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FIRST DIVISION, INNER HOUSE, COURT OF SESSION

[2024] CSIH 33

XA41/24

Lord President

Lord Malcolm

Lady Wise

OPINION OF THE COURT

delivered by LADY WISE

in the Appeal under Section 112(3) of the Courts Reform (Scotland) Act 2014

in the cause

SN (Father)

Pursuer and Respondent

against

JN (Mother)

Defender and Appellant

Pursuer and Respondent: Clark, Smeaton; Balfour & Manson LLP for Bannerman Burke Law

Defender and Appellant: Scott KC, Cartwright; SKO Family Law for Andrew Haddon & Crowe

____________________

17 October 2024

Introduction

[1]

This appeal raises questions about how the courts should approach allegations of

rape and separately of domestic abuse in the context of family proceedings concerning

children. It was remitted to this court by the Sheriff Appeal Court given the potential

complexities involved.

Background

[2]

The parties married in 2016 and have three children; LN who will attain the age of 10

in November this year, PN aged 4½ and ON aged 3. The mother has an older child C, who

is now a young adult from an earlier relationship. The parties lived together as husband

and wife until 3 October 2022 when the father moved out of the family home.

[3]

Shortly after the parties separated the father was charged in connection with an

allegation of assault. He was released on bail, subject to a special condition that he was not

to approach or contact his wife. He breached that bail condition and was made subject to a

non-harassment order made in November 2022, prohibiting him from contacting his wife by

email, phone or text except in relation to the children. On 19 December 2022 the father pled

guilty to a breach of that NHO by attempting to approach and contact the mother and a

community payback order was imposed upon him. After trial in June 2023, he was

convicted of a breach of section 38 of the Criminal Justice and Licensing (Scotland) Act 2010

for behaving in a threatening and abusive manner towards JN. The relevant behaviour

included shouting, swearing, uttering offensive remarks and behaving aggressively. A

further NHO was imposed on SN, which prohibited him from attempting to approach or

contact his wife at all.

[4]

The present action was raised by the father on 25 October 2022 in the sheriff court. In

January 2023 the sheriff made interim orders for shared residence. In essence, the order

provided that the children would spend alternative weeks with each parent, with more

detailed arrangements for the youngest child ON. Minor modifications aside, those care

arrangements have been in place since the making of that order.

[5]

A diet of proof (evidential hearing) was fixed and due to take place on 14 August

2023. However, in answers to a minute of amendment by the father, the mother, introduced

averments alleging that she had been raped by him twice, in February and then in April,

both 2022. This delayed the proof which ultimately commenced in November 2023 and

concluded in January 2024. On 13 March 2024 the sheriff issued a judgment and determined

that the care arrangements which had been in place since January 2023 would continue, with

additional contact arrangements during school holidays.

[6]

In the sheriff's view, the allegations of rape were not justiciable in the context of a

residence and contact action. In effect, he considered that the allegations could not be the

subject of a decision by him. The mother appealed to the Sheriff Appeal Court contending

that (1) the sheriff had erred in law by rejecting the allegations as not justiciable and (2) he

had erred by failing to analyse how the father's abuse of the mother affected the children

and had failed to assess the impact of trauma on the mother's mental health and

consequently her capacity to carry out her parental responsibilities given the continued and

regular indirect contact with the father.

The sheriff's judgment

[7]

The sheriff recorded that neither party had a fundamental concern about the ability

of the other to care for the children. However, questions of credibility and reliability

remained relevant. The mother had raised the issue of the parties' inability to co-operate. If

established, that would have a bearing on the parties' ability to co-parent. While the father's

evidence had been coloured by his anger towards the mother and lacked objectivity, he had

been essentially honest. Some aspects of his evidence had been influenced by his sense of

injustice, but he had done his best to tell the truth. It was notable that he had a very good

relationship with his stepson C, who came to stay with him on a regular basis. That

informed the court about his qualities as a parent. While the father had made a number of

allegations about his wife in his evidence, these were of limited assistance in deciding the

narrow question before the court but in general his evidence was to be preferred to that of

the mother. Her evidence was not satisfactory. She came across as someone unable to face

up to the truth and who would rather lie than admit to something she found embarrassing.

Examples included a lie the sheriff found she had made about a particular incident, when

her son had encountered her entertaining a man in her home. Many of the mother's

complaints about the father were undermined by messages that had been produced or

things that she had said to him and others since the separation. For example, in an email at

the end of October 2022, she had recorded that she and the father were working towards

shared contact, which flew in the face of her evidence at proof. Her evidence was generally

inconsistent with other adminicles of evidence.

[8]

Against a backdrop of the mother accepting that the father should have residential

contact, the parties' complaints about one another were of doubtful relevance. The mother

implicitly accepted that the father was capable of providing adequate care and the father

sought shared care. The most serious complaint however was the mother's allegation of

rape against the father. This was not justiciable. As the mother had conceded that the father

should have residential contact with the children, the purpose of the allegation was unclear.

It had already been the subject of a police investigation and the indication was that the

father would not be charged. The matter was complicated by these being civil proceedings

in terms of which the court would not be bound by the evidential restrictions of sections 274

and 275 of the Criminal Procedure (Scotland) Act 1995. In civil proceedings an alleged

perpetrator could not avoid questioning on the matter and any answer given under oath

would be admissible in subsequent criminal proceedings. The father had been cross-

examined at proof on the allegations but had been given a warning against incrimination.

He had been entitled to take the approach he did, which was to give a no comment reply.

The result was that the court did not know his position on the allegations. It would be

unjust in those circumstances to make findings in fact about them. While many family cases

involved allegations that amounted to criminal activity, and these were routinely decided as

matters of fact, these were commonly made where it was the pursuer who was making the

allegations. They did not normally involve the legal complexities of a charge of rape. Had

the father made certain admissions, the police might have revisited the matter. Even if the

allegations were true, the mother did not regard them as a ground for refusing contact.

[9]

The father's convictions for abusive behaviour and breach of the NHO were beyond

dispute (section 10, Law Reform (Miscellaneous Provisions) (Scotland) Act 1968). He had

abused the mother in accordance with the definition in section 11(7C) of the Children

(Scotland) Act 1995. The NHO prohibiting the father from contacting the mother was

relevant to the parties' ability to co-operate. The mother had complained about the father's

cannabis usage, but his evidence that he was now using a substitute was accepted. A further

complaint about the father's conduct toward the children's childminder was unclear and the

childminder had not given evidence. None of the other complaints each party had about the

other were relevant. There was no doubt that the mother had struggled with her mental

health but she had recognised this and was prepared to make use of the support available to

her. It was not suggested that she was incapable of looking after the children,

notwithstanding the father's allegations about her use of prescription drugs, her drinking

and those mental health difficulties. Accordingly he must have accepted that she was able

to look after the children safely.

[10]

The evidence about lack of co-operation between the parties, the possible difficulties

with the development of the younger two children and the views of the eldest child LN were

all relevant. The issue of co-operation was important. Any attempts to find routes of

communication between the parties had ended in recrimination. However, difficulty with

communication was not the same as co-operation. Indisputably the parties had managed to

agree about matters such as health, school and nursery arrangements and religion in respect

of the children.

[11]

The children's best interests were served by maintaining the status quo. While there

were concerns about PN's development, he was progressing as well as could be expected.

The other children were developing well and were happy and well cared for under the

current arrangements. The oldest child LN had been clear in three separate child welfare

reports that she wished the present arrangement to continue. Weight required to be given to

her views. The mother's claim that the context of LN's interviews was that she was scared

to upset her father was inconsistent with other evidence about LN's behaviour in her

father's home as compared with deteriorating behaviour with her mother. While LN's

views related only to her, there could be no question of splitting up the children, which

neither party suggested.

[12]

There was acceptable evidence that a factor that would assist PN with his possible

developmental difficulties was consistent parenting. The mother's proposal that the

children would spend week days with her and alternate weekends with their father left

considerable opportunity for inconsistent parenting given the level of contact involved. Her

proposal did not seem thought through, and would result of the children being in the care of

relatives for significant periods. The father's proposals would require such third party care

to a significantly lesser extent.

Justiciability

[13]

At the outset of the hearing we advised counsel that having considered the notes of

arguments and relevant authorities (eg Shergill v Khaira [2015] AC 359, per Lord Neuberger

at paras 41-43) we were tentatively of the view that allegations of rape were justiciable in

civil (including family) proceedings. There are examples of family cases in which such

allegations have been determined both in the Court of Session and the sheriff court M v A

[2024] CSOH 38; X v Y [2018] SC DUM 54. Counsel were content to proceed on the basis

that the allegations of rape had been justiciable and to focus on whether, in the particular

context of the dispute between these parties, the allegations had been germane to the central

issues for determination.

The parties' submissions

Appellant

[14]

The statutory context in which the sheriff was making decisions in this case was

contained in section 11 of the 1995 Act. It was clear from section 11(7A-E) that the court

required to consider all allegations of abuse and the effect of them on the mother when

reaching decisions. Failure to do so was a clear error LRK v AG 2021 SLT (Sh. Ct.) 107. The

effect of past abuse on a party's capacity to co-operate in the sense of acting or working

together was clearly relevant. The challenge to the sheriff's decision was the intensity with

which he expected the parties to exchange the children. The history of the case should have

led to a conclusion that such intensity would expose them to a toxic relationship. The

number of handovers of the children that would be involved if effect was given to the

sheriff's decision was considerable senior counsel had counted 17 such handovers every

four weeks. The more intense co-operation that was required, the greater the risk to the

mother and the NHO currently protecting her will come to an end in June 2025. Consistency

of parenting was particularly important for PN standing the health visitor's evidence of his

developmental delay which had been accepted by the sheriff.

[15]

The sheriff's judgment illustrated that he had failed to grapple with questions of

whether there had been abuse such as might cause risk in a case of this sort and whether

such abuse affected the children in a way that required fresh decision making in the case.

The sheriff had recorded (at paragraph [4] of his note) that the parties' inability to co-operate

might have a bearing on whether they could co-parent but he had then failed to address the

root of the problem, namely the abuse of the mother by the father. A solution that

reinforced the trauma that was a symptom of that abuse, by frequent exposure to re-

traumatisation would disempower the mother as a parent from responding to the needs of

the children. The impact of rape, and in particular marital rape, in relation to displays of

entitlement and subordination was well-known. It was difficult to see how in the

circumstances intense co-operation could be justified. The situation of the parties was not

one of "antipathy that requires to be put aside" as the sheriff put it, but of a situation of

domestic abuse.

[16]

On the basis that the sheriff was wrong to regard the rape allegation as a question of

competency, the issue was a relevant one given that the father sought a shared parenting

arrangement. The mother had given evidence of the details of the allegation and she had

prior to separation already sought help from the relevant agency in connection with the

general domestic abuse. The sheriff ought to have asked himself whether this was an

abusive relationship and answered that question in the affirmative. The allegation was not a

historic one. The context was an abusive relationship alleged to have caused fear and

trauma. The allegations were material and current and the sheriff ought to have considered

whether they were an impediment to intense co-parenting.

[17]

It was accepted that the issue of the materiality or otherwise of the rape allegations in

the context of a dispute about shared parenting versus residence with one party and

extensive contact with the other should have been addressed at the case management stage.

There had been case management hearings in the present proceedings. However the main

focus of the pleadings had been the father's allegation that the mother could not cope with

the children due to her mental health problems although there were references to the

father's behaviour generally. Against a background of all judges and sheriffs being trained

in trauma informed practice and having an understanding about rape myths, the sheriff

ought to have avoided stereotypes about marital rape. While an allegation of rape would

not always have to be decided in every case involving children, it should have been

addressed in the present case.

[18]

The issue of the mother's trauma had been squarely before the court. Special

arrangements had been made for her to be present in court as she could not bear to look at

the father. She had sat in the jury box behind a screen when giving evidence. The sheriff

had omitted to mention that in his note notwithstanding that he ought to have been alerted

by the existence of special measures to the issue of trauma. There was clear undisputed

evidence from the psychiatrist Dr Bett that the mother had suffered trauma in her childhood,

in her first main adult relationship and during her relationship with the father in this case.

While SN was not to blame for all of her trauma, the mother's experience was relevant as she

was vulnerable and there was stress surrounding contact arrangements. While Dr Bett was

not a child psychologist, she had seen the effect on adults of trauma sustained while they

were children. The critical issues that had been overlooked were the importance of

preventing re-traumatisation and the issue of empowerment. In cases of this sort, judges

must not just sit as impassive arbiters. The sheriff in this case had not questioned whether

the regime imposed risked exposing the children to abuse and so he had perpetuated an

already difficult situation. Reference was made to the case of Luca v Moldova (55351/17)

(2024) 79 EHRR 2 where a failure to take into account incidents of domestic violence in the

determination of child contact rights and to undertake an autonomous, proactive and

comprehensive risk assessment led to findings of violations of Articles 3 and 8 ECHR.

[19]

The decision of the Court of Appeal in A v B and another [2023] 1 WLR 2387 was

instructive. There, McFarlane P emphasised that the Family Court should be concerned to

determine how parties behaved and what they did with respect to each other and their

children, rather than whether that behaviour came within the strict definition of a crime

such as rape. In a Scottish context the Lord Ordinary in M v A [2024] CSOH 38 emphasised,

under reference to A v B and another that not every case required a fact finding exercise.

There should be an early focus in case management as to what allegations, if any, require

judicial determination in order to allow a proper assessment of what will serve the welfare

of the children and how any evidential difficulties should be addressed.

[20]

Effective case management in a case such as this could resolve issues such as who

should lead at proof and clarify that all that was required in relation to the sexual allegations

was proof on a balance of probabilities of what happened. It could not be said that the

allegation was irrelevant to the issue before the sheriff.

[21]

There were "red flag" issues in relation to the children; even the Child Welfare

Reporter had approved the shared care arrangement only as a short term solution. The

issues with the father's behaviour to the mother could not be ignored. There had been

evidence at proof that the parties' daughter had been exposed to the incident that led to the

father's conviction. She had been taken out of her father's arms and given to her mother by

the police.

[22]

The children in this case are vulnerable. There was no dispute that the eldest child

has been referred to an appropriate facility for support, the middle child is probably on the

autistic spectrum and the youngest child, who is very small, has some speech delay. These

are not robust children and the background of domestic abuse had to be considered in that

context. The health visitor had given evidence at proof that the mother had become

overwhelmed with the situation which reduced her capacity to act as a protective factor for

her children. In short, this was a case where the impact of the mother's complex trauma had

not been recognised. The sheriff had failed to apply section 11(7A-E) of the 1995 Act. The

case should be remitted for a fresh hearing by a different sheriff to assess the evidence,

including in relation to the allegations of rape and decide whether a co-parenting

arrangement was appropriate.

Respondent

[23]

The allegations of rape did not have to be determined in the particular circumstances

of this case. Dr Bett's evidence had been that the symptoms of complex trauma from which

the mother suffers will not affect her ability to care for the children on either a full time or a

part time basis. The focus in the submissions for the appellant on the mother's vulnerability

was not justified. She had been functioning at a high level during the whole period that the

shared care regime had been in place. In the absence of a focus in Dr Bett's report and

evidence of any detriment to the mother were the shared care regime to continue, there was

nothing to support the appellant's submissions. While it could now be accepted that in

principle rape was a justiciable issue in a family case, the sheriff's refusal to determine it

given the context was proper and correct.

[24]

An interesting point arose about when and how during such proceedings the court

required to make a definitive assessment of relevance. In this case, there had been no

detriment to the mother in being allowed, as she had sought, to lead evidence of the alleged

rapes, with the relevance of that being determined later. The father had been given an

appropriate warning against incrimination. Having heard the evidence the sheriff

determined that a decision on that particular issue was not appropriate or required. It had

not been sufficiently well focused to be dealt with at the case management stage. The

mother had not established a requirement for a factual determination on the matter. In any

event, it could not be wrong to hear the evidence before deciding whether findings were

required. Had the sheriff considered it necessary to make a finding on the issue of the

alleged rapes he could have done so, notwithstanding the lack of evidence from the father.

[25]

The sheriff had been correct in identifying (at paragraph [43] of his note) that it was

key that the mother did not consider the behaviour she alleged as a ground for refusing

contact. Any nexus between the allegations, whether true or not, and the outcome in terms

of the level of shared care, was absent from the evidence. On appeal the mother was now

focusing on other issues that had not been highlighted in the same way to the sheriff. This

case differed from that before the Lord Ordinary in M v A supra where the parties had

agreed that findings in fact on the allegations made were required. In the present case the

evidence did not support an argument the allegations were material to the outcome. There

was no indication that there was a risk of abuse of the children. It was not in dispute that

the mother has suffered from poor mental health throughout her life, from long before her

relationship with the respondent. The sheriff had acknowledged that appropriately. There

was no merit in the criticism that he ignored the mother's complex trauma; further findings

would not have changed his conclusion.

[26]

The appellant's claim of 17 handovers in each cycle within the shared care

arrangement was wrong; it was between 10 and 12. In any event, third party involvement

with this should negate any risk of conflict. It could not be ignored that the same

arrangement ordered by the sheriff has now persisted for over 18 months. It was also

incorrect for it to have been stated that PN has been assessed as on the autistic spectrum, he

is not and a report to that effect has been issued to both parties. Further, the current Health

Visitor does not assess ON as having developmental delay and a nursery place is available

for him. LN has attended a horse therapy programme and is keen to do so. It was not

accepted that the children are vulnerable in the way suggested by the mother. The Child

Welfare Reporter had stated in terms that the difficulties between the parties have not

permeated down to the children. All three children were doing well in a regime that has

persisted for quite some time. It was noteworthy that LN wanted the shared care

arrangement to continue despite having to travel further to school and missing gymnastics

class when with her father. In any event the sheriff had sought to regulate the care

arrangements in a way that would reduce the parties' contact to a minimum. The mother's

plan, which he had found was not well thought through, would not have been better for the

children.

[27]

There was no basis for a suggestion that the sheriff was guilty of holding or adhering

to rape myths. A trauma informed approach does not require elevating a party's evidence

to a level that it is incapable of scrutiny or criticism. A re-hearing would not assist the

parties or their children.

Decision

[28]

As indicated, we are satisfied that the sheriff was wrong to state that allegations of

rape in a family action relating to children are not justiciable. Family cases are in principle

no different to other civil actions where proof of criminal behaviour might be required as a

basis for the civil claim, such as one for damages. The central issue is whether, given the

narrow parameters of the dispute between the parties, the sheriff erred in deciding not to

make findings about the alleged rapes. There is a subsidiary point about the lack of detailed

findings about the complex trauma suffered by the appellant and any connection between

that and the respondent's behaviour, insofar as it had a bearing on the children's welfare

[29]

Rape is a most serious crime, currently prosecuted only in the High Court.

Whenever it is alleged, it must be considered carefully and sensitively. In the criminal

context the critical decision is whether there is sufficient evidence to prosecute an allegation

of rape. In civil proceedings, considerations of the materiality of the allegation to the specific

issue to be determined by the court will arise. The circumstances of each allegation will

require to be examined carefully before deciding whether a determination on any of them is

necessary for disposal of the case.

[30]

The starting point in this case in relation to the dispute was that both parties hold full

parental responsibilities and rights (as specified in sections 1 and 2 of the Children

(Scotland) Act 1995) in relation to all three children. Importantly, both had and will

continue to have the right to have the children reside with them or otherwise regulate their

residence (1995 Act, s 2(1)(a)). Neither party sought to deprive the other of any parental

responsibility or right. The scope of the dispute was restricted to the mode of exercise of the

rights each party has, either by an order for shared residence or the regulation of residence

and contact.

[31]

In the family law context, there are specific case management rules in this

jurisdiction, designed to focus the issues in dispute at an early stage and well in advance of

the proof diet. These rules have been in place in the Court of Session since 2017 (RCS 49.32A

and 49.32B) and were introduced formally into sheriff court procedure from 25 September

2023 (OCR 33.36 J-Q inclusive). While the current proceedings were raised before the formal

procedure of case management was codified in the sheriff court, we note from the

interlocutors that the sheriff held a number of case management hearings. This

commendable practice was, we understand, well utilised in the sheriff court prior to its

codification in rules. Unfortunately, in the present case, when the allegations of rape were

introduced by late amendment, there seems to have been no attempt to analyse these and

consider whether they were germane to the issues for proof. Neither side highlighted any

issue of whether proof of the averments was necessary; the issue was raised ultimately by

the sheriff during the proof, albeit by reference to justiciability.

[32]

Had the issue of the connection between the rape allegations and the scope of the

dispute been analysed at the case management stage of the case, a number of factors would

have been taken into account, including that; the allegations predated the parties' final

separation and had not been raised as an issue material to the issue of arrangements for the

children at any previous stage; there was no suggestion that the children were aware of the

allegations or the circumstances giving rise to them; it was not contended that the father

should have either no contact or minimal non-residential contact as a result of the behaviour

alleged and there was no application to alter the interim arrangements in conjunction with

the introduction of the allegations. Had those factors been identified and considered at the

case management stage, it would have become apparent that proof or otherwise of the rape

allegations was not essential to determine the narrow issue between the parties,

notwithstanding that those allegations were of the utmost seriousness. The case had always

been restricted to the single issue of whether the shared care arrangement should continue

on the basis already in place or be altered but with the father continuing to have the children

with him residentially for lengthy periods.

[33]

As the absence of a direct connection between the fresh allegations and the scope of

the proof was not addressed prior to proof, the sheriff appears to have attempted to remedy

the situation after evidence was led about them by declaring them to be inept for

determination in a family case involving children. While that was erroneous, it did not

impact on the outcome as we have concluded that findings of fact on the allegations were

not required in the particular circumstances outlined. We are satisfied that, had the parties

and the sheriff analysed the new averments introduced by amendment at a case

management hearing, a conclusion that proof of them was not necessary to determine the

time the children would spend with each parent would have been inevitable. The

considerable benefit of taking that approach would have been to avoid the mother having to

give evidence about this sensitive matter at all in the civil proceedings.

[34]

Turning to the issue of whether the sheriff should have made more detailed findings

about the impact of the complex trauma suffered by the mother, this was not an argument

characterised at proof as having an impact on the arrangements for the children. The

mother's mental health challenges had been put in issue as having an impact on her ability

to care for the children more of the time than they would spend with their father. The

arguments advanced by the father in that respect were rejected and the evidence of Dr Bett

that the mother was capable of either full time or part time care of the children accepted. No

independent evidence was led to support a conclusion that the children were adversely

affected, or at risk of being adversely affected, by the complex trauma from which the

mother suffered. The mother's pleadings referred to the "level of animus" directed at her by

the father and whether he was "in denial" about the impact of his abusive behaviour, but

there was no offer to prove that the children had been adversely affected or that any such

impact could be ameliorated by a change in the shared care arrangement.

[35]

The inability of the parties to communicate was accepted, but the sheriff found that

they could at least co-operate as parents and had done so for at least 14 months. It is

difficult to understand the purpose that would have been served by any further analysis of

the sources of the mother's difficulties.

[36]

Indisputably the father had behaved appallingly at the time of the parties separation

and had relevant criminal convictions that were acknowledged by the sheriff, who made a

specific finding of abuse within the definition of section 11(7C) of the 1995 Act. To balance

against that was the evidence of an established status quo of shared care that seemed to serve

the children's interests well and which coincided with the views expressed by the eldest

child and the mother's oldest son. The sheriff's approach was to consider the relevant

statutory provisions on risk of abuse (s 11(7B(a-d)), but to do so against the backdrop of the

narrow scope of the dispute, the father's proven track record of parenting and the

assessment he had made of credibility and reliability. He was concerned to minimise the

direct communication between the parties and to reinforce an arrangement that was

necessarily inflexible but was operating effectively. His analysis was succinct and

pragmatic. In the particular circumstances of this case, we do not consider that he erred in

taking that approach.

[37]

As the comprehensive rules on case management for family actions are now firmly

embedded in the sheriff court, we trust that the opportunity will be taken in future cases to

restrict evidence led at proof to that required to determine the core dispute between parties.

The appeal is refused.