SHERIFFDOM OF GRAMPIAN, HIGHLAND AND ISLANDS AT ABERDEEN

 

 

F617/03.

 

 

Judgment

 

of

 

Sheriff Douglas J. Cusine

 

in the cause

 

SCOTT ANDREW CRERAR, (assisted person)

residing at 10 Hollybank Place Aberdeen,

 

against

 

MARY THERESA BRACKEN or CRERAR,

residing formerly at Culag, St Eunans Road, Aboyne, and now at c/o Killygar,

Carrigallen, Co. Leitrim, Eire.

 

25^th April, 2006.

 

The sheriff having resumed consideration of the cause:-

 

FINDS IN FACT

 

 

(1)               The pursuer and the defender were husband and wife. They were married on 14^th May 1994. The marriage certificate is No. 5/1/1 of process. The parties were divorced by Interlocutor dated 27 March 2006.

 

(2)               The pursuer is not a religious person, but the defender is a practising Roman Catholic. The pursuer regards the defender's adherence to her religion as "disturbing." He does not think that the children should have a "set" religion because he is a "free-thinker."

 

(3)               The pursuer is a qualified civil engineer, who used to work in the oil industry, but he had not had permanent employment for the three and a half years prior to the proof. He has had a number of jobs in that period, but has not kept any of them for very long, in some cases, a matter of weeks. Until shortly before the proof, the defender was employed as a secretary, and has resumed employment since moving to Ireland.

 

(4)               There are two children of the marriage - Patrick, born 11^th November 1997 and Grace, born 19^th October 1999. The birth certificates are Nos. 5/1/2 and 5/1/3 of process respectively.

 

(5)               Following upon the marriage, the parties lived together firstly in Kincardine O'Neill and then in Aboyne.

 

(6)               The parties separated on 7^th August 2003 and have not lived together since. Until recently, the defender continued to live in the former matrimonial home in Aboyne whereas the pursuer has a flat in Aberdeen. The defender has recently moved with the children to Ireland to live beside her parents and her sister.

 

(7)               Since the separation, the pursuer has not contributed financially to the upkeep of the children. His reason is that there is no correspondence asking him to contribute.

 

(8)               Prior to their separation, both the pursuer and the defender were involved in the children's upbringing, but the defender had a greater day-to-day involvement. At weekends, the family would do things together, for example, go walking.

 

(9)               The breakdown of the marriage was the result of the pursuer's work-related stress and depression. He resorted to alcohol as a result. About 4 years ago, the pursuer was convicted of driving while under the influence of drink. The admits to using alcohol as a "crutch." The defender committed adultery with one Steven Gardiner, some time in 2003.

 

(10)           Prior to the parties' separation, the pursuer assaulted the defender on three occasions.

 

(11)           On one occasion, in either 2002 or 2003, the pursuer was taken to the Blair Unit of Cornhill Hospital, Aberdeen and remained there for 3 days.

 

(12)           He was taken there because immediately prior to that, he had acted in a threatening way towards the defender, her sister, her father and the two children and in relation to the defender had threatened to "rip [her] fucking face off."

 

(13)           Because of this, the defender contacted the police who spent 2 hours at the matrimonial home trying to calm the pursuer down, but eventually he had to be taken to Cornhill Hospital.

 

(14)           The defender sought and was granted an interdict against the pursuer as well as an exclusion order. The exclusion order which is dated 13^th November 2003 is No. 6/1/1 of process. Following upon that, the pursuer eventually went to live with his mother in Edinburgh. On one occasion while he was there, he took Grace, his daughter, to the bar of a local hotel, but the landlord refused to serve him. On that occasion, at the end of the contact visit, the pursuer's brother, (with whom he does not get on) had to drive the children to Dundee where they were met by the defender. She had to drive from Aboyne, although the arrangement was that the pursuer would return the children to Aberdeen.

 

(15)           Graham Sibbald, a solicitor, and a friend of the pursuer and his wife, Diane, also a solicitor, had been in the company of the pursuer and the defender before they separated. Neither had any concerns about the ability of either of the pursuer or defender to look after their children. Both found the defender to be a good mother.

 

(16)           The Sibbalds have seen the pursuer himself since the break up of the marriage, but not often. He has stayed with them accompanied by children. On these occasions, he related well not only to his own children, but also to the Sibbalds' daughter who, on occasion, was left alone with the pursuer, a matter which did not cause the Sibbalds any concern.

 

(17)           By interlocutor dated 30^th January 2004, Richard Ward, Solicitor, Aberdeen was instructed to report on the arrangements for the care and upbringing of the children of the marriage. The Report is No. 12 of process. In that Report, Mr Ward says, "One thing that does concern me, however, is Mr Crerar's apparent insensibility to the feelings of the children.... Mr Crerar seems to regard things he has said to and in front of the children as being trivial and ridiculous." (pp. 17/18). Mr Ward's Report states that it would be sad if the children were to be deprived of contact with their father. "I believe that he has a lot to offer them....However, I fear that these benefits could be outweighed by the damage done to the children if they continue to hear their parents arguing at handover times, and in particular, to hear their father being derogatory about their mother or her family either at handover times or when they are alone with him." Mr Ward recommended Family Mediation Grampian.

 

(18)           Following upon that Report, by interlocutor dated 2^nd April 2004, an interim contact order was made allowing the pursuer contact with the two children every Saturday from 12 noon until 6 pm. The pursuer undertook not to have the children in the car while he was drinking, not to argue with the defender in front of the children, not to make derogatory remarks about her or her family when the children were with him. He failed to comply with the last two.

 

(19)           On 11 April, 9, 19 and 23 May and 1 July 2004, the pursuer sent e-mails to his former solicitor. (These are 5/6/3-7 of process) In these, he complained inter alia about not being told that daughter, Grace, had been taken into hospital following upon a sickness bout. He also complained about difficulties with contact visits, blaming these on the defender. The child, Grace, was not taken into hospital, but she had been sick and the defender had called the doctor.

 

(20)           On 7^th May 2004, the order made on 2 April 2004 was varied to allow the pursuer contact with the children every second Saturday. The pursuer was to collect the children at 12 noon in Banchory and the defender was to collect them at 6 pm in Aberdeen.

 

(21)           On an unknown date, the defender left a voice mail message on the pursuer's mobile 'phone. In the message, she threatens to call the police if the pursuer causes trouble for Grace the following day. She also complains about being contacted by the police and by Grace's nursery in connection with the pursuer's behaviour. (No. 5/7/3(i) of process.)

 

(22)           On 10 November (possibly 2004), the defender left another voice mail message for the pursuer. In it, she complains that the pursuer had not made arrangements to take his son, Patrick, to Aberdeen for his birthday, the following day. She calls the pursuer a "workshy pig" and a "scum bastard." She also says that if the pursuer cannot be bothered to see the children on their birthdays, he will not seen them at any other time. (No. 5/7/3/(ii) of process)

 

(23)           In a third message, again on unknown date, but presumably late 2004, the defender calls the pursuer "sick" and "lazy," and says that she will make his life miserable. She also calls him a drunk, and says that he is the worst thing that has happened in her life. (No. 5/7/3(iii) of process) The defender is not proud of her conduct in sending these messages, but she was upset by the pursuer's behaviour, and both annoyed and distressed as a result of being contacted by the police and her daughter's nursery.

 

(24)           By interlocutor dated 16^th July 2004, the interim contact order made on 7^th May was recalled and no further order was made in relation to contact, because the cause was sisted for the parties to attend mediation. Although the pursuer and the defender attended separately at Family Mediation Grampian, that organisation was unable to help them. The pursuer described them as "unsuitable," but did not provide any reason. The defender was told by them that the couple were unsuitable for mediation.

 

(25)           From August 2004 onwards, contact became difficult because of the pursuer's behaviour. The children found the handovers to be distressful because of that. For example, the pursuer would be abusive to the defender at handovers and would make derogatory remarks about her to, and in presence of, the children and sometimes to her in their presence. He would frequently be late in returning the children. For example, on 11^th September 2004, the children were 2 hours and 10 minutes late in being returned, on 11^th December 2004, the children were 55 minutes late, on 5^th January 2005, they were one hour late, on 5^th March 2005, 20 minutes late, and on 22^nd May 2005, 19 minutes late. The defender was not advised that the children would be returning late, and the pursuer's explanation, for example, was that they had missed the 'bus. However, there are photographs (No. 5/8/1 of process) which show the children at one contact visit which they seem to be enjoying.

 

(26)           In November 2004, the pursuer attended Patrick's school without an appointment and, despite being told that he would have to make an appointment, he nevertheless insisted in seeing Patrick during the course of school lessons. He barged into the classroom in order to see his son.

 

(27)           On 14^th December 2004, the staff at a nursery in Aboyne which the child Grace attended had to contact the police because the pursuer had telephoned the nursery on about 30 occasions on that day, using threatening language. There is lodged in process a letter dated 10 February 2005 from the nursery to the defender's solicitors, (No. 6/3/1 of process) in which the nursery expresses concern about the pursuer's behaviour.

 

(28)           Solicitor Mediation was suggested, but the defender could not afford this and accordingly did not attend.

 

(29)           By interlocutor dated 2 March 2005, the pursuer was granted contact with both children every second Saturday from 10am until 5pm, and with Patrick every Tuesday during term time from 2.30pm until 5pm.

 

(30)           An offer for contact was made in respect of the period from 25^th March to 1^st April 2005, but the pursuer's position was that he could not remember such an offer being made. Another offer of contact was made to allow him contact with the children at his mother's house, but he did not take that up, his explanation being that he was not living with his mother at the time.

 

(31)           By interlocutor dated 10^th June 2005, the pre-existing contact order was varied so that the pursuer would have contact only with Patrick.

 

(32)           Contact with Grace was refused because the pursuer had been seen walking down the middle of a road, albeit not a busy one, with the child Grace walking in front of him. This caused the defender to be distressed, while Patrick was urging the pursuer to walk on the pavement, as he had been instructed by the defender. The pursuer did this deliberately to cause distress to the defender.

 

(33)           By interlocutor dated 12^th August 2005, contact was varied and the pursuer was denied contact with Patrick, because of the pursuer's behaviour, especially at handovers.

 

(34)           Sometime thereafter, the pursuer asked the Reporter to the Children's Panel to investigate the family circumstances, but the Reporter took no action.

 

(35)           Despite recall on 12^th August 2005 of the contact orders made in respect of both children, an offer of contact was made on that date after a Child Welfare Hearing for the October school holidays, but the pursuer did not take that offer up, and did not given any explanation.

 

(36)           By interlocutor dated 15^th November 2005, the defender was permitted to take the children to reside with her in Ireland, having given an undertaking to return the children if required by the court.

 

(37)           On 15 November 2005, the eve of the departure to Ireland, the defender offered contact to the pursuer for that evening. As the furniture had been removed from the matrimonial home, a friend of the defender's, Pauline Geddes, had offered to have the defender and the children to stay overnight at her home. Nevertheless, the defender suggested that the pursuer could have contact with the children for an hour or thereabouts.

 

(38)           She contacted him by telephone, but he screamed down the telephone at her and eventually slammed down the 'phone. Because of that, the defender asked Pauline Geddes to contact the pursuer, but he began shouting abusively at her. That telephone conversation was terminated by the pursuer.

 

(39)           At that point, the defender did not think that the pursuer was going to take contact that evening, but he turned up at 6 pm and began shouting about why the defender's father and mother were present. He accused the defender's mother of causing problems in the family, as a result of which both children were upset, and Grace in particular.

 

(40)           Following the hearing of evidence on 9^th December 2005, the defender offered contact to the pursuer on one occasion in Ireland between 9 December 2005 and 2 February 2006, the date for conclusion of the evidence, and it was agreed that an arrangement would be made by involving the respective solicitors. At that point, however, both the pursuer and the defender gave an undertaking to the court that the handovers would be calm, and the pursuer also gave an undertaking not to contact Patrick's school in Ireland even if he knew which school that was.

 

(41)           Contact was arranged for the weekend of 14^th, 15^th January 2006, but contact took place only on the 14^th January. The pursuer refused to make arrangements in advance about the time or place at which contact would take place and accordingly the defender contacted the pursuer's mother on the Thursday or Friday prior to his going over to Ireland.

 

(42)           The pursuer was present in his mother's house, but he refused to speak to the defender. The defender gave information to the pursuer's mother about contact taking place at the 'bus station in Enniskillen in Northern Ireland at 10.30am on Saturday 14 January, and the understanding was that if there was a problem, the pursuer would contact the defender by telephone. He made no such contact.

 

(43)           Contact was to take place in Enneskillen which was about an hour's drive from where the defender and the children live in Ireland, but she agreed to drive there because it would be convenient for the pursuer who would be travelling by aeroplane from Edinburgh to Belfast. There is a regular 'bus service between Belfast and Enniskillen, a two-hour journey.

 

(44)           On the Saturday, (14^th January) the defender was driving the children with her father towards Enniskillen. She came upon the pursuer who was walking into Enniskillen, but was about 2 miles away. The defender offered to take the pursuer in the car to Enniskillen, but he demanded to take the children there and then, and he tried to take Grace out of the car, which caused her and the defender distress.

 

(45)           The defender would not allow contact to take place at that location, because she was on a main road, and instead she drove the children into the centre of Enniskillen. The pursuer contacted her at 11.10am, saying that he was approximately 100 yards away.

 

(46)           At that point, the child Grace started screaming, saying that she did not want to see the pursuer. However, Patrick was willing to go with the pursuer and although there was some initial reluctance on Grace's part, she also went with the pursuer and her brother.

 

(47)           The defender suggested that the children might be taken to the cinema, but the pursuer said that he would not do that.

 

(48)           The arrangement was that the children would be returned to the defender in Enniskillen by 5.30pm and the pursuer would telephone her about 4.45.

 

(49)           During the contact, the pursuer did take the children to the cinema, but at one point, Grace wet herself, and the pursuer attempted to dry her underwear by using the electric dryer in the toilet of the cinema. It did not occur to him to buy his daughter fresh underwear.

 

(50)           Following upon this contact, Grace had been wetting the bed every day up to the date of the continued proof date in February 2006. Despite that, both children have settled well in Ireland. There is no problem with them in relation to their schooling and nursery attendance. The two children get on well with the defender's parents, and her family.

 

(51)           The pursuer and the defender continue to be concerned about the well-being of

the children.

 

 

(52)           The pursuer described County Leitrim as a "backwater" which has a "questionable education system" with "no objective basis." He is of the opinion that the presence of the children there will have a detrimental effect on them. The pursuer has visited only County Leitrim only once, and he bases his opinion on that visit along with information which he has obtained through the Internet.

(53)           Since the parties' separation, the pursuer's conduct, particularly, but not exclusively at contact visits, has caused distress to the defender and the children, and, in particular, to Grace. He has frequently used the children as a means of annoying the defender, or causing her stress, e.g. by failing to return them on time, without advising the defender that the children would be late.

 

(54)           Contact by the pursuer with Patrick and Grace causes them to be distressed and is not in their interests.

 

FINDS IN LAW that, having regards to the best interests of the children, it is better that orders be made in relation to both contact and residence; REFUSES the pursuer's third and fourth craves, and THEREFORE REFUSES the pursuer contact with the children of the marriage, Patrick and Grace; REPELS the pursuer's second and third pleas-in-law; GRANTS the defender's fifth and sixth craves and permits the defender to live with the children in Ireland; SUSTAINS her third and fourth pleas-in-law. MEANTIME reserves the question of expenses; CONTINUES consideration of the cause to Thursday 18^th May 2006 at 9.30 am within the Sheriff Court House, Castle Street, Aberdeen.

 

 

NOTE:

 

In this action, the pursuer seeks inter alia (a) a divorce on the grounds of the defender's adultery; (b) contact with his two children, Patrick, aged 8 and Grace, aged 4; and (c) interdict against the defender from removing the children furth from the sheriffdom. The defender seeks inter alia (a) a divorce on the grounds of the pursuer's conduct; (b) payment of a capital sum; and (c) that the defender be granted a residence order in respect of the children and that they ought to be allowed to reside with her in Ireland. All maters, other than residence and contact, are dealt with in the Joint Minute (No. 22 of process) and the interlocutor dated 27 March 2006.

 

This action was raised in January 2004 and between then and the date of the proof there were numerous child welfare hearings.

 

At the proof, evidence was given by the pursuer and by Graham and Diane Sibbald, on his behalf. The defender gave evidence, as did Pauline Geddes, on her behalf. Prior to the hearing of submissions on 28 March 2006, the pursuer sought to lead further evidence about arrangements for contact between the last day of the proof, 2 February, and 28 March. This was opposed, on the basis that this intention had been intimated so late that the defender could not be present and that the evidence had been concluded. I refused the motion of the grounds that this evidence would add little, if any, to my understanding of the issues, and the result would be that matters would be prolonged unnecessarily because the defender would have to be given an opportunity to reply. That might delay the hearing of submissions, and a similar motion might be made on the morning of the next day for hearing submissions.

 

Submissions for the pursuer.

 

These dealt with the presence of both the defender and the children in Ireland, and the pursuer's contact with the children.

 

Mr Masson for the pursuer submitted that both parents have rights and responsibilities in respect of their children, and accordingly, to deprive the pursuer of contact would not be in their best interests. The pursuer had not been consulted about the move, and the defender had kept her plans for the move from the pursuer until almost the eve of their departure. She said that she had done this on the advice of an unnamed social worker who was not called to give evidence. In terms of the Children (Scotland) Act 1995, both parents have an obligation to promote the health and welfare of their children. If the children remain in Ireland, the pursuer will be unable to fulfil that duty. The defender has been obstructive in this connection, as is evidenced by the e-mails sent by the pursuer to his former solicitor. (No. 5/6/3-7 of process) The contact was difficult because the defender had been rude, unhelpful and vitriolic. There were confrontations, prompted always by the defender. That is because the defender is opposed to contact and wishes to have control over it, by imposing unreasonable conditions and restraints. The pursuer has been kept in the dark about the children's schooling in Ireland. The defender therefore denied to the pursuer any opportunity to counteract it. The pursuer has a knowledge of the area in which the defender lives and it is one in which religious sectarianism is commonplace. When Grace was ill, he was not given any information about her and her admission to hospital.

 

It is evident that the children have not been involved in the decisions about their residence in Ireland, or their schooling, or contact with the pursuer. The defender has created situations to which the pursuer has responded; he has not created them. The voice-mail messages left by the defender are symptomatic of her approach and her views. The pursuer believes that the defender wishes to alienate him from any contact with the children. She has not kept to arrangements for contact, she was emotional in the witness box and chose not to be in court during some of the evidence. She refused to attend mediation, whereas the pursuer was willing to go. If one considers the evidence of the Sibbalds, who are themselves parents and solicitors, they spoke highly of the pursuer as a parent, and it clear that Mr Ward was impressed by them. The pursuer's involvement with the children would benefit the children, but their presence in Ireland largely frustrates any influence which he might bring to bear. I should therefore refuse the defender's 6^th plea, and refuse the 5th also because the pursuer is not craving it. It is not necessary on the principle of minimum intervention.

 

The pursuer's 2^nd crave which is for contact depends on where the children live. If the children were resident in the UK, the pursuer would exercise as much contact as is practicable. He would wish regular, but defined contact. An order is essential so that the defender and the children know what is in place. The court should not condone the defender's removal of the children and should require her to reside in Scotland. However, even if the children are to remain in Ireland, there should be residential contact both in Ireland and in the UK. The pursuer proposed that he have residential contact for half of the summer holidays, one week at Easter, and one week at Christmas, with the children spending Christmas Day with him, on alternate years. So far as the expense of travel is concerned, this should be met by the defender. The pursuer would wish residential contact in Ireland every second weekend. Patrick is old enough to travel to the UK unescorted and so he could come to the UK once per month, at times when Grace might not come. County Leitrim is difficult to get to, as it is an extremely rural part of Ireland.

Submissions for the defender.

 

Mr Finlay invited me to grant the defender's 6^th crave. He accepted that this had been a difficult case, but he submitted that the evidence disclosed that the pursuer could not accept that he was at fault in any respect. This point comes out clearly in the Report from Richard Ward. (No. 12 of process) The pursuer has demonstrated that he cannot, or will not compromise, even where that is in the best interests of the children. Despite claiming to be "an exceptional father," there is no view other than his own. There are two positions in this case-one is that the defender is a cold, calculating person who is aggressive and will do anything to frustrate contact between the pursuer and his children. The other is that the pursuer is blinkered and opinionated, and unwilling to accept any view other than his. While the pursuer accepted that he might have handled the break-up of his marriage "inelegantly," he could not enjoy contact, according to him, because he was so upset by the break-up. He has not worked since 1998, and admits using alcohol as a crutch. He cannot understand why the defender would wish to be with her family, in a small place, where she has the support of her parents and a sister, nor why the children might benefit from being in a rural area at a small school at which they can meet their cousins. This must be contrasted with Aboyne, where the family home has been sold and where the defender would have friends, but no family, and where she would require to pay for child care.

 

The pursuer's contention that he wants to exercise his rights and bear his responsibilities might be more credible had he provided some financial support for the children, and released capital to the defender. The defender is not vindictive, but rather is exasperated. So far as the voice mail messages are concerned, while she is not proud of them, many others would have used more powerful language to describe someone like the pursuer, who, for example, could 'phone a nursery 30 times in one day. While there is a disadvantage to the pursuer if there is no contact, that is not the point; rather the point is what is in the best interests of the children. If the defender's 6^th crave is not granted, the defender will need to relocate, at least in the UK. She will then be apart from the family support.

 

Throughout the defender has encouraged contact, but on condition that the pursuer behaves himself in front of her and the children and returns them on time. However, the evidence discloses that the pursuer did all that he could to make contact unpleasant, and difficult. He says that he wanted quality time with his children, but solely on his terms.

 

The defender is not seeking to end contact; the fact that she has offered contact in the past, even when there was an interlocutor refusing the pursuer contact, is clear evidence of that. The defender has a real concern that contact will not work, that the pursuer will blame her for that and will take the opportunity to bring the case back to court again and again.

 

Accordingly, contact with both children should be refused, but the defender will offer contact on condition that the pursuer will not behave badly to her or the children.

 

I was invited by Mr Finlay to take into consideration notes which had been written by two sheriffs. One of these was on an interlocutor of Sheriff Jessop, and one was a separate note by Sheriff McLernan. This was opposed by Mr Masson. I decided not to take these into account, as explained below.

Assessment of the evidence.

When giving evidence, the pursuer came across as someone who not only wants his own view to prevail, but is unable to accept there is any view other than his own. There were numerous instances in the evidence. For example, at a child welfare hearing he agreed, or was required to accept, certain arrangements for picking up the children and redelivering them to the defender. On a number of occasions, he failed to return the children at the arranged times, and failed to advise the defender that the children would be late. He had no valid excuse for that and it is clear that in most instances, he made a deliberate decision not to return the children timeously. He ought to have appreciated that that conduct would cause the defender to be distressed and might also cause the children to be distressed. In my opinion, he did not care about either of these.

 

The pursuer is dismissive of the defender's religion. She is a Roman Catholic and would wish to bring up the children in that faith. The pursuer describes himself as a "free-thinker" and describes Roman Catholicism as "irrational." That view is compounded by the presence of the children in County Leitrim in Ireland, a place which the pursuer describes as a backwater, with a "questionable education system with no objective basis." Whatever these comments might mean, he reached these conclusions following upon one visit to County Leitrim and research on the Internet. The pursuer is deeply distrustful of the defender and that distrust is magnified by the fact that her parents and sister reside in County Leitrim also. There was no evidence to support the pursuer's contention about the education system in County Leitrim, or any other view which he holds of the place. Nor was there any evidence to support his view that the children's education would suffer as a result of their presence there.

 

As I have mentioned above, almost all of the child welfare hearings were unsuccessful in that agreements reached or orders made at these broke down or were not adhered to by the pursuer. Apart from a child welfare hearing in front of one sheriff at which the pursuer got what he wanted, the rest, in his words, were "a waste of time." He described a child welfare hearing conducted by one sheriff as making things worse. In one sense, he was correct in that the sheriff refused him contact with his daughter. Another sheriff later refused him contact with his son. Both decisions were reached because of the pursuer's conduct at child welfare hearings and at contact visits. The pursuer initially refused to answer questions about what had happened at a child welfare hearing which had been conducted by Sheriff Jessop. The basis for the refusal was that he had complained about Sheriff Jessop's conduct at the child welfare hearing which was in May 2004. I asked the pursuer whether the complaint which he had made had been dealt with. I had no reason to disbelieve him when he said that the complaint was still pending at the date of the proof. (He mentioned during submissions that the complaint had not been dealt with.) I did not, however, regard that as a good reason for his refusing to discuss what was aired at that child welfare hearing.

 

I took no account of what had happened at child welfare hearings, save as mentioned below, nor of notes made by other sheriffs, since I do not know what happened at these hearings which gave rise to the notes being made. I base my decision solely on the evidence led, including evidence of what happened at child welfare hearings, and the demeanour of the parties and their witnesses, in the witness box.

 

In giving his evidence, the pursuer frequently refused to give, or tried to avoid giving straight answers to simple questions, despite being exhorted by his solicitor, by Mr Findlay, and by me. Instead, the pursuer would, if unchecked, embark on an irrelevant discourse which at times made it impossible to ascertain whether the answer to the question was "yes" or "no". He adopted this approach to questions which he did not wish to answer. However, he had, or so he said, a clear recollection, of every contact meeting, but despite that, he said that he could not recollect several occasions on which extra contact had been offered to him by the defender through her solicitor. On at least one occasion, such contact was offered immediately after what appears to have been a fairly-fraught child welfare hearing. I did not find the pursuer to be credible or reliable.

 

There is no doubt that the pursuer is an intelligent individual and that when contact has taken place, leaving aside the handovers, he is responsive to the children and relates well to them, as he does to children of his friends. That said, however, he is incapable of leaving his obvious distaste for the defender, her religion and her family, out of the contact arrangements and uses handovers as a method of upsetting and/or verbally abusing the defender, frequently in the presence of the children. Evidence was given that when he picked up the children on one occasion, he walked the younger child down the middle of a road in front of him. Although the road was not a busy one, the elder child was shouting to him in a distressed way from the pavement and was urging him to bring his sister on to the pavement. That was made worse by the fact that this took place while the defender was watching and the pursuer's conduct was, in my opinion, intended to cause the defender distress. It was for that reason that at the child welfare hearing following upon that episode, the pursuer was refused contact with the child, Grace.

 

Numerous other instances were highlighted in the course of the evidence, such as the pursuer going along to his son's school, uninvited, and insisting that he see his son during classroom hours. While protesting about this, the teachers at the school were forced to take the child out of the classroom in order to pacify the pursuer. On another occasion, the pursuer telephoned the nursery which the younger child attended in Aboyne on approximately 30 occasions and was abusive to the staff because he was demanding to see his daughter.

 

The final child welfare hearing before the proof was on the day before the pursuer went to Ireland with the children. After the hearing, the defender offered the pursuer contact with the children that evening prior to their departure. It was agreed that the defender would contact the pursuer by telephone. The defender did attempt to contact the pursuer by telephone, but he became extremely abusive and brought the telephone conversation to an abrupt end. Following upon that telephone conversation, one of the defender's friends attempted to telephone the pursuer to calm things down. The pursuer was equally abusive to her and terminated that telephone conversation abruptly.

 

At that point, the defender thought that the pursuer was not going to take contact that evening, but he did in fact turn up at 6pm, demanding to see both children and asking why the children were not around at the time. The defender advised him that the house had been cleared of virtually all the items and an arrangement had been made for the defender and the two children to stay overnight with the friend above referred to. The pursuer became extremely abusive, as a result of which the children were upset, as was the defender and her parents. That conduct is not indicative of someone who puts the welfare of his children first at contact visits.

 

The proof was part-heard and between December 2005 and the resumption of evidence in February 2006, the defender offered the pursuer contact with the children over one weekend in January, for the Saturday and the Sunday. The precise arrangements for that were to be made through the solicitors, bit it appears that the solicitors were unable to make such an arrangement. However, prior to the weekend which had been identified, the defender telephoned the pursuer's mother in Edinburgh and spoke to her about the contact arrangements. The pursuer was present in his mother's house at the time, but refused to speak to the defender about contact. An arrangement was made whereby the pursuer would have contact initially on the Saturday in Enniskillen which is a two-hour journey by 'bus from Belfast. It is also a two-hour journey from the defender's home. She told the pursuer's mother that she would meet the pursuer and hand over the children in the Enniskillen 'bus station at 10.30am.

 

While she was on her way there by car with the children and her father, the defender spotted the pursuer approximately a mile and a half out of Enniskillen walking towards the town centre. She stopped and offered him a lift, but he demanded to take the children there and then, and tried to prise them out of the defender's car. The defender made the point that the road was a busy one and she accordingly refused to hand over the children at that location, but arranged to meet the pursuer in the Enniskillen 'bus station at 11am. When the pursuer turned up, the defender indicated a number of things which the children could do in Enniskillen, including visiting the cinema. The pursuer said that he would not take the children to the cinema and was attempting to pull them out of the car as soon as possible.

 

Despite what he had said earlier, he did take the children to the cinema, but during the film, Grace child wet herself. The pursuer took her child to the toilet and dried her underwear using the electrical hand dryer in the gent's toilet. It did not seem to occur to the pursuer that perhaps the child would have been more comfortable if he had bought her new underwear. He returned the children at approximately 5.15pm to the defender, but he refused to have contact with the children the following day, the Sunday, saying that he had to get back to the United Kingdom. (He admitted, however, that there was a flight on the Monday also.) That was despite the fact that the defender had offered, and the pursuer seemed to accept, her offer of contact on both the Saturday and the Sunday. I accept the pursuer's evidence that he is genuinely interested in the welfare of his children. That said, it is obvious that on many, if not all occasions when there has been contact, he has gone out of his way to cause distress to the defender and hence has upset his children. Again, the pursuer's first consideration is to cause the defender distress, rather than try to make the children comfortable, perhaps even happy. I have no confidence that, if he were given contact, he would desist from the kind of behaviour to which he has been prone in the past. The undertakings which he has given in court have been breached, and so he shows that he pays scant regard to court orders, unless he get what he wants.

 

The pursuer's position, in a nut shell, is that the breakdown of the marriage and the arrangements for contact which have also broken down are entirely the fault of the defender, and that no, or very little blame can be attached to him. I do not accept that.

 

Despite the background above described, the defender, in my opinion commendably, has consistently not opposed contact being taken by the pursuer but understandably, she would wish the pursuer to behave himself appropriately, not only in her presence but also in the presence of the children, and to desist from making derogatory remarks to the children about her, her religion and her family. In stark contrast to the pursuer, the defender impressed me and came over as a very caring person, devoted to her children, and someone who is trying her very best to ignore the strains put on her marriage by the pursuer. She has been doing that in order to make contact between her children and the pursuer enjoyable. The strains put on her by the pursuer were considerable and in my opinion, intolerable and unacceptable. That explains the voice-mail messages which she left on the pursuer's 'phone.

 

Unlike the pursuer, the defender has complied with the court's interlocutors and did not make any disparaging remarks about the way in which the various child welfare hearings were conducted. She clearly found the pursuer's conduct in the witness box to be distressing (which might explain some brief absences from court) and she was also distressed at some of the things which were recounted in evidence, albeit quite properly, e.g. the voice-mail messages. I did not find her to be emotional when she was giving evidence, nor while she was in court

 

The defender answered all the questions put to her; she answered them with simple straightforward answers and was not evasive. Unlike the pursuer, I found her to be both credible and reliable. In particular, I believe her when she says that she will afford contact to the pursuer, provided he is willing to conduct himself properly.

 

Decision.

 

The starting point is the Children (Scotland) Act 1995 which in s.1(1) sets out parental responsibilities and in s. 2(2) parental rights. The existence of these rights and responsibilities means that, in principle, a father ought to have contact with his children.

In all the circumstances of this case, however, I am of the opinion that it is better for the children that they do not have contact with the pursuer, and that it is better in terms of s. 11(7) that, having regard to the welfare of the children, an order to this effect be made. This is not a decision which any court would reach lightly, given that it is normally in the best interests of children that they have contact with both parents. Nevertheless, the evidence about the pursuer's conduct, including, in particular, conduct at and between child welfare hearings in relation to arrangements made for contact, and his demeanour in the witness box has satisfied me that the pursuer is an unsuitable person to have contact. He is unsuitable because he would not keep to arrangements which he agreed to at a child welfare hearing or were made at a child welfare hearing in the best interests of the children, and I have little faith that he will abide by any future orders which might be made in relation to contact. In addition, he has refused to desist from making derogatory remarks about the defender in her presence and in the presence of her children and has equally not desisted from making derogatory remarks to the children about the defender, her family, her religion and the place where she stays. His abusive conduct in shouting and swearing at the defender, often in the presence of the children, is not acceptable.

 

Before contact took place in Ireland, both parties undertook to ensure, so far as they could, that the handovers in Ireland would not be acrimonious. The defender complied with that requirement; the pursuer did not. I have no confidence that the pursuer will not try to gain entry to Patrick's classroom, if the pursuer decides that he wants to see him. I have no confidence that he will refrain from contacting Grace's nursery and being abusive to those who work there. It is quite clear from the evidence that both Patrick, and to a greater extent Grace, found many of the handovers to be distressing and since the most recent contact in Northern Ireland, the evidence given by the defender was that Grace has been constantly wetting her bed something which had not been a feature of Grace's behaviour since the children moved to Ireland. If the defender cannot be assured that the pursuer will abide by a court ruling, that would be likely to cause both her and the children distress. It is not is the best interest of these children that they be subjected to further examples of the pursuer's conduct which causes them to be distressed.

 

Given the pursuer's conduct in the past, if contact is granted, there is a substantial risk that some, or all, of the following will happen (a) handovers for contact will be distressing for the children, and possibly also for the defender; (b) the pursuer will blame the defender entirely for this; (c) each time contact, in the pursuer's opinion, does not work, he will enrol a motion requiring the defender to appear in court to explain her failure to obtempter each interlocutor.

 

The defender seeks a residence order and permission to reside in Ireland. I have no difficulty in deciding that the defender should have residence and that is not contested by the pursuer. What he does not accept is that she be permitted to live with the children in Ireland. The evidence is that the children have settled in well at school and nursery respectively. They are well looked after by the defender and she is supported by the presence of her family in Ireland. I see no reason for ordering the defender to remain in Scotland, nor for ordering her to return the children to Scotland although the pursuer's view is clearly that contact anywhere outwith Scotland is simply not acceptable.

 

I have therefore refused the pursuer's 3^rd and 4^th craves, and, as a consequence, repelled his 2^nd and 3^rd pleas-in-law. I have granted the defender's 5^th and 6^th craves, and, as a consequence, sustained her 3^rd and 4^th pleas-in-law. I was asked to reserve the question of expenses.

 

 

I should say, in conclusion, that the proof was not an easy one to conduct and both solicitors, and in particular, Mr Masson, conducted themselves with appropriate professionalism and restraint.