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Cite as: [2005] ScotSC 41

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MS v. MM [2005] ScotSC 41 (11 July 2005)

F96/2003

SHERIFFDOM OF TAYSIDE, CENTRAL AND FIFE AT CUPAR

JUDGEMENT OF SHERIFF G J EVANS

IN CAUSA

M S

residing at

Caol

Fort William

(Assisted Person)

PURSUER

against

M M

residing at

Cupar

Fife

DEFENDER

CUPAR, 11 July 2005. The Sheriff, having resumed consideration of the cause, FINDS-IN-FACT:-

The parties are as designed in the instance and are cousins, their respective grandfathers having been brothers.

Both parties belong to travelling families. The pursuer met the defender when she was staying at the Spean Bridge Caravan Site and after 6 weeks they moved in to the defender's caravan and lived there for a couple of months.

They then moved to Edinburgh, Aberdeen and then to Cupar at the end of 2002. During the course of her pregnancy, the defender made clear to the pursuer that their relationship was at an end although he found it difficult to accept that that was the case.

The defender's mother and sister also moved to the same caravan park in Cupar but the local authority threatened the pursuer with eviction for providing accommodation for the defender's mother and sister within his own caravan.

The pursuer had to ask them to leave and they moved into another caravan on the same site.

As a result of the parties' sexual relationship, a child, A J M, was born to the defender on 7 March 2003.

The parties continued thereafter to live in their separate caravans on the same site and the pursuer was permitted limited contact with the said child over the next 3 months.

He found it inhibiting that he always had to see the said child in the presence of the defender's mother, sister and brother. He decided to return to Fort William, where his own family lives.

There he sought legal advice about resuming contact and the defender's solicitors' response to the pursuer's solicitors' request for contact was that it would be allowed on a supervised basis in view of the claimed threat by the pursuer that he was going to remove the child from the defender (vide pursuer's production 5/1/2, a letter from Baird & Company dated 15 August 2003).

The pursuer's solicitors requested a first contact on 26 August 2003 with weekly contact thereafter but her solicitors were unable to obtain her instructions on that request and the instant action had to be raised.

In that action, the pursuer's motion for interim contact was heard on 1 October 2003 in the absence of the defender and the pursuer was found entitled to interim contact every Saturday from 1pm to 3pm.

The first contact took place at Cupar on Saturday, 11 October 2003. The pursuer was accompanied by his sister, S S, whom the defender did not like. The defender insulted her and her family and the visit deteriorated into a slanging match resulting in it coming to an end after half an hour of the pursuer's arrival.

At the first Child Welfare Hearing on 12 November 2003, the Court ordered a background report and advised the pursuer not to enforce the original interlocutor of 1 October 2003 until the report clarified the situation. The Child Welfare Hearing was continued to 21 January 2004 to coincide with the Options Hearing previously fixed for that date.

At the continued Child Welfare Hearing on 21 January 2004, the defender was present without a solicitor. The interim contact awarded on 1 October 2003 was recalled and the matter continued to 4 February 2004 for the defender's solicitor to be also present.

At the continued Child Welfare Hearing on 4 February 2004, at which the background report, No 9 of Process was available, and parties and their respective solicitors were also present, the pursuer was found entitled to interim contact on the last weekend of each month from 12 noon to 2pm on Saturday and the same period 12 noon to 2pm on Sunday. The interim contact was to take place at the defender's caravan at Cupar and to be supervised by her sister, the pursuer to attend on his own. The hearing was continued to 31 March 2004 to monitor the interim award, which was to be for the 2 weekends of 28 to 29 February and 27 to 28 March 2004.

The interim contact visit of Saturday, 28 February 2004 was reasonably successful, although the said child was not at her ease as the pursuer had not seen her for some time. The second visit on 29 February 2004 was less successful due to the defender continually picking the said child up and taking her into the bedroom, making it difficult for the pursuer to begin to establish any kind of relationship with said child.

The pursuer's concerns about what had happened were drawn to the attention of the defender's solicitors by his solicitors' letter of 12 March 2004 (vide production 5/2/7).

When the pursuer turned up at the next weekend for interim contact on 27 March 2004, the defender was gone and he was informed that she was now living at a caravan site in Inverbervie.

At the continued Child Welfare Hearing on 31 March 2004, the pursuer was again found entitled to interim contact on the same times as previously but "to take place at the defender's home meantime at Inverbervie Caravan Site and to be supervised by a member of the defender's family." Three further weekends were specified for interim contact viz 3 and 4 April, 24 and 25 April and 29 and 30 May 2004, the pursuer again to attend on his own without another member of his family with him. The Child Welfare Hearing was further continued until 9 June 2004 to again monitor contact.

On 3 April 2004 the police were involved over claimed assaults by both parties and the pursuer was unable to exercise interim contact that day as no member of the defender's family was prepared to supervise it. He was aware that no contact would be available the following day either, 4 April 2004. His solicitors wrote to the defender's solicitors on 13 April 2004 suggesting that the pursuer attend accompanied by an elderly relative viz Mrs C M in order to facilitate further interim contact on 24 and 25 April 2004. No response was ever made to that suggestion.

On 24 April 2004 the pursuer took the precaution of reporting to the police that he was about to exercise interim contact and when he went thereafter to exercise it, the defender shouted at the pursuer and made disparaging remarks about him, telling him to go away and not return. On reporting this to the police station, he was advised not to return on 25 April 2004.

There was an exchange of solicitors' letters about the events of that weekend (vide 5/2/9 and 5/2/10 of Process), the pursuer's solicitors again wanting a response to the suggestion that the pursuer be accompanied by Mrs M.

Interim contact on both 29 and 30 April 2004 went well and the pursuer was allowed to spend time with the said child.

At the continued Child Welfare Hearing on 9 June 2004, interim contact was granted on the last and first weekends of each month between the same hours as previously on both Saturday and Sunday, and to take place at the defender's house (still Inverbervie Caravan Site) and to be supervised by a member of the defender's family but the pursuer again to attend either on his own or along with his cousin, Mrs C M. The dates fixed were 26 and 27 June 2004, 3 and 4 July and 24 and 25 July. The Child Welfare Hearing was continued to 4 August 2004 to review progress.

The pursuer was unable to take up any of these dates for the reasons set out in condescendence 3 of the Record to which reference is made brevitatis causa. The position was confirmed in correspondence between the parties respective solicitors (vide Nos 5/2/12 and 5/2/13 of Process).

At the continued Child Welfare Hearing on 4 August 2004, the interim contact previously granted to the pursuer was continued but to take place at Cupar Caravan Park to where the defender had returned and the action thereafter sisted to monitor contact.

Contact in August through to November 2004 was either unsuccessful or avoided for the reasons set out at length in the pursuer's condescendence 3 of the Record to which reference is made brevitatis causa.

On 2 December 2004 the sist was removed from the action and a Child Welfare Hearing plus Options Hearing was fixed for 12 January 2005. On that date the pursuer was again found entitled to interim contact over 2 weekends in February, at the beginning of the month ie 1 and 2 February and at the end ie 22 and 23 February, again between the hours of 12 and 2pm at the defender's address, there being a continued Child Welfare Hearing fixed for 9 March 2005 and a continued Options Hearing for 9 February 2005. On that latter date, a Proof was assigned for 22 April 2005.

On 9 March 2005, 2 further weekend interim contact periods were arranged between the same hours namely 12 to 2pm for 15 and 16 March and 12 to 13 April 2005. These dates were arranged in the absence of the defender, although her solicitor was present.

The pursuer attempted to make interim contact on 1 February 2005 but was met by abuse from the defender, who was backed up by her mother and brother and the pursuer left to avoid further confrontation. He did not return for interim contact on 2 February 2005.

On 29 March 2005 the pursuer's solicitors had to enrol the motion (7/2 of Process) to find the defender in breach of the interlocutor of 9 March 2005 by failing to allow the pursuer to exercise contact on 15 March 2005 in terms of the said interlocutor. A hearing on that motion was continued to the Proof diet but either not insisted upon or overlooked at the conclusion of the Proof.

The pursuer, who is currently unemployed and in receipt of state benefits has trained in Inverness to be a landscape gardener. He has suffered from epilepsy which had prevented him from driving but it is now much improved and does not prevent him making the drive from Fort William to exercise contact.

The pursuer comes from a large family. His mother has 8 grandsons and 4 granddaughters. Their ages range from 18 years to 10 months. The pursuer is well used to looking after young children and relates well to them. He now has a steady girlfriend whose family come from Skye.

The defender is unemployed and in receipt of state benefits and has her own caravan at Cupar. She has another 2 children each by different fathers. Her oldest child is J J M, aged 5 and her youngest is some 8 to 9 months old. The father of J J has no contact whatsoever with said child. J J does not attend nursery and the defender has not yet decided whether to send him to primary school or have him educated at home.

The said child, A, while a clingy child, would benefit from regular contact with the pursuer, provided that she is properly encouraged to do so by the defender, preferably outwith the presence of her own family and without any abuse being directed at the pursuer or at his family in the presence of said child.

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

The welfare of said child would be best served by the pursuer maintaining contact with her.

It would be better for said child that a contact order in favour of the pursuer be made than that no such order be made at all.

At present, in order to build up a sufficient bond with said child and avoid past difficulties with contact at the defender's address, the welfare of said child would be best served by the pursuer having supervised contact to said child at a suitable contact centre, such as the one in Kirkcaldy.

At present, it would not be conducive to the welfare of said child that the pursuer be granted full parental rights and responsibilities to her.

Accordingly Sustains the pursuer's plea-in-law in respect of crave 3 and Repels same in respect of craves 1 and 2; Repels the defender's plea-in-law in respect of crave 3 and Sustains the same in relation to craves 1 and 2; Refuses craves 1 and 2 in hoc statu; Grants crave 3 and in the first instance Allows the pursuer to exercise supervised contact with said child, A J M, born 7 March 2003 at a local authority contact centre, such as the one operating in Kirkcaldy, at times and dates to be hereinafter arranged; Continues the cause to 26 August 2005 at 9.45am for a hearing on the practicality of arranging said contact at the contact centre in Kirkcaldy on a weekly or fortnightly or other basis; Reserves meantime the question of expenses to the same date as that fixed for the hearing on contact.

Sheriff

NOTE:-

INTRODUCTION

This is an action by an unmarried father for parental rights and responsibilities in respect of the child of his relationship with the defender, A J M, born 7 March 2003. He also seeks a measure of contact. The matter went to Proof before me on 22 April 2005. The pursuer was represented by Mr McInnes, Solicitor, Cupar and the defender by Ms Herbert, Solicitor, Leven. Mr McInnes led evidence on behalf of the pursuer from the pursuer himself, his sister, S S, and his mother, Mrs J S. Ms Herbert then led evidence on behalf of the defender from the defender herself, her sister, J C M, and her mother, E M.

SUBMISSIONS

Mr McInnes submitted that it was evident that the pursuer, who was living in Fort William, had to go to a great deal of time and trouble and expense to obtain contact and this showed his genuine interest in getting contact to A. The pursuer accepted that the difficulties he had encountered in obtaining regular contact meant that there would require to be a period of familiarisation for A to get to know him and to accept him. The past attempts at contact in the defender's caravans in Cupar and elsewhere had simply not worked. He recommended this as a case for using the contact centre in Kirkcaldy which functioned on a Saturday between 10am and 2pm. The pursuer's approach all along had been constructive and he was prepared to go to whatever lengths were required to obtain and maintain contact with A.

Ms Herbert submitted that the Court had to decide what was in the best interests of the child. The defender's view was that I should call a halt to any contact as it had simply not worked. The child still did not know the pursuer as her father. While he had managed to attend all the Court Child Welfare Hearings, he had not managed to attend all the contact periods. There had been a long gap between August and December 2004 for example. While various excuses had been put forward, the fact remains that the pursuer had not sought any alternative periods. The difficulties over contact had not been possible to resolve and the defender sought to have it brought to an end. It was simply no longer in the child's interests for there to be any further contact.

DECISION

Due to the briefness of the relationship between the parties and their shared inability to put their differences behind them for the sake of the child, who is still, after 2 years, unfamiliar with the pursuer and treated as much as a stranger, there is no need and no apparent benefit to the child in granting the pursuer any form of parental rights or responsibilities. The main issue in this case in my view is simply the question of contact. The task of the Court in deciding objectively where the welfare of the child chiefly lies in respect of contact with the pursuer as her natural father has not been made any easier by the fact that the parties have each led their own relatives, viz their own mother and sister, as witnesses on their behalf and have not provided any other witnesses outwith their own immediate family. Such witnesses are bound, through family ties, to give partial accounts of past events and express opinions that are designed to further the aims and interests of their respective relatives. When Mr Anderson, the Reporter, was preparing his report, he also spoke to the health visitor, as well as family members and I would have welcomed outside witnesses of that nature in this case who are able to give a more disinterested input into what would be in the long term interests of the child. All I can rely on is my subjective impression of the various witnesses when they gave evidence and report that on balance I found the pursuer and his witnesses to be more credible and reliable than the evidence given by the defender and her witnesses. I am prepared to accept that the pursuer's attempt to make contact with his daughter are genuine and are not an excuse to resume a relationship with the defender, which was her fear. Whatever may have been the case in the past, he is now in another steady relationship and his interests are wholly focused on his daughter. I see no reason in his personality or background to prevent him seeing the child. As he explained in evidence, he himself comes from a large family of 3 sisters and 7 brothers and he is used to dealing with young children in the form of his numerous nephews and nieces. He is anxious to show his love for A and assist in her upbringing. He wants to play a part in her life and he has put considerable effort in to often fruitless contact visits which have necessitated a round trip of around 160 miles. Even if he has stayed overnight with his sister in Falkirk on occasions, that does not detract from the commitment that he has shown. His sister in her evidence explained that her brother was a decent man with so much love to give the child. "He gets excited at the prospect of a visit and is upset when it does not work out." His mother, in her evidence, stated that she gets depressed at the lack of contact between herself and A, who was the first granddaughter out of her 12 grandchildren. "I think A would get quite a lot from contact with her father". His epilepsy is now sufficiently under control for him to drive safely and he is a committed Christian, who attends church regularly. I found all that evidence convincing and reliable and accepted it. I did not accept the defender's view that "A does not mean much to him as he has never talked to A". Nor did I accept her sister's view that "he (ie the pursuer) was not interested in A and he never went near her." His consistent efforts to obtain contact over these 2 years belie that conclusion. It is however true that the pursuer is still a stranger to the child. As the defender said "it has been over 2 years and A sees him as a stranger." Her sister stated too "A would be awkward. She does not recognise her father for who he is." Her mother also stated "she (ie A) did not know who Mr S is." This is, in my view, a barrier to overcome rather than a reason in itself for stopping contact. The reason that the pursuer has not got to know the child is not through any fault on his part. It is due to the way the defender has behaved when she has been backed up and egged on by her own family. The pursuer has understandably felt that all that he could reasonably do was to withdraw rather than increase the tension. He has never really been given a proper opportunity to make the child accept him for what he is, welcome his attentions and be at ease in his presence. All that will take time and will have to be done away from the defender's caravan at this stage where she is too closely supported by her own family to the detriment of the pursuer and the child. It is of some significance that her other child, J J, is also excluded from seeing his own father. It is as though the defender did not see any place in her children's life for their biological father. The caravan site seems somewhat inward looking and not engaging with the community, J J not even being as yet sent to the local primary school. I think it would be of benefit for A to break out of this closed community and to resume regular contact with the pursuer and eventually to enjoy the company of his family. I agree with Mr McInnes that the only way this can be done at present as a beginning is through the services of a local authority contact centre, such as the one in Kirkcaldy. Although he mentioned times to me, I would wish parties time to reflect on this and to come up with what would be reasonable suggestions at this stage in A's life. The geographical distance between the parties must make frequent contact very difficult to arrange in any event and while it might be feasible to increase this to weekly access economically this might be difficult for the pursuer to sustain. There are a number of considerations like this that parties have got to take into account. At least in the course of her evidence the defender made it clear that she would abide by the decision of the Court. It is now time that this was put in hand and parties come to some firm arrangement so that contact can resume at a contact centre. I have fixed a date for this to be arranged and I will also deal with expenses at the same time.