FIRST DIVISION, INNER HOUSE, COURT OF SESSION
Lord President Lord Carloway Lord Hardie	[2010] CSIH 83 XA30/10 OPINION OF THE COURT delivered by THE LORD PRESIDENT in Appeal by NJDB Pursuer and Appellant; against JEG Defender and Respondent; and JOHN NOEL JAMES ANDREW, Solicitor, curator ad litem to [S] Third Party Minuter and Respondent: _______

Act: A Smith, Q.C., Halley; Drummond Miller LLP (for Jardine Donaldson, Solicitors, Alloa) (Pursuer and Appellant)

Alt: Di Rollo, Buchanan; Andersons Solicitors LLP (for Virgil Crawford, Solicitor, Stirling) (Defender and Respondent)

Alt: Hughes; Campbell Smith WS (Third Party Minuter and Respondent)

22 October 2010

The Issue

[1] [S] was born on 1 April 2000. His father is the pursuer in these proceedings, his mother the defender. The issue between the parents is contact by the pursuer with [S]. The pursuer seeks, at least as his ultimate aim, residential contact with [S]. The defender maintains that there should be no contact of any kind.

The procedure

[2] That might be thought to be a straightforward, if important, issue. However, the proof in Stirling Sheriff Court (to which it had been transferred from Alloa for that purpose) ran to 52 days of evidence, interrupted by a hearing of at least 2 days on a legal issue which had arisen. The defender, who had been ordained to lead at the proof, was examined by her own counsel for 21/2 days, cross-examined by the curator ad litem to [S] for half a day, cross-examined by counsel for the pursuer for 9 days and re-examined by her counsel for a further 6 days. Her evidence was concluded on day 20 of the proof (29 May 2009), some 9 months after the proof began. The pursuer, who was the last witness at the proof bar the curator, gave evidence for 7 days. Prior to his testimony evidence had been given by a number of other witnesses, including several "experts". The proof was concluded on 23 November 2009, when the sheriff made avizandum. Special arrangements having been made to allow him to produce a judgment expeditiously, his decision was issued on 22 January 2010. His judgment ran in all to 173 pages, of which some 35 were findings of fact (163 in number) and the rest comprised his Note. The cost of the proceedings, excluding judicial costs, has been estimated at about £1 million, of which by far the larger proportion has been borne by the Legal Aid Fund. We shall return to comment on these figures in due course.

The history prior to the present dispute

[3] The pursuer and the defender commenced a relationship in 1997. They never married. The defender had a daughter [Z] by a prior relationship. She was born in 1996. The defender's personal relationship with the pursuer came to an end within a few months of [S]'s birth. The defender subsequently formed a relationship with [BG], whom she married in January 2004. A boy, [A], was in 2007 born of that marriage.

[4] During his relationship with the defender the pursuer formed a close relationship with her daughter [Z]. After the end of the personal relationship between the pursuer and the defender, the pursuer for some time had periodic residential contact with both [Z] and [S]. In October 2003 the pursuer raised proceedings in Alloa Sheriff Court in which he sought parental rights and responsibilities in relation to both [Z] and [S] and a residence order in respect of each of them or, alternatively, residential contact with both of them. On 20 January 2004 the sheriff pronounced an interlocutor finding the pursuer entitled to parental responsibilities and rights in respect of both children, made no order meantime of contact between the pursuer and [Z] and found the pursuer entitled to interim residential contact with [S]. A diet of proof was assigned for July 2004. At that diet there were intensive negotiations between the parties resulting in agreement that [S] and [Z] should reside with the defender. A joint minute was also entered into to which by interlocutor dated 7 July 2004 the court gave effect. That interlocutor provided as follows:

"1. Grants the pursuer parental rights and responsibilities in respect of the child [S] ...

[Clauses 2 and 3 made specific provision for residential and non-residential contact of the pursuer with [S]].

4. That the pursuer shall be consulted by the defender on matters of importance relating to the health, welfare, education and upbringing of the said child.

...".

No provision was made for contact between the pursuer and [Z]. Albeit the interlocutor of 20 January 2004, in so far as granting parental rights and responsibilities to the pursuer in respect of [Z] has not, at least expressly, been altered, the pursuer seeks no order in respect of [Z].

[5] By the time the joint minute was entered into relations between the pursuer and the defender were poor, not least because the pursuer had in the proceedings averred that the defender had physically and otherwise mistreated the children, an allegation which she regarded as wholly unfounded in fact. Within a short time of entering into the joint minute she regretted having done so. Relations between the pursuer and the defender (and her husband) deteriorated, exacerbated particularly by allegations made by the pursuer, which the sheriff found to have no basis in truth, that the defender's husband had acted in a sexually improper manner towards [S]. Relations broke down completely. There were very serious difficulties about the implementation of contact arrangements between the pursuer and [S].

The present dispute in the sheriff court

[6] Litigation between the parents was resumed. By Minute the pursuer craved that he be found entitled to residential contact for certain specified periods, which failing for such contact during such times and periods as to the court seemed appropriate. The defender on the other hand by Minute craved the court "to recall the contact order granted on 7 July [2004] and to withdraw all contact the pursuer has to [S] or to grant such periods of contact as the court shall seem proper". The interlocutor pronounced by the sheriff on 22 January 2010 includes "recalls the interlocutor of 7 July 2004 and withdraws all contact the pursuer has with the child [S]". The sheriff also disposed of certain pleas, including repelling the pursuer's plea in support of his claim for contact. Against that interlocutor the pursuer has appealed to this court.

The appellate proceedings

[7] Following the lodging of grounds of appeal by the pursuer the parties were appointed to lodge notes of argument. That lodged by the pursuer included a chapter (Chapter 4) headed "A failure to act judicially". In view of the criticisms of the sheriff contained in that chapter the court remitted to the sheriff to report to it on the comments contained in it. The sheriff duly reported. We shall return to discuss these criticisms. Pending the substantive hearing the court also found the pursuer "entitled ad interim to parental rights restricted to letterbox contact [with [S]] on one occasion per month under the supervision and control of the appellant's solicitor and the curator ad litem ..." (all as particularised in the Minute of Proceedings). In furtherance of that order the curator on three separate occasions attended at the defender's house, saw [S] privately and endeavoured to deliver to him a letter from his father. On each occasion [S] refused to accept or to open the letter, although encouraged to do so by the curator. On the first occasion he said "I just want my Dad out of my life". On each occasion he was calm and collected throughout, with no obvious sign of distress. He remained resolute in his attitude.

[8] In opening his submissions Mr Smith for the pursuer advanced two related contentions - (1) that this court could have "no reasonable confidence" in the sheriff and (2) that the sheriff had failed to address the core issue (namely, the welfare of [S]). At one point he invited us to "recall all the findings of fact" and to remit the case to the sheriff court (with a view to a more restricted enquiry being made by a different sheriff into what arrangements, if any, were currently in the best interests of [S]). At a later stage his proposition was of a more limited character. It was that the sheriff's finding-in-fact (162) (together with the last two sentences of finding-in-fact (160)) were such that no sheriff acting reasonably could have made them and that they should be deleted. Finding-in-fact (162), which is essentially a conclusion on the whole issue of contact and is in substance repeated in the sheriff's second finding-in-fact-and-law, is in the following terms:

"Contact with his father is not consistent with [S]'s welfare or best interests."

Finding-in-fact (160) is in the following terms:

"The pursuer and defender are incapable of having a cordial or civilised relationship. If contact between [S] and pursuer were to occur, handovers would take place amid an atmosphere of hostility, assuming that [S] willingly attended for contact. Were a contact order to be made, [S] would be unwilling to attend. It is probable that he would refuse to attend. It would probably distress him and involve him again in the continuing conflict between the parties. There is no third party that would be prepared to take on the role of intermediary. It is not in [S]'s best interests that he is exposed to such conflict."

Only the last two sentences of that finding are challenged. None of the other findings-in-fact is challenged. Apart from a few selected pages, to the significance of which we shall return, the evidence led before the sheriff was not put in front of us.

The statutory test

[9] It is a radical step to deny to a father contact of any kind to his young son. But against the findings-of-fact made by the sheriff, which we shall shortly summarise, that was a conclusion to which he was, in our view, entitled to come in this case. The sheriff's jurisdiction to make an order in respect of parental rights is governed by section 11of the Children (Scotland) Act 1995. In deciding whether or not to make an order and what order to make the court by subsection (7) -

"(a) shall regard the welfare of the child concerned as its paramount consideration and shall not make any such order unless it considers that it would be better for the child that the order be made than that none should be made at all; and

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

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

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

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

[10] The sheriff's findings-in-fact are wide-ranging but the critical elements may be summarised as follows.

The material findings as summarised

[11] After the end of his parents' relationship in August 2000, [S] had, with [Z], regular contact with his father from Christmas 2000. During 2001 and 2002 the pursuer had residential contact with both children approximately one week in four. By the early months of 2003 [Z] was becoming increasingly unsettled and less keen on her contact visits with the pursuer. He had been speaking ill to her of her mother and told her that she would be better off living with him. He had mentioned going to court on the matter. Against that background [Z] returned from a contact visit in August 2003 very upset. The defender was incensed by this and by other conduct of the pursuer and stopped his contact with both children. As earlier narrated, in about October 2003, the pursuer raised court proceedings in Alloa Sheriff Court in which he sought parental rights and responsibilities in relation to [Z] and [S], and an order that both of them reside with him or, alternatively, for residential contact with both children. In his pleadings in that action he made serious allegations about the defender's conduct towards the children. In December 2003 the sheriff granted to the pursuer interim non-residential and residential contact with [S] on specified dates in that month and in January 2004. On 20 January 2004 he made the order of that date earlier narrated. The residential contact in relation to [S] was from Friday afternoon until Monday morning every second weekend. This arrangement continued until July 2004. [S] found this contact generally enjoyable. The joint minute earlier referred to made alternative arrangements for contact; this included residential contact every fourth weekend from Thursday at 3.00pm until Tuesday at 9.30am, for more extended periods in the summer and in October 2004 and for summer, Easter and Christmas in succeeding years, as well as non-residential contact on [S]'s birthday. Disputes early emerged between the parties as to the implementation of these arrangements. The summer 2004 residential contact took place, although the defender concluded that [S] had returned in a confused and unsettled state. The October 2004 contact did not take place as [S] was ill at the time. In December 2004 the pursuer lodged in court two Minutes: one to vary the interlocutor of 7 July 2004 by seeking an order for [S] to reside with him, the other seeking to find the defender guilty of contempt of court for allegedly breaching that interlocutor. Thereafter the sheriff at Alloa attempted to regulate and monitor contact between [S] and the pursuer through a series of child welfare hearings and other interlocutory judgments. From time to time non-residential and residential contact were appointed to take place. In September 2005 the pursuer alleged that he had on a residential visit observed [S] playing with his penis. On that basis he alleged that [S] had been subjected to sexual abuse in the defender's household, in particular at the hands of the defender's husband. The pursuer involved the police. That latter allegation was without substance. The making of it caused acute distress in the defender's household. The children, including [S], were aware of this distress, although they have not at any time been told of the allegations. The next appointed contact between the pursuer and [S] did not take place, [S] having refused to go; he was not at that time distressed or crying. A further contact having been appointed, [S] again refused to go; this time he was very anxious, distressed and upset. He was again upset and distressed when the pursuer came to pick him up at the end of a school day; contact did not then take place. Concurring with the curator that [S] needed a break from the pressures surrounding contact, the sheriff on 21 October 2005 suspended contact with the pursuer. Following a report from Professor Furnell contact was resumed in the form of two periods of day time contact followed by residential contact. From April 2006 the pursuer had contact with [S] on alternate weekends between Friday and Sunday, with residential periods during holiday times. Although contact continued on a regular basis until December 2006, [S] was becoming unenthusiastic and increasingly resistant to contact. The defender found it increasingly difficult to persuade [S] to go on contact visits. This increased the tension within the defender's household, particularly before contact visits. A contact visit of several days had been appointed for shortly after Christmas 2006. [S] refused to go. He was particularly distressed. Contact was, however, resumed in January 2007 but [S]'s resistance to contact intensified. Although the pursuer, over about a week in July 2007, took [S] to England for holiday contact, on his return [S] expressed the view that he did not wish to go again for contact with his father. When a further contact visit was appointed for a few weeks later, [S] was very angry. He complained that no one seemed to be listening to him, a comment he had frequently made. He said he wished his father was dead. At about this time [S]'s step-brother was born. [S] was excited by his arrival. This heightened further his resistance to forthcoming contact with the pursuer. He wished to be at home with his half-sister and half-brother. He was only persuaded to go on contact with his father when his aunt stated that she was going to take [Z] on an activity in which [S] would not be interested. Having gone for contact [S] was annoyed and bothered because he perceived that the pursuer had no interest whatsoever in [A]. This was the last contact that [S] had with the pursuer. Two further contact visits were attempted, in August and in September 2007. [S] refused to go. On both occasions he lay kicking and screaming on the couch. He accused the defender and her husband of forcing him to do things that he did not want to do. He said that he hated his father and repeatedly asked why no one was listening to him. Short of dragging him physically to the pursuer's car it would have been extremely difficult, if not impossible, for contact to be exercised on those occasions or for [S] to derive any benefit from them. [S] was interviewed by the curator on school premises and reiterated that he was unwilling to go for further contact with his father. The pursuer having in December 2007 indicated that he wished to give [S] a Christmas present, the curator discovered from [S] that he was willing to accept a gift but did not wish contact with the pursuer. No gift or card was in fact sent, either then or at any subsequent Christmas or birthday. (The pursuer through his counsel before us stated that he had been concerned that [S] might be put into a position in which he had to reject any present sent.) The pursuer no longer has a permanent home of his own; he is living temporarily at his mother's address in England. [S]'s refusal to have contact with the pursuer was maintained up to and during the proof. The pursuer presently plays no part in [S]'s life. [S] rarely mentions him. He has expressed strong views against his father. He does not miss him. [S] is a happy, thriving and well-contented boy. He is developing satisfactorily at school. His teachers and headmaster have no concerns about his welfare or the defender's care of him.

[12] Against that background the sheriff made findings-of-fact (160) and (162) narrated above. He also made finding-of-fact (161):

"Having regard to [S]'s age, the history of these matters to date and the influences at work on [S], he would not derive any benefit from contact in such circumstances."

The criticisms of the parents

[13] The sheriff made trenchant criticisms of both parents. He found that they were each assertive, articulate and opinionated individuals with domineering and determined personalities. Each was argumentative and intemperate; the defender is the quicker to anger; the pursuer has been violent towards the defender - apparently a single incident which resulted in serious injury. The pursuer, the sheriff found, was often sanctimoniously dogmatic and insensitive; the defender gave false testimony - about her academic qualifications - and had made false and misleading statements to the Child Support Agency.

[14] In proceedings in which each party has put in issue the personality and conduct of the other parent, an assessment and judgment upon each of them was perhaps inevitable. We are unable to say that the sheriff, who on the invitation of parties, heard wide-ranging evidence touching on the relationship and dealings of the parents with each other over a decade, was not entitled to make these criticisms. The fact that he made them cannot form a basis for the pursuer's contention that this court can "have no reasonable confidence" in the sheriff, nor for the contention that he did not address the core issue, namely, the welfare of [S]. The sheriff clearly addressed that issue.

The sheriff's treatment

[15] In his Note he asked himself the question: "What is in [S]'s best interests?" (para [338]); and went on to consider and answer it. He considered, among other things, how any handover for contact could be arranged. He noted that in many cases parents who are unable to get on with each other can yet effect contact either by resolving "to show good manners in public" (for which there was no realistic prospect with these parents) or by using third parties, often close relatives. As to the latter, the defender's sister, a former headmistress, had in the past been prepared to mediate but, in light of the pursuer's conduct, including his conduct towards her, was no longer prepared to do so. The sheriff concluded:

"There was no one, from the evidence I have heard, who would be in a position to act as an intermediary, even if [S] wished to go for contact with his father." (para [343])

The sheriff was in these circumstances well-entitled to make the finding in the penultimate sentence of finding-of-fact (160). It is not open to the pursuer now to suggest that some other third party (the social work department or a private organisation) from which no evidence was heard at the proof and which has had no prior engagement with the family might perform this task. The sheriff continued (para [345]):

"In considering what is in [S]'s best interests, it is a question of now balancing the disadvantages or risks against the benefits of contact. It is, in my view, almost certain and indeed may be inevitable, that if a contact order were to be made forcing [S] to see his father, not only would [S] be re-exposed to the conflict between his parents; he would also be asked to do something that is against his present wishes. It is certain that, having regard to the history of this case, the parties' conduct towards each other over the years and the continuing animosity, lack of trust and suspicion, that the conflict would continue. The pursuer would inevitably resort again to the court and seek to prolong the litigation. [S] would inevitably be caught up in that. Contact simply would not work. It would, for [S], deteriorate into nothing more than a focus of argument, contention and turmoil with his mother, father and step-father. The defender and her husband would continually suspect, with good reason, that the pursuer would be undermining [S]'s relationship with his mother and step-father and would again seek to have [S] live with him. It is not in [S]'s best interests that he should be exposed to that."

[16] The sheriff recognised that there were dangers in all contact being denied to the pursuer. At para [344] he said:

"There is the danger, of course, that if no contact order is made and [S] does not see his father now, there may be emotional consequences of a psychological nature as he reaches adolescence. He might resent his mother and consider her responsible for cutting his father out of his life. He may seek out his father unbeknown to his mother. Those consequences are not, however, inevitable."

Discussion

[17] Having regard to the unchallenged findings-of-fact made by the sheriff we are satisfied that he was entitled to conclude that contact with his father was, at the time of judgment, not consistent with [S]'s welfare or best interests.

[18] A decision that the pursuer should not at this time have contact with [S] does not exclude him wholly from [S]'s life. It was recognised before us that the granting of the defender's crave left intact that part of the interlocutor of 7 July 2004 by which parental responsibilities and rights were conferred in respect of [S] on the pursuer; it also left intact paragraph 4 of that interlocutor which required that the pursuer be consulted by the defender on matters of importance relating to the health, welfare, education and upbringing of [S]. (A possible ambiguity in the sheriff's interlocutor in this regard will require to be removed). The latter requirement will entail active steps being taken by the defender to keep the pursuer informed about [S] and will require some co-operation, albeit at a distance, between them in relation to the identified aspects of [S]'s development. It is their respective responsibilities as parents to use their best endeavours to secure that these dealings operate smoothly and, in particular, without harm to [S].

[19] In his note of argument the pursuer contends that the sheriff failed to address the core issue and took into account irrelevant considerations (largely considerations of the character of each parent). For the reasons given above there is no substance in either of these contentions.

Failure to act judicially

[20] Paragraph 4 of the note of argument is headed "Failure to act judicially" and contains detailed criticisms of the sheriff in relation to observations made by him (largely in his judgment) about the parties and their respective counsel. In our view there is no merit whatsoever in these criticisms. We find it unnecessary to discuss them in detail. In so far as they are criticisms of findings or observations made about the character of the pursuer, the making of such findings and observations was, as we have said, perhaps inevitable, given the way the proceedings were conducted by counsel. As to criticisms of counsel a judge is entitled in his judgment to comment on the conduct of legal representatives appearing before him. No doubt that should be measured and not gratuitous. But we are unable to say that in the circumstances of this case the sheriff's criticisms were unwarranted. The circumstances in R v Dean Cole [2008] EWCA Crim 3234, to which we were referred, are very different.

[21] One aspect of this chapter requires specific treatment by this court. In a footnote it is asserted that "the sheriff sought to discourage the pursuer from giving evidence by indicating to him that nothing he could say would make any difference to the outcome". That is a grave charge. It amounts to an assertion that before the pursuer gave his evidence (he was the last witness bar the curator) the sheriff had decided the case against him; and had indeed made that clear in the course of the proceedings. On asking that this assertion be justified we were referred by counsel to a passage in the evidence of Professor Furnell, where the sheriff had taken up with the witness certain observations earlier made in relation to the "outbreak of commonsense". The sheriff had then explored with him whether he had experience of cases where a parent had, in the interests of the child, decided to withdraw (his claim for contact) "to ... allow matters to settle until the child is much older, and see if the matter could be either resurrected or re-established in some way at that stage". The witness responded to the effect that he had had such experience. The sheriff then explored with the witness whether in such a situation it would be beneficial for there to be some continuing form of communication between the absent parent and the child. The witness regarded that as important, emphasising that there was a very strong onus on the resident parent to ensure that communications took place both ways. He also suggested that an additional element in such a process might be an explanation on paper from the parent who was withdrawing, giving in simple terms some explanation to the child of what that parent was doing. At a later stage (in the re-examination of the witness) counsel for the pursuer in the course of a question postulated "the event that [NJDB] decided to withdraw, as his Lordship has suggested to you ...". The sheriff immediately interjected that he was not suggesting that the pursuer withdraw. In the event, the pursuer did not withdraw. He gave evidence in which he maintained his contention that he should have residential contact with [S].

[22] The material to which we were referred provides no justification whatsoever for the assertion in the footnote. The sheriff was entitled to explore - with a witness who had professional experience of dealing with difficult family cases - the possibility that an absent parent might, in some circumstances and under appropriate arrangements, decide that it was in the best interests of a child that he withdraw his current claim for physical contact. That was a possible outcome lying between the polarised positions in this case of the pursuer's claim for residential contact and the defender's claim that there should be no contact of any kind. It was an outcome which, however difficult for him or her, any parent having the child's best interests at heart ought to consider. The sheriff's questioning of the professional witness did not import that he was suggesting that the pursuer should adopt that course - as he, in any event, made clear when a question by the pursuer's counsel carried the implication that he had. The assertion that the sheriff acted unjudicially in this matter is wholly without merit and should never have been made.

General observations

[23] We have referred to the length of the proof in this case, including the time taken in examination of each of the parents in the witness box. We were told that in cases of this kind such protracted proceedings are not uncommon. We regard this, if accurate, to be a highly unsatisfactory state of affairs. Cases of this kind are often difficult but their objective must be, in the interests of the child or children, an expeditious disposal. The primary responsibility for achieving such a disposal lies with the parties' professional advisers, solicitors and counsel. In a situation where, for their clients, the proceedings may well be emotionally charged, professional advisers have a duty to take steps to identify and concentrate on, and only on, the issue - the welfare of the subject child or children. Exploration of every byway in the relationship between the parents must be avoided. Professional advisers have a duty not only to their clients and to the court but also, in cases of this kind, to the subject child or children. Performance of that duty means that every measure to reach an expedited but right disposal should be taken. Under current arrangements sheriffs and judges are not best placed to control the scope of proceedings. Pleadings are largely in the hands of professional advisers and, at a proof, the only controlling measure which the sheriff or judge can take may be limited to ruling upon exceptions to questions or to lines of evidence as going beyond the scope of the pleadings. Nor are they best placed to decide in the course of a proof whether a particular line is relevant or helpful. If, as is suggested, the present case is not atypical, it may be that the liberty which professional advisers have hitherto enjoyed in this field should be curtailed. In Lothian Regional Council v A 1992 SLT 858 (an adoption case) Lord President Hope observed at page 862:

"And there is a heavy responsibility on the parties' representatives to exercise all reasonable economy and restraint in their presentation of the evidence and in their submissions to the court. There were difficult issues to be resolved in this case, but it ought not to have taken 31 days for the necessary facts to be elicited from the witnesses. Moreover, the inefficiency with which this proof was conducted has resulted not only in a great deal of delay and expense which ought to have been unnecessary. It has also made it impossible for us to review the whole of the evidence, which has had significant implications for the conduct and disposal of these appeals."

Since then Practice Notes have been issued regulating procedure in relation to adoption cases. It may well be that consideration should now be given to issuing such Notes in relation to a wider class of case involving the welfare of children. Such Notes might also address the role of curators ad litem in such proceedings.

Disposal

[24] As to the disposal of this case, we shall vary the interlocutor of the sheriff dated 22 January 2010 by deleting the word "recalls" and substituting "varies" and by deleting the words "and withdraws" and substituting "to the extent of withdrawing". Quoad ultra we shall affirm his interlocutor and refuse the appeal.