Scottish Sheriff Court Decisions

 

SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT ABERDEEN

 

F69/09.

JUDGEMENT of Sheriff D. J. Cusine.

 

 

in causa

 

AS

 

PURSUER

 

against

 

SB

DEFENDER.

 

 

ABERDEEN, 9th September, 2010.

 

The Sheriff, having resumed consideration of the whole cause:-

 

(a) Finds in Fact:-

 

(1)               The pursuer and the defender are, respectively, the natural father and the natural mother of a child, S. The child was born on 1 August 2008. Prior to her birth, the parents had a short relationship which lasted from September 2007 until January 2008. It did not continue beyond March 2008 when its cessation became more widely known.

(2)               At the outset of the relationship, the pursuer, his sisters, MS and SS, and DW, his sister, MS's partner said that he, the pursuer, had been drug-free for "years." At some later point, but before the defender left Aberdeen in early November 2008, the pursuer promised the defender that he "would not touch drugs again." He did not keep that promise.

(3)               The relationship broke down because the pursuer was still using illicit drugs. There is lodged in process results of tests carried out by the pursuer's doctor. (No. 5/5/2 tests from 23.02.07 until 29.05.09, No. 5/5/4 from 06.11.09 until 22.04.10, and No. 5/5/6 tests from 18.02.01 until 22.07.10) These tests show that as recently as 20 May and 22 July 2010, there are traces in the pursuer's samples of what could be crack cocaine. The tests were not done regularly. Heroin, to which the pursuer admitted being addicted, passes out of the body within days and would not necessarily show in such tests.

(4)               The fact that the relationship had broken down was not disclosed to the respective families of the parties until March 2008, because the defender feared reprisals at the hands of the pursuer's family and in particular, his sister, MS. The defender had been told of this possibility by the pursuer.

(5)               The pursuer was present at the child's birth, but the defender registered the birth; that did not mention the father. That entry was subsequently changed, as a result of the pursuer again advising the defender that she might suffer reprisals at the hands of his family, in particular, MS. MS made threats to the defender's mother and her step-grandfather over this issue.

(6)               After the birth, the pursuer did attend at the defender's home to see the child, but he did so on his way to or from the chemist from whom he was obtaining methadone.

(7)               He took photographs of the child, but did little to assist with her feeding, bathing or changing. He fed her three times, bathed her once. Often he fell asleep. During this time, the parties were living at separate addresses. They have never lived together as a couple.

(8)               The pursuer told the defender that he was the father of his sister, MS's child. DNA tests indicate that he is not.

(9)               On 23 October 2008, the pursuer came to the defender's home, in breach of a bail condition. He assaulted a friend of the defender's who was present to assist her in getting a cot for the child. The pursuer's sisters arrived and the windows of the defender's house were smashed, by among others, the pursuer. At that time, the pursuer's sister, MS, threatened the defender that she and her family would "get it."

(10)          On 4th November 2008, the pursuer and some members of his family, including his sister, MS, and her partner, DW, attended at the defender's parents' home. Her step-father was threatened by MS. The following day, they returned, wearing hoods. The downstairs front windows were smashed and the defender's step-father's car was vandalised by those persons. A short time later, the defender's step-father was assaulted by some of these people, including the pursuer. The father sustained a broken nose and was hospitalised.

(11) As a result of these activities, the defender and her parents were in fear for their safety, and both the defender and her mother moved out of Aberdeen. The defender's parents sold the family home, because of fear.

The defender lost confidence in herself, was reluctant to go out of her accommodation and did not feel at ease when in the presence of people she did not know. Even while she was out of Aberdeen, she was afraid that the pursuer and/or his family might trace her. While they have now returned, they live at addresses which they do not wish to be disclosed.

(12) There has not been any communication between the pursuer and the defender since she left Aberdeen in late 2008. The pursuer has not seen the child since then. The defender has managed to look after the child's needs on her own since that time.

(13) The defender continues to be terrified of the pursuer, is fearful for her own safety, for the safety of the child and that of her parents. She knows that the child is scared. Since the defender's return to Aberdeen, she has been treated for what her doctor describes as "overriding anxiety and stress." (No.6/2/1 of process, a letter dated 11.03.2010.)

(14) The defender's sister has moved out of the area of Aberdeen in which she stayed, because of fear for herself. Her child is also afraid. That fear emanates from the pursuer and his family.

(15) The defender "hates" illicit drugs, her explanation being that her father had died from a drugs-overdose.

(16) The pursuer has convictions for crimes of dishonesty, assault, and contraventions of the Misuse of Drugs Act 1971. The pursuer's sister, MS, has a recent conviction for breach of the peace in relation to conduct in Aberdeen Sheriff Court where the defender was a witness in a trial in which the pursuer was the accused.

 

(b) Finds in fact and in law:-

 

(1)               That it is not in the child's best interests that a contact order be made.

(2)               It is in the child's best interests that an order terminating the pursuer's parental rights and responsibilities be made.

 

THEREFORE, Repels the pursuer's pleas-in-law; Sustains the defender's pleas-in-law; Makes no award of expenses in respect of either party.

 

 

 

 

 

 

NOTE.

 

 

The pursuer, who is represented by Mr Masson, seeks contact with his daughter, S, whose mother is the defender. The pursuer is the natural father and has parental rights and responsibilities. The defender, who is represented by Mr Lindsay, is opposed to such contact and she has a crave for the removal of the pursuer's rights and responsibilities in respect of the child.

 

Evidence was led on 23 and 24 August, and on 1 September, with submissions then also.

 

The pursuer gave evidence and evidence was given on his behalf by his GP. Dr. Alastair Weston, PJ, SM, his sister MS, and DW, that sister's partner. The defender gave evidence and evidence on her behalf was given by her mother MB, her step-father JB, her step-grandfather, AB, and SMcE, a domestic abuse social worker.

 

 

 

Submissions for the pursuer.

 

I was invited to find the pursuer and his witnesses credible and reliable, and to prefer their accounts to that of the defender and her witnesses. The pursuer had spoken to a relationship which had lasted until after the child's birth. That had also been spoken to by PJ and SM. The defender, it was said, was unsure about when the relationship ended, giving two dates, January and March 2008. In that, she was unreliable. The defender's mother had spoken only to what she had been told by the defender.

 

The defender had given the pursuer a Valentine's card, which would normally be on 14 February. It contained a message from the defender demonstrating some endearment toward the pursuer. Her explanation that she had found the card and had given it to him prior to 14 February lacked credibility.

 

It was not disputed that the pursuer had been present at the birth and had cut the umbilical cord.

 

If I accept the pursuer's account, then the defender's move from Aberdeen is not understandable and is an over-reaction, or is one for which there is another motive.

 

The pursuer's drug-use was accepted, but the tests show that it is an occasional use of cocaine and/or cannabis. There is no evidence of the use of heroin to which he had been addicted in the past and his use of methadone confirms his position that he is free of that addiction. If that is accepted, it is understandable that his family would regard him as "drug-free."

 

While the pursuer accepted that he has an extensive list of previous convictions, the present position is not clear.

 

One of the defender's arguments for their not being any contact and for removal of parental rights and responsibilities is the conduct of the pursuer and his family. No criminal prosecution has followed from the activities relating to her house, her parents' house and the assault on her step-father, events which took place nearly two years ago.

 

The defender was unreliable in respect of her evidence about when she returned to Aberdeen.

 

Another ground put forward by the defender is the pursuer's alleged parenting of a child by his sister. The DNA tests demonstrate that he is not the father and there is therefore no basis for that allegation, in respect of which the pursuer's sister was understandably upset when she gave her evidence on this point.

 

In relation to the defender's crave for the removal of the pursuer's parental rights and responsibilities, reference was made to s. 11(7)(B) of the Children (Scotland) Act 1995 which requires courts to protect children from abuse. It was submitted that there is no evidence of abuse directed towards the child, nor about the impact on the child of anything felt by the defender. The child is young and not therefore of an age to understand. It would be implicit in any order terminating these rights that it was not appropriate that the pursuer have any contact with the child. The benefit of any contact has not been tested-there has not been any opportunity so to do. The pursuer said that he is keen to have contact and to do his best for the child, and he accepts that it would be appropriate for the contact to be supervised, in the initial period. Any exposure of risk has to be taken account of, but if the contact were at a contact centre, or there were other appropriate supervision, it could work. As the child is young, it would be difficult for any relationship to be built up, in the absence of contact. There is a potential benefit to the child: courts try to encourage contact with both parents. If contact were put in place, it would be obvious at an early stage whether it was working or not.

 

The decision referred to by the defender, viz: SGR v. LR (Edinburgh Sheriff Court, Sheriff Holligan) 21 June 2010 was distinguished, on the basis that, in the present case, the pursuer has parental rights and responsibilities and that the abuse was not directed at the child.

 

Submissions for the defender.

 

Reference was made to s. 11(7) of the 1995 Act which makes the welfare of the child paramount and requires the court to make an order only if it is better that one be made, than not. S.11(7)(B) requires a child to be protected against abuse, and that includes both actual abuse and the risk of possible abuse. Abuse of the defender, if established, is a factor. "Abuse" is defined in s. 11(7)(C) as including "(a) violence, harassment, threatening conduct, and any other conduct giving rise to, 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."

 

One of the factors prayed in aid by the defender is the pursuer's drug abuse. It was submitted that even the recent tests show cocaine, which could be crack cocaine. While there is no trace of heroin, the tests were intermittent and not regular, and, in any event, the pursuer's doctor's evidence was that heroin passes out of the system within days. One could not therefore be certain that the pursuer is not still using heroin.

 

It was submitted that the defender and her witnesses were credible. The family's fear was real enough to prompt them to leave the area of Aberdeen in which they resided. On that basis alone, there ought not to be a s.11 order in favour of the pursuer.

 

In relation to the crave for removal of parental rights and responsibilities, reference was made to s.11(1) and (2). Parental rights and responsibilities include things such as discipline, education, religion, physical and mental health. If the pursuer were left with parental rights and responsibilities, the defender would be under a duty to consult with the pursuer about the child. There has not been any communication for two years. The power to withdraw these rights is provided for in s.11(2((a). The real fear which the defender has of the pursuer and his family would, in itself, justify the removal of these rights.

Reference was made to SGR v. LR, supra.

 

 

 

 

 

Assessment of the witnesses.

 

I found the defender and her witnesses to be both credible and reliable. It was clearly an ordeal for the defender and her mother to give evidence and each was visibly very upset throughout their testimony. (The defender's position in court was not made any easier, because the pursuer continually stared at her, which she clearly found intimidating.) The defender said that the pursuer, his sisters MS and SS and MS's partner DW, told her when they first met that the pursuer had "not touched drugs for years." In relation to that, the pursuer and the others did not tell her the truth, as the GP's tests reveal. At that point, the defender said that she was not aware that the pursuer was on methadone, and I accept that.

She said that she had been threatened with violence by the pursuer's sister, MS, and that that sister had also threatened to kidnap the defender's child as had the pursuer and I believe that also. She said that the pursuer had attended at her home on 23 October 2008 and had smashed the windows. He denied being there, but she said she recognised him and the clothing which he was wearing. He denied being at her parents' home when it and their car was vandalised, and denied being a party to the assault on her step-father. He said that it was common knowledge in Torry that the defender's parents' home had been attacked, but he had not heard about the damage to their car. I do not believe that and I believe that he was present and participating in these activities. In relation to the episodes at her parents' home and the assault on the defender's step-father, the defender accepts that she was not present. However, her step-father and mother identified the pursuer, DW and the pursuer's sister, SS, as being present, albeit the defender's mother identified them from CCTV which was installed at their home. I accept that evidence in preference to that of DW and the pursuer.

I did not find the pursuer credible or reliable, and where the accounts of his witnesses differ from that of the defender and her witnesses, I prefer the latter. Their accounts, in relation to material matters were internally consistent, and consistent with each other. The defender avers on record that the pursuer has an "extensive list of previous convictions for assault, dishonesty and drugs offences." That is met by a bare denial. That said, the pursuer admitted in evidence that he has previous convictions for such offences. The pursuer also denied having outstanding court cases. While the precise nature of his present offending, if any, was not spoken to, nor is there a documentary production, the pursuer accepted in cross-examination that he had been in court in August 2010 in respect of breaches of probation, but was not able to confirm Mr Lindsay's assertion that there were 10 such cases.

 

The pursuer told the defender at the commencement of their relationship that he had been drug-free for years. That does not sit well with his later promise to the defender that he would not touch drugs again, unless the explanation is that the pursuer had been drug-free for years prior to meeting the defender, but had started to take illicit drugs, and when she discovered that, he made the promise. That seems unlikely.

 

The pursuer denied that he is still using illicit drugs, despite the documentary productions, (Nos. 5/5/2, 5/5/4 and 5/5/6 of process). According to his sister, MS, the pursuer had had one "relapse," or had "buggered up," as she also put it, something which is not borne out by the tests. According to DW, "there were lapses," i.e. more than one, and he knew that the pursuer was taking cocaine, "because of stress from [the defender's] family."

 

The pursuer and his witnesses said he was a caring father and that the couple enjoyed a happy relationship, until shortly after the child was born. PJ, who lives in the same area as that in which the pursuer and defender formerly resided, said that she saw them often, but did not know whether they were living together. That seems somewhat unlikely, given the knowledge that others had, that the pursuer had his own home, and that he and the defender were not living together. She did say that they were happy in each other's company. She accepted that the pursuer had lied to her, when he told her that he had been off drugs for some years. SM, who also lives nearby gave evidence to much to the same effect, but she accepted that she did not see them very often. MS, the pursuer's sister, spoke to being very close to the pursuer, but also declared that he had been drug-free for years. According to her, the house-move by the defender's parents was planned, and according to her partner, DW, there were no threats issued to the defender's parents. MS denied making threats. I find the suggestion that the defender's parents' house move had been planned, in the sense that it had nothing to do with the vandalism and assault, highly improbable, given that they had lived in that area of Aberdeen for some time, i.e., about 15 or 16 years, and they did not give any other reason for leaving. The pursuer's sister, MS, and her partner, DW, denied making threats to, or towards the defender and her family, and denied being involved in any vandalism or assaults. I do not accept these accounts. I do not accept the pursuer's suggestion and that of his sister, that the defender knew of, and accepted his drug habit.

 

According to MS and DW, the defender said that the pursuer's name was omitted from the original birth certificate so that the defender could get some social security benefit. Why that might be so was not explored. The defender's evidence was that she and the pursuer could not agree on whether the child's surname should be "B," as the defender wished, or "S" as the pursuer did, but that he was "OK," about not being registered as the father. However, he began threatening her, when his sisters knew what had happened. I accept that.

 

The pursuer said that when contact ceased, he did not know what his family thought of that. He did say that he was close to his sister, and she confirmed that. His sister, by contrast, said that he was, "lost." It is improbable, in my view, that she did not express any opinion to the pursuer about the cessation of contact. According to DW, the pursuer was "not pleased" and MS was "unhappy." That does not accord with the pursuer's position that he did not know what the family thought.

 

I prefer the evidence of the defender and her witnesses about the nature and the duration of the relationship. In my view what is important is not the length of the relationship, or its nature in the initial stages, or the sending of a Valentine card whenever that might have been. Rather what is of significance is what happened to the relationship in the latter part of 2008. In my view, the defender's evidence that the relationship broke up because the pursuer was using illicit drugs, is entirely credible, given her hatred of such drugs, and her belief, based on what she had been told by the pursuer and his family that he had been drug-free for years. His samples still show traces of cocaine, and he said in evidence, "I am not a cocaine user, but I will take it." I am not sure what that means.

 

I believe that the pursuer told the defender that he was the father of his sister's child, which had been conceived by in vitro fertilisation. DNA tests have established that that is not the case, but one has to wonder about the motives of someone who would say that, especially where the mother is his sister. His position is that the defender knew that the child had been conceived by IVF, and presumably also that DW was the father. Only a particularly malign person would make up a story of that nature and I do not accept that the defender is such a person. The pursuer's sister's (MS) suggestion that the averment was made to delay the court action is without foundation. The averment was added by adjustment on 27 November 2009, but there is nothing to suggest that the anticipated progress of the action was impaired thereby.

 

It was submitted that her removing herself from Aberdeen was an over-reaction. Given my view that her fear for herself, her child and her parents was and is real, I do not subscribe to that view. The final witness for the defender, SMcE, a domestic abuse worker, was instrumental in the defender's decision to leave Aberdeen. She identified the defender's position as one of "high risk." She suggested that the defender install an alarm which has a direct connection to the police. There are only 15 of these in Aberdeen and the police would, themselves, have to be satisfied that the need was genuine. Such an alarm was installed. SMcE was not in any doubt that the defender's fear was genuine, and she had visited the defender's step-grandfather's home where she saw the defender, her parents (her recently-injured step-father) and the child. She accepted that there had not been any independent assessment of the defender's situation, but was not in doubt that she was genuinely "terrified" of the pursuer and his family.

 

It was also submitted that the defender is not credible and reliable in that she was unclear about when she returned to Aberdeen. The final witness spoke to being in regular contact with the defender, while she was out of Aberdeen and she was of the view that the defender had returned in 2010 and not 2009. In any event, I do not put much store by the precise time at which the defender returned.

 

Decision.

 

In relation to contact, a decision must be based on the principles that the welfare of the child is the paramount consideration, and an order should not be made unless the court considers that it would be better for the child that an order be made, rather than that no order is made. (s.11(7)(a).) The court must also consider the child's age and maturity and the child's views, but in this case, the child is too young to express a view. (s.11(7)(b).)

 

The pursuer has not seen the child for approximately 2 years. According to the defender, the child is settled in her new home, and is healthy and well cared for. There is no evidence to the contrary. I cannot see any benefit to the child in having any contact with the pursuer who has an extensive list of previous convictions and was, at least until very recently, still appearing in court, in relation to outstanding probation orders. I am not going to speculate on whether the pursuer continues to offend, or is still using heroin. His medical records disclose that he was still using illicit drugs in 2010.

 

His family are obviously quite prepared to resort to threats, vandalism and assault, to and on those such as the defender and her family, and their respective property, in order to get what they want, or to prevent the defender from doing what she wants. It is clear to me that the defender is still very afraid of the pursuer and his family. Treating the child's welfare as the paramount consideration, it is not in the child's interests to have contact with a father of whom the defender is, with justification, fearful, or more likely, as she herself said, terrified. I am not convinced, standing the actions of the pursuer alone, that even supervised contact would work. The actions of his family fortify me in that view, in that it is likely that they would interfere in relation to contact, if they were of the view that it was not what they wanted. For all of the above reasons, I am not prepared to allow the pursuer contact, even supervised. In my opinion, it is better for the child that an order be made, rather then there be no order.

 

(To her credit, despite all that she has been put through, the defender said that she would advise the child in the fullness of time about her father and if, when she reached an age of understanding, the child wished to see him, the defender would not prevent that.)

 

Turning to the issue of parental rights and responsibilities, the "welfare" principle and the "no order" principle referred to above apply. In addition, the Act states that where the court is considering making an order under s.11(1) and in pursuance of any such order, two relevant persons would have to co-operate with one another in relation to matters affecting the child, the court has to consider whether or not it is appropriate to make the order. (s.11(7)D). The pursuer and the defender are relevant persons for the purposes of that sub-section. I accept that the circumstances in SGR v. LR were different. That said, I have no hesitation in following the approach taken by the learned sheriff in relation to the principles to be applied, albeit to a different set of facts.

 

In this case, the relevant persons, the pursuer and the defender have not had contact with each other for 2 years, and the child has not had contact with the pursuer for that period. Given the understandable and justified fear which the defender has of the pursuer and also his family, I see no prospect of their ever co-operating with each other in relation to matters affecting the child. Given that the pursuer and his relatives have been prepared to resort to threats to the defender, inter alia to kidnap the child, there is a risk that they would continue to threaten the defender in relation to the child. That would militate against any cooperation and would point to an order being made, depriving the pursuer of his parental rights and responsibilities.

 

The defender has been subjected to abuse as defined by s. 11(7)(B) of the 1995 Act, and there is an obligation on the court to protect any child from such abuse or the risk of a recurrence of abuse. Any repetition of the abuse is almost certain to have an adverse effect on the defender, who continues to be treated by her doctor for anxiety and stress. The abuse does not need to be directed at the child, but the child already senses an anxiety in her mother and any contact is likely to increase that anxiety and stress which could have an adverse effect on the defender and the child. That too would justify the making of the order which the defender seeks.

 

I have held it established that the relationship between the pursuer and the defender was of short duration, and that he took little to do with the upbringing of the child, even when the parties lived in close proximity to each other. It is obvious that he has not had an opportunity to demonstrate his commitment since the parties separated. Given the pursuer's previous drug habit, his previous criminal convictions, the fact that he still had court appearances as recently as August 2010, and his attitude towards the defender and her family, I cannot see how the child who is now settled in her current environment can benefit from a continuing association with the pursuer. I have grave doubts about the pursuer's ability to care for the child's needs, and, in my view, there is a considerable risk that the child's welfare will be adversely affected by the abuse which has taken place already, and an future abuse there might be, whether from the pursuer, his family, or both.

 

Any exercise of parental rights and responsibilities by the pursuer would lead to conflict between the pursuer and the defender, brought about either by the pursuer himself, or by his family, or both. There is no evidence that the defender has not managed to look after the child's interests since the pursuer and she separated, and I would foresee considerable disruption to that order of things were the pursuer now to be re-introduced to the child's life. It is unlikely, given the age of the child when the parties separated, that she would recognise the pursuer, far less as her father.

 

Once again, treating the welfare of the child as paramount, for all of the reasons set out above, I consider that the pursuer's rights and responsibilities should be terminated and that it is better for the child that such an order be made, rather than none at all.

 

In relation to both contact and parental rights and responsibilities, were I not to make an order, that would leave the defender and that of the child in a state of uncertainty, which, in the present case, would be highly undesirable. In my view, what the defender and her child need is finality, and a refusal of contact and a cessation of parental rights and responsibilities provides as much of that as can be achieved by a court order.