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Cite as: [2005] ScotSC 68

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F375/03

JUDGEMENT OF SHERIFF W S S IRELAND

in the cause

MISS SHARON HAGGARTY

Pursuer;

against

MR CRAIG ALEXANDER WOODROW

Defender:

________________

Act: Mrs Welsh

Alt: Miss Templeton

KILMARNOCK: 10 October 2005.

The Sheriff having resumed consideration of the cause, Finds the following facts admitted or proved:-

The Pursuer is Sharon Haggarty who is designed as care of Elizabeth Welsh Family Law Practice, 31 Main Street, Prestwick.

The Defender is Craig Alexander Woodrow, latterly residing at 26 Wallace Street, Galston.

The Pursuer and Defender formed a relationship in or around 1994. They had a daughter Lauren Woodrow who was born on 27 June 1998. The relationship came to an end in December 1999.

The Defender was verbally abusive to the Pursuer after the separation on a number of occasions. The Defender called the Pursuer names including "stupid cow" and "stupid bitch". These comments were sometimes made in the presence of Lauren.

On one occasion after the parties separated the Defender broke the security door of the Pursuer's then residence in 2 Girvan Crescent, Newmilns and smashed the glass of her flat door and knocked it off its hinges. This incident occurred between 11.30 pm and the early hours of the morning. The Defender had gone to the house because he wanted to see Lauren. This was an impulsive action on the part of the Defender. The Pursuer called the police but the Defender had left before the police came.

After the parties separated the Defender had some irregular contact with Lauren. This contact was afforded by the Pursuer to the Defender who wished this to be in her presence. The Pursuer enjoyed that contact but his verbal abuse of the Pursuer undermined her confidence and undermined her in front of the child Lauren. Contact was withdrawn by the Pursuer.

The Defender raised an action for contact at Kilmarnock Sheriff Court but abandoned it prior to the proof diet in or around April 2000. No interim orders of contact were made in that action.

Shortly after the parties separated, the Defender formed a relationship with another woman, Lynn Rogerson. The Pursuer objected to Ms Rogerson being present when the Defender and his family had contact with Lauren. As a result there was no contact between Lauren and any of the members of the Defender's family from 1999 for an approximate period of one year. The Pursuer did offer contact with Lauren to the Defender provided Ms Rogerson was not present but the Defender refused that offer. He did not seek to have contact with Lauren whilst he was in a relationship with Ms Rogerson unless his relationship with Ms Rogerson had temporarily broken down, which happened from time to time.

The Defender's grandparents, Alexander Smith and Ruby Smith had after the parties separated had contact with Lauren but when the Pursuer insisted that any contact the Defender had with Lauren ought to be outwith the presence of Ms Rogerson, they decided to discontinue their contact with Lauren in order to support the Defender.

During the period from approximately the year 2000 until June 2003, the Defender did have occasional contact with Lauren which was usually at the Pursuer's house or at a nearby park. The visits made by the Defender were short and occasionally he failed to attend for agreed contact arrangements and would sometimes cancel such contact arrangements at short notice.

As a result of his relationship with Ms Rogerson, he had two children by her. A child Ryan born in 2000 and a child Zoe born in July 2002. The relationship between the Defender and Ms Rogerson was violent and had broken down permanently prior to Zoe's birth. Shortly after Zoe was born there was a violent incident in Ms Rogerson's house in the presence of both children as a result of which the Defender was asked to leave the house by Ms Rogerson's mother, Catherine Reilly.

In the early part of 2002 the Defender, while still in a relationship with Ms Rogerson, went to Spain to live for several months. He did not at that time attempt to speak to Lauren from Spain although he had regular telephone contact with Ms Rogerson and their child Ryan.

The Pursuer moved house from Newmilns to Crookedholm in or around August 2001 to distance herself from the Defender and his abusive behaviour. She changed her home telephone number at this point to avoid any contact by the Defender with her.

The Defender found out where the Pursuer was living and came to her house asking to see both the Pursuer and Lauren in or around November 2001. He would also phone her from a call box outside her home and would ring the Pursuer's telephone number repeatedly over a couple of hours. The Defender also phoned the Pursuer on her mobile phone.

During the summer of 2002, prior to the final breakdown of the Defender's relationship with Ms Rogerson, the Defender took a deliberate overdose of tablets because he was depressed. At that time he was in the house and had charge of his children Ryan and Zoe. A telephone call was made to Ms Rogerson's mother, Catherine Reilly, to tell her what he had done. He asked Mrs Reilly to telephone Ms Rogerson and tell Ms Rogerson what he had done. This action on behalf of the Defender is indicative of his impulsive nature and indicative of his general lack of judgement as to the welfare of others including children in his care.

On 23 September 2002 the Defender attended at Ms Rogerson's house uninvited and entered same. He assaulted Ms Rogerson by seizing her by the neck, pushing her and repeatedly throwing her against household furniture whereby she struck her head to her injury. Further, he assaulted Lynn Rogerson, Ryan Woodrow and Zoe Woodrow by locking all the doors of the home and refuse to allow Ms Rogerson and the children to leave and thus did detain them against their will. Further on 24 September he culpably and recklessly with disregard of the consequences threw a mobile phone in the direction of Ryan Alexander Woodrow then aged two years whereby the mobile phone struck a wall and was damaged. He was ultimately placed on probation for two years with the condition that he undergo 125 hours of community service, on 15 January 2003.

As a result of these actions by the Defender against Ms Rogerson and a subsequent breach of bail conditions by approaching her and telephoning her, Ms Rogerson had to move home to distance herself from the Defender and that to protect her safety and that of the children.

Notwithstanding the Defender's conviction, the Pursuer continued to afford the Defender occasional contact with Lauren. The Pursuer has, however, in light of those convictions and the Defender's subsequent behaviour towards her had reservations about the Defender's having contact with Lauren which are reasonable.

It would be detrimental to the well being of the child Lauren to be in a household where domestic violence occurs. In light of the Defender's behaviour towards the Pursuer during their relationship and towards Ms Rogerson during his relationship with her, and his subsequent behaviour in January 2005 there is a substantial risk of Lauren being exposed to such violent activity by the Defender in the future.

It would not be in Lauren's best interest to be in an environment where the Defender continued to exhibit temper and resort to violence.

The Defender as a result of his conviction is an offender in terms of Schedule 1 of the Criminal Procedure (Scotland) Act 1975.

The Defender has exhibited since the breakdown of his relationship with the Pursuer and subsequently a violent temper and an inability to control his reactions. If the Defender were to have contact with Lauren, Lauren would likely be exposed to that temper if she were to do anything which were to annoy the Defender. It would not be in Lauren's best interests that she be exposed to that risk.

Historically the Pursuer took Lauren to visit the Defender's grandparents Alexander and Ruby Smith. These visits were usually on a Friday and lasted for around one year between April 2002 and June 2003, approximately. Lauren would sometimes be left in their care while the Pursuer went out. Mr and Mrs Smith enjoyed that contact with Lauren. At the same time the Defender's extended family, including his aunt Jill McPhee, also had contact with Lauren.

Mr and Mrs Smith disagreed with the Pursuer as regards her disciplining of Lauren. The Pursuer felt that Mr and Mrs Smith had a tendency to spoil Lauren by giving her treats. The Pursuer formed the view she was required to bring Lauren to Mr and Mrs Smith's house which ultimately upset her. She saw Mr and Mrs Smith's behaviour as undermining her upbringing of Lauren in her role of primary carer of Lauren.

The Defender on occasion saw Lauren during the visits to Mr and Mrs Smith and also occasionally exercised contact with Lauren at the home of his friends with whom he was living at that point in Galston. He would also take her swimming from time to time. He would also, however, not spend time with Lauren preferring to socialise with his friends in public houses.

In or around January 2003, the Defender was allowed to stay by the Pursuer with her in Crookedholm as at that point he had nowhere else to stay. During the few days they were together the Pursuer and Defender argued and he did undermine her parenting of Lauren by interfering with that. He called the Pursuer a stupid bitch and as a result of his behaviour the Defender was told to leave the Pursuer's home.

In or around March 2003, the Defender moved to his own house at 26 Wallace Street, Galston. The Pursuer continued to seek that the Defender have some contact with his daughter Lauren. The Pursuer took Lauren to the Defender's house to afford him access to Lauren. Lauren stayed overnight on two occasions. The Pursuer became aware from Lauren that she was feeling let down and upset at the Defender failing to keep contact arrangements and at the arguments which were taking place between the pursue and the Defender. The child Lauren indicated that she did not wish to continue contact with the Defender as she was bored when she was at the Defender's house. She was left to watch television and the child reported to the Pursuer an impression that the Defender was not engaging fully with the child during these contact sessions.

The house that the Defender had in Galston was on occasion dirty and on one occasion the Defender's grandparents had to pay the Pursuer to clean it for him. He was careless as to the provision of food in his house for Lauren. As a result of the Defender's behaviour and Lauren's comments to her, the Pursuer decided in or around June 2003 that there should be no more contact between Lauren and the Defender. She also at that stage withdrew contact from the grandparents, Mr and Mrs Smith.

The Pursuer in or around June 2003 began seeing Mr Scott McRoberts which has consequently developed into a full relationship between them.

In or around August 20023 the Pursuer formed a plan to move to Stornoway where her mother lived. She formed that intention partly to get away from the Defender and partly to build herself a new life. After a short visit to Stornoway the Pursuer changed her mind and moved back to the mainland to her present house in Hurlford. Concerned regarding the Defender's previous attitude towards her she obtained an ex-directory phone number. The Defender thereafter called the Pursuer regularly on her mobile phone and was abusive towards her. On one occasion he called her at 1 am in the morning asking that he be allowed to come round and indicating that he would give the Pursuer a "good seeing to". The Pursuer reasonably apprehended from those words that the Defender would intend to assault her.

As a result of the abusive phone calls to her mobile phone, the Pursuer caused her uncle to pretend that she had sold the mobile phone to him and this was to stop the abusive phone calls from the Defender being made directly to her.

In or around 19 September 2003 in the Foregate in Kilmarnock the Defender approached the Pursuer whilst she was out with Lauren. He approached the Pursuer, lifted Lauren up and initially refused to put Lauren down. He indicated to the Pursuer that the Defender could walk away with Lauren there and then. The Pursuer promised to let the Defender see Lauren again. The Pursuer said this only in order that the Defender put the child down. The child was distressed at this incident and that because of the behaviour of the Defender.

On a date later in September 2003, the Defender followed the Pursuer by car while she was taking Lauren to a friend's home in Galston. He parked beside her car preventing her from leaving and preventing her from opening her door. He shouted abuse at the Pursuer calling her a bitch and a cow. This behaviour was directly in the presence of Lauren and Lauren would have heard these derogatory words directed against her mother, her principal carer.

Subsequently the Defender found out from a local newspaper the Pursuer's address having seen a school photograph of Lauren in the newspaper. He thereafter began attending at Lauren's school and that was in or around November 2003. Subsequently he and his grandfather, Mr Smith, came to the school on several occasions in the period November through December 2003. The Defender did so in order to try and see Lauren. The Pursuer did not approve of this. The Defender approached the Pursuer at Lauren's school on one occasion. He enquired what Lauren might wish for Christmas but also called the Pursuer a twisted, stupid cow. The Pursuer was upset by the Defender's behaviour and she subsequently reported matters to the police and to the authorities at the school. The Defender well knew that the Pursuer objected to him coming to the school to see Lauren.

The Pursuer was granted interim interdict at Kilmarnock Sheriff Court on 23 December 2003 preventing the Defender molesting her by abusing her verbally, by threatening her, by telephoning her or sending her text messages, by putting her into a state of alarm or distress and from approaching her.

After the interim interdict was granted, the Defender did approach the Pursuer at Lauren's school on one further occasion. He told the Pursuer that he knew where she stayed. The Pursuer was upset by this.

The Defender stopped attending at Lauren's school. However Mr Smith, his grandfather, continued to do so until Easter 2004. Mr Smith was anxious to see Lauren with whom he had previously enjoyed a good relationship. On one occasion Lauren had emerged from the playground to see Mr Smith who had a dog. Mr Smith came on a number of occasions up to in or around Easter 2004. He stopped after an altercation with the Pursuer's boyfriend Mr McRoberts.

In or around Boxing Day 2003 in a store in Kilmarnock, the Defender's aunt Jill McPhee shouted at the Pursuer about the outstanding Court case threatening to stalk her, pointed at Lauren and slapped the Pursuer on the face. These actions took place in the presence of Lauren. The child was upset because of this incident.

Shortly after the above described incident, the child saw the Defender outside another store in Kilmarnock. The Pursuer observed the child shaking and it is reasonable to hold that this upset of the child was due to her sight of the Defender.

Lauren has been prone to suffer from eczema since birth. This condition reappeared in the early months of 2004 following upon the Pursuer and the Pursuer's grandfather, Mr Smith's, visits to the school. Lauren also suffered from stomach problems and night terrors at the same time. She was seen by a general practitioner and was prescribed medication. She was also referred to the Child and Adult Mental Health Service as a result of these symptoms but at the date of proof had not been seen by them. She had also been seen by a health visitor. The symptoms which she displayed were not of an organic nature. They could be caused by emotional disturbance to the child. Lauren had no cause to be anxious or emotionally disturbed as to her relationship with the Pursuer. She had previously been a confident child and since the school visits by the Defender and Mr Smith had ceased, she has become confident again. It is more likely that Lauren's symptoms were due to the attendance of the Defender and his grandfather at the school rather than the fact that she was not otherwise seeing the Defender and Mr Smith. She had previously been a happy and confident child prior to those symptoms arising and subsequent to the school visits by the grandfather ceasing, she has become confident again.

Lauren is aware that the Pursuer does not wish her to see the Defender.

The Pursuer is still in the relationship with Mr Scott McRoberts. Lauren has developed a close relationship with Mr McRoberts. Of her own volition she has begun to call Mr McRoberts "dad". Mr McRoberts does not encourage this but he has developed a great affection for Lauren and both wishes and intends to care for her and the Pursuer. Lauren has benefited from the close and supporting relationship between the Pursuer and Mr McRoberts and is likely to do so for the future. Mr McRoberts provides a father figure to Lauren.

On 9 July 2004, on the instructions of the Court, Lauren was interviewed by Miss Susan Bell, solicitor appointed by the Court to obtain the views of Lauren. Lauren advised Miss Bell that she lived with the Pursuer and Scott McRoberts whom she referred to as "daddy". She advised Miss Bell that she had a good grandmother who lives in Crookedholm and that she saw the grandmother and the grandfather often. He recalled that she used to visit her other grandparents in Irvine (Mr and Mrs Smith) and when she was there she saw Craig (meaning the Defender). She told Miss Bell that Craig used to be her daddy but that she now refers to Scott McRoberts as her daddy. She told Miss Bell that her Irvine grandparents (Mr and Mrs Smith) and Craig (the Defender) were bad. She said this as she had heard them shouting at her mother and she did not wish anyone to shout at her mother. She recalled that Craig (the Defender) had taken her swimming and that she had enjoyed that. She indicated that she would be happy to see Mr and Mrs Smith and the Defender as long as they did not shout at her mother. She did not express any concerns to Miss Bell about seeing the Defender nor expressed any reservations regarding same. She seemed to Miss Bell to be a relaxed and happy child and her demeanour was not effected when discussing the Defender.

At around the time of that interview she had, however, expressed to the Pursuer a view that she, Lauren, did not wish to see the Defender.

That Number 5/5 of Process is a photocopy of a true and accurate letter from Dr James McWhirter recording the attendance of Scott McRoberts at Crosshouse Accident and Emergency Hospital on 18 January 2005.

That Number 5/6 of Process is a true and accurate copy of Accident and Emergency Report of the attendance of Scott McRoberts at Crosshouse Hospital on 18 January 2005.

On 11 January 2005 the Pursuer's boyfriend, Scott McRoberts, was subjected to verbal abuse by the Defender's grandfather, Mr Alexander Smith, whilst Mr McRoberts was walking from his work to his home in Galston. The Defender was present when the abuse took place but did not join in the abuse.

On 15 January 2005 the Pursuer and Mr McRoberts were in the lounge bar of a public house in Galston to celebrate Mr McRoberts birthday. The Defender had been in the public bar of the premises. The Defender then entered the lounge bar and observed the Pursuer while she sang a song during a karaoke competition. The Pursuer saw the Defender and felt intimidated by his presence. Subsequently Mr McRoberts spoke to the Defender whereafter the Defender assaulted Mr McRoberts, punching him about the face three times. As a result of that assault by the Defender upon Mr McRoberts he sustained an injury to his eye and bruising to his face and subsequently he attended at the Accident and Emergency Department of Crosshouse Hospital on 18 January 2005.

On Sunday 16 January, Lauren noted the injuries which Mr McRoberts had suffered. The Pursuer told Lauren that the injuries had been caused by the Defender.

As a result of the Defender's behaviour towards the Pursuer since 1999, the Pursuer has reasonable apprehension that the Defender will continue to harass her by seeking to speak to her, abusing her verbally either in person or on the telephone. The incident of 15 January 2005 shows that the Defender has been capable of breaching an interim interdict. Given the incidents subsequent to the grant of interim interdict, it is necessary for the protection of the Pursuer that she have the benefit of a permanent interdict against the Defender.

The Defender has not sought since July 2004 to approach Lauren directly nor has he tried since that date to interfere with the Pursuer's care of Lauren. There is no likelihood that he will do so and an interdict to prevent him from interfering with the Pursuer's care of Lauren or to prevent the defender approaching Lauren is unnecessary at the present time.

Lauren is well settled with the Pursuer and Mr McRoberts who can provide a caring and stable home for her.

Any contact by the Defender with Lauren due to his expressed hostility towards the Pursuer and Mr McRoberts and due to his impulsive nature and inability to control his temper is likely to upset Lauren. He would be likely to exhibit his hostility to the Pursuer and Mr McRoberts to Lauren. It cannot be said it would be in Lauren's best interests to allow that position to obtain.

Having regard to the Pursuer's compulsive temperament, his quick resort to anger and on occasion to violence, there would be a risk at the present time for Lauren if the Defender were to have contact with him.

Finds in fact and law:-

It being necessary to protect the Pursuer from the Defender's abuse of her and to prevent him from contacting her or approaching her or further abusing her, a permanent interdict as craved by the Pursuer is necessary.

The Defender not having sought to interfere with the Pursuer's care of Lauren Woodrow, nor having sought to contact Lauren since July 2004, the interdict sought by the Pursuer in terms of Crave Three is not necessary.

Having regard to the Court's duty to regard the welfare of Lauren Woodrow as its paramount consideration, it would not be in the child's interest to have contact with the Defender and no order should be made in favour of the Defender in terms of Section 11 of the Children (Scotland) Act 1995.

Therefore, Interdicts the Defender from molesting the Pursuer by abusing her verbally, threatening her, by telephoning her or sending her text messages, by putting her into a state of fear and alarm or distress and from approaching her; Sustains the Pursuer's pleas in law numbers one, four and five, Repels Pursuer's pleas in law numbers two and three; Repels Defender's pleas in law two, three, five and six, Sustains Defender's plea in law number four; Appoints parties to be heard on the question of the expenses of the cause on 19 October 2005 at 10.00 am; Reserves to pronounce further.

Note

Introduction

This is an action whereby the Pursuer seeks interdict preventing the Defender from, in terms, abusing her; interdicts preventing the Defender, in terms, from removing the child Lauren, the parties' daughter from her care and in particular from approaching the child. The Defender seeks a Contact Order with the child Lauren; he does not insist in his crave for an order conferring parental rights and responsibilities. The Pursuer did not insist on the attachment of a power of arrest in terms of the Protection from Abuse (Scotland) Act 2001, Section 1, to the interim interdict or any permanent interdict ultimately pronounced. The question of expenses remains unresolved and a hearing will be required thereon.

The proof initially proceeded before me on 13 July 2004, 10 August 2004, 30 September 2004 and 1 October 2004. I heard submissions from the Pursuer's solicitor Mrs Welsh and in part from the Defender's solicitor Miss Templeton on 1 December 2005. There was some delay thereafter, reflecting on no-one, in identifying a further date for the Defender's agent's continued submissions. Ultimately a date was identified for 19 January 2005. However, on that date I was advised that there had been further incidents in January 2005 which the Pursuer felt were relevant to the decision of the case and having heard agents granted the Pursuer's motion to lead further evidence. I thereafter appointed procedure for a Minute of Amendment, Answers and Adjustment and appointed 2 March 2005 as the date when I would hear the further evidence. On that date further evidence was lead and thereafter I head submissions for the Defender's agent and the Pursuer's agent on 19 April 2005 when I made Avizandum.

I would have much preferred an earlier decision for parties than that which I am now issuing. I believe too that parties would have preferred an earlier decision. However the delay has been due to the sheer volume of both criminal and civil business before the Court at Kilmarnock. I regret any inconvenience to parties occasioned by the pressure upon this Court which has lead to a later issuing of a decision than I would have preferred.

As to the evidence itself, I heard for the Pursuer, from the Pursuer herself, her general practitioner Dr Iain Gold, her father James Haggarty, her boyfriend (John) Scott McRoberts and Catherine Reilly, the mother of a former girlfriend of the Defender. For the Defender I heard from the Defender himself, his grandfather Alexander Smith and his aunt Jill McPhee on the first four dates of proof to which I have referred. On 2 March 2005 I heard evidence from the Pursuer, (John) Scott McRoberts and the Defender.

Prior to the proof commencing I was aware of the obligation upon the Court to obtain the views of the child, Lauren and consequently caused Miss Bell, solicitor, to interview Lauren and report to the Court as to the child's views. This brief report is Number 19 of Process. This report was of course made available to parties prior to the proof commencing. For completeness, parties were of course aware that the Court had granted a general non-molestation interdict against the Defender on 23 December 2003, in terms of Pursuer's Crave Number One.

I now turn to the submissions of parties' agents. Mrs Welsh for the Pursuer on 1 December 2005 had helpfully produced draft findings in fact. However I must make it plain that whilst this is a very helpful and useful exercise for any agent to undertake, the responsibility remains upon the Court to reach its own views on questions of fact and accordingly I have done so.

Mrs Welsh moved the Court to sustain the Pursuer's pleas in law numbers 1, 4 and 5 and repel Pursuers pleas in law 2 and 3; she invited the Court to repel the Defender's pleas in law 1 to 6 inclusive. Recognising that the Court was required in this case in terms of the child Lauren to make a decision in terms of the Children (Scotland) Act 1995 Sections 1 and 11, she submitted that the Court should have regard to the Inner House decision of White v White 2001 S.C. page 689 (although she herself in her submissions used the report of the case contained in 2001 FamLR at page 21). She submitted that the Pursuer was not seeking the attachment of a power of arrest but was seeking a perpetual interdict. As to the facts her submission began with attention to the Defender's own evidence. She submitted that that in itself corroborated the fact that he had verbally abused the Pursuer on a number of occasions by attending at her house and causing damage and by approaching the Pursuer in the street and that the Defender himself had accepted that he had on occasion referred to the Pursuers as a "stupid bitch" and indeed had followed her to her then home in Galston. She invited the Court to accept the Pursuer's evidence as regards the averred assault upon her by the Defender's aunt, Jill McPhee, which she indicated was corroborated by the Defender's evidence that the aunt had said that she had slapped the Pursuer. Mrs Welsh placed particular emphasis on the presence of Lauren at some of these incidents of abuse by the Defender himself and by his family.

She drew attention to the medical evidence as regards Lauren's eczema and night terrors as brought out in the evidence of Dr Gold which he submitted corroborated the Pursuer's own evidence as to Lauren's upset after the Defender and his grandfather had been at the child's school. She invited the Court to consider that when looking to the "best interests" of Lauren regard should be had to these matters in deciding whether contact with the Defender ought to be resumed. She drew attention to the fact the Pursuer's father had given evidence that the Defender had forgotten his child after he had formed a new relationship with Ms Rogerson and Mr Haggarty senior's evidence that Mr and Mrs Smith, the Defender's grandparents, were more interfering in the life of the Pursuer than supportive of the Pursuer. She particularly drew attention to Mr Haggarty's evidence that the child Lauren had changed from being a whiny and selfish and sometimes difficult child to a much better and more relaxed child after contact with the Defender and his family had ceased. It was significant that Lauren was naturally a confident child and that consequently the incidence of night terrors and other health difficulties were not normally part of Lauren's life and might be ascribed to the action of the Defender and his grandfather and that matters had largely resolved for Lauren's health after the grandfather had ceased attending at Lauren's school.

She submitted that Mr Scott McRobert's evidence corroborated the Pursuer's distress as regards the phone calls she refused from the Defender and that Mr McRobert's evidence showed that Lauren was aware of the incident in Galston which in itself corroborated the Pursuer's account.

The evidence of the witness Catherine Reilly who is the mother of the former girlfriend of the Defender, Miss Lynn Rogerson, was of significance. The Court would have to have regard to the conviction of the Defender at Kilmarnock Sheriff Court on 15 January 2003 following upon incidents at the home of Ms Rogerson of 23 and 24 September 2002 (Production 5/3). Moreover Mrs Reilly's evidence was that the Defender had in fact taken an overdose when alone with two of Ms Rogerson's children. I should prefer her evidence to that of the Defender that he had a knee injury which had required him to take pills. The Defender, too, had mentioned in his own evidence that at the time he was in fact depressed. These matters were indicative of the Defender's lack of responsibility and his unsuitability to have care or indeed contact with a child such as Lauren. She submitted that the Defender's own evidence that he had "exploded" in September 2002 as Ms Rogerson had driven him in his words, too hard. The Defender had expressed anger. The Defender had been angry, too, as his evidence revealed about the fact that Mr McRoberts was seeing more of Lauren than he was himself. He admitted in evidence that he was abusive to the Pursuer on the phone when his temper had got the better of him. Mrs Welsh's broad submission was that all of these incidents displayed that the Defender had temper problems, showed a consistency, and were indicative that the Court ought not to expose Lauren to these by granting the Defender contact.

As regard the crave for permanent interdict, this interim interdict had been obtained in December 2003. Whilst this was four years after the breakdown of the relationship between the Pursuer and the Defender the fact that the interdict had had to be obtained at that late stage showed that there was consistency in the anger problem which the Defender had and that his anger was not a short lived phenomenon. This had to be read against the evidence from Mrs Reilly that Ms Rogerson had had to move house after the breakdown of her relationship with the Defender. The inference the Court could take was that there is a continual pattern of abuse from the Defender to those from whom he is estranged. He cannot control his temper and when he is in a temper he can be both violent and abusive. In these circumstances the granting of a permanent interdict was fully justified and there was nothing to indicate that it was unnecessary.

As regards the issue of contact she submitted that the Defender's own evidence showed that the quality of contact with Lauren was doubtful. He had deponed that Lauren was in fact quite happy to sit in front of the television and Mrs Welsh invited me to contrast that view with that of the Pursuer who had reported that Lauren had told her that she was bored whilst at contact sessions with the Defender. Whilst it is a matter of concession by the Pursuer that the Defender had on occasion taken Lauren swimming the Court could also have regard to the fact that the Defender had on occasion taken Lauren to public houses. There was also the question of the state of cleanliness of his home and lack of food when Lauren was visiting. The Defender had said in evidence that he could be a father figure to Lauren but Mrs Welsh asked the Court to examine this claim against the fact, which the Defender admitted, that he had broken a glass panel at the Pursuer's home and the evidence that he had never supported Lauren financially throughout her life. This brought into question whether he could truly be said to be a father figure.

Whilst accepting that there had been contact after the break up between the Pursuer and the Defender it was accepted by the Pursuer that this had come to an end when the Defender started seeing Ms Rogerson. It was submitted that it was not surprising that the Pursuer did not want Lauren to have contact with the Defender when Ms Rogerson was present. The reality indeed was that the Defender had in fact stopped seeing Lauren in any event after his relationship with Ms Rogerson developed in 1999.

The Defender's relationship with Ms Rogerson had ended in September 2002 after the incidents which formed the basis of his subsequent conviction. The quality of the contact had to be measured against the Defender's admission that at one point he had gone to Spain without ever telephoning Lauren whilst he had taken the time and spent the money to phone Ms Rogerson. This indicated that he had not tried to keep his relationship with Lauren going. The Defender had also, Mrs Welsh submitted, cancelled contact on occasions when he wished to go away for the weekend with Ms Rogerson. This was indicative that he did not consider how Lauren's feelings would be affected by that attitude on his behalf.

The Court was reminded by Mrs Welsh that the Defender had raised a previous Court action which he had subsequently abandoned around April 2000. The Defender had conceded that after that he had not taken any further steps through the Court. His interest in contact, if it could be termed such, said Mrs Welsh only was triggered when he saw the Pursuer and Lauren in the street or he was in the are where they then resided. This was indicative that contact, for the Defender, was to be at a time of his choosing and not indicative of his concerns for Lauren's appreciation of contact.

She submitted that the Defender had gone to the school to see Lauren against the Pursuer's wishes and in fact told Lauren not to tell the Pursuer that he had been there. This was indicative of a lack of real concern in that he had asked the child to keep a secret from her mother. This attitude read together with the Pursuer's evidence that the Defender's grandparents had sought to undermine her in front of Lauren was indicative of a general submission that the Pursuer as the principal carer of Lauren was being undermined both by the Defender and his grandparents. It is important to recognise Lauren's young age (she was six at the date of proof) and undermining the principal carer was likely not to be in the best interests of the child. If he were to be granted contact by the Court at this stage because of his past undermining of the Pursuer, this was likely to continue which would affect Lauren's upbringing by her primary carer.

As regards the Defender's grandparents, Mr and Mrs Smith, Mrs Welsh's submission was that Mr Smith himself had indicated that they had stopped seeing Lauren after the Pursuer had indicated that the Defender could not have contact if Ms Rogerson was present. Mr Smith had indicated that he did not want to do anything against the Defender but, said Mrs Welsh, this was more indicative that their wish for contact was not consistent and depended on the circumstances. She submitted that the Pursuer's evidence was that the grandparents were intrusive and controlling. Mr Smith, who kept a diary, had made an entry that the Pursuer was "never off the wee one's back" which was indicative of the attitude complained of by the Pursuer namely that they were undermining her discipline of Lauren and that I should prefer that to Mr Smith's own evidence that he and his wife in fact kept their concerns about discipline to themselves.

The significance of this was that even if the Court were to come to a view that Mr and Mrs Smith might be persons who might be able to supervise the Defender's contact with Lauren (if not convinced that the Defender's previous temper tantrums and the incidents of abuse of the Pursuer prevented this) then the Court would still have to consider the potential that Mr and Mrs Smith would undermine the Pursuer's upbringing of Lauren.

Mrs Welsh invited the Court to consider Section 52 of the Children (Scotland) Act 1995. Her submission was that because of the Defender's conviction he would be classed as a Schedule 1 offender and therefore it was entirely possible that if Lauren was to be with the Defender that Lauren's position might be referred to a Children's Hearing by the Reporter. This was a consideration by the Court of the general welfare principle as regards Lauren if the Defender were to be granted an order for contact. There would be a risk, too, if the Defender was to form another relationship with another woman. If Lauren was to be exposed to the Defender the Court should have concerns that the Defender's past relationship with women including the Pursuer and Ms Rogerson which were, in terms, abusive would expose Lauren, it was likely, to a similar pattern of abuse if he were to take up with another woman.

Whilst the Defender was not under an obligation to satisfy any test, there was no onus upon him, to show that contact with Lauren would actually benefit her the question might be otherwise expressed before the Court now as to whether there was a gap in Lauren's life which the Defender would fill. In the Pursuer's submission there was none as Lauren had a father figure in the person of Mr Scott McRoberts, the Pursuer's boyfriend.

As regard Miss Bell's report Mrs Welsh conceded that the Court would have to have regard to it but invited the Court to consider Lauren's young age and therefore submitted that her views ought not to be given too much weight. Lauren's own views had to be weighed against the volume of evidence that contact in fact would not be in her interest.

If, however, the Court came to a view that contact in principal ought to be awarded to the Defender then the Court should put the matter out for a hearing to address the methodology whereby contact might take place.

The Defender's Submission

On 1 December, Miss Templeton submitted that the incidents complained of by the Pursuer since the parties separated in 1999 could not be described as a course of conduct which would justify a permanent interdict. As regards Mr Haggarty's abandonment of his contact action in 2000, this had more to do with a view in Kilmarnock Sheriff Court at the time as to the appropriateness of contact being granted to unmarried fathers and should not influence the Court at the present time.

She commended the evidence of the Defender in a general sense in that he had been straightforward admitting faults where they existed and Miss Templeton asked me to consider that the same could not be said of the Pursuer and Mr McRoberts whom she described as evasive.

As regards Dr Gold's evidence, this could be read not only as the Pursuer wished it to be, as a reaction to the Defender and the Defender's grandfather's visits but also to the possibility that Lauren was concerned that she was not, in fact, getting contact with the Defender nor the grandparents. This was supported by Mr Smith's evidence that Lauren had enjoyed his visit to the school. The Defender's own evidence that in telephoning, although at times he admitted he was abusive, should be read against his desire for contact and his frustration that he was not getting contact.

There was contact between April 2000 and December 2002 as also with the Defender's grandparents. Even Mrs Reilly had indicate that she had seen the Defender with Lauren on at least two occasions. From that could be inferred that at some part of the time the Defender, during the time had had a relationship with Ms Rogerson, had had contact with Lauren. Further even after the Defender's admitted criminal conviction involving Ms Rogerson the Pursuer had allowed the Defender to see Lauren. As regards the necessity for interdict the Court was invited to hold that there had in fact really been no abuse since 1999 until the interdict action was raised in 2003. The telephone calls which the Defender had made in June or July 2003 were indicative of a search for contact not of abuse. Moreover when the Pursuer had ultimately asked the Defender not to phone he had stopped telephoning and thus the need for a permanent interdict was shown not to be necessary. As regards the incident where the Defender had picked up Lauren at the Foregate in Kilmarnock, this should be ascribed to natural outreach by a father to his child. He had not thought to speak to Lauren or engage physically with her. He might indeed be open to criticism if he had not sought to engage with Lauren. The Pursuer had indicated to him that if he put the child down he would get further contact and this should be preferred to the Pursuer's account that she had only given that indication out of concern for herself and Lauren and to, in effect, make the Defender go away.

It was at that stage that a further diet required to be found for the defenders for their submissions.

On 19 August, given that Miss Templeton had been in the midst of her submissions, it seemed appropriate to parties that Miss Templeton's submissions should continue before dealing with their respective submissions on the alleged incidents of January 2005.

Accordingly I heard further from Miss Templeton on 19 April. On that date Miss Templeton advised that the Defender was not insisting on crave one, namely for a parental rights and responsibilities order to be made in his favour but he was only seeking contact in terms of his crave two.

Miss Templeton's further submission was that the evidence would show that the Defender was getting contact after separation from Ms Rogerson until the Pursuer decided to go to Stornoway or around June 2003. She submitted that the reason contact was stopped was not due to Lauren's boredom and the Defender's abusive attitude towards the Pursuer but rather the cessation of contact coincided with the Pursuer's new relationship with Mr McRoberts. This was the real reason the Defender said that contact had stopped. This was indicative that the Pursuer thought more of herself and her own life than Lauren's interest in having contact with her natural father. Mr Smith's evidence showed that Lauren indeed had enjoyed the contact she had had with Mr and Mrs Smith and with the Defender.

The incident where the Pursuer had been assaulted by Jill McPhee did not give rise to any inference that this had adversely affected Lauren. There was only the evidence of the pursue that Lauren was terrified. Miss Templeton repeated a general submission that the Court should look at the evidence of the Pursuer and Mr McRoberts with some caution as they tended to exaggerate matters.

As regards Miss Bell's report, this could be read against her submission that Lauren's physical reactions could be equally due to Lauren's reaction to not getting contact with her beloved grandfather. There appeared to be clear indication in Miss Bell's report that Lauren wished contact with the Defender and the grandparents. This expression of a willingness for contact by Lauren sat ill with the Pursuer's contention that Lauren was terrified of the Defender and his grandparents.

Moreover the Court should have regard to the evidence from the Pursuer herself that Lauren would continue to see other members of the Defender's family, namely the Defender's father, which indicated that there will be occasions, necessarily, where Lauren will recollect her father, the Defender. It would be better that contact would be directly with the Defender as the natural father.

The position was not, as Mrs Welsh had contended, so said Miss Templeton that the Pursuer only required to show detriment to Lauren to resist the resumption of contact. Miss Templeton submitted that contact was working prior to June 2003, when it was ceased, that Lauren enjoyed that contact and especially with the grandparent. This was further bolstered by Lauren's expression of her views to Miss Bell.

The quality of contact was good as evidenced by Mr Smith's evidence supported by the diary entries that he had made. This contact should be read against the background of the Pursuer's knowledge of the incidents involving the Defender and Ms Rogerson and consequently it could be said that contact had continued for approximately ten months after these incidents to the cessation of same in June 2003. The Defender's attendance at school rather than be the subject of criticism as being against the Pursuer's request, should be read as indicative of the Defender's interest in getting contact.

Miss Templeton recognised that if the Defender were to be awarded contact it could not be in the presence of the Pursuer. She submitted that the Defender's grandparents, Mr and Mrs Smith, had not undermined the Pursuer. It was in fact Mr Smith upon whom the Pursuer had called when she herself was unwell not on her own family.

Miss Templeton accepted that of course this case was not about Mr and Mrs Smith getting contact. However the important point was that Lauren was close to them. Accordingly the Pursuer was not thinking what was in Lauren's best interests by considering those interests in terms of Lauren's long term relationship with an extended family rather, in refusing contact to Mr and Mrs Smith the Pursuer, she was having regard only to her own interest.

Miss Templeton recognised that there might be some force in the Pursuer's submission as regards the implications of Section 52 of the 1995 Act but invited the Court to recall that the Defender was in fact afforded contact by the Pursuer in her full knowledge of the Defender's conviction.

Whilst it might be said that Mr McRoberts might be able to provide a father figure to Lauren, it could not be forgotten that the Defender was the natural father and the Court should work on the assumption that contact with the natural father is in the best interests of the child. Accordingly the fact that Mr McRoberts was there and present in Lauren's life should not be given too much weight.

Miss Templeton then turned her attention to the evidence which had been lead on 2 March as regards the incidents in January 2005. She began by indicating that the Defender's behaviour could not be condoned but that in making any findings in fact, that these should be modified to include Mr McRoberts had provoked the Defender's reaction.

She criticised the Pursuer's evidence of 2 March in which she had said that the child having seen the injuries to Mr McRoberts she, the Pursuer, had told Lauren that these had been caused by the Defender. This was indicative not of concern by the Pursuer as to Lauren's contact with the Defender but rather indicative of her own appreciation of her own interests in resisting any contact.

Notwithstanding that Miss Templeton recognised that the incidents of January and Lauren's knowledge of them would make contact arrangements difficult but ultimately should not prove a barrier to contact. If contact were to be awarded to the Defender in principle, in which she submitted was in Lauren's best interests, she accepted that there would have to be a further hearing to look at the mechanics of any Contact Order. Whilst arrangements for contact, if in principle, awarded to the Defender, would clearly be difficult to organise, she submitted that the Pursuer would, by her demeanour, have indicated to the Court that she would obey any Court order for contact the Court might make.

Miss Templeton submitted that even if the Court were, in light of the incidents of January 2005, to award permanent interdict to the Pursuer against the Defender that in itself would not prevent methods being found to afford contact.

I then afforded Mrs Welsh an opportunity to comment on matters which had arisen since the further proof of 2 March and Miss Templeton's submission.

Mrs Welsh submitted that although the Defender's grandparents might have enjoyed contact the evidence was slight that the Pursuer himself during that period had enjoyed much contact with the child Lauren - he had been an irregular attender at his grandparent's house when the Pursuer was there with Lauren visiting them.

Miss Bell's report that Lauren would in certain circumstances wish to see her father and the grandparents had to be read against her age and the fact that Miss Bell's report was brief arising out of one meeting with Lauren in July 2004. There had by April 2005 been no contact with the Defender by Lauren for almost two years which must cause the Court to consider that the re-establishment of contact would not only be difficult but would not be in Lauren's best interest. Lauren's comments to Miss Bell that "Craig was bad" would not have been improved by her now having knowledge of the incident in January 2005. It was perfectly proper for the Pursuer to have told Lauren what the Defender had done. The incidents of January 2005 looked at against the background of the Defender's previous attitude towards the Pursuer and indeed Ms Rogerson raised a much stronger inference now that the Defender was man of temper and violence and could assault again. This was not an environment into which Lauren ought to be introduced. Looking at Lauren's best interests objectively all of the evidence had to be looked at in the round including the incidents of January 2005. The incidents of January 2005 showed that the Defender had not changed. He had not been provoked by Mr McRoberts. The Court was reminded that at the time the incidents in January had taken place he was subject to an interim interdict and that his approach to the Pursuer in the public house showed at best a lack of judgement on his part but strongly supported the necessity for perpetual interdict. The Court could examine the Defender's behaviour in January and weigh it against the reality that at that time the Court case on the whole question of interdict and contact was outstanding. Accordingly if the Defender could act as he had done in January whilst he was subject to the eye of the Court, the Court should have concerns as to whether in all of these circumstances not only should it grant perpetual interdict but should it in light of the evidence in the round, including the actings of the Defender in January, award contact to him. It would not be in Lauren's best interest to be exposed to contact with a man who was violent and aggressive. She reminded the Court of the Defender's explanation of the incident involving Ms Rogerson that he had reacted because his "buttons had been pushed". What would happen to Lauren if Lauren pushed the wrong button in her dealings with the Defender: should the Court take a chance, having regard to Lauren's interests as the paramount consideration, to award contact with her and the Defender.

It was appropriate that Miss Templeton have one final opportunity given the unusual way that the submissions had developed over the days since December and into March. She conceded that Miss Bell's report was not a determinative matter but could be of assistance. The assault of January 2005 was born out of frustration at not seeing the child for almost two years and was the only breach of the interdict in one and a half years. She accepted, however, that the incidents in January could not in any view be expressed as helpful to the Defender's case and repeated her submission that even if permanent interdict were to be awarded to the Pursuer that did not preclude the Court from awarding contact with Lauren to the Defender and in that event to put the matter out for a hearing to discuss and resolve the arrangements for practical contact to take place.

Reasoning

Having considered the evidence and agents' submissions I have made findings in fact which reflect my judgement on the evidence lead before me.

It is useful to divide this section into consideration of the question of permanent interdict, the question of the Defender's crave for contact, whereafter I deal with the Pursuer's crave for interdict against the removal of Lauren from her care, and finally the question of expenses.

Interdict

Having heard evidence from the Pursuer, her father and Mr McRoberts, as well as the Defender I am satisfied that looking at the Defender's behaviour overall the Pursuer is entitled to the interdict she seeks.

It was of course proper for Miss Templeton to highlight, that notwithstanding the Pursuer's claim to have been abused by the Defender she did see him and that, sometimes on her own volition, after incidents of abuse had taken place. Moreover that she had seen the Defender without fear it would appear even after the serious incidents involving Ms Rogerson and the Defender.

However I require to look at the Defender's behaviour overall. I preferred the evidence of the Pursuer that the Defender had abused her by calling her derogatory names on a number of occasions throughout the period after the parties' relationship had ended. She had some support in this on the evidence of both her father and, as to more recent events, Mr McRoberts. The later could speak to her demeanour after she had received abusive calls and texts, after the relationship between Mr McRoberts and the Pursuer had begun. The Defender with some frankness had conceded in his own evidence that he had been abusive personally and on the telephone. He however ascribed his behaviour, largely, to his determination to obtain contact and that his behaviour was linked to the times when the Pursuer was refusing same. There might be thought to be some justification against that explanation, to treat certain behaviour as being done in the "heat of the moment". And I have made allowances for that in my treatment of the Defender's evidence. However I watched the Defender, closely, throughout his evidence on 30 September 2004 and 2 March 2005. I formed a clear impression that he was very hostile to the Pursuer and more significantly that he was quick to anger and lacked an appreciation of how his actings might impact on others, especially on the Pursuer. He lacked insight into how a repeated pattern of derogatory remarks and telephone calls, although he said he now regretted them, could cause upset to such as the present Pursuer. The behaviour he showed to Ms Rogerson also requires to be taken into account. Whist there were periods even after the incidents involving Ms Rogerson and the Defender, where the Pursuer allowed the Defender contact with Lauren and also some accommodation with her these could not cloud the overall picture of the relationship between the Pursuer and Defender, and particularly the Defender's attitude towards the Pursuer, and the ultimate effect of that upon the Pursuer. Looking at the matter in the round and over the longer period of time there develops a pattern of the Defender being quick to temper and occasionally being a man who resorts to violence. Looking at the matter in that light, the Defender's behaviour throughout the time since the parties separated can be described as abusive in the overall sense. The Court therefore could come to a conclusion that notwithstanding that the interim interdict had been granted in December 2003 and by the time of submissions in December 2004 there had been no significant breaches, apart from the incident where the Defender went to Lauren's school and spoke to the Pursuer causing her some upset, that accordingly a permanent interdict might not on one view thought to have been necessary. However looking at the position overall and examining the incidents cumulatively even by that stage the Pursuer might well have been thought to have been entitled to the interim interdict she sought. If the matter was in doubt, as Miss Templeton sought to convince the Court in her initial submissions on 2 December 2004, any such doubts were removed by the Defender's actings in January 2005.

Again one pauses to reflect that the Court has to look at the Defender's attitude to and contact with the Pursuer over the whole piece and in doing so a clear pattern has emerged.

Whist not expressly conceding that the incidents of January 2005 might compel the Court to grant the Pursuer a permanent interdict against the Defender, Miss Templeton, in my view responsibly, recognised that these events would carry some weight with the Court, and in objectively examining these events against the Defender's earlier behaviour towards the Pursuer I have come to the view that they were significant.

It may well be thought unfortunate for the Defender that the cause had not concluded by January 2005.

However the Court can only proceed on the information placed before it and the time when the information is brought to the attention of the Court. Moreover it is, and I agree with Mrs Welsh on this point, astonishing, that the Defender would cause himself to be placed in jeopardy, as regards the question of interdict, by acting in the manner he did on 15 January 2005.

He admitted in his own evidence, as regards to the incident of 15 January that he had assaulted Mr McRoberts in the presence of the Pursuer. He indicated that he had not deliberately set out to cause upset to the Pursuer by moving from the public to the lounge bar of the public house in question. I do not accept him on this. I prefer the evidence of the Pursuer that it seemed to her that he had come to the lounge to observe her and that she had felt intimidated by his presence. In face of an interim interdict not to approach her, this was, on the part of the Defender not only a lack of judgement but from my observation of him a deliberate action eloquent of his impulsive nature which had manifested itself in earlier evidence as regards his treatment of the Pursuer and indeed his treatment of Ms Rogerson.

It is indicative on the whole that he not capable of obtempering an interim order of Court. It is indicative, too, that the Pursuer is justified to feel more than reasonably apprehensive that without the protection of a permanent interdict that the Defender will persist in his abusive attitude towards the Pursuer. Against that whole factual background I have determined that the Pursuer is entitled to have the protection of interdict and that on a permanent basis and I shall so order that she be afforded that protection.

I should also say that I have declined to follow Miss Templeton's submission that I should find that there was provocation by Mr McRobert's prior to the Defender assaulting him. In my view that would not be an appropriate finding in terms of the evidence. Mr McRoberts was disengaging from the Defender when the Defender rose and assaulted him.

Contact

Before dealing with the factual position it is appropriate to set out the legal framework within which the Court requires to reach its decision.

The Court is empowered by Section 11(1)(d) of the Children (Scotland) Act 1995 to make an order regulating the arrangements for maintaining personal relations and direct contact between a child under sixteen years of age and a person with whom the child is not or will not be living, in other words a Contact Order. It is the order that the Defender seeks in this case. He has not insisted on the making of an order in terms of Sections (1)(2) of the Act (in terms he is not seeking a Parental Rights and Responsibilities Order). In considering whether to make a Contact Order the Court shall regard the welfare of the child as its paramount consideration and shall not make an order unless it considers that it would be better for the child that the order be made than that none should be made at all (Section 11(7)(a)).

Further the Court shall, as reasonably practical, and taking account of the child's age and maturity give her an opportunity to indicate whether she wishes to express her views and if so give her an opportunity to express them and have regard to such views (Section 11(7)(b)).

Guidance for the Sheriff can be found in the case of White v White 2001 S.C. page 689. In that case the Lord President (Rodger) said that it is a general principle that it is conducive to the welfare of children if their absent parent maintain personal relations and direct contact with them on a regular basis (page 697). Further that there is no legal onus on a parent seeking a Contact Order (page 698) - here the Defender. Later his Lordship said that where a party seeks a Contact Order, the Court must consider all the relevant material and decide what would be conducive to the child's welfare. That must be the paramount consideration. In so doing, the Court should have regard to the general principle that it is conducive to the child's welfare to maintain personal relations and direct contact with her absent parent. However the ultimate decision will depend on the facts of the particular case and if there is nothing in the relevant material on which the Court, applying that general principle, could properly take the view that it would be in the interests of the child for a (contact) order to be granted then the application (for contact) must fail (page 698 to page 699). A fortiori an application (for contact) where the relevant material shows that it would be definitely contrary to the child's welfare for the (contact) order to be granted, should not be made (page 699).

It is against that statutory and authoritative background that I have proceeded on this case. I start with consideration of Lauren's own views as expressed in the meeting with Miss Bell (Number 19 of Process). Lauren is able and willing to express a view. To summarise, her views are that she would be happy to see the Defender (and indeed her grandparents Mr and Mrs Smith) if they did not shout at her mum (the Pursuer). She did not express reservations about seeing the Defender and had enjoyed going swimming with the Defender. She had described the Defender as "bad" in that she had heard him shouting at her mum which she did not like. She referred to the Defender as "Craig" while she referred to Scott McRoberts as "daddy". She said that the Defender used to be her daddy.

I take from all of that she has a memory of the Defender as her father but whilst she enjoyed going swimming with him, she had memory of the Defender also shouting at her mother which she did not like. Moreover she had a knowledge of living in a family unit with the Pursuer and Scott McRoberts whom she referred to as daddy.

Thus, as far as the Defender's contention would suggest, the child has a knowledge of the Defender which is partly positive. However the Court also has regard to the child's negative memories that the Defender shouted at her mother and that she did not like that. This might well be read as a negative recollection.

Of course the Court must also have regard to the fact that Lauren was only six when she was interviewed by Miss Bell. Accordingly whilst I have had regard to her views I have also had to recognise her relative immaturity.

Moreover in performing my function, in having Lauren's welfare interests as my paramount consideration, I have also had to have regard to the other relevant material in this case.

I recognise that, as the Lord President said, that there is an assumption (but not a presumption) that a child's welfare interests are normally engaged if the child maintains contact with the natural parent. However that is not always so and the Court must look to the whole material before it.

I draw from the evidence that the Defender presently expresses a wish to see Lauren. Indeed as an example, he ascribes the incidents of January 2005 as born out of his frustration at not seeing Lauren.

However in reviewing the evidence of all the witnesses in this case I cannot hold that his concern to see Lauren has been a constant in her life.

I prefer the evidence of the Pursuer that it was she rather than the Defender who initially sought to maintain Lauren's contact with the Defender. I prefer her evidence that his engagement with Lauren was not of a high quality nor indeed quantity. He subsequently formed a relationship with Ms Rogerson with whom he had two children. Whilst there is some evidence that he saw Lauren during that time, I prefer the evidence of the Pursuer that this was not other than intermittent. Importantly he decided that when the Pursuer objected to him exercising contact in the presence of Ms Rogerson to effectively abandon contact, rather than accede to the Pursuer's condition.

It might be thought that he would have acceded to this condition - it is one not at all uncommon where former partners have formed new relationships, to find such a condition being both insisted upon and indeed operated. However the Defender chose to seek to build a new life with Ms Rogerson and their children rather than to fully maintain his relationship with Lauren. In my view his expressed statement of wanting to see Lauren has to be tempered by his attitude at that time in Lauren's life. He struck me, in observing him, as a man who was selfish as to his own aims and needs. I found some force in Mrs Welsh's observation that when he went to Spain he did not telephone or otherwise keep in contact with Lauren but he did so contact Ms Rogerson and their son.

When his relationship with Ms Rogerson was at an end his interest in Lauren was I believe, from observing him, rekindled. However even then I prefer the evidence of the Pursuer that his commitment to Lauren was not one of a high order. It was a matter of routine for a period that the Pursuer took Lauren to see Mr and Mrs Smith, the Defender's grandparents. I prefer the evidence of the Pursuer, supported, in part, by Mr Smith that these contact sessions were in the main between Lauren, the Pursuer, and Mr and Mrs Smith rather than between Lauren and the Defender. It is perhaps apposite to pause and reflect on Lauren's own recollections that she used to visit Mr and Mrs Smith and when there she saw "Craig" (the Defender).

There is evidence, too, from the Pursuer which I accept that the Defender's contact with Lauren was not engaging her. I accepted her evidence that Lauren ultimately became bored with contact with the Defender. This seems to me a further indication that Lauren's appreciation of contact with the Defender was not of high quality or likely to be conducive to her long term welfare interests.

Moreover, looking at the matter objectively, and having Lauren's welfare interests as my paramount consideration I have had to look at the Defender's abusive conduct towards the Pursuer in the presence of Lauren. The Pursuer is the primary carer of Lauren and she has been undermined by the Pursuer's attitude towards her. Sometimes this has occurred in the presence of Lauren. Again one recalled, as Lauren expressed to Miss Bell, that Lauren has a recollection of "Craig" shouting at her mother.

Further the Defender has shown and admitted in his own evidence that he can be abusive to others including Ms Rogerson and by inference their children.

Miss Templeton submitted that the evidence suggested that notwithstanding the Defender's conviction for - in terms - abuse of Ms Rogerson that the Pursuer had facilitated contact with Lauren by the Defender. On the evidence this is accurate, to a degree. However the Court's duty is to examine the question of Lauren's long term welfare interests, and that when the question of those interests is presented as a live issue to the Court. In these circumstances I have to regard what seems to be clearly a pattern emerging of abusive attitudes by the Defender against the Pursuer, and indeed Ms Rogerson, including his conviction by the Court and, in my view, the Court cannot ignore those factors. There was, in my view, force in Mrs Welsh's submission that the Defender can react badly when "his buttons are pushed". She had invited the Court to consider what might occur if Lauren "pushed the wrong button" with the Defender. This is a factor that I require to take into consideration.

This pattern, of course, cannot be said to be only historical. The events of January 2005 regrettably show, the Defender is prone to temper and indeed violence and that that has continued. Objectively I have come to the conclusion that there is a risk to the child from a man of the Defender's character. This character has not changed over the years. It has not changed even when he must have realised in January 2005 that the "eye of the Court" was still upon him with the question of contact being still unresolved.

There is of course no onus on the Defender to prove that contact with him would be in Lauren's best interests. However the evidence of his own actings has drawn me to the conclusion that, objectively, he presents as a risk to Lauren. Whilst I do not wholly accept Mrs Welsh's submission that because he is a Schedule 1 offender that that in itself is a telling factor against him being awarded contact, I have come to the view, that taking that factor in the round, and weighing it with all the evidence, it draws the Court to the conclusion that it would not be in Lauren's best interests to have contact with the Defender.

I have also had regard to the time which has now elapsed since the Defender had a relationship with Lauren. I accept, of course, that that latterly was not the fault of the Defender. The Defender had withdrawn contact in or around June 2003 and the court case itself has taken time to come to its conclusion. However the Court can have regard to the position of Lauren since then. She is, it seems to me clear from the evidence of the Pursuer and Mr McRoberts, which I have accepted, content and untroubled and has formed a close relationship with Mr McRoberts. She now refers to him as "daddy" (and not because this name has been in any way forced upon her either by the Pursuer and certainly not by Mr McRoberts). She has a father figure in Mr McRoberts which is a circumstance that any child requires.

Of course, in theory, if contact were awarded to the Defender some mechanism might be found to seek to engender a relationship with her natural father, I have come to the view that this would be particularly difficult if not impossible given the attitude the Pursuer has towards the Defender. This is based not only on her close relationship now with Mr McRoberts. Although I am satisfied that the Pursuer's views about contact by Lauren with the Defender have been to some degree coloured by the beginning of, and the growth in, her relationship with Mr McRoberts, this has been also due to her lack of trust in the Defender. This lack of trust is based on an objectively established set of incidents of abuse.

The Pursuer, it must not be forgotten, is Lauren's principal carer and the Court must be slow to take any step, such as awarding contact with the Defender, which would undermine the Pursuer. To do so would have the potential to impact adversely on Lauren's long term welfare interests.

Again, the events of January 2005 must be borne in mind at this juncture when examining that question - the Defender is not a man whom the Pursuer can trust, nor can she be expected to trust him.

There is some evidence too, that Lauren's brightness, observed by Miss Bell came after a period of disruption for Lauren which lead to her suffering some ill health. I have reviewed the evidence and considered the submissions of parties. I find I am drawn to a conclusion that Lauren's upset, during a period that the Defender, and latterly his grandfather, Mr Smith, were coming to school, was related to those events, rather than as Miss Templeton contended perhaps equally related to her distress at not seeing the Defender or as she termed it a beloved great grandfather. I prefer the evidence of the Pursuer that Lauren's symptoms diminished after the visits to her school came to an end. This in my view is the better interpretation to place on Dr Gold's evidence, read against the evidence to which I have just referred.

I should at this juncture say that I was impressed generally by the evidence of Mr Smith. I preferred his evidence to that of the Pursuer, in that I do not accept that he and his wife, Mrs Smith, were controlling although I accept that subjectively the Pursuer felt they were seeking to control her. I formed the view having observed Mr Smith subject to both examination and cross-examination that his intention and actions were to seek to help the Pursuer. Mr Smith was clearly, as I observed him, much in love with Lauren and distraught that the contact that he and his wife had enjoyed had been withdrawn. In these circumstances the Court can well understand why Mr Smith might want to go to the school to see a much loved great granddaughter. Objectively, however, I have come to the conclusion that these later visits were disruptive to Lauren.

Mr and Mrs Smith are not parties to this action. Whilst I was impressed that Mr Smith clearly loved Lauren, and perhaps had something to offer to Lauren, I have to look at Lauren's whole situation in life now that she is living with the Pursuer and Mr McRoberts. On an objective view reintroducing Mr and Mrs Smith into Lauren's live would cause difficulties given the Pursuer's views of Mr and Mrs Smith as being undermining of her care for Lauren and especially since the event involving Mr McRoberts and Mr Smith in January this year.

I have spent some considerable time looking at all the above matters in detail. I have also had regard, too, to the examination of the matters relating to the Pursuer's crave for interdict so far as they relate to the question of a Contact Order being made in favour of the Defender.

I have required to weigh them - they are not to be seen as isolated pieces of a jigsaw, to be examined in isolation one from the other - and ask myself objectively whether granting a Contact Order would be in the long term welfare interests of Lauren.

I have been drawn to the conclusion that it would not be in Lauren's welfare interest to have contact with the Defender and in these circumstance have been drawn to the conclusion that the Defender's crave for same must be refused.

Interdict against the Defender removing Lauren from the Pursuer's care

The Pursuer seeks an interdict against the Defender removing or attempting to remove Lauren from outwith the control of the Pursuer or otherwise interfering with her care or control of the child and from approaching the child at her school. I can well understand the Pursuer's concerns standing the findings in fact I have made. However there has been no recent attempt by the Defender to remove Lauren from her care. He has desisted from attending further from Lauren's school. I am not convinced that such an order is necessary at the present time and in these circumstances have declined to make such an order.

In so doing I trust that the Defender will recognise that he must not, now that I have decided that he is not to obtain contact, seek to circumvent the Court's decision by thereafter seeking to contact Lauren even informally or seeking to remove Lauren from her settled situation. Should he take any of these steps then clearly it would be open to the Pursuer to seek such an interdict, once more, if the situation then required such an order to be considered and granted.

Expenses

I was not addressed on this subject perhaps because of the particular issues of interdict and contact to which the solicitors understandably directed their full attention. However it is an issue which requires to be addressed and I have accordingly put the question of expenses out for a hearing.