child was removed from the care of the pursuer without warning, by police officers, in the early hours of the morning. The child was also subject to a joint investigative interview by police and social workers. Nothing of a Child Protection nature arose as a result of this investigation. In or about March 2011 the defender failed to make the child available for contact sessions as ordered by the court.

(25) In May 2011 the defender's then agents withdrew from acting on her behalf. New agents were instructed by her.

(26) In January 2012 the defender instigated another Child Protection Investigation in respect of the child. She again raised matters of alleged sexual impropriety by the pursuer against the child ("the "g" incident"). The child was jointly interviewed on two occasions in January 2012 by police officers and social workers. She was also taken for a medical examination. The examination did not take place because the child became extremely distressed and the defender decided not to cooperate with the proposed examination. Nothing of a Child Protection nature arose as a result of this investigation. In January 2012 the defender failed to make the child available for contact sessions as ordered by the court.

(27) On 23 January 2012 the defender was ordained to appear at court to explain her failure to obtemper the court interlocutor of 7 October 2009. After initially moving, through her solicitor, for contact to be reduced to nil, she withdrew that motion and ultimately, having admitted failing to obtemper the court order of 7 October 2009, undertook to comply with the court order from then on in relation to contact. The question of contempt of court was continued to a further hearing on 31 January 2012 then again to the proof which had been fixed to commence on 20 February 2012.

(28) On 20 February 2012 the proof was discharged ex proprio motu by the presiding sheriff and new dates were fixed for June 2012. At that hearing, the defender again moved to vary the contact arrangements. That motion was refused.

(29) The pursuer provides a good standard of care for the child. He has not committed any act of sexual impropriety against the child.

(30) As a result of the allegations made against him by the defender, the pursuer was detained by police officers. He spent some time in the police cells at Burnett Road Police Station, Inverness. He was subject to interview by the police. He was not charged with any criminal offence.

(31) The pursuer's sister, (who is a registered foster carer with Highland Council and has child protection training), has been prevented from fostering children because of the allegations made against her brother. She had a duty to disclose any allegations that might affect her position as a foster carer and immediately did so. Two children, who were expected to remain with her on a permanent foster placement until the end of their education, were moved to another placement.

(32) Both parties are financially able to provide for the child.

(33) The pursuer has adequate stable and settled accommodation, which he owns, with space for him and the child to live in. The child knows that accommodation well, having lived there with both her parents initially, and thereafter during contact with the pursuer.

(34) The defender has rented property in Inverness which is adequate for the needs of herself, the child and her other children who remain at home. The child knows that accommodation well and has lived there now for over two years.

(35) The pursuer has exercised contact and residential contact in terms of the court interlocutors since 8 April 2009 without interruption, except on the occasions when the child has not been presented for contact by the defender.

(36) The pursuer has a supportive family network, including his parents and a sister who has training and awareness in matters of child protection.

(37) The defender is an experienced mother and has support from her older children and friends.

(38) The pursuer is committed to both parties playing a full part in the child's life.

(39) The defender's commitment to the pursuer playing a full part in the child's life is, at best, ambivalent.

(40) The defender has, on occasion, failed to obtemper court orders in the past.

(41) The defender has failed in her parental responsibilities towards the child, on occasion, in the past.

(42) Both parties are capable of providing appropriate care for the child on an individual basis.

(43) Both parties find it difficult to communicate and co-operate with each other in the child's best interests. The child is aware of these difficulties. She is a bright, assertive and pleasant child. She is already able to compartmentalise her feelings for her parents. She does not speak to one parent about the other and vice versa. Her emotional wellbeing is at risk because of the conflict and discord between her parents.

(44) The social work department of Highland Council have become involved with the child because of concerns about her parenting. These concerns relate to both parents, the conflict between them, and the distress this is causing to the child.

(45) The defender's eldest child, [named] no longer lives with her. He is due to leave the Inverness area in around September 2012 to join [named occupation] in England. The defender's second son, [named], is due to start university in [named city] in September 2012. The defender's eldest daughter, [named], is likely to leave the Inverness area to enter further education or work abroad in around autumn 2013. Her second daughter, [named], starts secondary education in Inverness in August 2012.

(46) The child attends "G", a pre-school nursery, three days each week. She is happy there and developing well.

(47) The child attends "M", a pre-school nursery, two days each week. She is happy there and developing well.

(48) The child is enrolled at and a place is available for her at "G" Primary School with a commencement date of mid August 2012.

(49) The child is enrolled at and a place is available for her at "M" Primary School, Inverness, with a commencement date of mid August 2012.

(50) Both primary schools are suitable and adequate for the child's primary education.

(51) Both parties love the child.

(52) The child has a strong bond with both parties.

(53) As the parties have been unable, or unwilling, to co-operate and agree residence, contact and schooling for the child, it is necessary for the court to regulate this by way of court order.

Finds in fact and law

(1) That it is in the best interests of the child that she be subject to an order for shared residence;

(2) That it is in the best interests of the child that a Specific Issue Order be granted that the child attend "M" Primary School, Inverness;

(3) That the child is too young to express a view;


(4) That it is better that the foregoing orders be made than no orders should be made at all

THEREFORE, Sustains both parties' first pleas in law to the extent of making an order for shared residence, Sustains the defender's sixth plea in law, quoad ultra Repels the remaining pleas in law for the parties, Orders that the child should reside with the pursuer and defender in accordance with the schedule attached to this judgment, Orders that the child should attend "M" Primary School, Inverness, Reserves all questions of expenses meantime.



[1] This is an action in which the pursuer seeks a residence order providing that the parties' child shall reside with him, or alternatively for residential contact and for a specific issue order whereby the child should attend "G" Primary School. The defender seeks a residence order providing that the child shall reside with her and also a specific issue order providing that the child should attend "M" Primary School.

[2] After sundry procedure, including a number of child welfare hearings, interim court orders and a discharged proof, a proof was fixed and evidence led. The evidence, together with the submissions, was heard over eight days on 11, 12, 13, 18, 19, 20, 25 and 26 June 2012.

[3] On behalf of the pursuer, evidence was led from the pursuer, Miss JT, his sister, Mr JS, a friend, Mrs PM the proprietor of [named] Garage, and Ms HG, a social worker. In addition, a number of affidavits were lodged from other witnesses.

[4] On behalf of the defender, evidence was led from the defender and Mr GP, the husband of her best friend. Again, a number of affidavits were lodged from other witnesses.

[5] A joint minute was lodged (No. 37 of process) agreeing certain matters.


[6] Both counsel helpfully lodged written submissions. I am grateful to them for this.

[7] There was no real dispute as to the law which should be applied, namely the test set out in Section 11(7) of the Children (Scotland) Act 1995. The welfare of the child is to be the paramount consideration. An order should only be made if that would be better for the child than not. The court should, so far as practicable, give the child an opportunity to express a view, having regard to the child's age and maturity.

[8] I was referred to certain authorities:- White v. White 2001 SC 689, Wilkinson and Norrie (Parent and Child) 2nd Edition 1999 Chapter 10, Brixey v. Lynas 1996 SLT (HL) 908 and Sanderson v. McManus 1997 SLT 629.

[9] The pursuer's primary position was that a residence order should be granted in his favour in terms of crave 1 and the specific issue order in terms of crave 3 with contact being awarded to the defender on a two weekly cycle, involving four overnight stays per fortnight and with the defender exercising contact for three separate non consecutive weeks in the summer holiday and one week in each of the Christmas, Easter and October holidays. The pursuer's fallback position is that he should have residential contact with the child on seven nights out of a fourteen day cycle during the school term and for one half of all school vacation periods. The final fallback position was the stated position of the defender, as put to the pursuer by her counsel in cross-examination, namely that, "irrespective of the outcome of the court action" the pursuer could have five overnight contact visits out of each fourteen by way of residential contact. Specific submissions were made regarding the reliability and credibility of the witnesses, the evidence that was led and the value or otherwise of the affidavits that were lodged. It was submitted, overall, that the matter was very much one for the court having regard to the principles set out in Section 11(7) of the Act.

[10] For the defender, it was submitted that the court should grant a residence order in terms of the defender's first crave, with contact being awarded to the pursuer on a residential basis five nights per week and a specific issue order in terms of the defender's sixth crave. The defender's fallback position would be for an order providing joint residence between the parties on a two weekly basis with the pursuer having the child living with him on six nights which would provide a daily involvement on ten days out of every fourteen. Further submissions were made on the question of credibility and reliability of the various witnesses and the evidence given orally and contained in the affidavits to back up the submissions.

The Law

[11] Section 11(7) of the Children (Scotland) Act 1995 provides as follows:

"(7) Subject to subsection (8) below, in considering whether or not to make an order under subsection (1) above 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 none should be made at all; and

(b) taking account of the child's age and maturity, shall so far as practicable -

(i) give him an opportunity to indicate whether he wishes to express his views;

(ii) if he does so wish, give him an opportunity to express them; and

(iii) have regard to such views as he may express."

[12] The case of White v. White was referred to by both counsel. It is clear that there is no element of "onus" on the parties and it is clear that the court can make an order under Section 11 ex proprio motu. What has to be considered by the court is all the relevant material to enable it to decide what would be conducive to the child's welfare.

[13] Quoting from Wilkinson and Norrie at paragraph 10.11 (page 321):

"The aim of the court, in considering whether to make a Section 11 order, is to make a decision in a dispute that is the best available option for the child. This may of course, involve making an order that is not asked for, or making no order."

[14] The court therefore has a wide discretion.

[15] The defender's counsel asked me to consider the maintenance of the status quo having regard to the case of Brixey v. Lynas and the comments by Lord Jauncey:

"Given that the mother's care of K was not criticised, the Sheriff undoubtedly erred in not addressing the advantages of the status quo when considering the advantages of an upbringing with the father's family".

[16] Clearly I have to give consideration to the maintenance of the status quo, albeit that the defender's counsel, in his submissions, readily accepted that the status quo in terms of residence and contact continuing on the basis of the interim orders, could not persist, given that the child has to start primary education within a matter of weeks of the proof. It is noted, however, that unlike in the case of Brixey v. Lynas, the mother's care in this case has been criticised and to a significant degree.


[17] This is a case which involves parents who seem unable or unwilling to properly exercise their parental rights and responsibilities due to conflict between them. There is, however, no real suggestion that either of the parents could not, if they were to put their difficulties with the other party behind them, exercise their parental responsibilities properly.

[18] Both parties are articulate and apparently intelligent. Both have very different personalities. Both professed in oral evidence that at one stage they loved each other. For whatever reason, it appears that they now dislike and distrust each other to a degree that they cannot seem to put this to one side when dealing with the child that this action concerns.

[19] The case has been ongoing for a number of years. Efforts were made by the court to encourage communication and to facilitate contact. These efforts have not succeeded. The reasons are multiple and can be attributed to both parties.

[20] I am very conscious while considering the evidence and drafting this judgment, that both parties may be awaiting the judgment with some anticipation in the hope that when they read it they will discover that they have "won". I should make it abundantly clear at this stage that I do not consider that there are any winners in this case. I am not interested whether one parent comes out looking better than the other. What I am concerned about is the welfare of the child and how their behaviour impacts on her. She is the potential "loser" in their conflict and I ask them both to take a step back and take a long hard look at themselves and their behaviour, otherwise they risk causing significant damage to their daughter's welfare.

[21] Presiding over an action such as this is an unenviable task for anyone. It would have been better for the child had her parents managed to agree a course of action that is best for her and that each of them can support and buy into without criticising the other. The inevitable risk involved in this type of litigation is that parties get a decision neither really wanted. After 8 days of proof it did seem that the parties' positions had shifted significantly, (particularly the defender's), with each party's fallback position being relatively close to the other's. Perhaps therefore the proof procedure has served a useful purpose for parties (in addition to the obvious one of presenting evidence to enable the court to come to a decision).

[22] On any view, the parties' relationship is acrimonious. They cannot, or will not, communicate properly with each other. That said I do not doubt that both parties love the child and that she loves them too. Whatever the difficulties that have arisen to date, I would hope that now that there is a judgment issued I can expect that communication will improve. In my view both parties have a clear duty to co-operate with each other so as to protect and promote their child's best interests.

[23] I have concluded that the orders I am making are, in my view, better made than not made in the child's interests and I sincerely hope that both parents will treat this judgment on that basis, will not look for comments in the judgment that make them look "better" than the other one and will start acting, from now on, solely in their child's best interests rather than scoring points over the other party.

[24] If the parties continue to behave in the way they have been behaving, bringing up petty arguments from the past four years and persisting with a blame culture, the welfare of the child, who by all accounts is bright and assertive, may well be damaged to a significant degree. If they both hope for a long term and rewarding relationship with their child, it is time that they both put their differences behind them, for her sake.

[25] It goes without saying that I am, at least, reassured that social workers have now become involved in the child's case and that that will offer her some degree of protection.

The Evidence

[26] In relation to the oral evidence I heard, I had no difficulty in finding JT, PM and HG to be entirely credible and reliable.

[27] JT was careful to answer the questions put to her and to say if she could not. She did not make any gratuitously unpleasant remarks about the defender. She seemed genuinely shocked and surprised at some of the comments put to her that the defender had apparently attributed to her. She is trained in child protection issues and is a registered foster carer.

[28] PM is the proprietor of the garage where handovers take place at present. She described the child as delightful. She did not appear to have any axe to grind and did not seek to favour one party over the other. She spoke to the police having attended at her garage in relation to an apparent incident reported by the defender where neither she nor her manager had noticed anything amiss, albeit they were present at the time of the alleged incident. She also spoke to the police viewing her CCTV, which apparently did not show any incident either.

[29] HG is a social worker. She was involved in one of the joint investigative interviews. She had queried why a second interview was taking place when the child had already been interviewed. She considered that there was no need for the matter to be taken further, no evidence of any sexual impropriety and no need for a medical examination. Indeed she described the second interview and the proposed medical examination as being abusive to the child.

[30] JS added nothing. He clearly felt uncomfortable being stuck in the middle of the dispute and did not want to be involved.

[31] For the defender, GP gave evidence. It seemed to me that he was trying his best to tell the truth and to describe the various incidents that he was asked about. A lot of the information he had, had come to him via his wife, who is the defender's best friend. Obviously it was the defender's choice to call him rather than his wife. His evidence was at times inconsistent with that of the defender when describing the same incident. Where there are discrepancies in the accounts of these incidents I have preferred his evidence to that of the defender whose evidence appeared, at best, exaggerated.

[32] The pursuer was subjected to very lengthy questioning. His examination in chief took approximately a day and a half and his counsel quite properly, dealt with the various allegations made against him and the subsequent Child Protection interviews and social work and police involvement. Having regard to his demeanour and composure in the witness box, I came to the conclusion that he was generally a credible and reliable witness. Only at the end of examination in chief, when the defender's counsel asked for a brief adjournment to take instructions from his client before cross-examination, was it put to him (at the start of cross-examination) that, "irrespective of the outcome of the court proceedings" the defender was now willing to offer him five overnight contacts on a residential basis per fortnight. This was a major change in position although it was being called by the defender's counsel "a shift". Then, the following day, it was put to the pursuer, still during cross-examination by the defender's counsel, that the defender's position was that while she still claimed that there had been disclosures by the child of a sexual nature, she did not consider that he, the pursuer, had acted in any way improperly.

[33] This turn of events caused me significant concern in that, until that day, it was clear that the pursuer and his legal team and, indeed, the court understood that the defender's position was that she was indeed alleging that he had acted in a sexually improper way. The pursuer was in a difficult position, in the middle of cross-examination and unable to take advice from his legal team. I made it clear to both counsel that I had concerns about fairness. I felt that attempts were being made to force the pursuer into a corner and possibly accept proposals which had come out of the blue along with the withdrawal of allegations, without the benefit of legal advice. After discussion and with the concurrence of both counsel, I made it clear that if something was put to him that he felt he could not answer without legal advice, then he should simply say so and that is how the cross-examination continued although he only relied on this response on one or two occasions. The pursuer's demeanour indicated genuine surprise and relief at this turn of events but he managed to regain his composure and did not seek to take the opportunity of criticising the defender unduly, although he appeared emotionally and physically drained. Overall I took the view that he was credible and reliable.

[34] The defender's evidence is in a different category. I did not find her to be completely credible or reliable. I will repeat, however, that I do not wish either party to use what I am saying about credibility and reliability as some form of one-upmanship over the other party. The defender's evidence was, at times, inconsistent. Indeed she accepted in cross examination that there were numerous inconsistencies in her position. She seemed at times to simply make things up as she went along. She was certainly prone to exaggeration (for example in relation to the incident when the pursuer's mother had apparently grabbed a telephone out of her hand and, presumably accidentally, scratched her, which she described as a deliberate "gouge" which happened when the pursuer's mother was grabbing the child out of her arms, where her version of events was not supported by her own witness, GP, whose version was much closer to that of the pursuer). There was one extraordinary piece of evidence from her which came out in cross-examination. During examination in chief, there was a lot of discussion about which primary school the child should attend and why. She said during examination in chief that if the child was at "G" Primary School in [named location where "G" primary school is situated] then she would have to go up and down to [said named location] and it would be difficult for her to find work if she had to do that. She made no mention of any difficulties with actual driving. Only the following week, when the case resumed and during cross-examination, did she suddenly state that she cannot, apparently, drive down the road from Inverness to [said named location] as she feels that the road is closing in on her and that she might drive into the water. She claimed, at times, that this was a medical condition but then said that she had not been to see about it as she did not think that doctors could help her. It did not seem to affect her driving on other roads. I have to say that I found this evidence to be lacking in credibility and something that she has simply made up as her evidence was going along, thinking it might assist her claim that the child should attend her local school. She had every opportunity to say this in examination in chief if it were truly a problem but did not. She specifically referred to having to drive up and down that road if the child went to that school. Her counsel confirmed, in submissions, that he was unaware of any such issue. One might have thought that the defender would have mentioned it in precognition as it would clearly be very relevant to the specific issue claims. It certainly did nothing to enhance her credibility.

[35] The main issue in relation to the defender's credibility relates, of course, to the allegations of sexual impropriety. As indicated, after one and a half days of examination in chief, just before cross-examination started, the pursuer was informed that the defender would allow him five overnights per fortnight, "irrespective of the court's decision". This did not sit well with the allegations made previously. The following day, still during cross-examination it was put to him that the defender was not making any allegations of sexual impropriety. The pursuer was expected to answer questions, essentially proposals put to him in cross-examination, "on the hoof" without legal advice. I have no doubt that counsel was acting on his client's instructions. The pursuer had been subject to lengthy examination in chief detailing his position on the allegations of sexual impropriety. Why did the defender only make her position clear that she was not making allegations of sexual impropriety one and a half days into the pursuer's evidence? In addition, why had she never told the police, the social workers, the court, or indeed anyone else of her true position?

[36] It is not necessary or indeed appropriate to narrate the evidence surrounding these allegations or disclosures. All those present at the proof heard the evidence and were aware of what they consisted of. For brevity at the proof they were referred to as "the "s" incident" and "the "g" incident" and where I have had to refer to them I have used the same shorthand.

[37] I should emphasise at this stage, that there is absolutely no evidence whatsoever before the court of sexual impropriety on the part of the pursuer. It seemed to me that the defender's position on this issue was unclear and changed throughout her evidence. Through her counsel, and presumably on her specific instructions, it was clearly put to the pursuer that there were no allegations of sexual impropriety on his part but simply there had been disclosures made by the child. On that basis the defender now considered it appropriate to offer the pursuer five overnight contacts per fortnight. This does not sit well, however, with her affidavit of 11 June (presumably sworn on the first day of the proof at some point before it actually started) which said that she would be prepared to allow contact to the pursuer "if he did not undermine her". It also did not sit well with some of her evidence. When asked if she would support contact she said "that's difficult to answer". It did not sit well with her position at the initial and continued hearing on the motion where she was ordained to appear to explain her failure to obtemper the court's interlocutor in January 2012 (over which I presided) when it was stated, on her behalf and in her presence, that she had had good reason to withhold contact and would do so again and when a motion was put forward on her behalf to reduce contact to nil, (albeit that that motion was eventually withdrawn during the course of the hearing). These inconsistencies in her position taken with her demeanour led me to conclude that she was not entirely credible or reliable.

[38] In relation to the affidavits that were lodged, I consider that I should make some comment. I fully understand why affidavits of doctors, teachers and other such people should be lodged. They are professionals, their evidence is unlikely to be controversial and they probably have better things to do than wait at court to give evidence which will not be contradicted. I found the affidavits of DM, Dr DT, Dr HR, MN and MM, lodged on behalf of the pursuer and FN, lodged on behalf of the defender to fall into this category. I found the evidence contained in them to be unchallenged, objective, credible and reliable.

[39] In this particular case I question the benefit of lodging affidavits of parties, in this instance the defender. Clearly the intended purpose is to shorten the evidence and I am obviously grateful for counsel's efforts in that regard. In fact, if anything, it appeared to lengthen the evidence as the defender was, understandably, cross-examined about the numerous discrepancies between her two affidavits and her oral evidence.

[40] In relation to the other witnesses who provided affidavits, it is clearly a matter for those calling those witnesses to decide whether to call them in person or not. If they are not called to give oral evidence then they cannot be cross-examined. The evidence in the affidavits has, therefore, not been tested and the court has to consider what weight, if any, to attach to it.

[41] In this case, affidavits by the defender's other children have been lodged. I can fully understand why there would be a reluctance to call them as witnesses, (albeit I might have thought that there would probably be a reluctance to involve them at all, particularly the youngest). In any event, their affidavits largely relate to trivial incidents which took place in the past which were designed to discredit the pursuer and which were not even put to him in cross-examination. They did not really add anything to the defender's case. The defender's eldest daughter did not mention in her affidavit one of the most important aspects of the case, namely apparently, according to the defender, being present at one of the supposed disclosures ("the "s" incident"). The defender was adamant in her oral evidence that her oldest daughter was there and had commented on it. Given that that is a large part of what this case is about, it did seem surprising that this was not mentioned at all. Making allegations about the pursuer (in 2009 about the injury to the foot incident) to the doctor, in front of two of her other children, was not helpful. It is probably no surprise, then, that her other children have decided, in their affidavits, to try and discredit the pursuer. I have no doubt that this has come from the defender. The children's affidavits all were worded in a way which suggested that they had understood the pursuer's position was to take the child away from the defender, which was clearly incorrect. I have been unable to attach significant weight to these affidavits.

[42] An affidavit by JG was sought to be lodged, on behalf of the defender, almost at the end of her evidence. She is the social worker who has been tasked to carry out a full assessment on the child because of the conflict between the parties. It bears to include the views of the child on which school she is to attend. I had certain concerns about this affidavit given the lack of information as to how it appeared and who had asked for it. In any event, given the pursuer's counsel's position that he was neutral to the addition of JG to the defender's list of witnesses and the lodging of the affidavit, I allowed her to be added and it to be received for what it was worth. It is perfectly clear from the affidavit that the assessment is not nearly complete. A lot more work requires to be done. It is not clear from it why the child was asked for her views on schooling. The views were not sought by the court. For the avoidance of doubt, I will state now that I consider that the child is too young to properly express her views, in any event, and I do not consider that I should have regard to her views as apparently expressed to a social worker who has not yet completed her assessment. The child is not of sufficient age and maturity at four. She is already able to compartmentalise matters. This is not evidence to which I have attached any significant weight for these reasons while respecting, of course, JG's professional qualifications and her account of her investigations to date.

[43] The evidence of KB, again contained in an affidavit, largely comes from what the defender herself has told her. Her version of the "s" incident is rather different to that of the defender's. She has included a lot of opinion evidence which is of little assistance to the court without being tested in cross-examination. Fundamentally it is certainly not apparent from her affidavit that she was aware that the defender's position was that no sexual impropriety was alleged. On the face of it she appears not to be totally objective. For all of these reasons I am unable to attach significant weight to it. Similar comments apply to the affidavit of EM.

[44] Both parties, but in particular the defender, were very keen that the court should hear about all sorts of arguments and disagreements which have taken place since the child's birth four years ago. I would wish to make it clear that I do not consider it relevant who started which argument. I do not propose to go over that evidence in any detail.

[45] It seemed to me from the evidence that the defender, who by all accounts successfully parented her four older children, has experienced some difficulties in coping with an available, non working, hands-on father, who is keen to get involved on a day to day basis. Although she was very critical of her ex-husband in relation to his apparent financial irresponsibility (and his parenting skills in relation to one particular incident) it was persistently said that because she had no difficulties with him exercising contact then it could not be that she was causing any of the difficulties in relation to contact with the pursuer. I do not agree. It seemed to me that that was not comparing like with like. From what I gathered from her evidence, for what it is worth, her former husband was in full time employment and worked away quite a lot. She had given up work when her first child was born and was a full time mother. She was an experienced mother and obviously had her own ways of doing things. She was used to being in charge and in control of the children. I got the distinct impression that she was not keen on the pursuer's attempts to be involved. It was the pursuer's first child and, indeed, his parents' first grandchild. He was clearly an inexperienced parent at the outset. I got the impression that he was not given much of a chance by the defender and his input was not particularly appreciated. The fact that the defender's other children and their father have a good relationship is neither here nor there.

The Parties and their relationship

[46] In coming to my decision, and evaluating what is in the child's best interests, I have tried to have regard to a number of matters, including which parent is less likely to undermine the other, which parent is able to drive and transport the child at all times if required to do so and which parent is more likely to support the other parent's time with the child and so on.

[47] My view on this is that the pursuer will actively support and promote contact with the defender whereas I think that the defender is, to a large extent, giving lip service to this.

[48] I believe that the pursuer will not try and separate the child from her mother. I am not convinced that the defender, despite her protestations to the contrary, will not try and separate the child from her father.

[49] From an outsider's perspective it would appear that parties have very different personalities.

[50] The pursuer is clearly concerned about money. Parties were due to get married in September 2008 but, shortly before the planned wedding, the pursuer produced a draft prenuptial contract. Ultimately, for whatever reason, that prenuptial contract was never signed by the defender and the wedding was cancelled. The pursuer's evidence on this was, I think, candid in that he accepted that it was cancelled, to an extent at least, because of advice from his parents and legal advisors who were concerned that the defender wanted to "get her hands on his wealth". It seems that the pursuer did not have to work particularly hard for his wealth as he got it from his parents. That may explain why he apparently took the side of his parents on this rather than his partner.

[51] The defender, however, has a completely different focus. She is happy being a mother. She is clearly happy to be supported by the fathers of her children rather than working (although she apparently now expresses a wish to return to work). She is an experienced mother who knows what she is doing in relation to bringing up children and seemed to resent a new and inexperienced father's attempt to get involved and resented even more his family's well meaning but perhaps inept and old fashioned, attempts to get involved. There was evidence, which I will not repeat in any detail, about the pursuer's mother's attempt to introduce a teething ring which the defender did not feel was necessary or appropriate. Quite why this became such an issue is beyond me. It seems to have led to significant discord between the defender and the pursuer's mother when it could have quite easily been dealt with in a different way. It was symptomatic of trivial incidents being blown out of all proportion.

[52] It was unrealistic, however, for the pursuer to expect to be able to walk into the house where the defender and all the children were living immediately after the separation "because he owned it". He could not see why this upset the defender. It is clearly not a reasonable approach for him to have taken notwithstanding his protestations that the defender used to open the door to him.

[53] Equally, the defender had no need to move out in the way she did and involving the police. It seemed to me that each was trying to exert control over the other, he in relation to his property and she by trying to prevent or reduce his contact with the child.

[54] I would repeat again that it is the child's welfare that is of paramount importance. It seems that parties can probably act as mature and intelligent people in other aspects of their life, according to evidence from other witnesses, but not where the child is concerned.

The "Disclosures"

[55] The defender accepted in oral evidence that the fact that she repeated the alleged disclosures made by the child and failed to tell the authorities, the police, the social work department or the court that she was not alleging sexual impropriety has caused abuse to the child. The pursuer was questioned by the police and spent some hours in police cells. The pursuer's sister is no longer allowed to foster children. Two children in her care on a permanent placement were removed. Most importantly, in the context of this case, the parties' child has been subject to three Child Protection investigations, including repeated joint investigative interviews and a proposed medical examination which ultimately did not take place, but there was clear evidence of the child being distressed. In addition the child was on one occasion removed by police officers from the care of the pursuer in the middle of the night. The defender could have prevented all of this happening but chose not to do so. Her stated position to the court is difficult to reconcile with her actions.

[56] The disclosures which were apparently made to the defender by the child are of concern. If the child did make these disclosures then clearly something is happening to her in some aspect of her life to make her do this. It is not alleged that there is any sexual impropriety on behalf of the pursuer. One wonders, therefore, where these ideas are coming from.

[57] These disclosures raise serious concerns about the child's emotional wellbeing while in the defender's care, given that this behaviour is only apparently exhibited in her care. The defender, in fairness to her, accepted this in evidence. She, however, allowed the investigation to carry on on each occasion, causing distress to the child, in my view, so as to discredit the pursuer and reduce the likelihood of contact with the child. She was not frank or candid with any of the authorities. Her position is that she still maintains that these disclosures were made, although her evidence about them, it has to be said, was less than satisfactory in a number of respects. Her version of events changed quite significantly throughout her evidence and one alleged incident which was on record was not spoken to at all. I have no concerns about the child's physical wellbeing in the defender's care, (albeit an accident with hair straighteners did take place while in her care). I do, however, have concerns about the child's emotional welfare in her care.

[58] It is to be noted that these disclosures have apparently not been made to anyone else. The only person, other than the defender, apparently present at any disclosure did not mention it in her affidavit. The defender has at times given different versions of the alleged disclosures. Despite the child being subjected to two separate joint investigative interviews there was no hint whatsoever of any similar disclosure being made to trained and skilled police and social work child interviewers. The records of these interviews were gone through at some length in evidence. There was no hint of any sexualised behaviour or remarks being exhibited to anyone other than the defender. The disclosures were made just before the original proof date and when the pursuer had proposed increased contact.

[59] The defender's assertion that she was not suggesting sexual impropriety on the pursuer's part does not sit well with

(1) what she reported to the police;

(2) agreeing that the police remove the child from the pursuer's care in the early hours of the morning;

(3) not telling the police that she did not consider there was any sexual impropriety on behalf of the pursuer;

(4) not telling the social work department that she did not consider there was any sexual impropriety on behalf of the pursuer; and furthermore,

(5) not telling the court that she did not consider there was any sexual impropriety on behalf of the pursuer until some way into the proof.

[60] HG's evidence was quite stark. At the joint investigative interview on 17 January 2012, she reports in relation to the child:

"She did not want to talk about anything. I got the impression she had nothing to talk about."

[61] Given the defender's stated position that she was not alleging any sexual impropriety, it seems to me that either she has invented these disclosures to try and discredit the pursuer and harm his prospects of residence or contact, or alternatively, the disclosures were made by the child, and the defender has deliberately not told the authorities of her true position, in an effort to discredit the pursuer and harm his prospects of residence or contact. There can be no other credible explanation standing the defender's assertion that she does not allege any sexual impropriety. If the child did make the disclosures then they must have come from somewhere and it would seem to me that it is likely that they have also come from the defender in some way or other. Either way, I consider that this is a very worrying aspect of the defender's care of the child as it appears she is willing to put her resentment of the pursuer before the child's wellbeing. It is understandable why the pursuer might be upset and bitter about the "disclosure" issues given the ramifications they have had both for him and for the child.

[62] My hope is that once this court action is concluded, (and it is well known that litigation can be a stressful business for all concerned), that parties can start behaving more rationally and that the recent behaviour by the defender has arisen from being in a stressful situation which she has felt unable to cope with rather than it being an ongoing issue. I am reassured by the involvement of social work in this regard.

The Future

[63] From the evidence I heard it is clear to me that the child has a strong bond with both of her parents and it is in her best interests for that bond to continue. It is important that the child continues to have both parents fully involved in her life. It is in her best interests, I have concluded, that she has significant contact (in the normal everyday sense as opposed to the legal sense of the word) with both. Clearly the status quo (at present she attends two separate nursery schools) cannot continue. She is due to start primary school in August and a decision has to be made, for her sake, as to which school she attends, to give her some certainty in her life which she does not have at present.

[64] Clearly there have been some significant difficulties for the child and concerns for her emotional wellbeing while in the defender's care as outlined in the previous section. That said the child has been cared for primarily by the defender for most of her life to date.

[65] It was suggested, in particular by the defender's counsel, that all handovers between parties should be at school to avoid parties meeting and thus avoid tension and conflict. While superficially attractive in the short term perhaps, my concern about this, in the long term, is that if the parties never meet in the child's presence, it will be abundantly clear to her that there is indeed tension and conflict, otherwise why would they not see each other and communicate in a civil fashion when handovers are taking place? What is to happen in the future at events such as parents' nights, nativity plays, sports days and so on, where it would be in the child's best interests for both parents to attend? It is time for parties to start communicating in an appropriate way. It is of paramount importance that both stop being critical, in her presence, of the other parent and start becoming actively supportive of each other, however hard it is.

[66] The defender clearly dislikes the pursuer's family. She talks of the pursuer's family being responsible for the cancellation of the proposed wedding and describes his mother as interfering. I assume that the pursuer's mother, given that this was her first grandchild, has not had very recent experience with young babies and perhaps behaved as she did when she brought up the pursuer. I can understand that that might cause irritation to the defender but I would have thought that she could have coped with this. Perhaps it was the proposed prenuptial agreement and subsequent cancellation of the wedding or something else, but whatever caused the breakdown of the relationship it is clear that the defender has still not moved on from it. She is quite clearly still very hurt and bitter. This is perhaps understandable in the circumstances. Perhaps the pursuer was at fault cancelling the wedding. It was certainly extremely insensitive, the way it happened. On the other hand it was perhaps best to be cancelled if the relationship was never going to work. Perhaps the pursuer is still tied to his mother's apron strings, as the defender seems to believe. Perhaps the defender should consider that she has in fact had a lucky escape given her obvious views about the pursuer's family. Perhaps she could have encouraged the pursuer's mother to come to visit at appropriate times and shown her how best to behave with the child. Whatever the rights and wrongs and the hurt felt in the past, parties have to leave that behind and move on for the sake of the child.

[67] Four years on, the defender continues to blame the pursuer for the breakdown of all ongoing communications between them. She constantly refers back to the reasons for the relationship breaking down. However she did not seem to consider that the pursuer's recent behaviour and reactions towards her might have something to do with the allegations of sexual impropriety that she very clearly made against him but has subsequently withdrawn. She seemed to have no recognition whatsoever that the pursuer might be upset by the allegations and the ramifications they have had for himself and for other people including the child. The defender's oral evidence and her affidavits refer to whose fault trivial incidents and minor arguments in the past were, and it seems to me that constantly repeating these and blowing them out of all proportion have not helped parties move on. This will have to change in the future.

The Specific Issue Order

[68] In relation to which school the child should attend, one thing that is clear, and it seems to be the only thing that parties are agreed on, is that the child needs to go to a school in August to start Primary 1 and needs certainty in her life about this.

[69] In relation to "G" Primary, the benefit for the child would be that she has attended nursery there for three days out of five and would be starting school with classmates from her nursery. In addition, her father, the pursuer, would be available to collect her at short notice if anything happened during the school day.

[70] In relation to "M" Primary, she has attended nursery there two days per week and again would have some continuity with her classmates and, at present, her mother would be available to collect her in the case of emergencies (albeit that might change if she starts work).

[71] In relation to the quality of the respective schools, I am not prepared to differentiate between them. Indeed, neither party ultimately sought to say that one primary school was better than the other. Neither do I consider the issue of whether they are feeder schools for one secondary or another to be of relevance. What might be the best option for the child in secondary terms will not be known until towards the end of her primary schooling. As far as I am concerned, all of the primary and secondary schools mentioned in evidence are registered with Highland Council and would provide satisfactory education for the child.

[72] If there is to be contact with both parents as, ultimately, by the end of the proof at least, parties both seemed to agree, the child will require to travel between the parties' houses. This is already an aspect of her life. She travels on the road between Inverness and [named location where "G" Primary is situated] on frequent occasions. It is not ideal but necessary if she is to see both parents. [Said named location] is within easy commuting distance of Inverness and it is not so onerous a journey that would cause a material problem. As the pursuer's sister said in her evidence it is "not ideal but not prohibitive".

[73] In relation to her attendance at two nurseries and having friends in both, I do not consider that to be of major significance. Young children are adaptable and will retain friendships and make new ones throughout their schooling. The child's older sister, [named], will, by the time she starts school in August, have left primary school and will have started attending secondary school. The defender's oldest 3 children attended "G" Primary while the fourth has attended both "G" and "M" Primaries. None of her siblings are still at primary school and she would not have the benefit of a sibling at either of the proposed schools.

[74] Ultimately, and by the very narrowest of margins, I have concluded that the best option for the child is to attend "M" Primary School and for the pursuer to undertake all the driving, not because I believe that the defender cannot drive to [said named location], but because I consider that the pursuer has carried out this task in a responsible, safe and conscientious manner in the past and will continue to do so. I also believe that he will continue to support his daughter's time spent with the defender. In making this specific issue order I should make it clear that this is by the narrowest of margins and is only made in an effort to benefit the child. It seems to me it will probably involve marginally less travel for her. It is in no way to prefer one parent over the other or one school over the other and there must be no suggestion to the child, or anyone else for that matter, that that is the basis for this decision.


[75] At present the defender has interim residence and the pursuer interim contact. Parties cannot agree on how best to regulate where the child will reside. I have of course to have regard to the "no order" principle of the 1995 Act. Given the particular situation in this case and the lack of any meaningful agreement on the part of the parties I did not understand either counsel to suggest that a viable option would be to make no residence order at all and I agree with that submission.

[76] As I have already indicated, I consider that it is essential for the child's welfare that both parties support each other for her future wellbeing. She has been subjected to emotional risk already. I have concluded that the child should spend an approximately equal amount of time with each parent which I consider will be in her best interests overall. Neither party can suggest to her that they have "won" and have been preferred over the other. This should minimise the conflict between them which clearly she picks up on. She cannot be overly influenced by one over the other. She can continue to spend a significant amount of time with the defender who has been her primary carer to date but her emotional welfare will be protected by the significant involvement of the pursuer in her upbringing. She will have the benefit of spending time with the extended families of both parents.

[77] The court requires to regulate where the child will reside. This could of course be regulated by way of a residence order and a contact order. However, in the particular circumstances of this case, having regard to the child's welfare as the paramount consideration, I consider it appropriate for a residence order to be made in favour of both parties. It follows that I consider that it would be better that a shared residence order be made than not. I consider that there should be shared residence between parties on a 50/50 basis, that is, 7 overnights per fortnight each.

[78] On a two weekly cycle, the child will reside with parties as outlined in the schedule to this judgment. Essentially she will reside with parties on a 2 weekly cycle on a pattern of 3 days, 2 days, 2 days, 3 days, 2 days, 2 days alternating between parties. The school term schedule will be the default timetable for residence except during holiday periods.

[79] This schedule should start two weeks before the start of the school term in mid August 2012 (the exact date of the start of the school term was not agreed in evidence) to get the child used to the routine. Handovers should be to and from school at this stage, where possible, and at [named] Garage if necessary on non schooldays and holidays. On that basis it is not necessary for me to specify actual times on the normal weekly school time cycle as they will follow school hours.

[80] I accept fully that the arrangement is not ideal and that the child may not be able to attend certain after-school or other activities every week on a particular night in one location or the other. However, with co-operation between parties it should be easily manageable and there is a significant benefit to it in that parties can mark their diaries with the schedule far into the future which will enable them to make long term plans for weekends and outings which will be of benefit to the child.

[81] It will give the child certainty which she needs in her life. From the child's point of view, the new schedule can be linked with the start of primary school and therefore should seem to her as nothing out of the ordinary, assuming both parties deal with it on that basis; a new start at primary school and a new schedule for time with her parents both happening at the same time. It remains a 2 weekly cycle which the child is used to and she will be able to spend alternate weekends with each party.

[82] Finally, it avoids parties being present together at most handovers, which parties seem incapable of dealing with in an acceptable manner, and minimises travel to an extent at least by providing for residence on consecutive days. It is to be hoped that as she gets older, if the child wishes to undertake after-school or other activities in either location, then parties will be able to co-operate and deal with that. I would also hope that after things have settled down handovers can start to take place at the defender's home on non schooldays rather than on a garage forecourt for the child's sake.

[83] In relation to holidays, which the defender, in evidence, rather surprisingly indicated that she had not even considered, I consider that again, residence should be on a 50/50 basis as outlined in the attached schedule. In summer, for the first week of the school holidays from Saturday 10.00am the child should reside with the pursuer until 10.00am the following Saturday, when the child will reside with the defender and so on throughout the Summer holiday period. This should provide for certainty for the child and allow both parties to plan holidays and trips in advance which should benefit the child.

[84] The same approach should apply during February, Easter and October holidays. If the total holiday period is less than two weeks, then the time should be split equally between parties with the pursuer having the first part and the defender the second. Again this should provide for certainty for the child.

[85] In relation to Christmas and New Year, it seems to me that this does require to be regulated by the court given the defender's refusal to allow the pursuer any contact whatsoever on Christmas Day 2011. Residence, unless otherwise agreed, will be on an alternate yearly basis with the child residing with the pursuer from Christmas Eve at 10.00am until Christmas Day at 2.00pm and with the defender from 2.00pm Christmas Day to 5.00pm Boxing Day one year starting at Christmas 2012, and the other way round on the following year. At New Year, residence, unless otherwise agreed, will be again on an alternate yearly basis with the child residing with the defender from Hogmanay at 10.00am until New Year's Day at 2.00pm and with the pursuer from 2.00pm New Year's Day to 5.00pm on 2 January one year starting at New Year 2012/2013, and the other way round the following year. This will ensure that the child is able to spend time with both extended families during the festive season. I would like to think that parties will be prepared to swap their periods if that best suits the child's activities and wishes as she gets older.


[86] Counsel for the defender submitted that there should be no expenses due to or by either party. Counsel for the pursuer submitted that expenses should be reserved meantime which is what I have done. Agents should arrange for a hearing on expenses to be fixed.

[87] I should mention in passing the diary or "routine book" the use of which was ordered by the court order on 1 July 2009. This book was to pass between parties with the child and was the defender's suggestion. The court reporter expressed some reservations because in her experience parties can use it as an opportunity to make "snide" comments about each other. The book was ordered by the sheriff presiding on the day in an effort to encourage communication, no doubt frustrated by the inability or unwillingness of the parties to communicate and co-operate with each other. I am sure that it was hoped that the book would be a temporary measure only to help parties initiate proper communication. In fact, it led to complaints at proof by one or other party about what the other one had written in it. I do not propose to narrate the evidence led on this but again, parties' different personalities shone through. It was clear to me that while at times the book did serve a useful purpose at other times both of the parties have used it to try and score points off the other. Ultimately the defender effectively confiscated the book and refused to use it any more, which breached the court order. In any event, I do not see that the book serves any useful purpose now and I do not consider that it should be used any longer.

[88] I should also mention that at the start of the proof it was suggested by counsel for the defender that the proof might be converted into an evidential child welfare hearing. This was opposed by the pursuer given the history of the case and the allegations of sexual impropriety made against the pursuer (at that stage). I took the view that as there had been a number of child welfare hearings already early on in the process which had not resolved matters between parties and, standing the allegations made, the pursuer was entitled to a judicial determination following the proof which had been fixed for some time. Had it been clear to the pursuer and his counsel, and indeed to the court that in fact there were no longer any allegations of sexual impropriety being made against the pursuer, then the pursuer and the court may have taken a different view. It reinforces my view that it cannot have been until day two of the proof that the defender made it clear to her advisors that she was not alleging any sexual impropriety on the part of the pursuer.

[89] Given the comments from the Supreme Court in a recent family case, I have considered, in passing, whether it might be appropriate in cases such as this, for the same sheriff who presided over the child welfare hearings to also deal with the proof, (where court timetabling allows of course) to allow for more proactive case management. While recognising the increasing restrictions on court resources, I do, however, think that ideally, if practicable, the same sheriff should case manage a case like this throughout its whole history. That way a party, even if there has been a change of agent, as happened here, will be well aware that whoever is presiding over the proof will know exactly what has gone on in previous hearings.

[90] Finally, I would like to thank both counsel for their clear presentation of the case and the solicitors for their thorough preparation.

[Anonymised version of judgment signed and issued by Sheriff Margaret M Neilson on 19 July 2012]


Residence arrangements

School Terms

During the school terms the child will reside overnight with parties on a 2 weekly cycle as follows:-

Week 1















Week 2















School Holidays


During the school summer holidays (starting in 2013) the child will reside with each party for 1 week at a time alternating between parties on a 2 weekly cycle starting as follows:-

Week 1:- From Saturday at 10.00am with the pursuer

Week 2:- From Saturday at 10.00am with the defender

This arrangement will continue until the school term starts again.

February, Easter and October

During the February, Easter and October holidays the child will reside with each party for 1 week at a time alternating between parties on a 2 weekly cycle as follows:-

Week 1:- From Saturday at 10.00am with the pursuer

Week 2:- From Saturday at 10.00am with the defender

If the total holiday period is less than two weeks, then the holiday period will be split equally with the child residing with the pursuer for the first part and with the defender for the second.

Christmas and New Year

During Christmas and New Year holiday periods the normal "school term" schedule will apply, with the following exceptions (unless otherwise agreed between parties):-

The child will reside with the pursuer from Christmas Eve at 10.00am until Christmas Day at 2.00pm and with the defender from 2.00pm on Christmas Day to 5.00pm on Boxing Day starting at Christmas 2012 with the reverse applying in 2013. This arrangement will continue thereafter on an alternate yearly basis.

The child will reside with the defender from Hogmanay at 10.00am until New Year's Day at 2.00pm and with the pursuer from 2.00pm on New Year's Day to 5.00pm on 2 January starting at New Year 2012/2013, with the reverse applying in 2013/2014. This arrangement will continue thereafter on an alternate yearly basis.