Scottish Sheriff Court Decisions

SHERIFFDOM AT LOTHIAN AND BORDERS AT EDINBURGH

 

Case Ref: F242/09

 

JUDGEMENT   of   SHERIFF WILLIAM HOLLIGAN   in causa   S.G.R. Pursuer   against L.R.   Defender _________________

 

Act : Johnston

Alt : Di Biasio

 

Edinburgh, 21^st June 2010

The Sheriff having resumed consideration of the cause makes the following findings in fact:

 

[1] The pursuer resides in [B]. His accommodation comprises a second floor flat containing two bedrooms. He is a [j] by profession. The defender resides in [K].

 

[2] The defender is the mother of C.R.R. ("C") whose date of birth is 15th June 1995. D.R.T. is registered as the father of C. The defender is the mother of K.D.R. ("K") whose date of birth is 21st October 1997. The pursuer is the father of K. The defender is the mother of A.L.R. ("A") whose date of birth is 30th April 2001. The name of the father of A is not registered. The pursuer is not the natural father of A. Numbers 5/1-5/3 of Process are the birth certificates of C, K and A respectively.

 

[3] The parties met each other in or about 1996. They married in or about July 1999. The parties separated in about October 1999. The parties resumed cohabitation. They were divorced in or about 30 January 2004. They resumed their relationship and cohabited after their divorce. Their relationship finally ended in or about December 2008.

 

[4] Subject to the following, throughout their lives the children have lived with the defender. Since or on about March 2010, C has lived with his natural father on [S].

 

[5] The relationship between the pursuer and the defender was volatile. They often argued. Arguments took place in front of the children. The pursuer would shout at the defender. The defender would shout at the pursuer.

 

[6] In or about March 2000 whilst under the influence of alcohol, the pursuer attended at the home of the defender's parents. After a verbal altercation he threw a ceramic pot through the window of their house. He was charged with a criminal offence in relation to this.

 

[7] In or about Christmas 2007, whilst at the home of the pursuer's parents, the pursuer removed C from the dining room, put C against the wall and seized him by the throat.

[8] The pursuer did strike C and K with his hand on the head, the ear and on the bottom.

 

[9] The pursuer did shout at C and K.

 

[10] On an occasion, the pursuer struck C and K on the bare bottom with a belt.

 

[11] When assisting K and C with their homework, the pursuer would often lose his temper with them.

 

[12] The behaviour of the pursuer to the boys referred to in [9] to [11] would arise as a result of the pursuer's attitude either to the behaviour of K and C or the defender. On occasions the defender would intervene in an attempt to prevent the pursuer approaching the boys to remonstrate with them.

 

[13] The pursuer was aggressive towards the defender. She was frightened of him.

 

[14] In or about August 2000, an incident took place at the defender's property during which, in the presence of the defender, the pursuer had a cigarette lighter in his hand near to the pursuer and uttered threats in her presence.

 

[15] On or about the end of December 2008, the pursuer and the defender had an argument. The pursuer grabbed the defender by the throat. She suffered injury. He uttered threats to her. He had been drinking to excess. The incident took place in the hearing, or in the presence, of the children. The police were called. The pursuer was charged with assaulting the defender. The children were upset and scared. On that occasion the children went to stay with a next door neighbour.

 

[16] The pursuer has at least one conviction for assaulting the defender.

 

[17] The children are frightened of the pursuer. K and C do not want to see the pursuer.

 

[18] A was frightened when the parties argued, when there was violence in the household and when the pursuer remonstrated with C and K. She would hide. She put her hands over her ears. She would cry. A remains scared of the pursuer.

 

[19] Since the parties' separation, the defender would not voluntarily agree to contact between the pursuer and the children.

 

[20] The defender has a new partner. A knows him.

 

[21] Since the parties' separation, the pursuer has seen A on two occasions. On neither occasion was contact organised in advance.

 

[22] The first event took place in[ K] sometime in 2009. The pursuer was driving his van. He saw the defender and A. He got out of his van and approached both of them. He picked up A and said he hoped to see her soon. A was scared.

 

[23] He next saw A in [B] in September 2009. The defender was driving her vehicle The pursuer drove his vehicle close to the rear of the defender's vehicle. The defender was concerned for her safety.

 

[24] The pursuer wants to have contact with A. He has a genuine affection for her. He did assist with taking A to and from Tae Kwando and dancing.

 

[25] A is not aware that the pursuer is not her natural father. She regards him as her father.

 

[26] Since separation K and A attend the [CP]. The [CP] is available for children who have been subject of domestic abuse. K's behaviour can be challenging. K is dyslexic. Since attending the [CP] K's behaviour has improved.

 

[27] The parties do not like each other. They continue to distrust each other.

 

[28] A is happy and well cared for by the defender. She attends primary school. There is ample accommodation for her.

 

 

 

FINDS IN FACT AND IN LAW

 

[1] There has been abuse in the relationship between the parties.

 

[2] Such abuse upsets and alarms A.

 

[3] There is a need to protect A from the risk of such abuse.

 

[4] Having regard to [1] to [3] above, the foregoing findings in fact and the views of A : (a) it is not in the interests of A that the pursuer should be granted parental rights and responsibilities in relation to A; (b) it is in the interests of A that A should have personal relations with the pursuer by way of letter box contact only.

 

[5] That it is better that an order be made that none should be made at all.

 

THEREFORE,

 

SUSTAINS the first plea in law for the defender; sustains the first plea in law for the pursuer to the extent of ordering letter box contact between the pursuer and A; quoad ultra repels parties' remaining pleas in law; repels the pursuer's objections to the evidence concerning the meeting between the parties in 2009 and the evidence of the pursuer's behaviour towards C and K; reserves all questions of expenses and assigns 10 am on 1^st July 2010 at the Sheriff Court 27 Chambers Street, Edinburgh as a diet therefor.

 

Note

 

[1] In this action the pursuer seeks an order for parental rights and responsibilities and an order for contact in relation to the child A whose date of birth 30 April 2001.

 

[2] This matter arises out of the relationship between the parties which, in one form or another, extended over the period from 1996 to December 2008. Parties began their relationship in or about 1996. They married in or about July 1999. They separated in October 1999. They then resumed their relationship. They were divorced pursuant to a decree of divorce granted on 30 January 2004. Again they resumed their relationship until it finally broke down in or about December 2008. Although the detail of cohabitation between the parties was a little vague I took from their evidence that, for all practical purposes the parties resided together for most, if not all, of the material periods.

 

[3] The defender is the mother of three children to whom I have referred in my findings in fact: C, K and A. The pursuer is the father of K. The pursuer is not the father of either C or A. C's father is, according to the birth certificate lodged in process, DTR. C gave evidence in the proof. Since March 2010, he has been staying with his natural father, DTR, on [S]. There is no father registered on A's birth certificate. In their evidence, the parties were agreed to the identity of A's father. Intimation of this action to him was not made as his whereabouts are, to the parties at least, unknown. In the circumstances I am hesitant to make a positive finding in fact as to the identity of A's natural father. It is sufficient for me to hold that the pursuer is not her natural father.

 

[4] At the times when the parties did cohabit, the three children lived with them. Throughout their lives the children have lived with the defender with the obvious recent exception in relation to C. One major issue in this case concerns the relationship between the parties and, in particular, the conduct of the pursuer towards the defender and the children. I heard evidence from the pursuer, the defender and C. I comment later as to my assessment of the witnesses and their credibility and reliability.

 

[5] In my opinion, it is a fair summary of the evidence of both the pursuer and the defender that their relationship was, to say the least, volatile. Indeed, volatile was a word which the pursuer himself used. Both spoke to arguments taking place between them. There was shouting between the adults. They also accepted that, at various occasions, the children witnessed this behaviour. There is also no issue that the police were called to deal with certain incidents, some involving allegations of assault by the pursuer against the defender. Somewhat inevitably in such a volatile relationship, it was easier for their parties to give their general impression of the relationship rather than specific details. I have made a general finding in fact as to the nature of the relationship between the pursuer and the other members of the household which, in my opinion, was born out by the evidence.

 

[6] Having said that, the pursuer himself accepts that on one occasion in March 2000, whilst under the influence of alcohol, he attended at the house of the defender's parents. After a verbal altercation, he threw a ceramic ornament through the window of their house. Criminal proceedings against him arose as a result of that incident.

 

[7] The defender made reference to an incident involving a baseball bat which she said had taken place some years before 2004. I found the evidence on this to be rather vague and confusing and I make no finding in relation thereto. The defender also referred to an incident concerning a cigarette lighter. She described how in or about August 2000 the pursuer came to the pursuer's property in [K]. There was an incident during a meal. The defender went to the kitchen to have a cigarette. The pursuer had hold of the cigarette lighter. When holding the lighter near her face, the pursuer uttered certain threats. A neighbour heard this and called the police. I accept the defender's evidence in this matter and reject the pursuer's denial.

 

[8] The incident towards the end of November 2008 which led to the parties' separation merits closer examination. In his evidence the pursuer admitted on that occasion he was charged and convicted of assault upon the defender. The defender's evidence was that, at that time, C had been "grounded" as a result of his behaviour. The pursuer was in the house along with the other children. The pursuer had consumed a large quantity of alcohol. The defender told the pursuer to leave the house and that she, the defender, "had had enough". An argument ensued. The pursuer grabbed the defender by the throat. A was present and witnessed these events. She was upset and crying. The defender wanted to call the police. The pursuer threatened her with violence if she did. The defender managed to get upstairs and ask C to call the police which he did. The defender sent the children to stay with a neighbour. The police arrived and the pursuer was later charged. The defender spoke to injury although she did not receive medical treatment. The pursuer's account of this event was that the defender was trying to provoke him into an argument. His evidence as to what the argument was about was rather vague. Even if the pursuer is correct, and I am far from saying that he is, it would not excuse his behaviour nor does it detract from his admission as to his conviction arising out of these events.

 

[9] Another major issue in this matter concerns the behaviour of the pursuer towards the children. Subject to one aspect of C's evidence, the parties appear to accept that the pursuer never physically assaulted A. The situation in relation to both C and K was, however, quite different. Much of the dispute centred around what I might describe, very loosely, as issues of discipline. In short, it was the pursuer's position that, if he did employ any physical violence towards the boys it was in the context of physical chastisement because of their behaviour and that, if it happened at all, it was not unreasonable. The pursuer said that if the boys were badly behaved he would "ground them" or send them to their rooms. Only if their behaviour was extreme and/or prolonged would he resort to hitting them and that would be a smack. It was put to the pursuer that he had, on at least one occasion, struck the boys on the bare bottom with a belt. This he denied. He did admit to a "clip around the ear with a hand". It was also put to him that in Christmas 2007, at his parent's house, he removed C from the dining room because of behaviour on C's part and seized him by the throat, pinning him up against the wall. He said he had no recollection of this. It was also suggested to him that when undertaking homework with the boys, particularly with K, he would lose his temper and become aggressive and bullying towards them. There was evidence from the defender that K is dyslexic and has particular difficulty with certain academic tasks. The defender's evidence was to the effect that incidents of violence towards the boys were far more frequent and more violent than the pursuer admitted to in his evidence and were not restricted to chastisement. She described his behaviour in relation to the homework of the boys. She also said that he would strike them on the back of the head, the ear and on the bottom. She also specifically spoke to an incident involving the use of a belt. It was suggested to the defender that if there was any issue of chastisement of the boys, it arose because the boys were out of control and that the defender herself encouraged the pursuer to chastise them in this way. This the defender denied.

 

[10] The evidence of C was supportive of the defender's evidence and at odds with that of the pursuer. C spoke to violence being perpetrated upon him and K by the pursuer. He specifically mentioned the incident involving the use of a belt. Mention was also made of an incident which was said to have taken place abroad and also an incident during which C was wearing a cast following medical procedure on his ears. As I do not have a note of these incidents being put to the pursuer I make no findings in relation to them. C described how he and K were both struck on a regular basis by the pursuer. However, I did not detect from C's evidence that, when it did happen, the violence was gratuitous. Rather it arose from the attitude of the pursuer to the boys' behaviour or in the context of disputes with the defender. He also spoke to the pursuer losing his temper during attempts to help with homework, particularly in relation to K. It was his evidence that A had, on occasions, been struck although in general she was not involved. He did say, as did the defender, that A would put her hands over her ears or hide during incidents between the pursuer and the defender and the pursuer and the boys. It was put to C that he was either making up the incidents or exaggerating them. This he firmly denied. He also confirmed the defender's evidence that, on occasions, the defender did seek to interpose herself between the pursuer and the boys in order to avoid any violence being perpetrated against them. Having said that, I think he did have some considerable regret that, in his eyes, his mother had allowed the situation to continue for as long as she had.

 

[11] Having seen and heard all three witnesses, I do attach some importance to the impression that each gave in the witness box. I prefer, in general, the evidence of the defender and C. Having said that, I suspect the defender was willing to trade insults with the pursuer. However, I accept her general evidence as to the state of the relationship between the pursuer and other members of the family. I also have to say that it seemed to me that C was telling the truth. It did not seem to me that he had fabricated this evidence. Furthermore, there is undisputed evidence of the defender's conviction for assault against the defender and in relation to his behaviour towards the parents of the defender. I also derive some support from the fact that neither boy wishes to see the pursuer. Then there is the evidence of attendance at the [CP] (see below). Although not a significant fact it does carry some weight when taken along with the other evidence. I also take into account that A has expressed a fear of the pursuer. It seems to me that the behaviour of the pursuer was more violent and volatile than he was prepared to admit. It is also clear that, on some occasions at least, alcohol played a part in the pursuer's behaviour.

 

[12] Since separation, both K and A have recently participated in the [CP]. This is an organisation which helps children (and indeed parents) who have been the subject of domestic abuse. The evidence is that K's behaviour can remain difficult. He is often angry and frustrated. The defender stated that since starting this course, K has benefited greatly from it.

 

[13] Since separation in December 2008, the pursuer has seen A on two occasions, neither by prior arrangement. The first event took place in [K] sometime in 2009. The pursuer was driving his van when he saw the defender and A. He got out of the van. He approached them both. He picked up A. He said that he kissed and cuddled her and said he hoped to see her soon. The defender said that when the pursuer picked her up, A was frightened. He next saw A in [B] in September 2009. The pursuer's account of events was that whilst driving his van he saw the defender's car which, he said, pulled out in front of him. He followed her car. He said he overtook the defender's car at some point later along the road. He denied driving his van in an erratic manner in or about the vicinity of the defender's car. The defender described how she said that the pursuer was driving the van so close behind her vehicle on the second occasion that she feared that he was going to ram her vehicle. As I have said, neither of these meetings was arranged between the parties. On any view they did not go well. That A was scared fits with other evidence in the case. The behaviour of the pursuer towards the defender also fits with my general conclusion as to his behaviour towards the defender.

 

[14] When this action first began, the pursuer sought orders in relation to all three children. At an earlier stage in the proceedings the boys expressed the view that they did not wish to see the pursuer. By the time the matter called before me the pursuer insisted only upon those parts of his action relating to A. Although the pursuer was of the view that in saying that they did not want to see him the boys had been influenced by the defender, he was prepared not to insist upon any order directed to them. At the conclusion of the proof, and as parties began their submission, the question of A's views arose. Agents were agreed that the views of A in relation to contact with the pursuer should be sought. She is of an age in which she can express a view. I appointed Mrs Pryde as curator for A in order to obtain her views and to convey them to the court. I adjourned the proof for that purpose. I did not ask for a written report. Mrs Pryde reported A's views orally to the court. I summarise them as follows. Mrs Pryde met with A on two occasions. A was described as a loving and very caring child. She was unable to remember the last time she had seen the pursuer. She was scared of the pursuer and described him as "shouty". She described him as drinking wine and beer. She did describe the boys as being hit by the pursuer. She said that she worried about the pursuer. Mrs Pryde described her as being confused as to her feelings towards the pursuer. She was scared of seeing him and did not want to see him without there being present an adult whom she knew. She did say she wanted the pursuer to write to her and send her pictures so she would not worry about him. If he did, she would be able to write back to him. At one point it was said that A missed the pursuer. However, it was also emphasised that she was frightened of him. She described the pursuer as her father. The curator contacted A's school. Her school teacher said that A needed help with reading and writing. As to A's current circumstances there was no evidence to suggest that she anything but happy and well cared for. She attends primary school. Nothing adverse was said about her accommodation or the care the defender gives her. At the date of the proof the defender was pregnant. She has another relationship. There was some evidence from the defender and C as to her new partner. The evidence was not extensive. From what there was, A seems to get on well with the defender's new partner. Whether the defender and her partner cohabit on a full time basis was not clear.

 

[15] Notwithstanding the above I do accept the pursuer's evidence that he does have a genuine affection for A. Even allowing for periods of separation the pursuer did live with A, and she with him, until December 2008. He described how he would help out with activities involving A such as Tae Kwando, dancing and other such events. I accept that he did have such involvement.

 

[16] I do not think there is any dispute on the evidence that the parties clearly do not get on with each other. The defender dislikes and distrusts the pursuer. Although the pursuer said he was prepared to work with the defender I did not detect any great enthusiasm to do so. The history of the relationship is ample testimony to its fraught nature. She says that she is scared of the pursuer and indeed was scared of him during their relationship. As I have recorded, at various points, the relationship between the parties broke down and yet seems to have resumed. Quite why, was never really explained. Given my conclusions on the facts, I foresee many difficulties in the parties being in contact and working with each other. I shall return to this point.

 

Submissions

 

[17] For the pursuer, Mr Johnson, invited me to make an order for parental rights and responsibilities and for contact in relation to A. He invited me to find the pursuer as a credible and reliable witness and not to accept as credible or reliable either the defender or C. It was clear that the parties did not like each other and that helped to explain the differences in their evidence. The three tests set out in section 11(7) of the Children (Scotland) Act 1995 ("the 1995 Act") were well established. A's views had been taken. She is 9 years old. Her views clearly were of relevance and amounted to one of the factors the court had to take into account. The pursuer loved A. He had had a good and loving relationship with her. Although the pursuer was not A's biological father, she does regard him as her father and he regards her as his daughter. She has no knowledge of her natural father. There was some material to suggest that she was missing the pursuer. If he were to be allowed contact she would have to be told, at some point, that the pursuer was not her natural father. He would seek to do that with the cooperation of the defender. It was better that he should have contact than she should remain fatherless. There was little evidence as to the defender's new relationship. The defender had been in a relationship with a number of men beforehand and there was no suggestion that this one would last particularly long. The defender may seek to rely upon section 11(7B) of the 1995 Act (I refer to these provisions later). The pursuer had accepted that there was a degree of violence in his behaviour. He did use physical chastisement in relation to the children but the court should hold it was never gratuitous. The defender was unsuccessful in disciplining the children and, on the evidence it was the pursuer who was left to undertake the discipline. Indeed he was under pressure to do so. There was no evidence of any abuse towards A. A's fear could be due to a number of factors. It would appear that A had discussed matters with her mother before seeing the curator on the second occasion and she did alter her view in relation to seeing the pursuer after that occasion. There was some suggestion from the curator's discussion with the school teacher that A was anxious in general. Although the pursuer sought direct contact, he would accept indirect contact and the presence of a third party to supervise. The court should not accept C's evidence. He was not a credible and reliable witness. He may have an axe to grind and clearly did have a poor relationship with the pursuer. Mr Johnson then referred to a number of authorities: Davidson v Smith 1998 FamLR 21; Donnelly v Green 1998 FamLR 12; White v White 2002 SLT 485 and A v M 1999 FamLR 42. In short, there is no legal onus for the pursuer to overcome even though he is not A's biological father. He had been accepted as her father. On the evidence, there was no question of abuse. Even if that were not correct, it was only one factor to be taken into account along with the others.

 

[18] During the course of the evidence, there were a number of objections taken by both parties. Mr Johnson adhered to his objections to the evidence concerning the pursuer meeting with A in summer 2009 for which he said there was no record. Secondly, so far as the evidence concerning violence towards the boys was concerned he submitted it was not relevant because the pursuer was only seeking contact with A. I should accordingly sustain the pursuer's first plea in law and repel the defenders first, second and fifth pleas in law.

 

[19] For the defender, Miss Di Biasio started by dealing with the question of objections to evidence first. It was Mr Johnson who had introduced into evidence from the pursuer whether he had seen A since December 2008. Evidence had been taken from the pursuer as to what had happened in summer 2009 both in examination in chief and in re-examination. If cross-examination was inadmissible then the court ought also to exclude all reference to the evidence in summer 2009. Secondly, in relation to the evidence concerning to the boys, evidence of the pursuers conduct towards other children in the relationship was relevant and, particularly in relation to section 11(7B).

 

[20] Miss Di Biasio invited me to refuse all orders in favour of the pursuer. Having regard to the provisions of section 11(7) and the issue of abuse, the court should not make an order in favour of the pursuer. Miss Di Biasio invited me to prefer the evidence of the defender and C to that of the pursuer. The curator's report was to the effect that A does not want contact. In relation to the case of A v M the facts were very different. In that case there was no evidence of any violence towards children whereas here there is. The pursuer was not a credible and reliable witness. The defender had been in a violent relationship. There was evidence of mistreatment of the two boys. Miss Di Biasio said that, although there was some evidence that A had been smacked, she did not submit that A had been directly abused. The defender had accepted that she had allowed the situation to develop but that was in the context of someone who herself had been physically abused. The defender was scared of the pursuer. Assaults upon her by the pursuer had been corroborated by the evidence of C. Although C had not been as forceful a witness as he might have been he should not be rejected as an unreliable or incredible witness. He was an open and honest witness doing his best to tell the truth. The pursuer himself had admitted smacking the children. His approach to discipline was very different to that of the defender. He did think that physical chastisement was appropriate. In relation to the suggestion that the defender had had a number of cohabitees, there was no suggestion that the defender had lived with either C or A's father. Miss Di Biasio referred to Sanderson v McManus 1997 SC(HL) 55 and White v White. She also referred to Davidson v Smith. The genetic link is a matter which will weigh heavily with the court. There is no presumption (following White v White) that because there is a genetic link there ought to be contact. It was not correct for the pursuer to submit that he should be treated the same as a biological father. He can claim an interest and the court can grant him parental rights and responsibilities but a biological link is one of the crucial parts of the welfare test. A non-biological parent claiming an interest in terms of section 11 has a higher hurdle to surmount than one who has a biological link. I was then referred to provisions of section 11(7A). Miss Di Biasio (and Mr Johnson) said that there seems to be no current authority in relation to these provisions introduced by the Family Law (Scotland) 2006 ("the 2006 Act"). Prior to the 2006 Act there was no guidance as to the matters which the court should take into account when considering the welfare test. The expression "have regard to to" means the same as "take into consideration". The question for the court is whether there has been abuse: whether that affects or might affect the child; and the ability of the pursuer to care for the child. On the evidence, the pursuer had abused the defender and A's two brothers and therefore he was abusing A by his actions. If there was a finding in fact that violence took place then the court must find as a matter of law that parental rights and responsibilities and contact in favour of the pursuer could not be in the child's best interests. There was no evidence to justify the making of an award of parental rights and responsibilities. The pursuer was seeking an unqualified award in his favour. There was no evidence to suggest this would be of any benefit to the child. If the court was of the view that parental rights and responsibilities could be granted, section 1(c) was the only possible relevant right along with section 2(1)(c) (in relation to the responsibilities). However, in the defender's submission, no such order should be made. For similar reasons a contact order should not be made either. In relation to indirect contact, there was some material from the curator who had spoken to A's teacher that A has difficulty with reading and writing and therefore it would be difficult for her to manage indirect written contact on her own. Both agents were agreed that I should reserve all questions of expenses.

 

 

Decision

 

[21] It is correctly accepted that the pursuer is entitled to bring this action (section 11(3)(a)(i)) of the 1995 Act. He has an interest to do so. Whatever the exact position as to the periods of cohabitation and separation, from birth in 2001 until the parties' separation in December 2008, A lived in family with her stepbrothers, the defender and, for most of the time, the pursuer. A appears to know the pursuer as her father although he is not. However, the pursuer's legal interest to bring the action does not determine whether he is entitled to the order which he seeks. I agree with agents that whether to make an order falls to be determined pursuant to the provisions of section 11(7). The subsection was analysed in terms of three components: (1) the welfare of the child is the court's paramount consideration ("the welfare principle"); (2) it is better that an order be made than no order be made at all ("the no order principle"); (3) the child should be entitled to express a view and the court should have regard to those views ("the views of the child"). I shall use the abbreviated definitions when referring to these principles.

 

[22] Following amendment by the 2006 Act there are two other statutory matters to which I was referred and which are, or are potentially, relevant. Sections 11(7A)-(7C) contain the following:

 

"(7A) In carrying out the duties imposed by subsection (7)(a) above, the court shall have regard in particular to the matters mentioned in subsection (7B) below.

(7B) Those matters are-

(a) the need to protect the child from-

(i) any abuse; or

(ii) the risk of any abuse,

which affects, or might affect, the child;

(b) the effect such abuse, or the risk of such abuse, might have on the child;

(c) the ability of a person-

(i) who has carried out abuse which affects or might affect the child; or

(ii) who might carry out such abuse,

to care for, or otherwise meet the needs of, the child; and

(d) the effect any abuse, or the risk of any abuse, might have on the carrying out of responsibilities in connection with the welfare of the child by a person who has (or, by virtue of an order under subsection (1), would have) those responsibilities.

(7C) In subsection (7B) above-

"abuse" includes -

(a) violence, harassment, threatening conduct and any other conduct giving rise, or likely to give rise, to physical or mental injury, fear, alarm or distress;

(b) abuse of a person other than the child; and

(c) domestic abuse;

"conduct" includes-

(a) speech; and

(b) presence in a specified place or area."

 

 

For reasons of brevity, I shall refer to these provision as "the abuse provisions". Subsections (7D) and (7E) contain the following provisions:-

"(7D) Where-

(a) the court is considering making an order under subsection (1) above; and

(b) in pursuance of the order two or more relevant persons would have to co-operate with one another as respects matters affecting the child,

the court shall consider whether it would be appropriate to make the order.

(7E) In subsection (7D) above, "relevant person", in relation to a child, means-

(a) a person having parental responsibilities or parental rights in respect of the child; or

(b) where a parent of the child does not have parental responsibilities or parental rights in respect of the child, a parent of the child."

 

I shall refer to these as "the cooperation provisions".

 

[23] I turn now to the authorities to which I was referred. In my view, the authorities are of limited assistance in deciding this matter. The legal structure is established by the 1995 Act. The application of the relevant statutory tests will, inevitably, vary from case to case. White v White established that there is no legal onus on a party seeking a section 11 order. In the course of his opinion, referring to the speech of Lord Hope in Sanderson v McManus, the Lord President referred to the proposition that a child should have contact with his parents as a "working principle born of human experience". (para [15] page 490). The case of White involved a father who already had parental rights and responsibilities. The cases of Davidson, Donnelly and A v M all concern actions brought by unmarried fathers. The cases refer to the length of time since contact was taken and the conduct of the father. It seems to me that they tend to turn upon their own facts and that they establish no major principle not established elsewhere.

 

[24] Until the amendments brought about by the 2006 Act, the content of the welfare principle lay undefined by the legislature (see para [16] of the opinion of the Lord President in White v White). As the Lord President said "... when parliament says that judges are to have regard to the welfare of the child, it must consider that judges will, by and large, have a common conception of what that involves..." (para [14] page 489). As I understand it, in practical terms at least, what the court does is to reach a view on the evidence put before it and then apply the principles I have referred to above to those facts. In my opinion, inherent in the welfare principle is an element of judgement on the part of the court in reaching its conclusion. In this case, one issue which I have to consider is how the abuse and cooperation provisions fall to be applied to the principles in section 11(7)(a).

 

[25] I start by reference to the definition subsection. The principal definition is that of the word "abuse". Section 11(7C) prefaces the definition by the use of the word "includes". Within the definition of the word "abuse" in para (a) is the word "conduct". That is also defined and that definition is also prefaced by the word "include". In accordance with the usual rules of statutory interpretation, as a general proposition a definition section may be nothing more than a device or shorthand for a particular meaning the word or expression is to have. Alternatively, the definition may serve to extend the meaning of the word beyond what it might otherwise bear. It seems to me that the definition of "conduct" does the latter. It enlarges the definition of what amounts to "conduct"; it makes clear what actions may be taken to be included within "conduct" in circumstances where they might not otherwise be. I am inclined to a similar interpretation of "abuse". Whatever the dictionary definition of "abuse" may be it seems to me that the statutory definition is deliberately wider than the meaning the word itself might necessarily carry. Whether the definitions of the words are intended to be exhaustive is something that I do not require to decide. Before I leave the definition section I note that the definition subsection includes within the definition of abuse "domestic abuse" (see para(c)). On first view it does seem that there is a degree of circularity in the definition. There is no definition of "domestic" and "abuse" is defined, inter alia, as including "domestic abuse". I confess to some difficulty in seeing what (c) adds to paragraphs (a) and (b) and whether it is intended to qualify abuse as referable either to location or relationships or perhaps both. For my part, if there is evidence of behaviour falling within (a), and it happens within a family setting I think it is difficult to see that (c) adds anything. It will still be abuse within the meaning of (a).

 

[26] I turn now to section 11(7B). This subsection enumerates certain matters to which the court shall have regard referred to in section 11(7A). In my opinion, there is nothing in these provisions which requires that the abuse, or for that matter risk of abuse, need be directed against the child. Nor is there any requirement that the abuse be intentional on the part of the person carrying out the abuse. Paragraphs 11(7B)(a) and (b) refer to abuse affecting or effecting the child and that includes the risk of such an affect or effect. The definition of abuse includes conduct which is alarming or distressing or may give rise to alarm or distress. It says nothing as to whether such conduct need be directed towards a child. So if a child lives in an atmosphere of violence or constant shouting and alarming behaviour that might give rise to the application of section 11(7B). Paragraph 11(7B)(a) is an injunction to the court to take into account the need to protect the child from abuse. I note that the subsection refers to abuse which "affects or might effect" the child. It is not put in the past tense, presumably on the basis that the need for protection is a present or future need. Paragraph 11(7B)(b) is self explanatory. Paragraph 11(7B)(c) directs attention towards the person carrying out the abuse. Read short, paragraph 11(7B)(d) relates to abuse and the carrying out of any responsibilities as it may affect the welfare of the child.

 

[27] Section 11(7A) provides that in carrying out the duties contained in section 11(7)(a) (the welfare and no order principles) the court must "have regard to" the matters in subsection 11(7B) to which I have referred. The expression "have regard to" is not an unusual statutory expression. It appears in various enactments. In the context of this section it appears to me that if the court has material before it which evidences abuse, or the risk of abuse, then in reaching a conclusion as to the welfare and no order principles in section 11(7)(a) it must include in its deliberations the matters set out in section 11(7B). However, it also seems to me that the Parliament has not to gone so far as to provide that findings of abuse or the risk of abuse give rise to any presumption against the granting of an order.

 

[28] I do not consider that I need to be concerned with provisions of sections 11(7D) and 11(7E). I say that because the definition of a "relevant person" in section 11(7E) seems to me to exclude the present parties. The pursuer is not someone who has parental rights and responsibilities, nor is he a parent of the child. It did occur to me that the definition of "a person having parental responsibilities or parental rights" in section 11(7E)(a) might include someone who is awarded such rights in the context of the particular action before the court. However, I doubt that can be right. Section 11(7D)(a) makes reference to circumstances in which the court is considering making an order. That presupposes that the person in whose favour an order may be granted does not already have them. If that is the case then he or she would not fall within the definition of a person having parental responsibilities or parental rights. However, in my opinion that is not to say that the relationship between the parties is something to which I may otherwise not have regard as part of the material regarding my conclusion as to the welfare principle as it applies in this case. When enacting the abuse and cooperation provisions I do not consider the Parliament intended that the court should be restricted in the application of material it considers relevant to the welfare principle. Evidence which does not fall within the above provisions may yet be relevant to the court's final determination of the matters in section 11(7)(a).

 

[29] I return to the facts of this case. As I have said, the parties' relationship was, to put it mildly, volatile. The relationship was unstable, punctuated by periods of separation and reconciliation. I conclude that there was abuse as that term is defined in section 11(7C). On any view there is evidence of shouting; the pursuer engaged in violent and threatening conduct towards the defender; she was, on occasions, in a state of fear and alarm as a result of his behaviour; there is evidence of physical injury towards her. I also hold that the pursuer's behaviour towards the boys was alarming and gave rise to fear and distress on their part. I also hold that some of the behaviour involved physical violence towards them. On any view of the evidence the boys were afraid of the pursuer. It was suggested that if there was any violence towards the boys it was reasonable chastisement. The content of reasonable chastisement was assumed rather than explained. Taking a general view I would not conclude that what I have found to have occurred was reasonable chastisement. In any event, even if I am wrong, I doubt whether reasonable chastisement displaces or somehow qualifies the definition and application of abuse to which I have referred. If, as a matter of evidence, the definition applies then it may not matter as to whether one party believed their behaviour was reasonable chastisement. For reasons I have given, although it may be unnecessary, I also conclude that such behaviour amounted to domestic abuse. I also hold that none of this conduct was specifically directed at A. However, I do not think that matters. She was living in a highly charged atmosphere, sometimes violent. There is evidence from both the defender and C that it upset her. She would run away. She would cry. She would put her hands over her ears. Echoing the words of the Lord President in White v White, I think it is a common conception that living in such an atmosphere must have been and would be distressing for a child. I do not consider there is any need for expert evidence to vouch such a proposition. I do not overlook my conclusion that the defender may herself have engaged in certain verbal exchanges with the pursuer. Nonetheless the predominant cause of the abuse within the relationship is the responsibility of the pursuer. That deals with subsection 11(7B)(a) and (b). I return to the consideration of the welfare principle generally. In the pursuer's favour I do consider that he does have a genuine affection for A. That he is not A's biological father was said to raise a higher hurdle against the grant of an order. I do not agree. That approach comes perilously close to raising issues of onus, something which was dealt with conclusively in White. It seems to me that the absence of a biological link is a factor to weigh along with the other evidence. Indeed it might be said to be in the pursuer's favour that, notwithstanding the absence of a genetic link, he nonetheless wants to maintain a link with A. Put another way, it does not seem to me that just because there may be a working assumption that a child should have a connection with his or her biological parents, it follows that there is a similar assumption that there should be no connection with someone who is not a biological parent. In the abstract there may be all sorts of reasons why the application of the welfare principle dictates that an order should be made in favour of someone, notwithstanding the absence of a biological link with the child. Here, A considers the pursuer to be her father. As I have said, they lived as a family from 2001 to 2008. It would be surprising if there was not some relationship over that period. With the exception of the two occasions I have referred to above (neither of which can be described as satisfactory) the pursuer has not had contact with A since December 2008. A continues to have a memory of him. In my opinion, Mrs Pryde was correct to describe A's feelings as somewhat confused. It is consistent with the outlook of a child who has a caring a loving disposition that she should want to know that the person she regards as her father is safe and well. That is something that has troubled her. On the other hand she is scared of him. She does not want to see him alone. Furthermore, irrespective of the technical aspects of section 11(7D) any contact between the pursuer and A would require the involvement of the defender. It seems to me that any contact between the parties to this action is fraught with difficulty and likely to lead to friction. Of more importance, there is the risk that such friction would affect A. At the moment A is happy and well cared for by the defender. She attends school. There is no criticism of the quality of care by the defender. I find it difficult to see how, consistent with the welfare principle as it applies in this case, an order for parental rights and responsibilities in favour of the pursuer would be in A's interests. It would inevitably lead to conflict between the pursuer and the defender. The list of such rights and responsibilities is extensive. A has managed well without the involvement of the pursuer. Their introduction would disrupt A's life in circumstances where there is no need to do so. On the evidence it seems clear to me that the pursuer is prone to outbursts of violence and bad behaviour. Even giving him the benefit of the doubt he appears to entertain certain views as to the chastisement of children. There is evidence of excessive alcohol consumption. I struggle to see how it can be in A's interests to expose him to such behaviour of the risk of such behaviour. As I have said abuse need not be directed intentionally towards a child for it still to be abuse. In relation to section 11(7B)(c) and (d), as I have said, it does seem to me that the pursuer is someone who does have a difficulty in controlling his temper and also has views in relation to chastisement. Whereas there is little evidence that he has intentionally directed this behaviour towards A it has had an effect on her. That therefore is a another factor to which I have regard in my assessment of A's welfare.

 

[30] That leaves me with the question of contact. For the same reasons I have expressed in relation to parental rights and responsibilities I am not inclined to order direct contact. At the risk of repetition, A is scared of the pursuer and does not want to see him alone. She is attending the [CP] which is helping her deal with her past. Reintroducing the pursuer directly is, as I have said, an exercise fraught with difficulty. However, I also bear in mind that A has expressed a view that she wants to hear from the pursuer in order to know that he is safe. She wanted to have indirect contact. I appreciate A may have difficulties with reading and writing but I do not consider these to be insuperable. Such indirect contact will also avoid the risk of friction with the defender. If she wishes to reply she can but is under no obligation to respond. I do not foresee large quantities of regular correspondence. I have to say I do entertain some unease as to A's state of knowledge as to her paternity. At some point I assume she will have to be told the truth. It can only be speculation on my part as to how she will react and what effect it will have as to her feelings towards the pursuer including indirect contact. It is another factor to weigh in the balance.

 

[31] In relation to the objections to evidence it does appear to me that evidence of the pursuer's conduct towards the boys is very relevant to the determination of this matter. The issue is one of abuse in the context of the family relationship not who it was directed to. It is a factor in deciding the matter before me. In relation to the issue of the meetings in 2009 whereas there is some force in the objection, there was evidence led in examination in chief as to these matters. I shall acordingly repel both objections.

 

[32] The defender is not in favour of contact between A and the pursuer although she said she would accept it if that was the court's order. I consider that if I do not make an order for letter box contact it will not happen. As I conclude that it is in A's best interests that such an order on the limited basis I have ordered be made I shall do so. I shall reserve all questions of expenses.