Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2009] CSOH 44
F116/07	OPINION OF LADY DORRIAN in the cause E. C. S. Pursuer; against L. M. M. Defender: ­­­­­­­­­­­­­­­­­________________

Pursuer: Hadjucki, QC, Louden; Ledingham Chalmers

Defender: Dowdalls, Wild; Beveridge & Kellas

20 March 2009

[1] This case came to proof before me on applications for residence and contact orders in respect of the parties' child R.M., born 16 October 2004. Each party seeks a residence order, failing which an order for contact. An application by the father for parental rights was originally challenged by the mother but this was conceded at the proof, so the remaining issues were those of residence and contact.

[2] The parties were not cohabiting when R. was born, and indeed it seems that they have never cohabitated. R. currently lives with her father, the pursuer, and has done so since she was about eight months old. There is a dispute between the parties as to the extent to which their relationship was continuing at this stage but what is fairly clear is that R. had regular contact with her mother at that time. When she started nursery in 2007 she had overnight contact with her mother twice a week, with additional daytime contact on one Saturday out of two. At that time she attended nursery several afternoons per week. In July 2007 contact was restricted to Tuesday mornings and one overnight contact a week, from Friday after nursery until Saturday at 1pm. In October 2007, R. started attending nursery every morning. At about that time contact mid week was stopped and the weekend contact was restricted to one night, namely from 1pm on Friday until Saturday at 1230. These were the arrangements in place at the time of the proof. R. is collected from nursery and returned to a dance class which she takes on a Saturday so that contact between the parents is kept to a minimum.

[3] The pursuer is 51 and was formerly managing director of a chemical company. He has made arrangements for someone else to run the company so that he can look after R. full time. He expressed concern at R.'s behaviour when she returns from contact. He said that the problems stemmed from when R. was about two and overnight contact was started. He said that she comes home agitated, throws things about, demands a dummy, craves chocolate. She is exhausted but hates going to bed. She starts for no reason to hit, kick and scratch people. At times she will urinate under a table or behind a sofa. She gives no prior warning of this, although she has recently started to tell the pursuer after it has happened, and he will give her a hug. Sometimes he tries to take her to the toilet with the intention of repeating toilet training for her. He was also concerned about her eating habits. She will get up from the table and run about, eat with her fingers, with her mouth open and looking directly at the pursuer as she does so. He described numerous instances of this sort of behaviour. I do not intend to set these out at length and I shall refer to these episodes as "general bad behaviour" to distinguish them from what the pursuer called sexualised behaviour but which I shall refer to as "behaviour with possible sexual overtones" or "more extreme behaviour".

[4] The fact that I do not set out the behaviour at length does not mean that I have not taken into account the detailed evidence which the pursuer gave about these matters. The pursuer said that this general bad behaviour tended to occur after contact, between twelve and seventy two hours afterwards. I accept that this may often be the case, but it was rather hard to distinguish any real pattern to the behaviour. For example, the pursuer said that Thursday was generally R.'s best day but clearly some instances of concerning behaviour occurred on a Thursday or otherwise quite some time after contact. The pursuer described R. as often going into what he referred to as a "zone" by which he meant as state in which she is in a world of her own and can't seem to be reached by those around her. It was as if she dissociated herself from her surroundings and those around her. At such times it was particularly difficult to temper her behaviour and calm her down.

[5] Apart from the general bad behaviour, the pursuer described instances of what he referred to as "sexualised behaviour". As I have noted, and for reasons given by the psychologists, which I shall explain later, I do not propose to use that term. Again the pursuer gave several instances of such behaviour, the most disturbing of which was witnessed by Professor James Furnell at the pursuer's home in September 2008. The pursuer was putting R. to bed when she became agitated and started dancing on the bed in what the pursuer described as a provocative fashion. She looked at herself in the mirror, parted her genitalia, touched her nipples and behaved "like a lap dancer" gyrating in front of the mirror. The pursuer described another incident, when he took R. to Euro Disney. One night in the hotel room she "went berserk", pulling her cheeks open and showing her anus. She was running around trashing the room. The pursuer made notes of this behaviour, as he did for much of the time. The pursuer spoke to another incident when he was in the car with his housekeeper and R.. R. jumped off the seat and started pulling off her clothes. She put her finger in her anus and said "look there is blood". The pursuer referred to other instances of such behaviour - for example, when R. put her hand over his private parts and squeezed, saying "is this sore". The pursuer said that there was no pattern to this behaviour and that it was unpredictable.

[6] It was very clearly the pursuer's view that contact was upsetting for R. and was the root cause of all the behaviour which gave rise to concern. He did not know what it was about contact which was the cause of her behaviour but it was firmly his view that something about contact was the cause and that contact as a whole should be stopped "until I know what the problem is".

[7] The pursuer took notes about R.'s behaviour and many of these are included in four substantial lever arch folders which were referred to in court as the "black books". The detail of these notes is extraordinary. The pursuer said that he had been told by Professor Furnell to take notes and "rather too much than too little". I accept that Professor Furnell suggested that the pursuer keep notes of concerning behaviour and no doubt indicated that it would be better to record too much than too little. However, I am quite sure that he did not intend the child to be subject to the degree of scrutiny revealed in these notes. I am sure he was expecting behaviour of concern to be noted and for the pursuer to exercise a degree of discretion about what should go in as a matter for concern, no doubt erring on the side of caution in respect of behaviour which might fall either side of the line. However, the notes go way beyond that. Nor do I accept that this was simply because the pursuer was unable to differentiate between what might be important or not. He himself said that he could exercise discretion in this matter and the implication is that what he recorded was thought by him to be important. Moreover, the editorial comments he recorded in respect of much of the behaviour clearly shows that he was attaching significance to the behaviour, even where the behaviour was perfectly normal.

[8] The pursuer's sister, H. S. gave evidence about behaviour of R.'s which she thought was more than general naughtiness. She spoke of the child scratching, biting, and becoming uncontrollable. The pursuer will try to calm her down and gives her a cuddle or offers her juice.

[9] J. L. the pursuer's housekeeper gave evidence that the relationship between R. and her father was very good. He was always patient and when she misbehaved he explained to her that that was not how one should behave. She felt that there were a few occasions when R.'s behaviour gave cause for concern. She described the incident in the car which had been spoken to by the pursuer. She described another incident in the house when R. took all her clothes off and performed a "striptease" in front of the mirror. She felt there was a sexual element to such behaviour. Mr. S. was very patient with her. He did not however have any strategies in place to encourage good behaviour by reward. R. was a child who demanded, and got, a lot of attention from her father, his sister and his mother.

[10] L. M.'s evidence was generally to the effect that there was nothing in R.'s behaviour which concerned her unduly. She had seen R. throwing and kicking but had believed it was just the "terrible twos". R. and the boy R. got on very well together. The boy R. had been diagnosed with ADHD in January 2007 and since then his behaviour had improved. He was more confident socially and had greater self esteem. He was a lot less dependent on her. The boy R. and R. do squabble like any siblings and the boy R. teases her. They have a snack together when she picks R. up; R. goes with him to play with his animals; then the boy R. goes off to play with his own friends. She had no concerns about the quality of their relationship.

[11] R. will do anything to postpone the moment of going to bed. For example, "I want a drink/I need the toilet/I'm hungry now". Miss M. dealt with this by anticipating what R. might say. She makes sure the child goes to the toilet; she puts some water beside her bed and so on. She had never known R. to get up during the night unless she was unwell.

[12] Generally she had no difficulties with R.. She was a "little bit of a madam" but quite manageable. Miss M. utilises a "naughty step" but mostly R. doesn't need it and a warning will suffice. At the age of two to two and a half R. was exhibiting the normal behaviour of a child of that age. She was testing boundaries. Rather than give something over she would throw it and wait for a reaction. If she did not get her own way she might hit out. She was told that there must be no hitting or throwing or she would have to go on the naughty step. Within four to six months the problems had diminished. If there is any form of physical aggression R. goes straight on the naughty step. R. is very strong willed and has a strong personality. She is very assertive. The defender had not seen any of the more extreme behaviour or behaviour with possible sexual overtones. It did concern her that R. was exhibiting such behaviour but said "she doesn't do it in my care". She said "I can't relate that behaviour to R.".

[13] The defender thought that R. felt a bit pulled, that she possibly felt that she had divided loyalties. Sometimes she will say "why do I have to go back?" and the defender will tell her "Dad will be looking forward to seeing you". She accepted that R. loved her Dad and that they had a close relationship. If R. were to reside with her she would encourage that relationship. She felt that a child of R.'s age should be with her mother.

[14] Miss M. agreed that the parties do not communicate and that even the meetings with solicitors were not helpful because of the atmosphere and tension surrounding the whole situation. She was disappointed that mediation had not gone further because it was in a neutral place with a neutral person.

[15] She said that the current arrangements regarding contact were inflexible and that the pursuer was unwilling to come and go to any extent, for example if the defender wanted her mother to pick R. up. If R. were ill when contact should take place, no contact took place since an alternative arrangement was not offered. At handover R. sometimes has a "bit of a separation issue" and it can be quite distressing. She spoke to an incident in June 2008 when she put R. down, went to walk to the car and R. asked for a cuddle and started to cling to the defender. According to Miss M., the pursuer "prised" R. off her neck whilst she was screaming which the defender found very distressing. She had offered to put R. in her car seat which she thought would have been less distressing for her but the pursuer would not allow her to do so. A worse incident happened on 21 September when the defender's mother and the boy R. were in the car. R. went to her father and everything seemed fine. Then R. came running down the drive shouting "Mummy". The defender turned and cuddled her, told her she loved her and would be back next week. She tried to deflect her attention. The pursuer did nothing other than keep saying "you are ten minutes over time" and "you have to do a proper handover" meaning that she had to hand R. to him. The defender suggested to R. that she should go into the garden to her trampoline where she could jump and wave to the defender as she drove away. She headed off but could not see R. on the trampoline: R. then appeared at the front gate screaming "Mummy". The pursuer picked her up and took her to the house. The defender could not understand why he had not simply gone along with the suggestion and taken R. round to her trampoline to try to defuse the situation.

[16] There is really no communication between the adults on these occasions. The defender said that any conversation from the pursuer is uncivil and she had been led to ask that all communication be through the solicitors. She thought that the court process had not helped and she felt that everything she did was under scrutiny. She had asked the pursuer to let her know if there were any emergency in R.'s life, yet when R was taken to hospital with a febrile convulsion she was only informed by a solicitor's letter.

[17] The defender's mother E.M.. confirmed that she had never seen anything in R.'s behaviour which seemed inappropriate or out of the ordinary. She also confirmed the handover difficulties spoken to by the defender. An affidavit from the nursery was produced describing R. as "a friendly, confident and self-sufficient child who mixes well with her peer group and relates well to all adults in the nursery." The nursery staff had never had any behavioural difficulties with R.. To them she appears to be a well adjusted little girl. At one stage the staff felt pressurised to provide detailed and specific information about R. to the pursuer, beyond that which they would normally supply. In June 2008, both parents attended sports day which caused R. distress. She was overwhelmed by their combined presence. She appeared confused and didn't know who to spend time with, she ran between them. It had been agreed that R. would return to nursery after but she became upset and began crying. Both parents tried to comfort her and the situation was resolved by Mr. S. taking her home. The school is concerned about the constant conflict and animosity between the parents and worry about the effect this may have on R.'s behaviour in the future.

[18] Evidence was given by two expert witnesses, Professor James Furnell for the pursuer and Miss Jennifer Munro for the defender. Professor Furnell had spent considerably more time with R. and her father than he had with her mother. He had spent about fifty hours in the company of R. and her father and only a tiny fraction of that with the defender.

[19] Professor Furnell said that from his observations R. and her father got on very well. She was completely trusting of him, affectionate and so on. He was a man who had come to parenting in his 40s and was "learning on the job". His manner was consistently calm, kind and almost unflappable. During the periods when Professor Furnell was observing R.'s behaviour there were long periods of ordinary domesticity. However there were periods of unusual behaviour and this increased during the autumn when the behaviour became more intense, more unpredictable and she had mood changes with no apparent trigger. He was concerned at the intensity, frequency and spread of difficulties exhibited. Normally if a child throws a tantrum one usually has an idea why, in this case it was out of the blue. The child changes within seconds when it happens. He gave several examples, in particular an incident of extreme behaviour on 28 September at bedtime which had also been described by the pursuer. It was prefaced by the child urinating naked and then pulling back the lips of her genitalia in an entirely inappropriate way. During this episode she was disinhibited and inappropriate to a level he was surprised to see. He did not think this was simply a little girl exploring herself but something completely different. It was a shocking event, with an intensity, energy and power which he had seldom seen in a child of that age. She was outwith her own control. The pursuer tried to speak to her and calm her down but it was hard to get through to her.

[20] Professor Furnell was unable to identify a cause for the more extreme behaviour. He did not understand why there was such a range of behaviour. It would be easy to say that the child is upset after contact but this behaviour seems more intense and more longstanding than one would expect from such a cause and is deteriorating over time. There was a difference between the parties in terms of parenting styles which was a point of contention between them but he was very reluctant to jump to easy conclusions. He felt that there was something more with this child beyond the usual conflicts of separated parents. The difficulties do seem to arise at the father's house after contact but any evidence to suggest that contact was at the root of it was no more than a "straw in the wind". Satisfactory behaviour during contact does not necessarily mean that all is well in that contact setting but on the other hand one might expect some troublesome behaviour during contact in such a case. He was asked the question "If this behaviour does not happen at nursery or at her mother's, what is the significance in it being at the fathers?" His response was that in the absence of obvious difficulties or disruption in the father's house or his handling of the child one does not know. This was a question to which he genuinely did not know the answer.

[21 He also thought that the lack of communication must be a significant factor in the problems being encountered. For example, the pursuer complains of R. returning from contact "exhausted" - this is normally something which is resolved by discussion between parents. He agreed that if parties have radically different parenting styles and routines and the child goes from one another in a context where the parents don't talk it may be disturbing for the child and the situation may be exacerbated by the lack of communication.

[22] Asked whether there was any reason there should not be contact he said no, it is to be encouraged. It is more a question of how that is done and under what conditions. "I think she needs an understanding by the adults who manage her life that she is giving strong indications that all is not well..... I don't know the extent to which they feel they are fighting a war but only the parents know what goes on in the environment with that parent. It would make sense for them to ask if there is anything going on in my care which affects the child adversely." There had been the odd remark about the boy hitting R. which might require to be looked at.

[23] He said that these incidents of behaviour apart everything suggests that the ordinary domesticity of life with her father is very calm and settled and she has a good attachment to him. She is settled and happy in his company. It is a benevolent environment, he is a doting father, there are no concerns about goodwill or safety and at this stage he thought it was in R.'s best interests to stay with her father. Her primary attachment at the moment was to her father and the proposition of changing that now would be quite a serious one and one might not be clear about the outcome. He saw no justification for it and perhaps a contraindication in that if the child is demonstrating these behaviours one would be reluctant to engender a major change until this behaviour is understood.

[24] Professor Furnell said that R. had a highly developed "blanking technique" which appeared much quicker than the indication that a child does not wish to talk which is sometimes encountered. It seems to be to do with any topic which is loaded in her domestic situation. He thought she was extremely alert to different material and what can be discussed where. She might be talking in a relaxed way but if there was a topic which she did not want to discuss or felt she should not discuss she will just stop and the communication is lost. It happens very frequently. There was a need for both parents to come out of their trenches and have a dialogue because otherwise this child is not going to settle. He thought that the cumulative effect of her life was causing difficulties. The strategy he suggested was to try to change one element but keep everything else constant to see if it helps. Which particular element to change is a pragmatic decision. He was quite prepared to believe that the acrimony between the parents was a factor and the child is picking up the atmosphere. It is also possible it was a cumulative effect of the conflict and atmosphere on a sensitive child but the question is whether it actually went beyond that.

[25] Sexualised behaviour is an emotional term. In this context what is meant is precocious, disinhibited behaviour with possibly a sexual element rather than sexualised behaviour as a term of art understood to psychologists. In this case he was not clear what the behaviour means but there is an inappropriateness to the behaviour which is concerning. He accepted that young children were willing to take their clothes off in all sorts of places and that the general statement to that effect made by Miss Munro was correct but he did not think that that was what covered this particular incident. She thought it was "part of the repertoire of hyperarousal, unsettled behaviour seen on other occasions, occurring as an emotional response to the extreme parental conflict". He would be much less certain.

[26] As to the scrutiny to which the pursuer has subjected R., Professor Furnell has suggested it be cut back to one week in three and major incidents only. He accepted that in the notes the pursuer attributed any negative behaviour to something which is happening at contact or something to do with the relationship with her mother. The notes also record his questioning her behaviour and attributing a negative explanation to neutral matters (for example liking red or striped tights) which Professor Furnell did not understand. He also accepted there were occasions when the girl was questioned inappropriately (for example "What don't you like about mum's flat?"). Asking the housekeeper and handyman to keep notes on the child "seems to be going outwith boundaries." Professor Furnell had not realised the intrusiveness of the note taking and felt that some of the pursuer's reactions need to be toned down. If less extreme behaviour is met with similar reaction to more extreme behaviour that might not be helpful.

[27] He concluded that essentially these parents need to get their heads together to work out what is in the best interests of this child. They have to ask themselves honestly if disruptive events or comments occur when the child is in their care. One is aware of a very destructive effect that can take place, for example in saying "we'll soon get you here" and so on. If any such behaviour were eliminated it might take some of the pressure off the child.

[28] Miss Munro's observations suggested that the level of care provided by Miss M. was good. Her parenting skills were excellent. When R. had tearful outbursts the defender "used distraction techniques effectively but also made the boundaries clear to R.." She noted that the parenting styles of the pursuer and defender were very different. Miss M.'s style encompasses all developmental models which a psychologist would recognise such as positive rewards for good behaviour, containment of bad behaviour, clear boundaries. She was very clear what she was asking of her children and of any consequences which would follow. The father's style took more of a following role. He used fewer containing strategies and allowed R. to express herself very freely. She was therefore having to adjust to very differing styles.

[29] She noted that at Mr S.'s house after contact the child was unsettled. She would not eat her food and was in and out of the room in a quite uncontained way. The pursuer's way of dealing with it was to be very accepting of her behaviour. He tried to coax her to eat, to encourage her but she was still unsettled. Miss Munro felt a concern in the huge differences in parenting styles where boundaries are so differently set. To go from one where the boundaries are tight to where they are looser is a difficult adjustment for a child. It requires communication between the parents to understand more about each other's styles and to find some middle ground.

[30] She observed a handover after contact when R. became upset because she wanted her dummy which her mother did not give her. She started to cry and as the pursuer carried her to the house he clearly stated "That's cruel, that's cruel". The child was caught up in the interchange and hearing this she would understand that the reference was to the behaviour of her mother. In the kitchen he asked R. what had happened, which Miss Munro felt was inappropriate for a four year old. He was asking R. what had happened with her mother in a situation which she was aware was very conflict ridden.

[31] R. was increasingly aware of the conflict between her parents and it was widely understood that children's behaviour is commonly disrupted after contact within such hostility. Young children may show high levels of anxiety around contact, with a repertoire of behavioural changes including aggression, clinginess, hyper arousal and disturbance of sleep and appetite. She thought that R. was in a stressful situation and was well aware of the hostility between her parents and therefore felt unable to directly express her feelings of sorrow at leaving her mother's care. She did however feel that in this case there were difficulties beyond the acrimonious relationship and the situation was more complex.

[32] Mr S. had a very clear belief that the behavioural disturbance was the result of contact and that contact itself was thus damaging. She herself had no evidence to suggest that anything during contact is affecting the child. She had observed R. at lunch at the pursuer's home with so much focus from her grandmother and father. She thought the high level of attention combined with the lack of boundaries was a problem. There was a lot of attention on all the child's behaviour and she was gaining attention from the unsettled behaviour. She said "If a young child is given attention for behaviour it will reinforce the behaviour and encourage it to happen. This is the more so because all young children crave adult attention." The parents should try and reward behaviour which is desired within the boundary of ignoring or trying to curtail unwanted behaviour. The behaviour could be ignored, the child could be told no, eye contact could be removed, or the person could physically move away, they could use star charts or reward systems and so on. She was concerned that with this unhealthy attention R. would learn to manipulate situations to her own means and there was a risk that her behavioural disturbances were being maintained by the attention that she received.

[33] "Sexualised behaviour" is a term applied to a child behaving in way which indicated that someone had introduced a sexual element to a child's awareness: examples would include masturbation, descriptions of genitalia in an unusual way and playing with dolls in a sexual manner. There were elements of R.'s behaviour that worried her but not sufficiently to describe them as sexualised.

[34] Professor Furnell's account of the behaviour on 28 September gave cause for concern. The fact that the child was described as emotionally unreachable disturbed her as did the lack of control in her behaviour. The fact that she is so aware of the conflict may be contributing to her emotional state. The absence of boundaries at home she thought was a factor. There were strategies designed to address this, some developed by physiotherapists which might be taught to a parent and which might help. The general level of lack of control and boundaries for R. is worrying and potentially unhelpful. There is a likelihood that she will grow up unable to moderate her own emotions when older or she may end up blocking her emotions which will affect her self esteem. What struck her regarding the behaviour in the context she had seen was the lack of containment. As an example, she cited an instance when R. had been taking her clothes off. The pursuer's response was to ask her why she was doing that, which was inappropriate and de-stabilising. Such interaction as she is actually doing something uncontained is inappropriate. Her father was asking more about it rather than making an effort to contain it. Allowing the behaviour to continue is negative and not good for the child's self esteem. She needs adult containment to feel safe. If the adult is very anxious and asking the child more questions, the child will not feel contained and will feel anxious. The pursuer's responses are maintaining the behaviour, since he effectively gives a reward to the behaviour.

[35] A four year old does not have the developmental ability regarding language or interpretation of her own behaviour to answer questions about it in a meaningful way. Children are socially acquiescent with adults and will try to answer even if they don't fully understand the nature of the question. Moreover, to persist in asking a child a question after the child has made a statement or answer, as Mr S sometimes tends to do, leads the child to think she needs to say something different. A child's social expectation is that if an adult asks again the first answer must be wrong. She cited an example from Volume 4 of the black books, page 44 where the child was asked who she does certain behaviour with. The answer was nobody. She was then asked again and the answer became "Nobody, I only love you" and it seemed that she was trying to appease her father.

[36] Like Professor Furnell, Miss Munro really did not know the root of the extreme behaviour which caused such concern. She did not agree with Professor Furnell's strategy of changing one part of the environment at a time to see whether there was any improvement, saying "I am seeing things in her care and management which I would like to be corrected. There are problems we do know about. It would be valuable to rectify those to see if it has any effect."

[37] As to the volumes of notes made by the pursuer, she was surprised at the level of scrutiny of all aspects of the child's life at home. There were several clear themes which came over. One was that the pursuer placed a lot of negative interpretation on developmentally normal comments or behaviours. Allied to that is a recurring theme that she is under an influence which is undesirable. Her sudden preference for striped tights or the colour red, for example, are interpreted, in an anxious way, as her mother's influence over her. There are many such examples. The child's liking for the song Mamma Mia was interpreted as being in her consciousness because of the connection with her mother. Another was a reference to singing Doe a Deer when she came back from contact, as if this was something sinister.

[38] She thought that Saturday morning contact was very rushed. It ends with a dance class which requires preparation and organisation and the morning is squeezed into a very small time for R. The dance class was quite tiring and altogether there were concerns about this as the handover. Asked about concerns with contact she said that there were issues in the notes which made her uncomfortable, for example reference to the boy R. hitting R. and she thought that if the child is describing negative things during contact it needs to be looked at. She had interviewed the boy R. twice and found him highly co-operative. He had good school reports and came across as a caring brother.

[39] Her recommendation was that the defender should become the residential parent, but she recognised that a change in the status quo involved a risk to the child and it was not a recommendation she made without anxiety. It was hard to speculate how R. might cope. The pursuer was the main carer and R.'s primary attachment, but it is very important that relations with her mother and brother be maintained. "I am concerned that if something radical doesn't change those relationships might be lost." On the option of increased contact, she said "It is hard to envisage he will be able to tolerate increased contact without scrutiny and the worry is that this is somehow damaging to R.."

Submissions for pursuer

[40] Counsel for the pursuer made submissions about the reliability of the evidence of the defender and about her demeanour, mainly the fact that when discussing the child's extreme behaviour she did not seem particularly distressed.

[41] Miss Munro had agreed that the behaviour warranted further examination. The pursuer's reaction was not the cause of it, although it might exacerbate it. The acrimony was not the cause although it was a significant factor. Neither expert knew what was the cause - both thought something should change and the question was what?

[42] The main issues were summed up as follows:

·                   R. is a very disturbed child.

·                   She is showing extreme behaviour.

·                   No-one knows the cause of it.

·                   The parties have very different parenting styles.

·                   There is a complete lack of communication.

·                   There is animosity between the parties.

·                   Something needs to change.

·                   There is a lack of criticism - apart from how he deals with the behaviour
- of other aspects of the pursuer's care.

·                   Miss M.'s justification for changing the status quo is "a child should be with her mum, it is a natural thing". That is no justification whatsoever.

[43] Counsel suggested that there might be room for a remit to an independent psychologist in this case. I pointed out that Professor Furnell had been less than unequivocal in advancing this as an option. Another option which counsel promoted was the reduction in contact, following a suggestion from Professor Furnell. She sought a return of R.'s passport which had been lodged in process.

[44] So far as mediation was concerned this had already been tried but if it were felt it might be of assistance Mr S would be willing to engage in mediation again.

Submissions for the defender

[45] Counsel's motion was for a residence order but in the absence of that for more extensive contact. Minimum contact should include a longer weekend so the child was not rushed and so the time was not unsatisfactory for both R. and her mother. Turning to the evidence she noted that the pursuer had said he wanted the court to find the cause of R.'s behaviour and wanted R. to get help. He wanted an investigation into what is happening at contact which is upsetting R.. The evidence of the experts was that there may not be one single cause for the child's behaviour. Both identified a real problem between the parents in the complete absence of communication and the acrimony that they felt towards one another. Both agreed that the pursuer has a fixed view that contact is harmful and is the cause of R.'s problem. Professor Furnell said it was no secret that that was the pursuer's view and that is amply demonstrated by the black books where he interprets the child's behaviour and provides his own explanation for it. Even the most trivial behaviour or events are used to demonstrate that a problem arises from contact. It is apparent from any reading of the black books that at times he records what is happening in a way which shows that R. might be aware of it e.g. the Paris incident. When he is recording behaviour as it happens he is not dealing with it and this is an example of the failure to manage her behaviour.

[46] Counsel did not dispute that the extreme behaviour was concerning but noted:-

(1) That it only ever happens in the presence of the pursuer and not when she is in someone else's care.

(2) The apparent escalation since autumn of last year coincided with reduction in contact by taking away the Tuesday contact.

In Professor Furnell's first report, he identified lack of communication, tension and mistrust as possible sources of the child's behaviour and noted that some disruption was to be expected. He noted that if the child had been significantly distressed at contact that would have been apparent in his observations. He made recommendations designed to address these issues. Professor Furnell's second report showed quite a different emphasis. He agreed to act as an observer and did so for a considerable period of time. For that report he spent only two hours with the defender, none of which was in R.'s presence. He agreed that it did not present the same kind of balanced report as his first report.

[47] He was unable to explain the behaviour of 28 September, its causes or suggest a solution. He proposed tinkering with the contact arrangements by taking away overnight contact to see if that assists. That is a curious conclusion when manifestly her behaviour has deteriorated since she saw less of her mother. There was no evidence at all to support the proposition that contact was harmful or causes or contributes to the child's behaviour when she was with her father. It is speculation with no basis.

[48] Miss Munro did not stand back from the proposition that a radical change is required. She saw it as necessary to preserve the relationships the child already has with her father, mother and the boy R. and because of her father's inability to encourage the relationship with her mother and the boy R..

The following were identified as areas of concern:

·                   Acrimony.

·                   Lack of communications.

·                   Different parenting styles.

·                   The attention which he pays to her behaviour which serves to maintain
and even exacerbate it.

·                   His failure to manage or control that behaviour.

·                   His intense scrutiny of her behaviour which reinforces his fixed belief that there is something wrong with contact.

[49] Miss Munro levels criticism at both parties and carried out a balanced investigation and used her professional expertise to analyse what she saw and reached a conclusion in the proper exercise of professional analysis

[50] There are a number of issues to address if looking to the child's welfare:-

·                   Status quo is relevant.

·                   Respect of material circumstances are relevant but no issue arises.

·                   Relationship with each of the parents.

·                   Relationship with the brother.

·                   Relationship and behaviour of the child and the parents' management
of it.

·                   The complete absence of extreme behaviour when not with the father.

·                   The pursuer's fixed belief that contact is harmful.

·                   His scrutiny and analysis of all aspects of the child's life.

·                   His willingness to engage others in assisting him to obtain evidence.

·                   The respective attitudes to the relationship with the other parent.

·                   The defender readily acknowledged R.'s relationship with her father and gave no indication other than that it should be preserved.

·                   The pursuer said it should but only if it is healthy - he qualifies the value of the relationship with the mother.

·                   The parties' failure to communicate and the acrimony.

The defender was more than willing to engage in mediation. On the issue of holiday contact she accepted that it would require to be very specifically set out.

Discussion

[51] I do not accept the submission for the pursuer that a remit to an independent psychologist should be considered. It was advanced at the outset of the proof as something being promoted by Professor Furnell but when he gave his evidence it was clear that he had grave doubts about the value of such a course for a child of this age. He also identified difficulties in finding a suitable person to carry out the task, difficulties in identifying the remit and there was no real basis for thinking that it would resolve the matter.

[52] R. has lived with her father as her primary carer since she was about 8 months old. She is now four and a half and it is quite clear that her primary attachment is to her father. He is a good father and a concerned and caring parent. I have some concerns about his approach to R.'s upbringing but they are not such as to make me conclude that it would be other than in R.'s best interests for him to remain the residential parent. My concerns are broadly twofold: the first relates to the intense degree of scrutiny which R. has been under; secondly, I feel that the pursuer's response to bad or inappropriate behaviour on R.'s part must have a tendency to reinforce and maintain such behaviour. I will elaborate on these in due course. They are significant concerns but I believe that they can adequately be addressed by the pursuer introducing clearer and stricter boundaries for R. and developing coping strategies to deal with her behaviour, all as discussed in the evidence of the psychologists, notably that of Miss Munro. I am quite satisfied that the pursuer would be willing to take whatever steps are necessary to address these concerns. He has already taken steps to curtail the extent to which R.'s behaviour is recorded and to note only the most significant events.

[53] I do not think it is at all in R.'s best interests that there should be a radical change in her life of the kind proposed by Miss Munro and I do not therefore think there should be a change in residential care. R. is secure and happy in her father's care and that is where I believe she should stay. Nothing in the evidence has persuaded me that such a change would be in her best interests. Miss Munro herself said that one could not predict what the effect on R. of such a dramatic change might be.

[54] As to the defender, I believe R. has a strong attachment to her mother and to the boy R.. I am satisfied that the defender is able to care well for her during contact periods and that contact should be continued, and indeed increased. There is no evidence to suggest to me that contact with the defender is the root of any of R.'s bad behaviour (as opposed to issues surrounding contact, such as lack of communication and parental conflict). The evidence also suggests that R. has a good relationship with the boy R., although the occasional comments that the boy R. hit her suggest that the defender may need to be more alert to any arguments between the children.

[55] The more extreme behaviour exhibited by R. certainly provides cause for concern. However, the evidence does not provide any explanation for it and the psychologists were essentially at a loss to explain it. Professor Furnell, who has spent a great deal of time observing R. did not have any real idea as to the cause and was driven to suggest one should change one element of her behaviour at a time to see if her behaviour improved. He said "I don't know what these incidents are about. I have seen nothing in (the pursuer's) house to indicate that there is something triggering it.". From what he had seen he was content with the environment of the pursuer's home and the nursery - the aspect he knew less about was the defender's home. It was this which had driven him to suggest that one thing which might be tried was to reduce contact. However, he had spent comparatively little time with the defender and R. and clearly he had seen nothing in the defenders house to indicate a trigger. Nor had Jennifer Munro who has had more opportunity to observe the defender. I cannot see this as a good basis for reducing contact, especially when the evidence indicates that the behaviour worsened when contact was reduced. Miss Munro did not have an explanation either but I am driven to the conclusion from the extreme nature of the antipathy between the parents, the complete lack of co-operation or communication and the general atmosphere of distrust between them, that as Miss Munro suggested the behaviour may be "part of a repertoire of hyperarousal, unsettled behaviour seen on other occasions, occurring as an emotional response to the extreme parental conflict". It is worth noting that the range of behaviour which Miss Munro said might be expected from a child caught in an acrimonious situation between parents includes temper outbursts, defiance, anxiety and some disturbance of sleep and appetite. These all form a significant part of the behaviour which concerns the pursuer. It is almost impossible not to conclude that this behaviour must be very significantly contributed to by the acrimony, conflict and refusal to communicate between the parents. Both psychologists acknowledged the possibility that indeed all of R.'s behaviour might have this root cause, although they were both concerned that there might be something else. Neither could suggest what that might be. The evidence however does suggest that R. is very aware of and highly sensitive to the acrimony between her parents. Professor Furnell's description of her "blanking technique" suggests that; the evidence of Miss Munro suggests it; and the affidavit from the nursery illustrates it very poignantly. I am driven to conclude that if the situation between the parents could be improved there would be a marked improvement in R.'s behaviour.

[56] Of course, it reflects very badly indeed on both parties that they will not communicate with each other and it is almost impossible to identify how the problems at handover will be other than intensified as long as this is the case. These two people need to start putting their own concerns aside and put R.'s first. It beggars belief that they could have sat through almost three weeks of proof listening to the effect their hostility and lack of communication had on their daughter without immediately taking urgent steps to address the issue. Each effectively blames the other for this impasse and neither, it seems to me, is willing to recognise the very serious damage this is doing to R. nor how a continuation of such a situation might affect her. The hostility between the parties at handover must almost be palpable and I am quite sure that R. is aware of and distressed b y it. I am quite sure that it is very unsettling for her and will leave her with a lack of confidence and security about her situation. She must feel torn between the two adults she must love the most and they are doing absolutely nothing to help her in that situation.

[57] I think that the extreme, almost obsessive note-taking of the pursuer has not helped the situation. It is clear from the notes that he attributes any negative behaviour to something which is happening at contact and places a negative interpretation on neutral behaviour. I am quite sure that R. will have picked up this negativity from him and that it will make her insecure surrounding all aspects of contact. I think the pursuer really does need to accept that contact is in R.'s best interests, that the evidence does not suggest that contact is harmful to her in any way and that he should be encouraging it rather than suspicious of it. He also needs to monitor and as Professor Furnell said, "tone down" his reaction to behaviour from R. which he found unacceptable. As the Professor accepted, if less extreme behaviour is met with similar reaction to more extreme behaviour that might not be helpful. For example, I was struck by the pursuer's expression as he described R. eating with her mouth open and with her fingers, which was vividly one which showed extreme distaste for what he saw. One can well imagine that a child who is misbehaving and succeeds in provoking such a reaction might enhance the bad behaviour which is being described and continue it as a form of defiance. The pursuer's sister said that when bad behaviour occurred when they were out with R. "we all run after her". The pursuer will try to calm her down, offer her juice and try to hug her. I do feel that there is a degree to which the behaviour complained of is being perpetuated by the attention it is given and the fact that R. is often rewarded for such behaviour by a hug from her father. I do not think that the pursuer has succeeded in setting appropriate boundaries for R.'s behaviour in the way that I think the defender has. The defender has set clear and appropriate boundaries for R. and this seems to work, since I accept that even this general bad behaviour does not as a rule happen when R. is with her mother, and when it does it is quickly defused by appropriate techniques such as the use of a naughty step. Instead, the pursuer tries to comfort R. without necessarily making it clear to her that her behaviour is unacceptable. He tries to rationalise with her, to ask her why she behaves in such a way and this is unlikely to be a technique which will succeed with a child as young as R..

[58] The pursuer struck me as rather an anxious personality and I have no doubt that he found the prospect of the court case stressful. He appeared to be under some stress at time when giving his evidence. He became very upset on two or three occasions when describing R.'s behaviour and the extensive notes in the "black books" and his noted comments therein reveal a high degree of anxiety over what was often simply normal behaviour of child of R.'s age and stage of development. They also show a degree of insecurity regarding his place in R.'s life. For example, he recorded at one stage that there was a "major change" in R. because she was saying "mummy and daddy" (mummy first) rather than "Daddy and Mummy". I think the extensive note taking and the negative interpretation placed on developmentally normal behaviour is a reflection of his extreme anxiety about R. and his place in her life. Whereas the concerns I had about the pursuer stem from the intensity of the attention he gives R. and his attempts to engage her in dialogue over bad behaviour rather than to set clear, and if necessary, strict boundaries, my concern with the defender was almost the opposite. The defender's reaction to the description of the more extreme behaviour described, especially that with a possible sexual element, as witnessed by Professor Furnell, was puzzling. She voiced concern, as of course one should, but it seemed to go little beyond that. She formally expressed shock at what she had read in Professor Furnell's report but this seemed to me to be rather superficial, almost as if she did not believe it. On the one occasion when there was a display of emotion, I will not go as far as to say that it did not strike me as wholly genuine, but again it seemed superficial, in contrast to what appeared to me to be the genuine distress and concern exhibited several times by the pursuer. The defender appeared to be entirely complacent about the child's behaviour, simply noting that it did not happen in her care. Given the detail of the behaviour spoken to by witnesses other than the pursuer I would have expected the defender to exhibit much greater concern, and a complete determination to get to the bottom of what the cause was, yet this was almost completely absent. Her demeanour was such that she seemed to me almost detached from it, which I found wholly perplexing. The pursuer may be misguided in attributing the cause to contact, and he may be blinkered in his refusal, or at the least reluctance, to accept that a substantial cause of the behaviour may be attention seeking stemming from the complete hostility between the parties and R.'s insecurity arising from this, compounded by the attention which he and his family give to any untoward behaviour on R.'s part, but at least he is searching for a cause and trying to find an answer to the problem. He may over-react and his notes may be obsessive, but his notetaking, and the extent to which he involved Professor Furnell, do indicate a man who is seeking to find out what is troubling his daughter and to find a way of stopping it.

[59] The pursuer needs to put in place appropriate strategies to deal with R.'s behaviour, as explained by Miss Munro. He needs to intervene in such behaviour at the earliest possible stage to prevent it escalating. He needs to avoid seeming to reward such behaviour by cuddles, drinks, attention etc. He needs to encourage R.'s relationship with her mother, to stop seeing it as some sort of threat to his own position and to avoid letting R. sense that he is in some way threatened by it. The defender, on the other hand, needs to recognise that R.'s behaviour is a matter for serious concern; that she needs to examine honestly what takes place in and around contact with a critical rather than a complacent eye and that she too has a role to play in assisting R. to feel secure in her present situation. Her original opposition to the pursuer's application for parental rights seems almost petty. Above all, the parties need, as a matter of urgency, to start communicating over R.'s needs and concerns.

[60] I shall grant the pursuer's application for parental rights. I shall make a residence order in his favour. I shall make an order for contact each weekend but alternating from 1pm on a Friday to 1230 on Saturday one weekend and from 1pm on Friday to 1230 on Sunday the following weekend. I propose to make a contact order for school holiday periods for one week at Easter and two weeks during the school holidays. Since I have no confidence that the parties can agree on dates I will put the case out for by order discussion on this point. R.'s passport will be returned to her father. I consider that as a matter of urgency these parties require to return to mediation to address the conflict between them and to find ways to enable them to communicate with each other in R.'s best interests. To that end I will therefore also refer, the parties, in terms of Rule of Court 49.23, to Anne McTaggart, Mediator, C.A,L.M., McIntosh McTaggart, Solicitors, 123 Crown Street, Aberdeen, AB1 6HN.