Scottish Sheriff Court Decisions

You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> GMD v. YMSC [2004] ScotSC 100 (02 December 2004)
URL: http://www.bailii.org/scot/cases/ScotSC/2004/100.html
Cite as: [2004] ScotSC 100

[New search] [Help]

GMD v. YMSC [2004] ScotSC 100 (02 December 2004) F10/2002

SHERIFFDOM OF TAYSIDE, CENTRAL AND FIFE AT CUPAR

JUDGEMENT OF SHERIFF G J EVANS

IN CAUSA

G M D

residing at

Dundee

PURSUER

against

Y M S C or D

residing at

St Andrews

DEFENDER

CUPAR, 2 December 2004. The Sheriff, having resumed consideration of the cause, FINDS-IN-FACT:-

The Pursuer (DOB: 9.9.66) is a factory worker in Dundee. He formerly resided at the address in the instance, Dundee and now lives at Dundee.

The Defender (DOB: 23.10.65) is a fully trained chef who was last employed in 1996. Since then she had been a full-time housewife and then a mother. She continues to reside at the former matrimonial home at St Andrews, as designed in the instance.

The parties were married in St Andrews on 20 December 1996 and separated some 4 years later on 2 October 2000. There is one child of the marriage, C D A D, born 9 December 1997.

Before the conception of said child, the Defender suffered a miscarriage at 101/2 weeks. After the birth of said child, the Defender had a subsequent hysterectomy and can no longer have children. She accordingly views said child as particularly precious and dear to her and is very protective of her.

During their marriage, which had a number of financial difficulties leading to the sale of their first home and their bankruptcy, the Defender felt that the Pursuer was seldom at home, being frequently away at work or playing golf (he was then a self-employed caddy). She felt that he was poor at doing things both with her and said child.

A few months before said separation, the Defender came across the Pursuer trying on her underwear in the parties' bedroom and was sufficiently shocked and revolted by this to break off marital relations despite the Pursuer's willingness to supply her with a helpline for families with transvestites.

Marital relations after said incident never resumed and the parties' trial separation in 2000 turned into a permanent one after the Pursuer moved out of the matrimonial home, leaving said child with the Defender in October 2000.

The Pursuer first moved in with his parents, who live at St Andrews. Contact between the Pursuer and said child remained thereafter on an irregular basis, with him having her for a few hours, then no contact for 2 or 3 weeks and then contact for a whole day. By January 2001 the Pursuer had rented his own property, an upper flat, at Dundee aforesaid.

During that time the Defender reported to her GP in April 2001 that said child, then aged 3, had complained in the bath, "my bum is sore mummy", that it had been her "front bum" and that "my father did it with his fingers". Her GP reported the matter to the Paediatric Unit at Ninewells Hospital, Dundee, who in turn referred the matter to the Child Protection Unit, whose investigations at that time were inconclusive.

Despite said incident, the parties, through their solicitors, entered into a Minute of Agreement in June 2001, providing that said child was to reside with the Defender and that the Pursuer would have residential contact for 2 weekends per month from 10.00am Saturday until 5.00pm Sunday with additional holiday contact as agreed.

The Defender had additional concerns at that time following the exercise of contact under said Minute of Agreement. In November 2001 said child returned home smelling of smoke and with bruises on her back and arms and on another occasion that month very pale and with rings round her eyes as though from lack of sleep. She had begun bed wetting before and after periods of contact. On 15/16 December 2001 said child returned to the Defender with a carpet burn on her lower back.

The Defender got her solicitors to write to the Pursuer highlighting her concerns and informing him that "whilst our client is happy for you to exercise non-residential contact, residential contact will cease forthwith. Access as from 29 December being the next date on which you were to exercise residential contact will now be exercised between 10.00am and 5.00pm on Saturday and from 10.00am to 5.00pm on Sunday." (vide letter of 21 December 2001 attached to the Initial Writ).

The first opportunity the Pursuer could obtain to discuss this letter with his own solicitors was not until 8 January 2002. They replied on his behalf: "Our client is astonished at your client's position and we are instructed on his behalf to insist that residential contact is reinstated with effect from the coming weekend, namely 12 and 13 January 2002, failing which we are instructed to raise immediate court proceedings." The carpet burn was explained as the child deciding to bounce down the stairs and it was stated that if the Defender was not prepared to adopt a sensible attitude to this then the Pursuer might well give consideration as to whether or not what he ought to be taking was in fact a residence order rather than simply an order for residential contact (vide letter of 9 January 2002 attached to the Initial Writ).

The Pursuer thereafter experienced difficulties in exercising contact to said child over the weekend of 12 and 13 January 2002, resulting in him raising the instant action on 6 February 2002.

By letter of 22 April 2002 the Defender's first set of solicitors confirmed that they had withdrawn from acting for her.

By 15 May 2002 the Defender had instructed her second set of solicitors and the court ordered a report from Ramsay McInnes, Solicitor, Cupar to be obtained to coincide with the Child Welfare Hearing fixed for 31 July 2002 (subsequently continued to the Options Hearing on 28 August 2002 to allow parties to examine the terms of the report).

On 28 August 2002 the Pursuer was refused interim residential contact but found entitled to interim contact to said child every second Saturday 10.00am to 5.00pm and every second Sunday 10.00am to 5.00pm commencing 7/8 September 2002, with a Proof assigned for 2 December 2002 (but due to the intervening court commitments later rearranged for 6 December 2002).

On 6 December 2002 the Proof diet was discharged on joint motion and interim contact was varied by finding the Pursuer entitled to contact every second Saturday 10.00am to 8.00pm and every second Sunday 10.00am to 6.00pm commencing from 14 December 2002 and on the morning of Christmas Day for a few hours to be agreed between the parties, the cause continued to 18 December 2002.

On 18 December 2002, the Pursuer was found entitled to interim residential contact from 10.00am on 28 December 2002 until 5.00pm on 29 December 2002, the cause continued to 8 January 2003.

On 8 January 2003 the Pursuer was found entitled to interim contact from 10.00am to 5.00pm on Saturday 11 January 2003 and the cause continued to 22 January 2003 for parties to agree contact.

On 22 January 2003, on Joint Motion, the Pursuer was found entitled to interim contact to said child each alternative weekend from Saturday at 10.00am until Sunday at 6.00pm, the residential aspect of contact to be exercised at his parents' home in St Andrews and alternatively from Saturday at 10.00am to 8.00pm and Sunday from 10.00am to 6.00pm with the proviso that if the Pursuer required to work overtime on any Saturday morning when he was due to exercise contact either of his parents would be entitled to collect the said child and care for her until the Pursuer finished work. Proof was assigned for 2 May 2003.

At some point during January 2003 the Defender advised the Child Protection Unit in Kirkcaldy that said child had returned from her weekend contact visit complaining that her father had "fingered her bum". The police officer who followed up this allegation, DC Sheila Stewart, concluded that there was no foundation to it and she did not require to have the child medically examined. The child did not repeat the allegation to her.

On 25 February 2003, the Pursuer's solicitors required to lodge a motion ordaining the Defender to appear at the bar to explain her failure to obtemper the court's interlocutor by refusing to allow the Pursuer to exercise contact with said child on 22 February 2003.

At the hearing on said motion on 5 March 2003, the Pursuer was found entitled to interim residential contact to said child 5.30pm Friday, 7 March to 6.00pm Sunday, 9 March 2003, the motion being continued to 19 March 2003 and the Defender ordained to appear on that date.

On 19 March 2003 the cause was continued to the diet of 2 April 2003 to allow the Sheriff to interview said child on 24 March 2003.

The Pursuer also chose at this point to lodge a Minute of Amendment which for the first time inserted a crave for a Residence Order in his favour and a Specific Issue Order to enable the child to be known by the surname on her birth certificate, ie D and not by the Defender's maiden surname of "C".

On 2 April 2003, as a result inter alia of information supplied by said child at her interview with the Sheriff that the Pursuer "hits me and poked me in the bum and the front bit", the court recalled all interim contact in favour of the Pursuer. The Proof fixed for 2 May 2003 was later discharged and a further Proof diet assigned for 4 July 2003.

As a result of what the child had said at interview with the Sheriff on 24 March 2003, the Child Protection Unit in Kirkcaldy again became involved in the case. DC Stewart again interviewed the child and the child repeated the allegation that the Pursuer had "poked her front bum". The child could give no context to what she said or when or how it had happened. The Pursuer co-operated fully with the investigation and DC Stewart concluded that there was insufficient evidence to produce a case at this time. She had no concerns about the Pursuer having continued contact with the said child.

The subsequent Child Care Conference that was convened placed the child on the At Risk Register for the next 3 months, the risk being of emotional, rather than sexual abuse.

On 25 June 2003, the Pursuer was found entitled to interim contact to said child 2.00pm to 5.00pm each Saturday on 28 June 2003, under the supervision of his mother and a psychological report was ordered from Doctor Taylor, Consultant Child and Adolescent Psychiatrist, Fife Primary Care NHS Trust based at Stratheden Hospital, Cupar, the diet of Proof for 4 July 2003 being discharged and a Child Welfare Hearing arranged for 6 August 2003 (and subsequently rearranged to 27 August 2003).

On 27 August 2003, the Court pronounced an interlocutor setting out agreed periods of interim contact throughout August to October 2003 with a further Child Welfare Hearing being assigned for 12 November 2003.

On 12 November 2003, the Court reinstated interim residential contact after a break of 7 months, finding the Pursuer entitled to interim residential contact with said child from 5.00pm Friday to 5.00pm Sunday commencing 14 November 2003 and interim contact each alternative Wednesday 4.15pm to 6.30pm commencing 26 November 2003. A further Child Welfare Hearing was assigned for 7 January 2004 and a fresh diet of Proof assigned for 23 February 2004.

At the Child Welfare Hearing on 7 January 2004, the Defender's second set of solicitors indicated that they were withdrawing from acting for her and the case was continued to allow her to seek further representation.

On 21 January 2004 the Court gave the Defender further time to seek fresh representation by fixing a procedural hearing for 18 February 2004. On that date the Defender was represented by her third set of solicitors and a further Child Welfare Hearing was assigned for 17 March 2004.

The Defender's third set of solicitors, however, withdrew prior to that by letter of 3 March 2004 and a Peremptory Diet was fixed to coincide with the Child Welfare Hearing.

Meanwhile the Defender had over the Wednesday of 7/8 February 2004 made a further report via her GP's hotline that the said child had come home from contact with redness in the area of her vagina and had stated to her that the Pursuer had touched her there. Her GP, Doctor Lamont, alerted the Child Protection Unit and the first practical opportunity DC Hill and the Social Worker accompanying him, Gail Norrie, had to follow this up to meet with the Defender was on the following day.

At their meeting with the Defender at her home arranged for the afternoon of that day, the Defender said that she did not want the child medically examined. When DC Hill spoke to the child she did not really engage with him at all and did not repeat the allegations. The Pursuer was again subsequently interviewed under caution and co-operated fully with the Child Protection Unit investigation. They decided not to prefer charges and had no concerns that the Pursuer continued to have contact with said child.

On 17 March 2004 the Defender was represented by her fourth set of solicitors. The Pursuer's motion for an interim residence order was refused at that stage and a proof assigned for 23 April 2004, the existing contact to continue.

On 23 March 2004 after receipt of a letter from her fourth set of solicitors intimating their withdrawal "for personal reasons", a Peremptory Diet was assigned for 31 March 2004 and at the Defender's appearance thereon a procedural hearing was arranged for 14 April 2004 to give her further time to arrange for fresh representation.

At said procedural hearing on 14 April 2004, the Court granted the Defender's motion to discharge the diet of Proof and assigned a fresh diet for 11 June 2004 with a further Child Welfare Hearing on 28 April 2004. At said Child Welfare Hearing, the Defender was represented by her fifth set of solicitors and, after sundry procedure, they were able to present her at the subsequent Proof diets and for the remainder of the proceedings.

The Pursuer's accommodation has improved since he first rented an upper flat on the second floor at Dundee in January 2001. He now lives in a new semi-detached house with one double bedroom, 2 single bedrooms, living room and large dining kitchen and bathroom at Dundee. It is at the bottom of a cul de sac with little or no traffic and its rear garden is enclosed.

It is suitable and ample accommodation for said child to live there and she enjoys her visits and plays with the neighbours' children in the garden and in the street.

There are a large number of children of the same age group as the said child who live around where the Pursuer now stays. Their play can be boisterous and the said child gets the odd bruise. The Pursuer has always drawn this to the attention of the Defender and never tried to hide anything of that nature from her.

The Pursuer is prepared to move to St Andrews and also to find employment there should he be awarded a Residence Order in order to maintain continuity in the said child's education. He would be able to stay at his parents' house with his mother taking the child to and from school until such time as he got employment in the St Andrews area. His parents are prepared to assist him in that regard even if it means that he and the said child would be living with them for a period of up to 4 or 5 years. They have sufficient and ample accommodation for this.

If granted a Residence Order, the Pursuer would be willing to offer the Defender the same amount of contact that he is seeking from her.

The Defender continues to live with said child in her rented accommodation at 11 Braid Crescent aforesaid. This is a ground flat in a block of 4. The flat has a lounge, 2 bedrooms, a kitchen and bathroom. The said child has her own bedroom and the accommodation is ample and suitable for her.

The Defender has no separate garden of her own with the flat but there is a communal drying green on which she places a gazebo in the summer for the child to play under. There is also a public park behind the flats where the child often plays in the better weather along with her friends. The Defender is able to keep an eye on her by looking out of her back window which overlooks the park.

The Defender has had a relationship with J A (41) for the past 31/2 years. He used to go out with the Defender before her marriage. He is employed as a gardener with the University of St Andrews and he stays overnight with her on Friday and Saturday but otherwise lives at his own address, although he spends much of every evening with her and the said child. He and the Defender intend to get married once they are free to do so.

The said child has taken to Mr A very well and they have a very good relationship. Without prompting she calls him "Dad". Since the parties' separation in October 2000, the child has attended first the Wonderyears Nursery at the East Sands, St Andrews and then was transferred by the Defender to the St Andrews Nursery at Kilrymont Road, which adjoins Lawhead Primary School. The Defender then enrolled her at Lawhead Primary School, which was outwith the catchment area of her home, the nearest schools being Langland Primary and Greyfriars RC Primary.

The Defender does not have her own transport and Mr A picks up said child at 8.45am each school day and drives her to school. He also picks her up again at the end of the school day at 3.15pm and has her home by about 3.30pm.

Said child is a difficult eater and is lactose intolerant. She was diagnosed in August 2001 as suffering from asthma and has been prescribed both the salbutomol and beclafort inhalers. This does not stop her from enjoying normal pursuits, and she goes for horse riding lessons and skating and she requires glasses for reading.

During the course of the separation, the Defender has consistently failed to keep the Pursuer informed about where the child should go to nursery school, which primary school she should attend, what her medical conditions were and what treatments she required. She has consistently failed to ascertain from the Pursuer what his views would have been on her upbringing and to consult him on any major matter affecting the said child.

During the handover and collection of said child before and after contact, the Defender fails to engage the Pursuer or his parents in discussion about the said child's well-being and activities. She adopted a policy of freezing them out from the child's life.

Said child is happy and well settled with the Defender with whom she has a close and loving relationship. Said child would be devastated if she had to change her residence from the Defender to the Pursuer.

Said child enjoys and benefits from the periods of custody that she has had with the Pursuer. She calls him "Dad" when in his presence and "Father" when with the Defender. She has a good relationship with him and is fond of both him and his parents. She enjoys visiting his parents. She would benefit from the continuation of such contact and contact through the Pursuer's parents with her various young cousins.

The said child is known at school and to her medical practice by the Defender's surname. The Defender has allowed and encouraged her to be known as "C" rather than "D" and has never thought it proper to discuss that matter with the Pursuer, maintaining that it has always been left to what the child wants. The Pursuer as a consequence has had to let the said child's school and GP know that he had parental rights and responsibilities in relation to said child and ought to be supplied with all relevant information about said child.

FINDS-IN-FACT-AND-IN-LAW:-

The welfare of said child would not be best served by a Residence Order being made in favour of the Pursuer.

The welfare of said child would be best served by the Pursuer maintaining a high level of both contact and residential contact with said child along the lines craved by the Pursuer.

It is better for said child that such a contact order be made than that no such order be made at all.

It was not appropriate for the Defender to change said child's surname without consulting the Pursuer and giving him an opportunity to object to any change.

It would be conducive to said child's welfare and in her best interests for her to revert to the Pursuer's surname, as entered in her birth certificate.

Accordingly Repels the first plea-in-law for the Pursuer and Sustains the first plea-in-law for the Defender; Sustains the second plea-in-law (quoad contact) and third plea-in-law for the Pursuer and Repels the second and third pleas-in-law for the Defender; Refuses the Pursuer's first crave for a Residence Order; Grants the Pursuer's second crave and Finds the Pursuer entitled to contact including residential contact to said child C D A D, born 9 December 1997 as follow:-

Each alternative weekend from Saturday at 10.00am until Sunday at 5.00pm;

For two weeks during the school summer holidays; in 2005 said 2 weeks to be taken in 2 separate one week periods but from 2006 said 2 weeks to be taken in a block;

For one week during the school Easter holidays;

For one week during the school October holidays;

Each alternate year 12 noon to 5.00pm on 25 December;

Each alternate year from 5.00pm on 25 December to 5.00pm on 26 December;

Each 9 December for a minimum period of 2 hours;

Makes a Specific Issue Order to the effect that the said child C D A D shall be known as C D A D, the name appearing on her birth certificate and not as C D A C; Reserves meantime the question of expenses and Fixes 5 January 2005 at 11.00am as a hearing thereon.

Sheriff

NOTE:-

BACKGROUND

This is an action by the husband against the wife for a Residence Order in respect of the sole child of their marriage, viz C D A D, born 9 December 1997. The Pursuer also seeks contact in default of the Residence Order and in any event the making of a Specific Issue Order regulating the name by which the child should be known. The Defender has no separate craves of her own. The matter came before me for Proof over 4 days, viz 11 June, 2 July, 18 August and 20 August 2004. The Pursuer was represented by Mrs Walker, Solicitor, Kirkcaldy and the Defender by Mrs Robbie, Solicitor, Dundee. I heard evidence for the Pursuer from the Pursuer himself, the Defender called as a witness for the Pursuer, the Pursuer's father and mother, DC Sheila Stewart and DC Hill. I then heard evidence for the Defender from the Defender herself, her mother E C and her co-habitee J A. There is both a report prepared by Mr Ramsay McInnes, Solicitor, Cupar date stamped 30 July 2002 and a report by Doctor Dorothy Taylor, Consultant Child and Adolescent Psychologist, Stratheden Hospital, Cupar dated 31 July 2003. Neither the compilers of these reports were called as witnesses nor was the content of the reports agreed as evidence in the case.

SUBMISSIONS

Mrs Walker for the Pursuer explained that when the action was first raised it was only ever about contact but latterly the Pursuer had been convinced that the only way he could adequately protect and enhance the child's welfare would be for him to have a residence order in his favour. There had been a number of referrals made by the Defender to the Child Protection Unit since the parties' separation in connection with allegations that he had touched the child in a sexually inappropriate way. None of the professionals involved had discovered anything of substance against him and they had no concerns about his conduct towards his daughter. The Pursuer believed at this point that he would provide a far more stable and rounded upbringing for the child than the Defender could. The straightforward and forthright way the Pursuer and his witnesses gave their evidence should be contrasted with that of the Defender who suggested that one of the police officers was actually lying. She clearly had no intention of carrying out with a good will the various courses of action that she promised her residual attitude being that it would be far preferable if the Pursuer simply walked out of the child's life. Such a long held attitude was bound to influence the child and have a bearing on the Pursuer's exercise of contact. The primary and paramount consideration was the best interests of the child and for that very reason I should find the Pursuer entitled to a Residence Order. There was a parental duty on a parent with residence to encourage a child to see the other parent in a reasonable and well disposed light. I was referred to the cases of Cosh v Cosh 1979 SLT (Notes) 72 and Brannigan v Brannigan 1979 SLT (Notes) 73. The Defender's attitude had been anything but that. Her true attitude had come out in her evidence. She had no intention of involving the Pursuer in any shape or form in the child's life unless she absolutely had to. It was not appropriate that a person with such entrenched views should continue to have residence of the child. While there might be a temporary upset to the child in the Pursuer gaining a Residence Order, that would be shortlived given the support available from the Pursuer's parents. If I were against her on that point the Pursuer should at least be found entitled to an award of contact as in his crave. The award of a continuous 2 weeks during the summer would present no problems. As to the third crave for a Specific Issue Order, the clear evidence from the Pursuer and his parents was that the child was very confused about her identity and that it would be better for her that I grant the Order. The Defender had no opposing crave in that regard and nor had she any crave for contact in the event of the Pursuer being awarded residence but the Pursuer would not attempt to prevent such contact being enjoyed. I was invited to sustain the Pursuer's first and second pleas-in-law and to repel the Defender's first, second and third pleas-in-law.

Miss Robbie for the Defender drew my attention to the wording of Section 6 of the Children (Scotland) Act 1995. The responsibility of one parent to have regard to the views of the other parent was only "so far as practicable". Such a responsibility only extended to major issues and not day to day ones. That said it was not fair to criticise the Defender for not consulting the Pursuer given the level of animosity between them. She now knew that the Pursuer did want to be kept informed and she would make every effort from now on to ensure that he was. The evidence led did not criticise the Defender's day to day care of the child. There was no evidence from any satisfactory source that the child had no friends and did not socialise. A change in her residence at this point in her development would not assist her. The Defender, as mother of the child, could hardly be expected to ignore what her child was saying and was justified in making the reports that she did to the Child Protection Unit. As she has been told repeatedly that despite that there will be contact, she can only hope against hope that the allegations are baseless. She recognised that the child would have contact with the Pursuer and had not failed to obtemper a Court Order. While the handover with the child might be difficult for all concerned, at least there was an attempt at civility and no-one was treating such a handover as a flashpoint. There was no evidence of emotional abuse while the child was with the Defender and there was no evidence led by the Pursuer to show that contact had actually gone well. The plain fact of the matter was that the Pursuer had worked throughout the child's life and as a result he had not formed the kind of close relationship with the child that the Defender had been able to form. This was not a criticism of the Pursuer but an unavoidable fact of the parties' living arrangements. The Pursuer would continue to work thus circumscribing his contact with the child although it was not clear where that work was going to be based or where indeed he was going to be living. He might have to wait years before getting his own house in St Andrews. His parents were both near to retirement age and he would need to rely on them to get the child ready for school in the morning and for picking her up after school. If he was unable to move from Dundee or chose not to, the child would have to change school if he obtained a Residence Order. All that showed that it was not in the child's best interests to change her fixed circumstances and her residence. If I decided contrary to that submission that the Pursuer should be given residence, the Court was empowered to make any order that it thought fit under Section 11(2) of the Act even if there was no crave to that effect and I would be able to make an appropriate award of contact in favour of the Defender. She would prefer contact each Wednesday and each weekend from after school on Friday to 5.00pm on Sunday, with 4 weeks during the school holidays, one week in Easter and one week at the October break, 2 hours on the child's birthday and from 4.00pm on Christmas Eve to 4.00pm on Christmas Day. That however was very much a fall back position. The Defender's main submission was that any change of residence would prove to have a devastating effect on the child and should be avoided. The Defender had always been her principal carer. The importance of the status quo was stressed in Wilkinson and Norrie's Parent and Child (2^nd Ed) at page 327 to which I was referred. The Defender should retain residence and it was conceded that it would be in the best interests of said child for the Pursuer to be granted a Contact Order. I should try to avoid 2 weeks during the summer together for the reasons stated by the Defender.

DECISION

I accepted the Pursuer as a credible and reliable witness - with the exception of the one incident of cross-dressing that the Defender spoke to as leading to the break-up of the marriage. I thought that the Pursuer was trying to play that down as something that happened in the context of clothing for a fancy dress party and preferred the Defender's plain and unadorned account of it. While it may have had an impact on the break-up of the marriage, there was no evidence to suggest that it would have any impact on the Pursuer's care of the child. I accepted that the Pursuer was being truthful when he stated that he had not sexually abused the child as well. That seems to have been the conclusion of the police going from the evidence of DC Stewart and DC Hill. The Pursuer has obviously found it difficult to cope with the obstacles placed in his path over seeing the child over the 4 years since the separation. He was concerned about the effect on the child of the Defender making unproven allegations against himself. He found it difficult to articulate his concerns about the child. "I can't put any concerns into words. It is more of a feeling, knowing that the child is crowded in. If she has a slight cough, she is taken to the doctor's for whooping cough. If she has a slight wheeze, it is asthmatic." His decision to go for residence had been the hardest decision he had had to make in his life. "I can offer her values she does not have at the moment, such as the value of money." He would be able to take her out to more activities such as skating and riding. She would have a more stable environment with him and she would get to express herself. His parents were supportive of him in their evidence and they came over as genuine caring individuals concerned to do their best in a difficult situation. His father said that the Pursuer "does not think his daughter is getting a fair and true upbringing ... it is a very staid and not very open upbringing that she is living. We never see her playing ... he could offer her a structured regime." His mother stated "he feels he could give her a more consistent lifestyle in his care ... I have concerns about her if she is left with the Defender, about her health both physical and mental." Both his parents said in evidence that they thought that the Pursuer had the necessary cooking and housewifely skills to run a home and that maybe so but, on the whole, I did not consider his bid for residence was a very strong or convincing one. The child has been in the constant care of the Defender for all her life, a period now of almost 7 years. No evidence has been led to show that the child is suffering from her care and the claims of the Pursuer and his parents as to what improvements they could make in her life are both vague and subjective. Indeed the Pursuer's intentions for the future remain unfixed. He is not sure whether he should stay in Dundee or move to St Andrews nor is he sure what kind of move to St Andrews he would be able to make. His father said in evidence that "they would live in Dundee if he got a Residence Order." His mother stated "he has explored the possibility of schooling in Dundee, if she comes to stay with him. He has looked at schools in St Andrews as well. Yes, he is keeping his options open, as he does not know what will happen. If he has to keep her at her existing school, he would. He would move to St Andrews if necessary. He has approached the Council and looked at apartments. The Council would not be able to house him at the moment without a Residence Order." I appreciate that to some extent this is a 'catch 22' situation for the Pursuer but it does present the Court with a lack of certainty about what his future arrangements are going to be. Should a change in the status quo be merited, that may simply be the price that has to be paid. The evidence, however, does not go that far. The child is devoted to the Defender and I accept the evidence of the Defender and her co-habitee, J A, that a change in residence would have a devastating effect on the child. Indeed I found Mr A to be not only credible and reliable but to be fair minded and detached about the situation. According to him, the child "has taken to me very well. We have a very good relationship. She calls me "Dad". I was a bit surprised when it happened but she started doing it herself." It was evident from both his account and that of the Defender that he is going to be very much a fixture in the child's life and one that she will largely benefit from. On balance it is preferable for a child to be brought up in a dual sex household rather than a single sex one. There is no question but both the child and the mother are devoted to each other and there has been no evidence to suggest any lack of care on the mother's part. I see no good reason to make the Residence Order in favour of the Pursuer at this stage in the child's life.

It was stated early on in the proceedings by the Pursuer's solicitors that if the Defender did not adopt a "serious attitude" to contact then the Pursuer might eventually seek a Residence Order (vide letter of 9 January 2002 attached to the Initial Writ). My impression is that his present quest for a Residence Order is for similar reasons to the one stated at the outset, simply to put more pressure on the Defender to recognise that he too has residual rights and responsibilities in relation to the child and to get her to take more positive action towards keeping him informed on the child's progress and to be more positive about his place in the child's life and the benefits of his having continuing contact with her. There is no doubt that for much of the last 4 years her attitude has been completely negative and destructive in intent. She has wanted to wipe the Pursuer out of the child's life entirely. Whether her motivation to do that has been so strong that she has been prepared to invent allegations against the Pursuer of sexual abuse of the child (the view of the Pursuer's father: "a vindictive mother has provoked the allegations. She would be happier if he were to disappear from C life"), is difficult to say. Her demeanor in the witness box when giving evidence about this matter seemed to me to be sincere. The probability of her going to those lengths is not high. The child made the allegations directly to myself when I interviewed her on 24 March 2003 so the issue is whether the Defender has in some way coached her to say such things or the child herself has invented false allegations against the Pursuer as a result of the emotional hothouse surrounding her while in the Defender's care. The child has either failed to repeat the allegations to others (ie DC Stewart and DC Hill) or, when she has, has not been able to give it a context or explain when and how it happened (DC Stewart). It is unfortunate that parties did not agree to treat the report of the Child Psychologist as evidence in the case as that might well have shed further light on this matter. All I can say is that I did not get the impression from the Defender that she was the kind of person who would coach her child in this way and it may be that the ground for putting the child on the At Risk Register, viz emotional abuse, is nearer to the truth. There is no doubt that the Defender is excessively protective of the child and has consistently evinced a hostility towards the Pursuer that may have rubbed off on the child in a dramatic way leading to these false allegations. The Pursuer has throughout reacted with dignity and forbearance in the face of continued police and social work investigation. That is not all that he has to put up with following the separation. The Defender has at no point consulted him on the schooling of the child, or on her health problems, getting her ears pierced when she was 7 months old or what name she should be known by. She made her attitude towards the Pursuer abundantly clear when called as a witness on his behalf: "I would rather that he was not a part of her life. It would be wonderful if he would just disappear and have nothing more to do with her ... he is her natural father and, as far as I am concerned, that is the end of it. He has never been her "Dad". He has never been there for her." When called as a witness in her own right, she stated in evidence in chief: "his involvement with the child was quite minimal prior to the separation ... I did not speak to the Pursuer about putting her into a nursery ... it did not cross my mind to discuss it with him. I felt that as I was the child's carer it was up to me to do what was best for her ... I really did not know what his rights and responsibilities were. I was the main carer ... I did not think I had any responsibility towards him to inform him." The Defender, while showing genuine love and affection for the child, also came over as thrawn and stubborn in her attitude towards the Pursuer. The fact that she has gone through 5 sets of solicitors is perhaps indicative of her response to accepting repeated advice. It seems extraordinary that, while she now says that she accepts that she has a responsibility to keep the Pursuer informed, this is only as a result, apparently, of advice rendered from her present set of solicitors and only after she had given evidence for the Pursuer but before she gave evidence on her own behalf. This is something that should have been tackled by a period of indepth counselling and advice at a very much earlier stage. Her attitude is really in strict contrast to all the other civilian witnesses and in particular the evidence given by her own co-habitee, J A. His view was refreshingly broad minded and mature. In examination-in-chief he stated that his subsequent marriage to the Defender "should not affect the Pursuer's relationship with C. Things would carry on as usual." In cross examination, he was even more explicit: "I think (the Pursuer) should be fully involved in C's life after we are married. He should be given information about her. He should be told about (any future change of doctors), any medical difficulties she was undergoing, any appointments with specialists etc." The Defender now states that she is not opposed in principle to the contact sought by the Pursuer and is prepared to keep him informed about the child's progress and take his views into account. I would expect Mr A to help her in doing that. The cases cited by Mrs Walker in that regard are very much in point. The Defender has a positive duty to permit, encourage and instruct C to continue contact with the Pursuer. The level of communication on both sides at the handover has been abysmal and needs to be improved. I think it would be helpful in this regard for the Defender and the Pursuer to have an information exchanging session prior to a particular contact period, perhaps once every 3 or 4 months, to go over with the Pursuer any developments and milestones in the child's upbringing and to show any photographs of any outings or special events that she has been involved in either at home or at school. If the Defender still cannot bear to talk to the Pursuer in any depth about these matters at this stage, she could at least compile a brief report on those matters plus copy photographs for collection by the Pursuer at a contact period every few months. It may be that now that she is secure in knowing that she will be keeping the child living with her that she can take a more relaxed attitude. I see no reason why she could not allow the Pursuer's parents to uplift the child on their own occasionally and the child to stay overnight with them during the Pursuer's periods of residential contact. As the child gets older, she will be able to find her own way to her grandparents, as it is very close to her own address and the Defender should be aiming to encourage such a development. As to the periods and amount of contact to be awarded to the Pursuer, I have granted what he has sought in his crave with 2 exceptions. I accept the assessment of the Defender that at this stage it might be too much for the child to be expected to go to the Pursuer for residential contact for 2 whole weeks in this coming summer of 2005 but I see no reason why she should not be ready to do so from 2006 onwards. As to Christmas, I think a child of that age prefers to have Christmas Eve in her own home and I have allowed the Pursuer part of Christmas Day with the child and on the following year a later part of Christmas Day over in to Boxing Day.

There remains the question of the Special Issue Order in relation to the child's name. As was remarked by the Lord President (Emslie) when sitting in the Outer House case of Brannigan v Brannigan supra, "(their mother's) technique was simply to leave it to these young children to make a decision for themselves which was much too important to leave to them without positive guidance and genuine encouragement from their mother." That was how the Defender presented the use by the child of the surname "C", and she was supported in that regard by her co-habitee, Mr A. He stated "I do not think C would like to keep the name D -.. She goes mental about it when G (ie the Pursuer) tries to get her to say D. She does not like it." The evidence from the Pursuer and his parents was different. According to the Pursuer, "she struggles to know what her own name is ... as soon as she gets into the car (ie at the handover), she says I want to be called 'D that is an issue to be resolved for her. I think that it is time to do it before it gets too settled. She is still trying to come to terms with it." His father said "recently she has asked "am I really a D?" It is upsetting for her when the issue of her name comes up. It is very confusing." His mother said "the use of the name 'C is not her choice. She is very confused and constantly clarifying it. She has done so for the last 4 years. We just call her C and she is happy with that." All that contradictory evidence from both sides is really too partisan for me to rely on. What is of importance here is the necessity to restore the balance between the Pursuer and the Defender so far as the child's future is concerned. The Defender has wished in the past to block the Pursuer out of the child's life, an attitude that in the long run will be harmful to the child and to the child's sense of her own identity. As is stated in Wilkinson and Norrie supra at para 8.61, page 268:-

"Having a name is one of the fundamental elements of a person's sense of self and personal identity, which itself makes an essential contribution to his or her psychological development and well-being. For this reason the parental responsibility to safeguard and promote the child's health, development and welfare includes an obligation to provide the child with a name." (cf. the case of M v C 2002 SLT (Sh.Ct.) 82)

If I grant the Pursuer's Specific Issue Order, it will have the merit of being a constant symbol and reminder to the Defender that the Pursuer has every right to remain a strong element in the child's future and must be advised and consulted about her welfare, until at least she is sufficiently mature to have her own views on the matter taken into account. To the playwright's query: "What's in a name?", the family lawyer must occasionally give the unrestricted reply: "Everything." In my opinion this is one such case, given the long held and operated on view of the Defender that the Pursuer should ideally be excluded from the child's upbringing and her reluctance to engage with him about her upbringing in the future. I have accordingly granted the Specific Issue Order because of the long term benefits that it will give to the child in this regard.

I have reserved meantime the question of expenses and fixed a later hearing to deal with those.