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Cite as: [2005] ScotSC 14

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Cowie & Anor v. Cowie & Anor [2005] ScotSC 14 (22 February 2005) SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT ABERDEEN

F160/03

		JUDGMENT of SHERIFF K A McLERNAN
		in the cause
		PETER YOUNG COWIE and MRS RHONA ANNE FRASER or COWIE
		Pursuers
		against
		LINSEY ALISON COWIE or KINGHORN First Defender
		and
		GRANT STEWART KINGHORN Second Defender

Aberdeen, 22 February 2005

The sheriff having heard parties further on the issues of contact and expenses and having further considered the matter now finds the following facts proved.

The pursuers are the maternal grandparents of a male child S born to their daughter on 12^th February 2001. The both reside at 22 Argyle Place, Aberdeen. The male pursuer is aged 58. The female pursuer is aged 56.

The first defender now aged 27 is the daughter of the pursuers. She resides meantime in her own tenancy from Aberdeen City Council at 12C Sandilands Drive, Aberdeen. She married the second defender at Cancun in Mexico on 14^th September 2000. She has one child S who was born in Aberdeen on 12^th February 2001.

The second defender aged 36 is the husband of the first defender. He resides at 15 Aulton Drive, Cruden Bay with LH aged 20 and an infant child of which he is the father.

The first defender resided with the second defender from about February 2000 until December 2001 when she moved of what had become the matrimonial home. During the period of co-habitation the second defender was frequently away from home for long periods as he worked mainly on oil rigs and was only at home for a few days each month.

The first defender had been a heroin addict from the age of 16, was an addict when she married and remained so during her pregnancy. The child S was born with Neonatal Dependency Syndrome and required to be retained in hospital for treatment for some six weeks after birth.

Neonatal Dependency Syndrome is a distressing condition for a child and, following upon the birth, the first defender was so shocked at the difficulties she felt she had created for the child that she ceased taking heroin. The second defender continued to be offshore for weeks at a time. The first defender was unable to maintain abstinence from heroin however and resumed taking it clandestinely.

The second defender had also been a user of heroin but he did not become addicted.

The capacity of the first defender to care for her child was impaired by the effects of her addiction. The pursuers were concerned for the safety of the child and encouraged the first defender to bring the child to their home frequently. The first defender accepted this assistance and relied on it with increasing frequency.

S had been placed on the child protection register in February 2001 and the social work department were supervising the care of the child. In July 2001 the pursuers assumed full-time care of S and their home became his home.

The social work department had been assisting the first defender since the birth of S. After the pursuers started to provide the primary care for S the social work department continued to work with the first defender to encourage her to develop the capacity to care properly for her child.

After February 2001 the relationship between the first and second defenders deteriorated. The first defender felt that the second defender was of no support to her and accused him of physical and verbal abusive behaviour. The second defender made counter allegations. The second defender continued to be seldom at home.

The first defender left the matrimonial home in December 2001. She stayed with her parents until she was allocated a tenancy in her own name in January 2002. The social work department continued to assist her.

In December 2001 a supervision order was made by a children's hearing under section 70 of the Children (Scotland) Act 1995 providing that S reside with the pursuers. On 18^th March 2002 S's name was removed from the child protection register.

By May 2002 the first defender had been adjudged by the social work department as fit to be primary carer for S but on the day of the children's hearing convened to consider the future residence of S the first defender was admitted to hospital following upon an incident of Deep Vein Thrombosis (DVT). DVT is associated with persistent injection. The social work department had been unaware that she had resumed taking heroin. Thereafter the social work department deemed the first defender as unsuitable as primary carer. They have not re-assessed that decision since May 2002.

Thereafter, again in May 2002, the second defender contacted the social work department and asked to be allowed to look after S and offered to take shore-based employment. The social work department approved of that request and recommended that the second defender be given the care of S. Successive children's hearings panels refused to accept that advice and continued the order that S remain with the pursuers.

During 2002 the relationship between the second defender and the other parties deteriorated significantly. The second defender regarded the other parties as opponents to be defeated in his battle to secure custody of S. Nevertheless contact between him and S was encouraged by the pursuers and was frequent.

Some time about mid-2002 the first defender sought and obtained medical help in conquering her addition. She was prescribed methadone and undertook to comply with regular testing. She has benefited from this regime and there is no evidence that she has reverted to heroin use. Her capacity to fulfil the maternal caring function has increased, but both the pursuers still have doubts about her capacity to become full-time carer of S. The first defender at the date of proof shares these doubts but is convinced that she can develop the necessary capability.

S is being singularly well looked after in his current environment by the pursuers. Both pursuers are well capable of providing for his material and emotional needs. Both pursuers are willing to continue to look after S and will encourage the first defender to improve and develop her capacity to care for S.

The second defender is strongly emotionally attached to S at present and is capable of caring for him recreationally. The capacity of the second defender to provide for the long term emotional and developmental needs was not assessed by the social work department before they began to support his application for custody. The capability of the second defender to provide for the emotional and developmental needs of S over the long term is not established.

The second defender has entered into a new relationship with a girl sixteen years younger than him. This relationship commenced in about June 2002. Over the next six months she resided partly with the second defender and partly with her parents but by January 2003 she was living full-time with the second defender.

The second defender wishes to integrate S into his new household. Numerous members of his extended family live nearby. This would be a very different environment for S. It is not established that transition to that new and very different environment would be in the best interests of S.

The second defender has had regular contact with S. The child has displayed signs of behaviour inconsistent with the standards of proper behaviour being inculcated by the pursuers. The attitude of the second defender to what is appropriate behaviour differs from the attitude of the pursuers. The second defender is not sympathetic to the attitude of the pursuers.

It is in the best interests of S that he is not subject to confusing and conflicting signals as to what behaviour is acceptable. It is in the best interests of S that the pursuers are the primary source of influence and control over S.

S has strong emotional ties with and dependency upon the pursuers. On balance it is more in the best interests of S that he maintains the stability which that environment provided by the pursuers gives him than be exposed to the trauma of a very different environment and the risk that that new environment might not turn out to be stable in the long term.

S has a particularly strong bond with the male pursuer. Disruption of that bond is likely to be harmful to S. S has sustained brain damage as a result of absorbing harmful substances in-utero. The full extent of cerebral damage cannot be stated with certainty. One manifestation in S is his slow speech development. This deficiency can have deleterious effect when formal education commences. It is far more likely that any difficulties encountered by S in formal education will be better dealt with if he is living with the pursuers' household than if he is living in the second defender's household.

It is in the best interests of S however that he remains in contact with his natural father. Parties have agreed among themselves the nature and extent of that contact and parties have agreed that in the meantime no further order is required in respect of contact.

Accordingly the sheriff finds that it is in the best interests of said child that parental rights and responsibilities in terms of the Children (Scotland) Act 1995 be conferred on the pursuers in respect of S and that it is in the best interests of said child that an order be made in terms of section 11(2)(c) of said Act whereby S shall reside with the pursuers and therefore the court makes an order granting parental responsibilities and parental rights to the pursuers and an order whereby S shall reside with the pursuers until further orders of the court. Quoad ultra makes no order in respect of contact and finds the defender liable to the pursuers in the expenses of process, but restricted to two thirds of the pursuers' account of expenses, ordains the pursuers to lodge an account of expenses and remits to the auditor to tax and report.

Supplementary Note

I issued a preliminary note on this matter so that parties could be aware early of my decision on the primary matter, namely where the child should reside. The evidence that was taken was under the guise of an evidential child welfare hearing which allows for some elasticity from the constraints of normal practice for inquiring into disputed facts. The parties are agreed that this shall be a final determination. It is appropriate that there be findings in fact and accordingly I have prepared findings in fact which relate both to this note and the previous note.

The issue of contact necessarily follows upon the resolution of the primary issue and I put the matter of contact out for a further hearing having determined the residence issue.

Parties have however now agreed that, as the child will be residing with the pursuers, (a) the first defender shall continue to see S on a daily basis at the pursuers' home and on every second Saturday for three hours at her home, and (b) the second defender shall have residential contact from 5.00 pm on Friday until 5.00 on Sunday every alternate Saturday.

While this is a generous contact in view of the evidence of disrespect for the social values of the pursuers, it may well be that a change in attitude will result from the dispelling of tension arising from the unresolved primary and contentious issue of residence and an attitude of more appreciation from the second defender for the pursuers for the work they are doing for his child will emerge.

While parties have agreed on contact, they have not been able to agree on the issue of expenses of this cause.

The first defender is an assisted party in terms of the Legal Aid Scotland Act and makes no motion.

The pursuers seek expenses from the second defender; the second defender seeks no expenses to or by any party.

In respect of the pursuers' motion it was submitted that the general rule is that expenses should follow success and the pursuers have plainly had success. In any event the court should look at whose actions made it necessary for a judicial determination to be pursued. In this case the second defender had continued to claim residence despite successive children's hearings rejecting his argument and despite the terms of the safeguarder's report. He was accordingly the one that forced this issue to judicial determination. It was accepted that he may well have been misguided as to his legal rights, but he was also misguided on practical matters and had produced no care plan or transition plan to ease the transfer of S if that were to happen. It was also submitted that he had simply refused to negotiate or discuss modified contact that might have resolved the issue. The pursuers also adverted to the fact that, despite his earnings, he refused to contribute to the upkeep of S. The pursuers had not only been forced to continue this action on behalf of S, but they also had been forced to maintain him at their own expense.

The defender, in opposing the pursuers' motion, pointed out that success is not an appropriate word for child cases. She accepted that conduct of parties was however a relevant consideration. The whole issue was to be determined however by what is in the best interests of the child and it was not necessary for the pursuers to raise an action at all. An offer of settlement had been made but not accepted and the second defender was now offering to pay aliment. He himself, it was submitted, had had considerable expense in presenting the argument even if he was labouring under the misapprehension that he and S had a right under the European Convention of Human Rights to live together.

I agree with the submission that success has to be assessed differently in matters relating to children. The more usual approach was not to award expenses against any party in disputes relating to children. However, it does sometimes occur that some actions have no justification and some defences do not justify the use of the judicial process. In these circumstances it is appropriate to view the conduct of the parties in the litigation. This is such a case. In my view this was a case in which the pursuers did require not only to raise an action, but to continue the action faced as they were with a crave that residence be transferred to the second defender. The pursuers had, from a very early age in this child's life, stepped into the vacuum created by the inadequacies of mother and the virtual absence of father and looked after this child at their own expense. Even when parties got on reasonably well with each other and the second defender expressed his appreciation of the efforts of the pursuers, there was no real attempt to contribute to the maintenance of the child. That reluctance to accept any financial obligation (as well as any social obligation until May 2002) is a factor that I take into account. If I had got the impression that the defender was aware of and needed a ruling on the extent of his and/or S's rights under article 8 of the European Convention of Human Rights, I would have been sympathetic to the view that it was entirely appropriate that no expenses should be due to or by any party. I did not, however, get that impression. My impression was that he was misled by the social work department's approach. He did not analyse it. He did not query why he was never assessed in respect of his suitability, simply as to his availability. He accepted a notion that he had an automatic right to the child. He therefore perceived anyone who stood in the way of his exercising this automatic right as an opponent and he treated this process as a contest between him and all other parties. It was during the course of this litigation that such communication as there was between the parties ceased to be a civilised discussion and the pursuers got the impression that the second defender was being rude, aggressive and bullying.

While there is force in the submission that parties are honestly involved in a dispute as to what is in the best interests of a child, it seems to me that by far the greater proportion of this litigation arose from the intransigent attitude of the second defender. I do not think it appropriate however that he should bear the whole expenses of process. I accordingly propose to limit his liability to two thirds of the pursuers' account.