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Cite as: [2005] CSOH 88, [2005] ScotCS CSOH_88
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CR v. ARD [2005] ScotCS CSOH_88 (30 June 2005)
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OUTER HOUSE, COURT OF SESSION [2005] CSOH 88 |
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F10/02
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OPINION OF LORD MACPHAIL in the cause C.R. or D Pursuer; against A.R.D. Defender:
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Pursuer: McNair, Q.C.; Allan McDougall
Defender: Party
28 June 2005
1. Publicity
[1] On 19 February 2002 Lord Clarke pronounced an interlocutor in this action which included the following directions:"Directs in terms of section 46(1)(a) and (b) of the Children and Young Persons (Scotland) Act 1937 as amended by the Broadcasting Act 1990 that no newspaper report or report in a programme service (as defined by section 201 of the aforesaid 1990 Act) of the proceedings shall reveal the names, addresses or schools or include any particulars calculated to lead to the identification of the children A.C.D. born 6 June 1992 and A.H.M.D. born 17 January 1999, further Directs that no picture shall be published in any newspaper or included in any programme service as being or including a picture of the aforesaid children concerned in these proceedings."
For the avoidance of any doubt I wish to make it clear that these directions continue in force.
2. Parties and procedure
[2] The parties were married in Edinburgh on 17 March 1984. There are two children of the marriage, A who was born on 6 June 1992, and H. who was born on 17 January 1999. The parties ceased to live together on or about 11 May 2001. [3] The summons in the present action was signetted on 7 February 2002. The pursuer concluded, inter alia, for divorce on the ground that the marriage had broken down irretrievably by reason of the behaviour of the defender, for orders relating to the children and for orders for financial provision. On 13 November 2002, however, while this action was in dependence, the parties' marriage was dissolved by decree of divorce granted by the Vyborski Federal District Court of St Petersburg, Russian Federation. In this Court on 30 September 2003 Lord Clarke heard an undefended preliminary proof in this action on the question of that decree of divorce and pronounced a declarator that the parties' marriage had been dissolved by that decree of divorce. This Court may nevertheless entertain the pursuer's applications for orders for financial provision since the jurisdictional requirements and the conditions set out in section 28(2) and (3) of the Matrimonial and Family Proceedings Act 1984 are satisfied. [4] After the decree of divorce, the defender married a Russian layd. That lady has a son of her own who, according to the evidence led at the proof, was born in or about 1992. The defender and his wife now have a daughter of their own. The defender has homes in St Petersburg and in Dalkeith. He spends most of his time in St Petersburg. A and H, the children of the parties, have their primary residence in St Petersburg with the defender. The pursuer has contact with them in Scotland during their school holidays. A who is now nearly 13 years old, is content with these arrangements and it is common ground between the parties that these arrangements should continue as far as she is concerned. [5] The pursuer seeks a residence order and aliment quoad H, an order for holiday residential contact with A and a specific issue order requiring the defender to provide her with school reports. She also seeks a periodical allowance for herself of £3,000 per month until her death or remarriage. The defender resists the pursuer's claims relative to H and the provision of school reports, and maintains that he should pay her a periodical allowance of £800 per month, subject to conditions, for three years from the date of the parties' divorce. [6] In his interlocutor of 30 September 2003 pronouncing the declarator of dissolution of the marriage Lord Clarke refused the pursuer's conclusion for divorce. The remaining conclusions in which the pursuer insists are in these terms:"2. For a residence order providing that H a child of the marriage under the age of sixteen years resides with the pursuer; and for an order that the pursuer have residential contact in Scotland with A also a child of the marriage under the age of sixteen years for one half of each of the Christmas, Easter, Summer and October school holidays; always providing: (1) that the defender pay all travel expenses between Russia and Scotland; (2) that the children arrive and leave the pursuer between the hours of 8 am and 11 pm; and (3) that they are accompanied by the defender or a nanny regularly employed by him.
3. For a specific issue order requiring the defender to provide to the pursuer a copy and, where appropriate, a translation into English of all school reports he receives in relation to the child or children residing with him.
4. For payment by the defender to the pursuer of aliment for the child H. at the rate of TWO HUNDRED POUNDS (£200) per week and for payment by the defender to the pursuer of aliment for the child A. at the rate of TWO HUNDRED POUNDS (£200) per week during such times that the child is in the care of the pursuer during periods of contact.
5. For payment by the defender to the pursuer [...] (2) of a periodical allowance of THREE THOUSAND POUNDS (£3,000) Sterling per month payable until the death or remarriage of the pursuer or for such other period as the court shall consider appropriate.
[...]
8. For the expenses of the action."
The pursuer's conclusion 5(1) is for payment of a capital sum of £7,000,000, and conclusions 6 and 7 are for interdict. These are no longer insisted in. Interim interdicts in terms of conclusions 6 and 7 were granted on 8 February 2002. In so far as they have not been recalled, they will fall with the refusal of these conclusions in my interlocutor of today's date. The defender concludes for a specific issue order "depriving the pursuer of the parental responsibility and parental right to control, direct and guide the said children with respect to their education".
3. The witnesses
[7] I heard the evidence of six witnesses. The pursuer's proof consisted of her own evidence and that of her friend Mrs L.D. and of Dr A M, a consultant psychiatrist. The defender appeared as a party litigant and gave evidence on his own behalf. He led the evidence of Mr T.H., an employee of a company with which he is associated, and Mr J.R., a chartered accountant. [8] It will be convenient to begin by discussing the evidence of Dr M, since he provided helpful information about the pursuer. No issue was raised as to his credibility and reliability, and he impressed me favourably as an experienced and careful witness whose testimony should be accepted. He stated that the pursuer suffers from schizophrenia. She chronically hears voices to a greater or lesser extent, and from time to time she is paranoid. Dr M spoke to two reports he had made on the pursuer's condition: No 6/4 of process dated 15 February 2002, and No 6/34 of process dated 22 April 2005. In the witness box he said that her attitude to her illness was mature and responsible. From the time he had known her in 1997 she had been dealing with it in a reasonable way by taking her medication regularly, and there had been no reports of her illness having flared up during that time. That indicated that her condition was stable. It was probable, he said, that the worst of her illness was now over. It tended to flatten out with the passage of time, but he could not state for sure that she would never have a flare-up. If she did, her ability to care for a child would depend on the severity of the flare-up and the child's needs at the time. He considered that her ability to look after a child was adequate. He did not think she would be dangerous or harmful to a child. Her prospects of obtaining meaningful employment were very remote: he had approximately 100 schizophrenic patients, and only one of them was in employment. He considered that the pursuer was entitled to disability living allowance, and he said that he would support any application she might make for that allowance. [9] The pursuer spent a considerable time in the witness box. On 27 April 2005 she was examined in chief from 12.13 pm to 2.31 pm, interrupted by the usual luncheon adjournment. She was then cross-examined by the defender personally, from 2.32 pm to 4 pm, then on 28 April from 10.50 am to 12.25 pm, interrupted by a short break. Finally she was re-examined from 12.26 pm to 12.33 pm. A witness who was fully fit would naturally have found such an experience stressful. The pursuer appeared to me to withstand it admirably. She was clearly an intelligent and articulate person. She maintained her composure throughout, and was able to deal capably with the questions put to her. Her memory of many of the events she was asked about, several of them a number of years ago, appeared to be good, although the defender was able to demonstrate that it was not entirely reliable since she had forgotten about a payment of £70 which he had made to her recently. Having taken that into account, and having considered also all that Dr M had to say, I found that the pursuer was wholly credible and generally reliable in her evidence. [10] Mrs L.D. has been a friend of the pursuer for 25 years. They have always met regularly, apart from periods when the pursuer and the defender were living in Newbury and when Mrs D and her husband were living in Orkney. They speak on the telephone several times a week. Mrs D clearly spoke from an intimate knowledge of the pursuer. In my opinion, however, she gave her evidence carefully in a restrained and balanced manner. Having considered whether her testimony might be biased in the pursuer's favour, I concluded that it was not and that she was a credible and reliable witness. [11] I considered the defender to be an unsatisfactory witness. His demeanour in the witness box was confident, but he seemed reluctant or unwilling to give direct answers to simple questions. Much of his testimony appeared to be evasive or argumentative. In addition, I was not satisfied as to his conduct with regard to three material matters. [12] The first of these matters is concerned with a document which on 21 October 2002 the defender sent to the pursuer's solicitors for signature by the pursuer. He sent two copies of the document as an attachment to an e-mail. The e-mail and the copies of the document are No 6/22 of process. One copy of the document is in Russian, while the other is in Russian with what appears to be an interlined English translation. In the latter, the heading of the document is given in English as "Statement of facts (about the collapse of the marriage and children)". The defender states in the e-mail that both versions need to be signed by the pursuer, and need to be notarised or signed in the Russian consulate, and that he needs the originals for the early morning of 24 October 2002. He further states that the document "is intended as a plain statement of facts." He also says, "The document does not mention a divorce, nor any financial issues or anything else, as these are outside the scope of and nothing to do with this document." [13] The pursuer did not sign the documents. A few days later, on 25 October 2002, there was a hearing before Lord Clarke at which the defender appeared as a party litigant. After the hearing the defender asked the pursuer's solicitor if the pursuer had signed the documents. The solicitor told him that the pursuer would be advised not to sign unless the defender paid for advice on Russian law. The defender nevertheless took the pursuer to the Russian consulate in Edinburgh on the same day to sign an identical document. A copy of the latter document is No 7/52 of process. It bears the signature of the pursuer and the stamp of the consulate and is dated 25 October 2002. The defender's conduct in taking the pursuer, a vulnerable person, to sign a document which he knew her solicitor would have advised her not to sign that day would appear to be at best questionable. The defender did not offer any explanation of it. In addition, far from the divorce being "outside the scope of and nothing to do with this document", the defender accepted that at the hearing before Lord Clarke on 30 September 2003 both he and his expert witness, Mr I. stated that the document had made it clear that a divorce was being sought. The defender also accepted that Mr I. had considered the document of importance in relation to his acting in the divorce, which was granted on 13 November 2002, a few weeks after the pursuer had signed the document. The defender's behaviour in this matter appears to me to have been less than frank and straightforward. [14] Secondly, on 20 March 2002, shortly after the present action was raised, Lord Clarke awarded the pursuer interim aliment of £1,500 per month. On 21 March 2003 Mr. T. G. Coutts Q.C. sitting as a Temporary Judge reduced the award to £1,000 per month, it having been said on the defender's behalf that his income was £10,000 per month or £120,000 per annum. The defender also says in his pleadings, at page 22 lines 6 to 8 of the record, that he was to be paid a salary at that rate from January 2001. Shortly before the proof, however, the defender's P60 for the year to 5 April 2003 was obtained and lodged (No 6/28 of process). It shows that his total salary for that year was in fact £180,000. It appears that, for whatever reason, the Court on 21 March 2003 was seriously misled. [15] Thirdly, there was a curious incident in the course of the proof. The defender alleged that the pursuer's solicitors had failed to intimate to him the pursuer's third inventory of productions (Nos 6/8 to 6/14 of process). The pursuer's counsel assured me that that was not so. Counsel later produced at the Bar copies of e-mails and other correspondence sent by the pursuer's solicitors to the defender on 11 March 2005 which demonstrated that the solicitors had indeed intimated the documents to him. For him to allege that they had not done so was at best careless, and was in any event misleading. Those three matters, together with the impression of the defender which I formed when he was in the witness box, have caused me to conclude that it would be unsafe to rely on his unsupported word on any material issue. [16] The defender's witnesses were Mr T.H. and Mr J.R.. Mr H. was employed by Acuid Ltd, a company in which the defender had a key role, and worked as a gardener for the defender. He spoke to the terms of a letter he had written (No 7/30 of process) about the circumstances in which the pursuer and the defender obtained the lease of a property. He also gave a little evidence about the children. The pursuer's counsel made no submissions about his credibility and reliability. I considered that his evidence was acceptable, subject to the qualification that it seemed to me to be faintly coloured by a willingness to please the defender. Counsel also made no submissions about the credibility and reliability of Mr R. He is a chartered accountant with PKF, who acted for the defender and for various companies with which he was associated. I assessed his evidence as acceptable but of limited value. He said that a report by the defender's Russian adviser, Mr I. to which I am about to refer, seemed to be substantially correct in the areas of which he had knowledge. He did not, however, specify these areas, and he did not appear to have a detailed knowledge of the defender's current financial affairs. He spoke in general terms about the Nasdaq composite financial chart for 1986-2002 and about the disabilities the defender would suffer in the event that he became bankrupt.4. The defender's productions
[17] Having considered the credibility and reliability of the witnesses, it will be useful to discuss now the weight to be attached to a document on which the defender heavily relied. This is a report which bears to have been prepared by his Russian adviser, Mr I. It is No 7/104 of process. Having examined it with care, I find it to be a strange production. It takes the form of a letter addressed to this Court dated 29 March 2005. It is headed, "Cause F10/02: D v D". The writer identifies himself as the Deputy President of the St Petersburg Specialised Bar of Advocates and explains that he specialises "in international private law, and to be more specific, in family law applied to corporate and arbitration issues concerning division of immovable property, manufacturing sites, bank deposits and other property formed during the marriage." He states that he represented the interests of both parties and the children of the marriage in relation to the Russian divorce, and appeared as an expert witness in the Court of Session on 30 September 2003. He continues:"In 2004 A.D. contacted our Bar seeking assistance to resolve a problem jeopardising his future and the future of his children, because of crushing payments which could lead to his bankruptcy within a short period.
[ . . .] The issue here is not solely one of legal processes but is also an issue of the whole entity of family and marriage values.
A.D. was so seriously concerned about the future of his children and his own welfare in connection with this case, he requested our Bar to conduct an investigation into his finances and family affairs, and after careful study of sufficient documentation to form accurate conclusions, to report on his situation to the Court of Session. The matters I intend to report on within this brief are:
1. To determine and report on his standard of living and lifestyle.
2. To determine and report on his gross income, necessary expenditure and his disposable income, or 'free balance'.
3. To determine and report on the history of his 'free balance' and likely changes in the future.
4. To report on the effect of the legal case in Scotland on his new wife and family."
Later he observes that his investigation amounts "to virtually a total audit of each matter being reported on." The document runs to 25 pages of A4, printed in single spacing.
[18] Counsel for the pursuer timeously objected to the introduction of this document in evidence. He pointed out that the provenance of the document was not accepted. The purported author of the document had not been cited as a witness. Much of its contents were not covered by the pleadings. Many of the figures stated in it were unvouched. I sustained that objection. The defender nevertheless submitted in his speech at the hearing on evidence that the production should be accepted. I adhere to the view that it should not, and I state my reasons as follows. The law which applies is section 2 of the Civil Evidence (Scotland) Act 1988, which provides:"2. - (1) In any civil proceedings -
(a) evidence shall not be excluded solely on the ground that it is hearsay;
(b) a statement made by a person otherwise than in the course of the proof shall be admissible as evidence of any matter contained in the statement of which direct oral evidence by that person would be admissible; and
(c) the court, or as the case may be the jury, if satisfied that any fact has been established by evidence in those proceedings, shall be entitled to find that fact proved by the evidence notwithstanding that the evidence is hearsay [ . . .]
First, while the report was timeously intimated and lodged, it is necessary that I should be satisfied that it is a statement made by Mr I. I am not satisfied that the report is entirely in Mr I's own words. Much of the information in the report could only have come from the defender himself. Having heard the defender speaking in the witness box and in his closing speech, I have the impression that some parts of the report are similar in style to the defender's style, and I am not satisfied that those parts have not been either written by the defender or derived from a document provided by him. In particular, the part of the report, or an earlier draft of the report, which is attached to the defender's e-mail to the pursuer's solicitors dated 27 January 2005 (No 6/15 of process), seems similar in style to that employed by the defender. In the witness box the defender denied that that was so, but in my opinion his unsupported word on this issue is insufficient to dispel suspicion.
[19] Secondly, any statement in the document is "admissible as evidence of any matter contained in the statement of which direct oral evidence by that person would be admissible." If Mr I. had been tendered as a witness to speak to many of the matters contained in the report, his evidence would have been inadmissible because there would not have been any foundation for it in the defender's record. [20] Even if I had admitted the report, I would have attached little weight to its contents. I have no wish to criticise a report written by a lawyer in another jurisdiction, because it may be that a report such as this would be regarded as eminently proper and appropriate by the courts in his own country. I have to say, however, that from the standpoint of a Scottish court the report is unsatisfactory in several respects. First, the author appears to range beyond his area of expertise. He does not state that he has any qualifications in the laws of Scotland or England, but he refers to such legislation as the Poor Relief Act 1601, the Poor Law Act 1930, the Companies Act 1985 and the Family Law (Scotland) Act 1985, instructing this Court in detail on how to apply the principles in section 9 (pages 14, 17, 22-24). He criticises decisions pronounced by this Court and by the Court of Appeal in England (page 21). He is severely critical of interlocutors pronounced by this Court in the present case (page 21): he says, "I cannot see how A.D. could have been treated worse by the courts" (page 24). [21] Secondly, the report is markedly partisan in tone. The pursuer's legal advisers are repeatedly condemned for misleading this Court (pages 10, 11, 17, 19, 21, 24). They have "deliberately made up a fantasy", "a fabrication" (page 20) and have engaged in "a clever and deliberate prevarication" (page 21). They have also advised the pursuer "negligently" (page 19), and "should be obliged to compensate her for the financial loss she will suffer as a result of advice, which was negligent, incompetent or simply was not in their client's interest" (pages 24, 25). On page 19, "A.D.s' conduct up to this point cannot be faulted." In fact it is not faulted anywhere. On the other hand there is a remarkably biased and unsympathetic account of the pursuer's serious illness (page 18). In addition:"To create sympathy for herself, C.R. rented an ex-council house on the private market at considerable expense to A.D. as is clear from his bank statements, then claimed to the court she was living in council housing! [ . . . ] C.R. then moved to a genuine Council House in 2003, because she chose to do so, to get sympathy from the Court, hoping to exploit the element of human nature that manifests itself as a rather communist wealth bias (a principle where one who has money should pay to the one who has not, whether or not it is just for them to do so)" (page 19).
On the final page the author "calls on the Court of Session" to take various steps, and concludes with the minatory envoi, "I will watch for the outcome of this case in Scotland to see how such issues are dealt with there."
[22] To a Scottish lawyer the partisanship is so obvious and the language so extravagant that it is impossible to regard the report as an objective attempt to assist the Court to reach a just conclusion. [23] The defender lodged a large number of other documentary productions. The great majority of them, however, cannot be considered. There is no joint minute agreeing the authenticity of any documents or the truth of their contents or the sufficiency of copies as equivalent to the originals. A number of the documents lodged are concerned with matters of which no notice is given in the defender's pleadings.5. The children
[24] I consider first the pursuer's claim for a residence order quoad H. In considering whether to make such an order the Court must regard the welfare of the child concerned as its paramount consideration and must not make any such order unless it considers that it would be better for the child that the order be made than that none should be made at all (Children (Scotland) Act 1995, section 11(7)a)). In order to apply this principle it is necessary that the Court should have relevant information about the present circumstances of the child and the arrangements proposed by the party seeking the order. I regret that I do not have sufficient information to enable me to reach a view as to whether the order sought by the pursuer should be made. I have heard acceptable evidence about how H. would be likely to be brought up by the pursuer; but I have no reliable information as to how he is at present being brought up by the defender. Accordingly I am unable to affirm that it would be better for H. that the residence order concluded for be made than that no order should be made at all. [25] The acceptable evidence discloses that H. is six years old. He has a speech problem. He has lived primarily with the defender in Russia since August 2002. He goes to school in St Petersburg. He says he finds the work and the Russian language difficult. He says he does not like living in Russia; he finds the winters cold and long, and he would prefer to live in Scotland. He misses the pursuer: he loves her and wants to be close to her. He also misses British television programmes, and being able to converse in English. If he lived in Scotland with the pursuer, he would live with her at 25c Bogwood Road, Mayfield, Dalkeith. The house has two double bedrooms, a single bedroom, sitting room, bathroom and kitchen, and a front and back garden. It is reasonably well furnished. H. would go to Mayfield Primary School. The pursuer's ability to look after him is adequate. A "flare-up" of her illness cannot be ruled out, and if it occurred, her ability to look after H. would depend on the severity of the flare-up and Has needs at the time. It is unlikely that the pursuer would ever be in employment. The findings in this paragraph are based on the evidence of the pursuer, Mrs D and Dr M. [26] I cannot, however, make comparable findings about H's life in Russia because of an absence of acceptable evidence. The defender painted a glowing picture of H's present circumstances, but his evidence failed to convince me. According to the defender, H has no real problems with the Russian language: he has a speech problem, and the defender spends much time helping him with it. The defender also asserted that H. is part of a "proper family" who all get on well together, and he will choose to stay in Russia when he is old enough to make a choice. It appeared to me that all this sounded too good to be true. There was a complete absence of any supporting evidence. I am therefore unable to assess the nature of H's relationships with the defender, the defender's wife and her parents, with A and with the governess with whom A and H apparently spend some of their time, to the extent of sometimes at weekends staying with the governess in accommodation separate from the defender and his wife. Nor do I have reliable factual evidence about the nature of the accommodation occupied by the defender and his family, or about how H is getting on at school. At the hearing on evidence both parties referred to reports made by Ms Alison Stirling, Advocate, in obedience to remits by this Court (No 8 of process dated 16 February 2002 and No 24 of process dated 28 August 2003); but these reports were written for a limited purpose, are based on the reporter's observation of the children only in Scotland, and are now out of date. [27] In this situation there is no basis of fact on which it would be possible to satisfy the test in section 11(7)(a): it cannot be demonstrated that it would be better for H that an order be made than that none should be made at all. The pursuer's application for a residence order cannot therefore succeed. I shall nevertheless consider briefly the submissions presented on the matter. The pursuer's counsel submitted that in general a young child was considered to be better with his or her mother, and cited Brixey v Lynas 1997 SC (HL) 1. I note, however, that that case was concerned with a very young child who had been with her mother since birth, and that it was emphasised that no presumption or principle was being stated. I therefore do not find the dicta in Brixey helpful in this case. Counsel also submitted that it would be better for H, when starting school with a speech problem, to be educated solely in his first language, in his own country. Counsel further submitted that in this case the consequence that siblings would be separated, although normally undesirable, was acceptable where A was in Russia by her own wish. As to the household in Russia, it was submitted that its future seemed uncertain: the defender had said in evidence that he could not afford his present flat, or to pay the children's full school fees. I consider that there was force in the latter three submissions. [28] On the other hand I was unimpressed by the defender's various criticisms of the pursuer's proposed arrangements for H. He said that the pursuer would not be able to control H. He submitted that there was statistical evidence, which had not been introduced at the proof, that fatherless families were very damaging to children. In addition, H had a "genetic risk of schizophrenia" and if he took drugs, which were available in Mayfield, he would probably fall ill with schizophrenia. Suffice it to say that it would be impossible to sustain these submissions, which are not self-evident, in the absence of proof. Be all that as it may, however, the pursuer's case for a residence order must fail because of the absence of sufficient relevant evidence. I should add that H is in my view too young for any views he has expressed to be taken into consideration. It will be seen that in refusing the pursuer's claim I refrain from indicating any view as to what arrangements would be in H's best interests. [29] I now consider the issue of contact. The defender was not opposed to the pursuer's having residential contact with both children in Scotland, and I am satisfied that she is capable of looking after them during the periods concluded for, that is, for one half of each of the Christmas, Easter, Summer and October school holidays. At the hearing on evidence the pursuer's counsel submitted that she should have contact for the whole of these holiday periods. While the pursuer has had such contact in the past, I do not think it is desirable that the Court should formally prescribe such extensive contact for the future: it is not impossible that on some occasions, at least, it might be in the children's best interests that the defender should spend part of their holidays with them. The interlocutor will therefore make provision for contact for one half of each holiday period: that is a minimum which the parties may extend by agreement if they wish. The pursuer asks that the defender should pay all travel expenses between Russia and Scotland, and I did not understand the defender to offer any opposition to that. I shall accordingly so order. The pursuer also seeks two further conditions: that the children arrive and leave the pursuer between the hours of 8 am and 11 pm; and that they should be accompanied by the defender or a nanny employed by him. The former condition appears to me to be impracticable: the times of flights to and from Russia may be such that an early start or a late arrival is inevitable, although undesirable. The latter condition seems to me to be too restrictive. I accept that in the past the pursuer might have been worried by the fact that the children had been delivered or uplifted by people she did not know. I consider, however, that while I have not found acceptable the defender's evidence about the children, he would be most unlikely to entrust them to an unreliable person if he was unable to accompany them himself. I shall therefore refuse to add these two conditions to the order for contact. [30] The pursuer also seeks a specific issue order requiring the defender to provide her with copies and, where appropriate, English translations of the children's school reports. The defender submitted that such an order was inappropriate and unnecessary. He said that the pursuer was entitled to ask the school for such reports, and the reports were in English and Russian. The defender's attitude appeared to me to be rather grudging. I do not see any real difficulty in his obtaining copies of the reports for the pursuer and sending them to her, and I shall so order. [31] The defender concludes for a specific issue order depriving the pursuer of the parental responsibility and parental right to control, direct and guide the children with respect to their education. The defender did not address me on this matter. Since it is not obvious that it would be better for the children that such an order be made than that none should be made at all, I shall refuse this conclusion.6. Orders for financial provision
[32] The pursuer concludes for a periodical allowance for herself at the rate of £3,000 per month until her death or remarriage, and aliment for each child at the rate of £200 per week during periods of contact. [33] At the hearing on evidence the pursuer's counsel sought an order for a periodical allowance at least until the pursuer's remarriage. He accepted that such an order would be unusual, but he submitted that it was justified in terms of the Family Law (Scotland) Act 1985. Section 8(1)(b) of the Act provides that in an action of divorce either party may apply for an order for the making of a periodical allowance. Section 8(2) provides that subject to sections 12 to 15, the Court shall make such order as is (a) justified by the principles set out in section 9, and (b) reasonable having regard to the resources of the parties. Counsel relied primarily on the principle set out in section 9(1)(e):"(e) a party who at the time of the divorce seems likely to suffer severe financial hardship as a result of the divorce should be awarded such financial provision as is reasonable to relieve him of hardship over a reasonable period."
Authoritative guidance on the application of this principle is set out in Haugan v Haugan 2002 S.C. 631 at 635-636, paragraph [11]:
"The principles set out in section 9(1) of the Act are those to be applied in deciding what order for financial provision, if any, the court should make. That set out in section 9(1)(e) looks, as from the date of divorce, to the future - including in some cases to the longer term. It requires consideration of whether one party to the marriage now to be dissolved is likely in the future to suffer grave financial hardship as a result of the divorce. The issue is whether, viewing matters prospectively at the time of the divorce, the change of status of that party from that of a person married to the other party (with the right in relevant circumstances to enforce the latter's obligation to aliment the former) to a person not so married (and so without the benefit of that right) is likely to occasion hardship of the kind specified. While the pattern of actual support afforded prior to the divorce, including during any period of separation, is among the factors to be taken into account when assessing whether the loss of the right to aliment is likely to give rise to that hardship, the presence or absence of such actual support cannot be determinative of that matter. The fact that prior to divorce a spouse has failed to fulfil his or her obligation of support to the other cannot, even when active steps have not been taken to enforce it, exclude the making of financial provision in accordance with the principle set out in section 9(1)(e); nor can the fact that at the date of the divorce the claiming party is already suffering such hardship."
7. Result
[47] I shall therefore make the following orders. I shall order that the pursuer is to have residential contact in Scotland with each child for one half of each of the Christmas, Easter, Summer and October school holidays, always providing that the defender pay all travel expenses between Russia and Scotland. I shall make a specific issue order requiring the defender to provide school reports as concluded for in the third conclusion. I shall award aliment for each child at the rate of £150 per week during such times as the child is in her care during periods of contact, and I shall make an order for payment of a periodical allowance of £1,000 per month until the death or remarriage of the pursuer. Quoad ultra I shall refuse conclusions 2, 5, 6 and 7 of the summons and the defender's conclusion for a specific issue order. I shall reserve all questions of expenses.