Scottish Sheriff Court Decisions

Sheriffdom of Tayside, Central and Fife at Stirling

 

F12/08

 

JUDGMENT

 

of

 

SHERIFF A. WYLLIE ROBERTSON

 

in the case

 

 

NJDB

PURSUER

against

 

Mrs JEG

DEFENDER

and

 

John Noel James Andrew, Solicitor

 

CURATOR AD LITEM to [S] AND THIRD PARTY MINUTER

 

For the pursuer:

Halley, Advocate; instructed by Jardine Donaldson, Solicitors, Alloa

 

For the defender:

Buchanan, Advocate; instructed by Virgil Crawford, Solicitors, Stirling

 

For the Curator and Third Party Minuter:

John NJ Andrew, Party

 

Stirling, 22 January 2010

The sheriff, having resumed consideration of the cause, finds the following facts admitted or proved:

(1)          The pursuer is NJDB. He is 55 years of age. He has no permanent address. He has lived temporarily with his mother in Hertfordshire since May 2008. In September 2009 he gave up the tenancy of his flat in Scotland. He intends to remain in the Hertfordshire area.

(2)          The defender is Mrs JEG. She is 44 years of age and lives with her husband, BG, in a village within this jurisdiction. She is the mother of three children: a female child [Z], born in 1996; a male child [S], born in 2000; and a male child [A], born in 2007.

(3)          Each child has a different father. The pursuer is the father of [S]. The defender's husband is the father of [A].

(4)          The defender has a degree in English and a masters degree in teaching English to speakers of other languages, both awarded by the University of Stirling. In 2000, she embarked upon a PhD in applied linguistics at that university but has not yet been awarded her doctorate.

(5)          She is a lecturer and undertakes part-time tutoring and proofreading of masters and PhD dissertations.

(6)          In March 1997, the defender moved to Germany to work as a teacher in the pursuer's language school there.

(7)          Along with her daughter [Z], the defender moved into a flat next door to the pursuer. An au pair looked after [Z] when the defender was working.

(8)          Almost immediately after her arrival in Germany, the defender commenced a sexual relationship with the pursuer.

(9)          Around Christmas 1997, the defender returned to Scotland. She continued to work for the pursuer, training and recruiting teachers for him. Their personal relationship continued, the pursuer visiting her monthly for three to five days at a time.

(10)      By the time the defender returned to Scotland, the pursuer had established a very close relationship with [Z]. After [Z]'s return to Scotland, the pursuer spoke to [Z] on the telephone most nights.

(11)      [S]'s conception was not planned. News of the defender's pregnancy was not well received by the pursuer. He reduced the defender's mother to tears when he expressed doubt that he was the father, and later had to apologise to her. He wanted to discuss abortion, which the defender refused to contemplate. By this time the relationship had deteriorated. The pursuer continued to visit and stay with the defender to see [Z] and, after he was born, [S].

(12)      At no time did the pursuer and defender live together as a couple, although they shared a bed when the pursuer visited the defender.

(13)      On or about 22 August 2000, when the pursuer was staying with the defender for a visit he assaulted the defender during an argument by punching her in the face. The pursuer fractured the defender's nose. She hurt her finger. Police officers were called. The defender's sister and brother-in-law travelled from Ayrshire to comfort the defender. Some considerable time later, the defender underwent surgery to repair the damage to her nose.

(14)      For about three months after this assault, the pursuer did not visit the defender or contact the children. Any remaining personal relationship between the parties came to an end as a result of the assault.

(15)      The pursuer saw [Z] and [S] at Christmas 2000 and had residential contact with both children during 2001 and 2002 approximately one week in every four.

(16)      In or about March 2002, the defender raised concerns about: (1) the pursuer's short notice of requests for contact; (2) the pursuer stopping the payment of maintenance for [S]; and (3) the unannounced introduction of another female who appeared to be present during contact and involved in bathing the children. Parties attended mediation to try to resolve issues surrounding contact. The pursuer continued to have residential contact with [Z] and [S].

(17)      At this time, [Z] understood the pursuer to be her father.

(18)      Between November 2002 and February 2003 [Miss ZS] lived with and worked for the defender as au pair. She is Slovakian. Her spoken English was not good. She was the defender's third au pair.

(19)      At this time, the pursuer was having residential contact with [Z] and [S] for about five days approximately once a month.

(20)      In or about December 2002, the pursuer contacted [Z]'s school to raise his concerns about the defender's parenting skills. The head teacher had no such concerns. The pursuer thereafter reported the defender as an unfit mother to the local social work department. After considering his complaint, the department declined to investigate it. The defender was unaware of these events until about August 2003.

(21)      The defender met her present husband, [BG], in or about February 2003.

(22)      The relationship developed. After a while, [BG] stayed overnight in the defender's house. In or about July 2003, he moved in with defender.

(23)      [BG] wanted to have a meeting with the pursuer, with the defender present, to reassure him about matters impacting on [S]. The defender took no steps to facilitate such a meeting. The defender married [BG] on 5 January 2004.

(24)      On 17 August 2003, after returning from a contact visit with the pursuer, [Z] told the defender that the pursuer had told her he intended to raise court proceedings to have [Z] and [S] live with him. In the preceding months, [Z] had been becoming increasingly unsettled and less keen on her contact visits with the pursuer. She arrived home from that visit very upset that the pursuer had been discussing with her going to court, asking her if she wanted to reside with him and telling her that he intended that she and [S] should reside with him. The pursuer told [Z] that she and [S] would be better off living with him than their mother. He asked [Z] if her mother hit or shouted at her. He called the defender 'a fucking bitch' in [Z]'s presence. The defender discovered that the pursuer had, during contact visits, been having deep discussions with [Z] in relation to her life with the defender, about [BG], how the defender treated her and if [Z] would like to live with the pursuer. During these discussions the pursuer said that the defender was a terrible person and a bad mother.

(25)      At this time, [Z] was prone to exaggerate and to tell lies either with a view to gaining attention or as a means of getting back at her mother if she was angry with her mother for any reason. During contact visits with the pursuer, while pressed by the pursuer about her home life with her mother, [Z] told the pursuer what she perceived the pursuer wanted to hear. This included a lie that her mum had sent her to bed without any dinner and had put her in a cold shower or bath with her clothes on.

(26)      On or about Friday, 22 August 2003 the defender drove into a local petrol station with [Z] and [S] in the car. Upon finding that the pursuer was coincidently already there, the defender drove back out. The pursuer, who had not yet drawn any fuel from the pump, jumped back into his car and followed them. They passed through one roundabout and at the next roundabout the pursuer drove his car level with the near side of the defender's car to get a look at the children. The pursuer continued to follow the defender. The defender drove into another petrol station. The pursuer followed her in. The defender, without taking fuel, drove back out of the petrol station. The pursuer did not continue his pursuit. In following the defender and her children, the pursuer was deliberately provocative and confrontational. He cared nothing for the alarm and concern he caused by his actions.

(27)      He immediately telephoned the defender's sister, [Mrs JB], who happened to be in Glasgow to later meet the children and take them to her house for the weekend. The pursuer engaged her in conversation for so long that [Mrs JB] had to bring the conversation to an end because the defender had by then arrived, having travelled from Stirling to Glasgow.

(28)      The pursuer wrote a letter dated 28 August 2003, number 5/3/2 of process, to the defender's sister, [Mrs JB], in an unsuccessful attempt to garner support from her. This letter, self-serving and pontificating, is a damning indictment of the defender's character and her fitness as a person and a mother. It criticises her suitability as a parent. It refers to personality flaws, which the pursuer states jeopardise the safety and security of the children. It accuses the defender of mentally torturing [Z], which the pursuer claims he saw and describes as 'ceaseless'.

(29)      About this time, the defender had a meeting with JF, headteacher of [Z]'s primary school. She did so, firstly, because of her perception that the pursuer might raise court proceedings and wished the headteacher to know that the pursuer was not [Z]'s father, and, secondly, to introduce [BG] as a person with whom the school might have contact in relation to [Z].

(30)      The defender discovered at this meeting that the pursuer had already advised the headteacher that he was not [Z]'s father. He had done so months ago. The defender discovered at this meeting that the puruser had also previously raised concerns with the headteacher about [Z]'s safety in the defender's care. He told the headteacher that the defender shouted at [Z] and had physically and mentally abused her. The headteacher told the pursuer that the school had no such concerns and that, if he still remained concerned, he should take it up with social services.

(31)      The defender was incensed to discover the pursuer's conduct with [Z], the lies [Z] had been encouraged to tell the pursuer, his intention to seek residence of [Z] and [S] and his complaints to the school and social work department that the defender was an unfit mother. Consequently, she stopped the pursuer's contact with the children.

(32)      Until these discoveries, the defender was unaware that the pursuer had contacted the school or the social work department in this way or had any criticism of her parenting skills.

(33)      In about October 2003, the pursuer raised court proceedings in Alloa sheriff court seeking, inter alia, parental rights and responsibilities in relation to [Z] and [S] and a residence order that [Z] and [S] should reside with him or, alternatively, residential contact with both children.

(34)      In his Initial Writ, the pursuer offered to prove, inter alia, that the defender has physically mistreated both children; that she frequently pulls [Z]'s hair; that about 26 November 2002 the defender assaulted [Z] in her bedroom over a period of approximately 15 minutes, that she gripped her by the throat and attempted to throttle her, that she forced the child fully dressed into a cold shower; that about 10 January 2003 she hit [S] who was upset and unable to sleep; that she sent both children to bed without food; that she bullies her children; that she attempts to control their behaviour with the threat of violence and the withdrawal of her affection; that she habitually shouts and screams at them; that she is emotionally manipulative; that in January 2003 she threatened [S] that he would be given away to other people if he did not do as he was told; and that the defender's abusive behaviour is likely to harm the children's mental welfare and development in the future.

(35)      During November and December 2003, [Z] attended sessions with MMcK, an educational psychologist. These sessions were arranged by the headteacher following a meeting that the defender and her husband had with the headteacher.

(36)      On 12 December 2003, the sheriff at Alloa granted the pursuer interim non-residential and residential contact with [S] on specific dates in December 2003 and January 2004.

(37)      On 20 January 2004, after interviewing [Z] who did not want to have any further contact with the pursuer, the sheriff decided that the pursuer should not have contact with [Z].

(38)      On the same date, the sheriff granted the defender residential contact with [S], from Friday afternoon until Monday morning every second weekend. This pattern of contact continued until the diet of proof assigned for 6 July 2004. [S] found this contact generally enjoyable.

(39)      A six-day proof diet was scheduled at Alloa Sheriff Court. After two days of intensive negotiation, the pursuer conceded that [Z] and [S] should reside with the defender. The parties agreed, inter alia, that the pursuer should have residential contact with [S].

(40)      The agreement between the parties was set out in the interlocutor of 7 July 2004, which is in the following terms:

The Sheriff, Allows joint minute for parties to be received at the bar and form No 15 of process Interpones Authority thereto and in terms thereof 1. Grants the pursuer parental rights and responsibilities in respect of the child [[S]], born ...April 2000. 2. Finds the Pursuer entitled to contact with the said child as follows (I) In every period of four weeks for one weekend from Thursday at 3pm until Tuesday at 9.30am (ii) In October 2004 for a period of seven days, said period to include a period of contact provided for in clause 2 (I) hereof (iii) In Summer 2004, for a period of 12 days, said period to include a period of contact provided for in clause 2 (I) hereof (iv) In Summer each year, from summer 2005 for a period of fourteen days said period to include a period of contact provided for in clause 2 (I) hereof (v) At Easter each year, for the second half of the school Easter holiday period (vi) During each Christmas/New Year period, from 12 noon on 26 December until 12 noon on 30 December and from 12 noon on 2 January until 12 noon on 4 January (vii) For a period of two hours on the said child's birthday and on the pursuer's birthday, in the event that said child's birthday, or that of his sister [Z] falls during the pursuer's contact, the defender may, if she so wishes, interrupt the pursuer's contact on that day for a period of not more than two hours. (viii) In the summer the defender shall have a period of 14 consecutive days in which to take [S] on holiday and the pursuer's contact shall be arranged to accommodate said period. 3. For the avoidance of doubt, during the Christmas holiday periods, the pursuer will not exercise the contact provided for in clause 2 (I) between the last day of the school term and the Thursday or Friday, whichever is appropriate, immediately after 4 January. The said child will spend Christmas Day in each year with the defender. 4. That the pursuer shall be consulted by the defender on matters of importance relating to the health, welfare, education and upbringing of the said child. 5. That each party will facilitate contact by telephone between the said child and the other party in the event that the said child requests same. 6. If the above contact is working agreeably the defender will not object to the pursuer taking the said child abroad on holiday as from August 2005 and the defender will provide the pursuer with [S]'s passport to enable holidays abroad after that date to take place. 7. Quoad ultra the pursuer's craves shall be dismissed. 8. Finds no expenses due to or by either party.

(41)      By the time of the proof in July 2004 the relationship between the pursuer and defender was poor because the pursuer was seeking an order that the children be removed from the defender to live with him on the basis of averments that the defender had physically mistreated both children and her abusive behaviour was likely to harm the children's mental welfare and development, which basis the defender considered was wholly unfounded in fact.

(42)      The defender did not trust the pursuer.

(43)      The negotiations took place over two days within the building of Alloa sheriff court. They were not conducted face-to-face. The pursuer and defender were in separate rooms. Negotiations were conducted between counsel and solicitors instructed by each party. Professor James Furnell, consultant psychologist, who had on 4 June 2004 been appointed by the court to carry out a psychological examination of the children, but who had not yet prepared a written report, was in attendance within the building and available for consultation by the parties. He was consulted briefly by counsel for one of the parties.

(44)      Notwithstanding her belief that the pursuer's allegations of mistreatment were unfounded, the defender was advised to recognise the risk that the pursuer might be successful after proof. Consequently, she felt under considerable pressure to agree to any settlement that allowed the children to remain residing with her.

(45)      She very quickly regretted the agreement.

(46)      Although detailed, the interlocutor of 7 July 2004 did not provide for the dates upon which the regular weekend contact was to begin, or when during each four-week period it was to occur.

(47)      It did not expressly recognise the pre-arranged holiday the children were to take with their aunt at the end of July 2004, which had been discussed during the negotiations and of which the pursuer was aware.

(48)      It did not provide for the method of communication between the parties necessary to give effect to the agreement.

(49)      The solicitor for the pursuer wrote to the defender's solicitor on 23 July 2004 proposing dates for contact.

(50)      Disputes immediately emerged about each party's understanding of the date upon which the weekend contact was to commence and the dates of the children's holiday with their aunt.

(51)      The defender's solicitor was leaving his firm and left the defender to reply directly to the pursuer's solicitor.

(52)      When she did so, she took umbrage at the comment that both parties had compromised in coming to the agreement. Her reply was combative and her correspondence continued in that vein. She was not prepared to communicate directly with the pursuer by e-mail, as tentatively proposed by the pursuer's solicitor, or in any other direct fashion due to her perception of his previous conduct, including frequent, inappropriate disclosure to third parties of her previous e-mails and correspondence to him, and her lack of trust. She was prepared to communicate either directly with the pursuer's solicitor or another intermediary. The pursuer's solicitor was not prepared to do so due to the costs that the pursuer would incur. The defender suggested as an intermediary the pursuer's secretary or any person who had been on the pursuer's list of witnesses. She was prepared to correspond with anyone the pursuer deemed fit. No intermediary was ever proposed by the pursuer. In the event, correspondence continued between the pursuer's solicitor and the defender, although occasionally the defender did exceptionally e-mail the pursuer directly.

(53)      As early as the reply from the pursuer's solicitor to the defender's first response, in an e-mail of 5 August 2004, the pursuer's solicitor introduced the threat of having to return to court for breach of the order if the timetable proposed was not agreed.

(54)      In the following reply, the defender did not accept some dates proposed including one particular weekend in August 2004 when [S] already had a friend from nursery coming to visit on the Saturday, a birthday party to attend on the Sunday and an outing with her stepsons to mark her husband's birthday on the Monday. She also complained that the pursuer was seeking to have contact that particular weekend returning [S] on the Tuesday but again picking him up for the agreed 12 days' consecutive contact only two days later on the Thursday. She complained that the pursuer was treating [S] like a possession and was harassing her family.

(55)      On 17 August 2004, the defender e-mailed the pursuer directly but asked that he find an intermediary. Her e-mail was in robust, assertive and peremptory language and set in a style that had phrases underlined and in bold type for emphasis. She noted that the pursuer's timetable reflected contact that was outwith what she understood had been agreed at court and described his proposals as 'obviously ridiculous'. She complained that his proposals for contact over Christmas and New Year 2004/5 would result in [S] being shunted backwards and forwards between the parties no less than six times within a fortnight. She complained that the pursuer failed to recognise that [S] lives with the defender and asserted that she would not have [S] 'shunted from pillar to post'. She stated that the next contact after 4 January 2005 would be between 14 and 18 January 2005. She asserted that these dates were not negotiable and threatened that failure to return [S] on any of the due dates would result in the police being informed and that contact would be suspended. She complained that the pursuer was obsessive, and trying to regulate [S]'s life like a military exercise without any flexibility. She again complained of harassment by the pursuer and left him with the ultimatum that he either accept what he had in terms of the agreed interlocutor or they return to court for review on the ground that it is not working.

(56)      [S] had a 12-day holiday contact visit with the pursuer between 19 and 31 August 2004 during which, without informing the defender of his intentions or whereabouts, he took [S] to England.

(57)      On [S]'s return, the defender again wrote directly to the pursuer in the absence of any intermediary, by letter of 5 September 2004.

(58)      In that letter she observed that [S] had returned in a confused and unsettled state and had complained that he had been away too long. She stated that this was the second time he had commented on the length of his visits to the pursuer. She observed that [S] had complained that when he asked the pursuer to telephone the defender he had not been allowed so to do. The defender complained about [S] being taken out of the country without her knowledge, which she deemed unacceptable. She complained that if anything had happened to him, or to herself or [Z], she would not have known how to contact [S].

(59)      She also observed that upon return from contact, [S] had begun to have 'bad dreams' and disturbed sleep. He had not hitherto been prone to having bad dreams. He had reverted to using his dummy and a favourite blanket, which he had dispensed with prior to that contact visit. He had also begun to wet the bed again. She told the pursuer that these were classic signs of a distressed and unsettled child.

(60)      She also observed that [S] was becoming uncharacteristically clingy, unsure and insecure. He was constantly asking who would be picking him up from nursery and no longer seemed settled there. She stated that his security and happiness were being compromised. His relationship with [Z] was being affected. [Z] was becoming, the defender observed, extremely unhappy and unsettled and was constantly asking when [S] would return during the recent 12-day contact period.

(61)      The defender noted that the 12-day summer contact was offered by her to allow continuity despite the recommendation of Professor Furnell that [S] should not be away for more than four or five days at a time. She stated that she would not therefore agree to a visit of more than 5 consecutive days whilst [S] is young and that, for the foreseeable future, summer contact should be taken in three 4/5-day blocks to avoid further confusion and upheaval for both children.

(62)      In September 2004, the defender received a telephone call from the nursery to take [S] home because he had chickenpox. She uplifted [S]. The nursery was then the point of collection and uplift for [S] by the pursuer. She requested that someone from the nursery phone the pursuer to tell him because he was due to uplift [S] for contact later that week on 23 September 2004. The pursuer refused to accept that chickenpox was a valid reason for contact not taking place. He maintained that he could look after him and that [S] would enjoy the various activities he had planned. He insisted that contact take place. He demanded production of a medical certificate. He demanded that [S] be taken to a carpark to be collected, so contact could proceed. The defender refused to do so due to [S]'s illness.

(63)      By this time the level of communication between the parties was deteriorating. The pursuer was also becoming contentious in the tone of the replies sent on his behalf by his solicitor. For instance, against a background that contact had not taken place due to the episode of chickenpox, the pursuer asserted in a letter from his solicitor dated 29 September 2004 that '[by] the terms of the Interlocutor [he] is not prepared to accept a period of over three weeks to elapse without [S] visiting his father...'.

(64)      In October 2004, [S] was ill and contact did not take place. He had a temperature and was absent from nursery. The pursuer instructed his solicitor to write to the defender demanding production of a medical certificate and to know when the defender considered he would be able to commence contact. He accused the defender of being obstructive and failing to obtemper the court's interlocutor. He threatened to restart the court proceedings.

(65)      The correspondence between the parties was increasingly hostile and threatening. The tone of the defender's communications was, on occasion, vituperative and vitriolic. Sometimes it was inappropriately personal towards the pursuer's solicitor, particularly after he sent one e-mail about 10 o'clock one night, which the defender viewed as harassment and lacking in objectivity so far as carrying out the pursuer's instructions was concerned.

(66)      On 17 December 2004 the pursuer lodged two minutes: one to vary the interlocutor of 7 July 2004 by seeking a residence order for [S] to reside with the pursuer; the other seeking to find the defender in contempt of court for breaching the interlocutor of 7 July 2004 and to punish her. The pursuer moved for an interim residence order to be pronounced, which the sheriff never granted.

(67)      Procedurally, the pursuer's minutes first called in court on 14 January 2005. An order was then made for answers to be lodged. The pursuer's motion for interim residence was continued until a child welfare hearing on 25 February 2005. Meantime, the interlocutor of 7 July 2004 was varied to allow collection and return of [S] to be at the defender's home.

(68)      Between 25 February 2005 and 18 January 2008, approximately 21 child welfare hearings were assigned. In addition to these child welfare hearings, 21 interlocutors were pronounced on other dates during that period, only a very few of which were formal interlocutors assigning dates to hear motions. Accordingly, in that 35-month period, interlocutors were caused to be written on 42 occasions.

(69)      Although the minute to find the defender in contempt of court was lodged on 17 December 2004, a proof on that issue was not appointed until 21 October 2005. It was conjoined to be heard along with the pursuer's minute for a residence order. A proof was assigned for 10, 11 and 12 January 2006, but on 13 December 2005 it was discharged on the joint motion of parties. On 24 February 2006, the pursuer's contempt minute was dismissed on the pursuer's motion, to which there was no objection.

(70)      Between February 2005 and January 2008, the sheriff at Alloa attempted to regulate and monitor contact between [S] and the pursuer through a series of child welfare hearings and other interlocutory judgments. From time to time non-residential and residential contact was appointed to take place. The procedure was punctuated by motions by the pursuer to have the defender ordained to appear at the bar of the court in respect of alleged failures to obtemper interlocutors, none of which were determined by a finding that the defender was in contempt of court.

(71)      On 6 May 2005 John Andrew, solicitor, was appointed curator ad litem to [S]. He was appointed to investigate and report on the arrangements for contact with [S] and the second name by which [S] should be known. Subsequently, Mr Andrew was sisted as a party to the action.

(72)      On 12 August 2005, the sheriff at Alloa determined on the pursuer's unopposed motion that [S] should be known by the surname 'B*****'.

(73)      On 20 September 2005, the sheriff at Alloa, having heard parties on the welfare of both [S] and [Z] at a child welfare hearing, directed Professor Furnell to report on residence and contact.

(74)      During the week commencing Monday 26 September 2005, the pursuer alleged that during the immediately preceding weekend when the pursuer had residential contact with [S] until the following Tuesday morning, [S] had made comments while playing with his penis when undressing to have his bath and, afterwards, while sitting on the couch in his pyjamas with the pursuer.

(75)      Neither at the time these comments were said to have been made or at any other time that weekend while [S] was in the company of the pursuer did [S] show any sign of distress or upset.

(76)      The pursuer had reported to Professor Furnell that [S] had been showing signs of distress that weekend.

(77)      The pursuer consulted his solicitor and, acting on his solicitor's advice, he reported the comments to his general practitioner, who was not [S]'s general practitioner. The general practitioner did not speak to [S]. The general practitioner took the advice of a social worker and advised the pursuer to report the matter to the police. A telephone number was provided to the pursuer. The pursuer telephoned the police using that number. He reported comments alleged to have been made by [S], but refused to give his name because he wished to consult 'other professionals' before reporting the matter. The pursuer arranged to telephone the police again to report the matter officially.

(78)      The pursuer did not inform the curator ad litem of these events. The curator ad litem only discovered them when the police telephoned him to advise of their involvement.

(79)      By Thursday 29 September 2005, police had traced the pursuer and left a message on his answering machine to telephone them. He did so later that afternoon. He subsequently gave the police a statement in connection with the comments that had allegedly been made by [S].

(80)      On Friday 30 September 2005, police officers telephoned the defender just after 8 a.m. and attended the defender's house shortly thereafter. The defender telephoned her husband to come home from work, which he did. Upon learning of the nature of the police enquiries, which was that the defender's husband was implicitly involved in sexual impropriety towards [S], he and the defender were upset and distressed. They considered that the pursuer had been intent on making false accusations in an effort to bolster his application for a residence order.

(81)      Police officers sought consent from the defender to a joint police and social work interview of [S] as part of a child protection investigation. She initially consented to that, subject to taking advice from her solicitor, whom she phoned. She thereafter withdrew that consent on the advice of her solicitor. The defender was willing to allow [S] to be interviewed by police officers, but not, upon legal advice, in the form of a joint police and social worker interview. [S] was not interviewed in relation to the matter.

(82)      Police reported the circumstances to the Children's Reporter. After an investigation, including a visit by a social worker to the defender's home, no proceedings were taken. Formal intimation of that decision did not occur until June 2006 when the Children's Reporter wrote to the curator. The defender and her husband had previously received reassurance, at the end of the visit from the social worker, that this was likely to be the decision.

(83)      The pursuer maintained that these alleged disclosures made by [S] were of a sexual inference in respect of the defender's husband and gave cause for concern about his safety. There is no legitimate foundation for the defender's view.

(84)      The pursuer was angry that the defender refused to consent to [S] being interviewed. He was frustrated that no interview took place. He maintained that the defender had thereby failed to safeguard and promote [S]'s health, development and welfare. On 4 October 2005, he enrolled a motion seeking interim residence of [S].

(85)      The purpose of the motion was to allow investigations to be made into the comments he alleged [S] had made including that [S] be interviewed jointly by police and social workers as part of a child protection investigation. He maintained that the defender's husband was involved in conduct of a serious sexual nature towards [S]. In withholding her consent he maintained that the defender was in breach of her parental responsibilities and parental rights in terms of the Children (Scotland) Act 1995 Section 1 (1) (a) and had placed [S] at serious risk to his health, development and welfare. He also sought delivery of [S] without delay, failing which to instruct sheriff officers to deliver the child forthwith.

(86)      More than any other incident during the period of this litigation, the pursuer's allegation that the defender's husband was involved in sexual impropriety towards [S] is the one singular circumstance that has had the most devastating effect on and caused irreparable damage to the attitude of the defender and her husband towards the pursuer and the prospect of cooperation among the parties so far as [S] is concerned.

(87)      The defender and her husband were immediately enraged by the pursuer's allegations. They were distraught in the days following at the prospect of an investigation and the effect that even an investigation might have so far as the defender's husband was concerned within a small local community. The defender in particular was terrified that, during contact visits, the pursuer would have [S] subjected to a joint police and social work interview, against the defender's wishes.

(88)      On 5 October 2005, the defender enrolled a motion seeking suspension of contact between the pursuer and [S] until Professor Furnell had reported.

(89)      The sheriff at Alloa had, at the hearing on 20 September 2005, appointed contact between [S] and his father to take place on 6 October 2005 with the curator ad litem in attendance at the handover. Prior to the pursuer's arrival, the atmosphere in the defender's house was electric. The defender's husband was in a state of near frantic distress. The defender swung between being tearful and a state of rage. The children did not know why the defender and her husband were distressed.

(90)      The children had not, and have never been, told and are not aware of these allegations.

(91)      The curator ad litem explained to the defender the need to obtemper the contact order. However, the defender told the curator that she would not allow [S] to go. The defender and her husband were terrified that the pursuer would take [S] to be interviewed and would induce [S] to make further false and malicious disclosures. The defender's husband, who by now was in a state of complete distress, told the curator that, even if the defender would let [S] go for contact, he would not.

(92)      The curator spoke to [S] on his own. He was not distressed or crying. Despite the curator telling him that the court had ordered that he was to go for contact with his father, [S] refused and said that he was not going. Told that his mother and indeed the curator might get into trouble if he did not go, the boy still refused.

(93)      The curator advised the pursuer by telephone of the difficulty. He advised the pursuer that he should still come. The curator was nevertheless concerned that if the defender's husband and the pursuer came into contact with each other they would come to blows, which he might not be able to prevent. So, upon the pursuer's arrival, the curator kept him in his car. The pursuer asked, through the curator, if he could speak to [S], but the defender and her husband refused fearing that [S] might be talked round. Eventually, he left his telephone number so that [S] might phone him. The pursuer left without [S].

(94)      On 13 October 2005, the pursuer enrolled a further motion for contact to take place between 14 and 25 October 2005 and to ordain the defender to appear at the bar of the court to explain her failure to obtemper the order appointing contact to take place on 6 October 2005. This was heard in Alloa sheriff court on 14 October 2005.

(95)      The defender was unaware that the motion for contact was to be heard that day. She had been led to believe by her solicitors that the hearing would only be procedural and that she would have to appear on another date then assigned by the court. Consequently, she did not attend court that day.

(96)      Her solicitor telephoned her during an adjournment to advise that contact was being sought and discussed and in particular to begin that evening. The pursuer's motion was ultimately granted. The curator ad litem was not present at the hearing, being engaged in professional business elsewhere, and had instructed another solicitor to appear on his behalf. He was ordered to attend the handover and managed so to do.

(97)      The defender was very angry that contact had been awarded that day because other arrangements had already been made for [S] and [Z] for that weekend. [S] became upset when the defender explained to him that he was to have contact with his father. He was distressed and upset when the curator spoke to him. The defender's husband was in the same state of anger and distress that he had been on 6 October 2005. Both he and the defender would still not allow [S] to have contact with the pursuer due to the same fears they had expressed on 6 October 2005

(98)      The curator spoke to [S] on his own. He was still refusing to see the pursuer. The curator could not talk him round. On this occasion, [S] was very anxious, distressed and upset.

(99)      It was inconceivable that on both this occasion and on 6 October 2005, [S] and [Z] would have been unaware of the level of distress within the household. They could not have avoided knowing that something was wrong. It was inevitable in a house of modern construction with thin walls that they would have heard raised voices.

(100)  The curator had arranged for the pursuer to wait in his car at a nearby lay-by rather than attend at the defender's house. The curator left the defender's house and walked to the pursuer's location. He explained to the pursuer that [S] would not be coming for contact.

(101)  The pursuer was unable or unwilling to either appreciate what the atmosphere was like in [S]'s house or acknowledge the effect that involving the police and social work department had on [S]'s household. That inability or unwillingness pertains as at the date when he gave evidence towards the end of this proof.

(102)  On 17 October 2005 the pursuer enrolled another motion seeking interim residence of [S], which was heard on 21 October 2005.

(103)  On 18 October 2005 the pursuer attempted to pick up [S] from school at lunchtime. He telephoned the headteacher to advise of his plans. She was not willing to allow him to pick up [S] at that time. She took legal advice. She informed the defender. The pursuer decided not to attempt to pick up [S] early.

(104)  At the end of the school day the defender and her husband were present when the pursuer came to uplift [S]. Police officers were also in attendance, having been called by the headteacher because she apprehended a disturbance.

(105)  [S] was upset and distressed. He intimated that he did not wish to go for contact with the pursuer. Contact did not take place.

(106)  On 21 October 2005, the sheriff at Alloa refused the pursuer's motion for interim residence. The sheriff, concurring with the curator that [S] needed a break from the pressures surrounding contact, suspended contact with the pursuer.

(107)  The child protection investigation delayed Professor Furnell's report, which was not completed until March 2006. He recommended inter alia that residence of [S] remain with the defender and that the pursuer should have contact with him. He also recommended that the pursuer, the defender, and other adults in [S]'s life moderate their behaviour and prevent a situation arising whereby [S] takes responsibility for whether or not contact happens. The professor also recommended that [Z] should reside with her mother and have no contact with the pursuer.

(108)  The pursuer's solicitor indicated that the pursuer accepted the conclusions and recommendations within the professor's report. Contact was restored to the pursuer in the form of two periods of daytime contact followed by residential contact. From April 2006 the pursuer had contact with [S] on alternate weekends between Friday and Sunday, with residential periods during holiday times.

(109)  On 24 July 2006, when [S] had residential contact with his father, the defender telephoned the curator ad litem to say that she had received a telephone call from [S] in which [S] was extremely distressed and wanted to return home to his mother. The curator lived only a 10-minute walk from the pursuer's house. He immediately walked round. He did not warn the pursuer of his visit. He had to persuade the defender on two occasions not to come to the pursuer's house, which she had intended to do to collect [S]. By the time of his arrival, [S] was not found to be distressed although before announcing his arrival he overheard the pursuer say to [S], 'Now come on, [S], this is your time with me' or words to that effect. The curator spoke to [S] on his own. There was no sign of any tears. [S] had been upset when he had spoken to his mother on the telephone, but he had calmed down by the time the curator arrived. Contact continued until its normal conclusion.

(110)  Although contact continued on a regular basis until December 2006, [S] was becoming unenthusiastic and increasingly resistant to contact. The defender found it increasingly difficult to persuade [S] to go on contact visits. This increased the tension within the defender's household, particularly before contact visits.

(111)  On or about 8 December 2006 the defender instructed Dr Jack Boyle, psychologists, to prepare a report. The curator did not concur in the instruction of such a report. The pursuer did not cooperate in the preparation of the report.

(112)  On 27 December 2006, [S] refused to go with the pursuer for contact. He was due to have contact with the pursuer for a further seven days, which his mother thought was too much considering he had just returned from a period of residential contact on 24 December 2006. There were angry exchanges between the defender and her husband on the one hand and the pursuer on the other. The pursuer was insistent on exercising contact in terms of the court order. The pursuer suggested to [S] that he could telephone his mother and tried to bring [S] round by telling him that his Christmas presents were waiting. The defender took [S] into the house to give him her mobile telephone number so that he could telephone her directly. [S] complained to her then that his father would not allow him to telephone. The pursuer was asked to go away for 30 minutes while the defender and her husband spoke to [S]. The pursuer insisted that he would return in 20 minutes.

(113)  During this brief hiatus, [S] complained about sleeping arrangements in the pursuer's home and said he did not want to go for contact. He complained that he did not like the nights he slept in his father's bed and that his father slept naked. [S] said he felt uncomfortable having to check under the covers in the morning to see whether his father was wearing pyjamas. Having received this information the defender felt no longer able to persuade [S] to go that night for contact with the pursuer. She did not realise that [S] had slept in his father's bed on such a regular basis. She felt that the practice of sleeping in his father's bed was inappropriate because he was now growing up and had started primary school. She construed this as another sign that the pursuer would not accept his position as 'the absent parent'.

(114)  Upon the pursuer's return to the house, [S] was particularly distressed. The defender's husband explained to the pursuer that there had been certain revelations made in his absence. There was an intemperate exchange between them, the pursuer insisting that he would not leave until he had seen his son. The defender's husband came back in the house after telling the pursuer there was no point in him staying. Eventually the pursuer left.

(115)  When the curator ad litem was making investigations into the circumstances surrounding the events of 27 December 2006, [S]'s headteacher and class teacher, when they were interviewed on or about 8 January 2007, reported that [S] spoke positively of his time with both the pursuer and the defender.

(116)  Contact continued from January 2007 until August 2007.

(117)  On one occasion about February 2007, the headteacher noted that [S] had said to his class teacher, with a smile, that he did not wish to go on contact with his father. Within days of this remark, the defender telephoned the school to establish whether the remark had been made.

(118)  [S]'s resistance to contact intensified throughout 2007. By the summer of that year he had become disillusioned with his father. He complained of boredom when with his father.

(119)  Between 7 and 14 July 2007 the pursuer took [S] down south for holiday contact. [S] complained that they did not do very much. The only activity that he could tell his mother about, when she asked him what he had done, was one trip to a park. [S] and his father had initially stayed with the pursuer's mother but towards the end of the holiday the pursuer fell out with his mother and [S] and his father were required to move to another house with someone [S] did not know. He complained that he had to sleep in a room with a number of cats. He came home with an allergic reaction, which required medicine to treat. [S] expressed the view that he did not wish to go again for contact with his father.

(120)  The next contact visit took place between 9 and 13 August 2007. It had been appointed to take place after a hearing at Alloa sheriff court on 31 July 2007, on which date the defender was in hospital about to give birth to [A], but was represented by her solicitor.

(121)  The defender told [S] of the further visit after [A] was born a few days later. [S] was very angry. He complained that no-one seemed to be listening to him, a comment he had frequently made. He said that he wished his father was dead.

(122)  The defender returned home with [A] on or about 4 August 2007. [S] was excited by the arrival of his baby half-brother. This heightened further his resistance to forthcoming contact with the pursuer. He wished to be at home with [Z] and [A]. He was only persuaded to go on contact with his father when his aunt stated that she was going to take [Z] on an activity in which [S] would not be interested.

(123)  Upon his return from that contact visit he was anxious to know who had come to the house and what had happened, particularly in relation to [A], during [S]'s absence. [S] perceived the pursuer to have no interest whatsoever in [A], which annoyed and bothered him.

(124)  The contact visit which ended on 13 August 2007 was the last contact [S] had with the pursuer.

(125)  Two further contact visits were attempted on 31 August 2007 and in early September 2007. [S] refused to go. On both occasions [S] lay kicking and screaming on the couch. He accused the defender and her husband of forcing him to do things that he did not want to do. He said that he hated his father and repeatedly asked why no-one was listening to him. He resolutely refused to go with the pursuer for contact.

(126)  Short of physically dragging him to the pursuer's car, it would have been extremely difficult if not impossible for contact to be exercised on those occasions or for [S] to derive any benefit from them.

(127)  By arrangement with the parties and [S]'s headteacher, the curator ad litem interviewed [S] at school on 18 September 2007 about his refusal to go for contact on these last two occasions.

(128)  Asked by the curator what the problem was about not going for contact, [S] said variously, that he was getting fed up with the pursuer now because he was 'kind of' annoying' him; that the pursuer says 'bad things' about his mother, that she is 'kind of an idiot and stuff', although when asked how often this had been said he could only say it happened once and that was over a year ago; and that if he did not go on contact he would not miss out on things, such as swimming, which he did at the weekends, and although he did go swimming with his father, it was boring because there were no slides at the pool his father took him to, which was at the pursuer's club.

(129)  [S] reiterated to the curator that he did not want to see his father again because of what the pursuer was saying about his mother. He reverted to the theme of 'bad things', explaining that the pursuer said that his mother was not doing the right things. [S] complained about missing out on activities with friends while he was on contact visits. He said one of his friends has a big tree in his garden and they build dens and treehouses there and elsewhere in the village. [S] articulated that he also has a baby brother now and does not want to be away from him.

(130)  [S] stated to the curator that he would not miss his father if he did not see him. He referred to the time prior to Christmas 2006 when he had not seen his father for some months, had not missed him then and felt that he would not miss his father in the future.

(131)  [S] stated that he did not like the pursuer's new flat. He said it was not as nice as the pursuer's last house. [S] described the place is being dirty. As a matter of fact at that time, the exterior environs of the tenement building and the communal stair were not particularly clean, but the pursuer's flat was in a basic state of cleanliness.

(132)  When asked by the curator what he did at the flat, [S] told the curator 'nothing really', that they went to a park but that there were not very many good places to go near the flat and that he found it quite boring. It was better, [S] said, when [Z] was there because he had some company and they used to jump on the furniture, but this had been a long time ago. Asked what the pursuer and [S] had done, [S] mentioned going to a shop, hiring a DVD and the pursuer buying a bottle of brandy.

(133)  Towards the end of the interview, [S] reiterated that he would not miss the pursuer and that he was not fond of him. [S] was unwilling to attend for further contact.

(134)  The pursuer refused to consider non-residential contact when it was raised by the defender in September 2007 in an attempt to resolve the impasse.

(135)  The curator subsequently had discussions with parties' solicitors. Parties agreed to and attended a meeting with the curator and counsel present, in the form of a parallel consultation within the Consulting Rooms of the Faculty of Advocates in High Street, Edinburgh on 27 November 2007. That meeting failed to produce agreement.

(136)  The pursuer immediately thereafter enrolled a motion for contact. In December 2007, the pursuer indicated that he wished to give [S] a Christmas present. A meeting was arranged between the curator ad litem and [S] at a cafe on 28 December 2007. At that meeting, [S] stated that he would accept a gift, but did not wish contact with the pursuer.

(137)  The pursuer has not subsequently sent cards or presents to [S] at Christmas or on his birthday or sought to communicate with him by letter or in any other way.

(138)  In January 2008 the cause was, on joint motion, remitted by the sheriff at Alloa to Stirling sheriff court.

(139)  The curator ad litem again met [S] on 4 June 2008. [S]'s view then was that he did not want to see his father and would refuse to attend for further contact with the pursuer. At the date of the proof, [S]'s view is unchanged.

(140)  The pursuer presently plays no part in [S]'s life. [S] rarely mentions him. He has expressed strong views against his father. He does not miss his father.

(141)  [S] is a happy, thriving and well-contented boy. He is developing satisfactorily at school. His teachers and headteacher have no concerns about his welfare or the defender's care of him.

(142)  The defender and her husband are implacably opposed to contact. While they did encourage contact in the beginning, they found it increasingly difficult to encourage contact. They do not consider that contact between the pursuer and [S] is in [S]'s best interests, or consistent with his welfare.

(143)  Hostility between the defender and the pursuer intensified, making contact handovers unworkable after the joint police and social work investigation was launched into the sexual abuse allegations made by the pursuer in September 2005. The defender's cooperation with orders thereafter became reluctant. On occasion, she has probably been too ready to accept [S]'s resistance or refusal to go to contact as being determinative of the issue. She can be over-protective of [S] at times.

(144)  [S]'s sister, [Z], remains opposed to contact and has no contact with the pursuer. [S] is very close to [Z]. The defender, her husband and [S]'s sister [Z] are all an influence on [S]'s opinion that he should not have contact with the pursuer.

(145)  There is an atmosphere of hatred, distrust and bitterness among the defender and her husband on the one hand and the pursuer on the other. This is also fuelled by contentious Child Support Agency proceedings between the pursuer and the defender which are running in parallel with these proceedings.

(146)  The pursuer primarily blames the defender for [S]'s refusal to attend for contact. He believes that the defender has deliberately encouraged [S] not to go for contact.

(147)  The pursuer has assaulted the defender and has broken her nose. The pursuer has in the past made allegations, behind the defender's back, to the school and to the local authority that she is unfit to care for [Z] and [S]. These allegations are not true.

(148)  The pursuer has alleged that the defender has physically and emotionally abused [Z] and [S]. These allegations are not true.

(149)  At the proof the pursuer still believes that the defender has physically and emotionally abused [Z] and [S].

(150)  The pursuer has made allegations against the defender's husband of sexual impropriety towards [S]. There is no truth in these allegations.

(151)  The pursuer has repeatedly sought to take [Z] and [S] from the defender by seeking residence orders for them to reside with him.

(152)  The pursuer has sought in the course of this proof to have the defender found in contempt of court for her failure to obtemper orders of court.

(153)  As a result of this conduct, the defender distrusts the pursuer. She is fearful that, if the pursuer has contact with [S], the pursuer may use it to undermine [S]'s relationship with the pursuer and her family and again seek a residence order without justification. She is unable to forget the pursuer's allegations that she was unfit to care for her children and had physically and emotionally abused them. She and her husband are unable to forgive the pursuer for his allegation of sexual impropriety directed at the defender's husband. The defender has lost any respect that she had for the pursuer. Her feelings towards him have thereby degenerated into hatred and disdain. Her husband is similarly disposed towards the pursuer, and has no time for him.

(154)  The pursuer and defender are each assertive, articulate and opinionated individuals who have domineering and determined personalities.

(155)  The pursuer is often sanctimoniously dogmatic and insensitive. At times, he uses unnecessarily dramatic and flowery language to the point of insincerity. He attaches himself leech-like to individuals in an attempt to wear them down to support his point of view.

(156)  The defender falsely stated in evidence that she had been awarded a PhD. She led Dr Boyle to understand that she had been awarded her doctorate. She has made false and misleading statements to the Child Support Agency about her state of health, treatment and absence from work in support of an application to allow her to make a late appeal.

(157)  Each party is argumentative and intemperate. The defender is the quicker to anger. The pursuer has been violent towards the defender.

(158)  The defender is a loving, caring mother and a capable parent. She will chastise her children when required, and will shout at them and apply the normal sanctions but no more than might be expected of a loving, caring mother. Such chastisement has not crossed the boundary of physical or emotional abuse. The pursuer refuses to accept this.

(159)  The pursuer is more committed to the conduct of this litigation than he is to [S].

(160)  The pursuer and defender are incapable of having a cordial or civilised relationship. If contact between [S] and pursuer were to occur, handovers would take place amid an atmosphere of hostility, assuming that [S] willingly attended for contact. Were a contact order to be made, [S] would be unwilling to attend. It is probable that he would refuse to attend. It would probably distress him and involve him again in the continuing conflict between the parties. There is no third party that would be prepared to take on the role of intermediary. It is not in [S]'s best interests that he is exposed to such conflict.

(161)  Having regard to [S]'s age, the history of these matters to date and the influences at work on [S], he would not derive any benefit from contact in such circumstances.

(162)  Contact with his father is not consistent with [S]'s welfare or best interests.

(163)  Professor Furnell finished giving evidence shortly before lunchtime on 3 September 2009. The court adjourned for lunch a few minutes later. After the court had adjourned, the defender's husband passed Professor Furnell who was standing on the landing beyond the corridor that leads from the courtroom. The defender's husband remarked on passing that he and the defender were unhappy or unimpressed with the professor's evidence, which the defender's husband considered had been biased towards the pursuer, and that he and the defender would be writing to him. Professor Furnell drew this to the attention of the curator over lunchtime. Professor Furnell was concerned that he might be the subject of a complaint to his professional body. At no time did the defender's husband threaten physical violence. At no time did the professor fear that physical violence was going to be visited upon him.

Finds in fact and law:

(1)          That there has been a material change in circumstances since the contact order of 7 July 2004 was made;

(2)          That it is in the best interests of [S] that he does not have contact with his father; and

(3)          That the contact order of 7 July 2004 requires to be recalled.

Therefore, sustains the first and third pleas-in-law for the defender and the plea-in-law for the curator ad litem, repels the plea-in-law for the pursuer; recalls the interlocutor of 7 July 2004 and withdraws all contact the pursuer has with the child [S]; and decerns; appoints parties to be heard on the question of expenses and assigns 2 February 2010 at 10 am as a diet therefor.

 

 

Note

[1]   [S] is now nine years old. He lives with his mother, the defender, along with his stepfather, Mr [BG], his half-sister [Z], who is now 13, and his half-brother [A], who is now 2.

Procedural background to proof

[2]   This case was raised by the pursuer in October 2003 when he sought a residence order that [S] and [Z] be removed from the defender to live with him. Accordingly, [S] has had to endure this interminable litigation for almost as long as he can remember, during which the pursuer has variously sought orders that either [S] should reside with his father or have contact with him. [S] was aged eight when evidence was first led in this proof. He is now nearer his tenth birthday than his ninth.

[3]   Mr John Andrew, solicitor, was appointed curator ad litem in May 2005. Mr Andrew became a party to the action.

[4]   [S] has not seen his father since August 2007. There is, presently, a court order in place allowing the pursuer contact, but it was accepted some time ago that steps would not be taken to enforce the order pending resolution of the defender's minute to reduce contact to nil. The pursuer, on the other hand, still seeks contact with [S]. It was determined, because the defender in formal legal terms seeks to alter the status quo, that the defender should lead at the proof.

[5]   The defender began giving evidence on 9 September 2008. She gave evidence in chief for two and a half days. The curator cross-examined for half a day. The defender was then cross-examined for six days by counsel for the pursuer. A legal issue arose on Day 9 in relation to whether, as the pursuer contends, the defender should be found in contempt of court as a finding-in-fact in this proof and whether it was appropriate to administer a warning to her in the middle of cross-examination. I heard submissions over two days, which I then considered. It took until Day 12 to resolve, when cross-examination continued. It finally concluded on Day 14 after nine days' cross-examination in total, described later by the pursuer's counsel as 'comprehensive'. Another adjective might be 'lengthy'. The defender remained resolutely defiant of any suggestions put to her of physical or mental abuse, lying or a contemptuous attitude towards court orders. She endured a further six days of re-examination. Her evidence finally concluded on Day 20, 29 May 2009, almost nine months after it had begun.

[6]   Various witnesses were thereafter led for the defender. The pursuer then led his witnesses before giving evidence himself. His evidence was taken over a relatively shorter period of seven days between Days 43 and 49. The last witness to give evidence was the curator. The evidence finally concluded on Day 52, on 2 November 2009.

[7]   It is appropriate to note at this point that it had originally been anticipated that evidence in this case would take approximately 10 days for which a diet was assigned when the case started in September 2008. However, that diet had to be adjourned shortly after the defender had begun to give evidence because her father took seriously ill, and subsequently died. Accordingly, further diets had to be accommodated. With the cooperation of the sheriff clerk, a tranche of dates was identified in January 2009 for the evidence to be completed. However, the forecasts of how long the case would take proved completely unrealistic. Further tranches of dates also, regrettably, proved inadequate. Subsequent dates were required.

[8]   The proof was contested intensely and not only by parties. The proceedings were frequently punctuated by legal argument, which on one occasion, required me to adjourn the proof for a couple of days before issuing a 17-page judgment. Time was also taken up by parties seeking from time to time to add to the numerous productions already lodged. Even towards the end of the evidence, I was required to hear further evidence in relation to an incident within the court building involving two witnesses who had already given evidence, which required witnesses to be recalled.

[9]   In anticipation of the end of the evidence, a programme was put in place for a hearing on submissions. On two occasions, however, the evidence failed to conclude by the anticipated date.

[10]      Because of the inordinate time that the evidence had taken, I was particularly anxious to remember that there is a nine-year-old boy at the centre of this litigation who deserves to have a decision made about contact with his father as soon as practically possible, consistent with the interests of justice.

[11]      Three days were provided for submissions in the original proposed timetable. Quite frankly, I feared that this estimation was as unrealistic as others had been. I could foresee counsel for the pursuer and defender taking substantially longer than three days for each of their own submissions alone, such was the volume of evidence (about 6000 pages) that had been heard. With that in mind, I provided a timetable for parties to lodge and circulate written submissions along with proposed findings-in-fact and responses thereto. This allowed the issues to be focused and reduced the time required in oral submissions. More importantly, it avoided a significant number of days hearing oral submissions, which potentially could have substantially prolonged the case yet further.

[12]      Parties thereafter lodged proposed findings-in-fact and written submissions. I appreciate that parties were required to undertake a great deal of work in preparing these documents within a relatively tight timeframe. I thank them for their endeavours and cooperation.

[13]      Further, brief, oral submissions were heard on 23 November 2009, following which I made avizandum, almost 15 months after evidence began.

[14]      For these reasons, this case has taken far longer than had been anticipated. The Sheriff Principal has facilitated writing time to enable this judgment to be issued as soon as possible, for which I am grateful.

Objections to evidence

[15]      At the hearing on submissions, counsel for the pursuer maintained two objections to lines of evidence. These are dealt with in the pursuer's written submissions at paragraphs 8, 9, 10 and 11.

'No record' objection

[16]      The first related to an objection taken on the first day of proof to questions being asked of the defender about a report, prepared earlier in these proceedings by Mr Steven Waters, solicitor, number 11 of the process, dated 19 January 2004. Counsel for the defender had been asking the defender about this for some time and the objection was taken after the defender was about to be asked a question in relation to a letter Mr Waters had been given from a named person. The objection was founded on the basis that there was no record in the defender's pleadings in relation to this line. At the time the objection was taken, counsel for the defender vigorously opposed the objection on the basis that the issues that he was about to explore, and had been exploring, were raised at various points on record, mostly within the pursuer's pleadings. It is difficult in litigation of this sort, where the interests of a child are involved and the pleadings generally span issues that have arisen and developed over a number of years, to compartmentalise evidence as being relevant to one issue or another. Counsel for the pursuer acknowledged that evidence had already been led on such matters, and there was no particular issue on the specific line that was about to be taken. He was more concerned to articulate a general objection with a view, as he saw it, to keeping the evidence within reasonable bounds. I found it impossible to determine there and then the relevance of the line about to be taken. Consequently, I allowed the evidence to be taken under reservation of competency and relevancy.

[17]      When it came to the hearing on submissions, however, it has to be observed that counsel's submissions on behalf of the pursuer were unsatisfactory and inadequate. Firstly, they were not identified in his original written submissions. All that was stated therein was, 'Submissions will be advanced in respect of objections made, where necessary'. That fails to provide notice to the court, and certainly to the other parties, which of the many objections that were taken during the proof were to be maintained.

[18]      In his written submissions in response, the matter was expanded upon at paragraphs 8 and 9. It is to be observed that the responses had not been lodged before the deadline set down in the timetable. They were only seen by counsel for the defender minutes before the hearing began and only by the court after the hearing commenced. I briefly adjourned to read these, and indeed the response lodged, also late, by the curator.

[19]      The pursuer's written submission does no more than to state, at paragraph 8, that objection was taken on Day 1 at page 110 of the extended notes of evidence; that this was done, at least in part, with a view to keeping the scope of the evidence within proper bounds; that evidence was heard under reservation of competency and relevancy; that the objection is renewed; that it is submitted that much of the lengthy written submission on behalf of the defender is irrelevant, having no foundation on record; and that objection is renewed in respect of 'all lines not foreshadowed in the defender's pleadings'. Paragraph 9 merely contains argument that the submissions advanced on the defender's behalf 'amount to a contorted interpretation and inappropriate gloss on the evidence read as a whole'.

[20]      I indicated to the pursuer's counsel that his objection lacked precision and that he would require to state precisely what passages of the evidence were to be excluded. He stated that he could do that. He was subsequently content, however, that his objection be determined on the basis of the written submission as it stood, without further specification, and on the basis that the admissible evidence be confined to that contained within the defender's pleadings.

[21]      On that basis, I can deal with this objection quite shortly. It is wholly inadequate and insufficient for counsel to make such an imprecise submission. If he is unable or unwilling to identify those parts of the evidence that he says are inadmissible, it is not for me to trawl through 6000 pages of evidence to try to identify which parts are relevant only to the defender's pleadings. The objection is repelled.

[22]      In any event, I accept the argument of the defender's counsel that foundation can be derived from the pleadings as a whole. The test of relevancy and admissibility is not confined to the defender's own pleadings. Mr Waters was on the pursuer's list of witnesses to be led, and indeed was led. It has to be anticipated that the purpose of leading Mr Waters would be to speak to his report. Thus it is a legitimate area to explore with the defender. The submission that the defender is confined to leading evidence about matters for which there is foundation only in her own pleadings is a remarkable one. No authority was provided in support of such a submission. The object of examination-in-chief is to elicit from a witness evidence in support of that party's case and in anticipation of an opponent's case. It was surprising and astonishing to hear such a submission, which, frankly, I would not expect to hear from the most junior counsel at the bar. The objection was maintained not as a mere technicality; it was a matter upon which counsel for the pursuer placed considerable importance. It had, according to his submissions, the effect of rendering much of the defender's submissions irrelevant. In these circumstances, it is all the more surprising that the submission in support of the objection was so inadequate, lacking in precision and specification, and unsupported by authority.

[23]      Lest it be said that I am over critical of counsel for the pursuer, it is regrettably noteworthy that this was not an isolated episode in relation to objections. At one point, counsel for the defender was eliciting evidence from a witness in relation to what might arguably be described as the defining issue in this case but certainly an issue of considerable import, that surrounding the events of September 2005 when the pursuer disclosed comments that [S] was said to have made in the pursuer's presence during a residential contact visit. It is the pursuer's case, as his counsel was at pains to establish with the defender during cross-examination and throughout this proof, that the pursuer was himself making no allegation that the defender's present husband, or anyone else, had sexually abused [S]. Counsel for the pursuer objected to the defender being taken during re-examination to an Open Record, number 26 of process, containing the following averment at Statement of Fact 2, 'Explained and averred that on or around the beginning of October 2005 the child [S] made certain disclosures of a sexual inference in respect of the defender's husband with whom [S] resides which gave cause for concern about his safety...'. The basis for the objection was that these averments had subsequently been removed by adjustment and so were not contained in the final version of the pleadings contained in the Record, number 60 of process. Such an approach as taken by counsel for the defender at this point is a regular and routine aspect of cross-examination. It is a perfectly legitimate area to explore. It is perfectly proper and appropriate. The objection articulated by pursuer's counsel to being referred to that passage was spurious and without foundation. It is astonishing that counsel for the pursuer should consider it inadmissible to refer to pleadings that were averred, clearly, one must assume, on the instruction of the pursuer, on the basis that they were subsequently adjusted out. He must have anticipated this approach because such averments would be contrary to the pursuer's case being advanced. No authorities were cited in support of his objection. Counsel's approach was concerning.

'Precognition' objection

[24]      The second objection, as articulated at paragraphs 10 and 11 of the response submissions for the pursuer, is to the line of questioning during cross-examination of the pursuer by the defender's counsel 'about material said to emanate from a police statement which was said, initially, to have been sworn and signed by the pursuer'. It appears to me that this objection is misconceived. Firstly, when counsel for the pursuer objected at Day 47 page 5347 of the notes, it was to the following question by the defender's counsel:

We touched earlier... on the need for the Court to reflect upon your credibility about events in September/October of 2005. Do you recall stating to the police that you noticed that [S] had begun to play with his penis and once when I picked him up from school he got into the back of my car and a short time later I was unaware he had taken his trousers down and when I glanced round I was able to see [S]'s penis and on that occasion I was really quite firm with [S] and I said to him "[S], you know that you don't do that". Do you remember saying that to the police?

[25]      When he articulated his objection in court, pursuer's counsel stated the following:

My lord, I'm going to object to this because it has been suggested to the witness on a number of occasions now he has signed, it was first of all he swore a statement in front of the police, he signed a statement. The pages were flicked through in a manner suggestive to the witness of having a signed police statement in front of counsel. As I understand it there is no signed police statement and in my respectful submission what is now being put, unless it is a signed police statement, is in the nature of a precognition which my learned friend knows or ought to know cannot be put to the witness.

[26]      I told counsel for the pursuer that it was in order for the witness to be asked if he had made a certain statement to the police. There was no reference in the question to a signed statement. Even if, which would be unlikely because the witness here is the pursuer, that question was based upon a precognition previously given by the witness, it would be a perfectly legitimate question. If the witness denied it, the examiner could go no further. He could not attempt to prove the contents of the precognition. If the witness accepted that he had given the police such a statement, he could be examined further upon it.

[27]      It is convenient to observe in passing an error in the transcribed notes of evidence of my comment to counsel. What has been transcribed is '... you know perfectly well that it is quite in order for a witness to be asked to give a statement about something on a particular occasion, even if that is a precognition now. If he denies it, it can go no further.' In fact, the way in which that observation was delivered brought the first sentence to an end after 'precognition'. The second sentence began 'Now, if he denies it...'.

[28]      I saw nothing objectionable in the question, but I invited counsel to tell me if I had misunderstood his objection. After a very brief further exchange, counsel for the pursuer subsequently said: 'Perhaps I will reflect on matters and perhaps renew the objection if it proceeds down the line which has been taken previously'. Accordingly, I understood his objection to be no longer maintained.

[29]      Cross-examination resumed. The same question was repeated. The pursuer said that he did not recall relating that to the police. He was asked if, hypothetically, that had been said to the police, it would be quite wrong for the pursuer to say what he had said in court that day, to which the pursuer replied that had he been able to recollect that incident and withheld it from the court that hypothetically would have been very wrong. After being asked to reflect upon the evidence he had earlier given, to the effect that the incidents when he saw [S] playing with his penis were when [S] was sitting on the couch, the pursuer then stated that the sentence counsel had just read out to him, which must relate to the incident in the car, had jogged his memory. He then agreed that there was no reference to it in Professor Furnell's report; that he could not remember whether he had told Professor Furnell about it; that he might have told the police about it, but he was not sure; that he was not sure whether he discussed it with his solicitor; and that it would have been helpful and important for parties such as Professor Furnell, the pursuer's solicitor and general practitioner to know about.

[30]      So, the first answer to the objection now articulated is that, the objection having been stated during proof was withdrawn, or alternatively, if it were to be interpreted as refused, the evidence has been led and it is too late to object to it now.

[31]      Overnight, between Days 47 and 48, it would appear that counsel for the defender exhibited to the pursuer's counsel and the curator the documentary basis upon which his cross-examination of the pursuer had proceeded in relation to the giving of a statement to the police. When counsel for the defender initially put this issue to the pursuer, which was before counsel for the pursuer objected, he referred to 'a sworn statement'. However, by the time of the objection, defender's counsel had already accepted that he had used wrong terminology and that what he was referring to was a signed statement. The pursuer had always stated that he had no recollection of signing any statement made to the police. At the end of cross-examination, which was at the end of Day 48, counsel for the defender clarified with the witness that his original understanding that the pursuer had signed a statement to the police was wrong. He made it clear that there was no statement that was signed and asked the pursuer if he had refused to sign a statement, to which the pursuer said he could not remember (Day 48/page 5541). There then followed a discussion among myself and parties' counsel about the ramifications following upon this clarification. No further evidence was elicited from the pursuer in cross-examination. Matters were left overnight for parties to exchange documentation.

[32]      There was a further discussion the next morning when counsel for the defender confirmed that he had sought to address the issue of the signing of the statement to the police by providing to the pursuer's counsel and the curator a copy of a document on which cross-examination had proceeded. Counsel for the pursuer maintained that the issue that remains from his perspective was that what was put to the pursuer was 'in the nature of a precognition'.

[33]      That is still his position in the objection which he attempts to articulate, even at this late stage. It is maintained that I require to see the document upon which the cross-examination proceeded. Counsel for the pursuer says that he has seen it and that it is quite clear that it did 'emanate from a precognition'. At one stage during the discussion at the end of Day 48, counsel for the pursuer, during an exchange I was having with counsel for the defender, interjected by asking whether it would not be easier simply to disclose the precognition. I did not consider that it was proper for me to see it. It was not lodged as a production in the proof. It seemed to me to be inappropriate to examine documentation upon which counsel was seeking to cross-examine a witness. At one stage I was concerned that the issues being raised by counsel for the pursuer called into question the professional integrity of defender's counsel, but counsel for the pursuer assured me that he certainly was not doing that.

[34]      As I understand the position, as was explained to me by counsel for the defender, the solicitor for the defender instructed a precognition agent to take a statement from a police officer in relation to what the pursuer told the police about the disclosures he said that [S] had made. The precognition agent reported in writing to the instructing solicitor that rather than enter into a long question and answer session with the police officer, he had been given access to the text of the statement that was said to have been given by the pursuer. The precognition agent enclosed in his report the verbatim text of that statement. That was the material, as I understand it, that counsel for the defender used to cross-examine the pursuer.

[35]      Counsel for the pursuer observed that having recently precognosced the police officer concerned, doubt might be cast upon how the statement may have been obtained by the precognition agent. That, it seemed to me, was a different issue and not one I was able or required to resolve. That involved issues that might result in the police officer giving evidence. At one stage counsel for the defender stated that attempts were being made to contact the police officer but these had, thus far, been unsuccessful. In the event, the police officer was not led by any party.

[36]      In seeking to cross-examine the pursuer on whether he had given a particular statement to the police, counsel for the defender was no more trying to prove the content of a precognition than he would be when eliciting evidence from his own witness on the basis of a precognition taken from that witness. He is not thereby trying to prove the contents of a precognition. He is eliciting evidence he understands the witness will give based on the precognition that witness has already given. Whether the documentation upon which this particular cross-examination of the pursuer proceeded is termed a precognition or is in the form of a report or a letter from the precognition agent makes no difference. Counsel has documentation before him upon which he is entitled to cross-examine the pursuer as to whether he gave a particular statement to the police about [S] exposing his penis in the car. It is not for me to be satisfied, as counsel for the pursuer contended, as to the circumstances in which the text of the statement was obtained. If the pursuer disputes the accuracy of the specific terms of the statement put to the pursuer in cross-examination then he could seek to lead evidence from the police officer. This can in no way be described as an attempt by the defender's counsel to prove the terms of a precognition, and so, for that reason also, I repel the objection.

Issues arising from the evidence

[37]      [S] was born as a result of a sexual relationship between the pursuer and the defender while the defender was employed by the pursuer in Germany. They then lived in adjoining flats but slept together more often than not.

[38]      The personal relationship, which was already deteriorating, ended when the pursuer assaulted the defender on or about 22 August 2000, by which time the defender had returned to Scotland. The pursuer was still working in Germany, returning to Scotland from time to time. Until then, when he did so, he stayed with the defender.

Assault

[39]      The pursuer denied assaulting the defender. He countenanced the possibility that he may have struck out at the defender with his right hand in some form of spontaneous reaction to the defender wakening him by shouting at him. He said there was no intention to assault the defender. He was clearly not prepared to accept the defender's evidence that her nose had been broken in this incident. Much was made by his counsel in cross-examination of the defender about the lack of medical records having been produced to vouch the injury. It is one thing to test the defender's evidence about this. It is quite another, however, to make a positive assertion in cross-examination that she was lying about her nose having been broken. That could only have proceeded on the instruction of the pursuer. When medical records were produced later in the proof, the pursuer accepted that she had been diagnosed with a fractured nose when she attended hospital the following day and he accepted that this must have arisen during the incident. It is also of interest that it was positively put to the defender in cross-examination that the injury to her left eye was caused when the defender jumped on the pursuer in bed. That was not a line that was adhered to by the pursuer when he gave evidence.

[40]      I think the defender's evidence in relation to this incident is more credible and reliable. The pursuer probably did assault the defender. I accept the defender's evidence and I reject the pursuer's evidence where it contradicts the defender's. She said that the pursuer punched her in the face while on the bed. Her nose was fractured, which indeed was found to be the case at hospital the next day. She subsequently had an operation. It appears that an earlier attempt to operate could not proceed because the defender had a cold. It proceeded at a much later date. I cannot see why the defender would have called her sister and her brother-in-law and reported the matter to the police if it had occurred as the pursuer says it did.

[41]      Although, the pursuer continued to have contact with [S] and with his half-sister [Z] on the pursuer's return visits from Germany after the assault, the defender realised that she could no longer have any form of personal relationship with him as a result of the pursuer's conduct towards her.

[Miss ZS]

[42]      Between November 2002 and February 2003, the defender employed an au pair called [Miss ZS]. This was the third au pair that the defender had employed. She lived and worked in the defender's house. She was Slovakian and her English was not good. It would appear that her only interest beyond working for the defender was in the activities of a local church group and she spent much of her spare time in her room preparing for Bible study group meetings and the like.

[43]      A major part of the pursuer's case relies upon the terms of a translated written statement from [Miss ZS] dated 12 September 2003, the translation having been effected about 3 November 2003. This statement is produced as an appendix to the report of Steven Waters, number 11 of process, dated 19 January 2004.

[44]      I am not prepared to place any reliance upon the terms of this statement.

[45]      [Miss ZS] did not give evidence. She had been due to give evidence and had been on the pursuer's witness list for the proof set to take place over 6 and 7 July 2004. She was not, however, listed as a witness for this proof.

[46]      The circumstances in which she came to give this statement are mysterious and intriguing. According to the pursuer, she originally sent a statement directly to the pursuer in English. The pursuer then discussed this with his solicitor. He and his solicitor then thought it would be better for her to write a similar statement in her own language. The reasons for this were not explained or explored. She apparently did so. The pursuer then arranged through his secretary to have this second statement translated into English. Neither the original statement written in English nor the subsequent statement written in her native language has been produced.

[47]      The independent provenance of this document is compromised by the involvement of the pursuer in its creation, rejection and stipulation of a revised format, particularly against a background that the pursuer paid for [Miss ZS] to come from Slovakia to speak to Mr Waters and the pursuer had lengthy meetings with her over coffee in a hotel, forone and a half hours on 3 February 2003 and almost an hour the following day, on which occasions [Miss ZS] related to the pursuer inter alia the events regarding the allegation of [Z] being put in a cold shower.

[48]      The terms of the statement itself paint an astonishing picture of [Z] and [S] being emotionally and physically abused by her mother who can only be recognised as something of a monster, to use a word that the defender herself suggested. Needless to say, during lengthy and sustained cross-examination by the pursuer's counsel, the defender resolutely refuted the allegations made by [Miss ZS] in this statement.

[49]      It is difficult to conceive, if the substance of that statement were true, that signs of abuse or distress would not have been observed by other agencies. Neither the school nor the nursery had any concerns about the children's welfare.

[50]      [Z] did tell her father that certain things had happened to her while at home with her mother. I did not hear evidence from [Z]. The source of [Z]'s evidence is the pursuer himself. I am not prepared to accept that evidence as reliable.

[51]      [Z] was seen by an educational psychologist, MMcK, in November and December 2003. According to a report from MMcK, which is also produced as an appendix to Mr Waters' report, [Z] stated that the critical things that she had said to her father about her mother were not true. Specifically, [Z] said that lies she had told her father included telling him that her mother sent her to bed without dinner and had put her in a cold bath or shower with her clothes on. [Z] was reported to have disclosed a degree of embarrassment and shame about this and was categorical that her mother had not done these things. [Z] reportedly told the psychologist that her father would say 'bad things' about her mother to her and that she quite liked hearing this, particularly if she was cross with her mother at the time. [Z] also reportedly told the psychologist that her father would question her about how she was getting on with her mother and whether her mother was being nice to her. [Z] reportedly said that her father liked hearing criticism of her mother 'because he wants to get back at [her mother]'. The psychologist reported that [Z] felt responsible for the upset between her mother and father and that this had led to the court case. The psychologist was inclined to accept that [Z] had not been maltreated by her mother.

[52]      This is consistent with the defender's own evidence. She said that [Z] had told her in August 2003 that, during contact visits, the pursuer and [Z] had been having deep conversations about her life with her mother in the course of which [Z] had told lies to her father to the effect that her mother had abused her. She told her mother that her father had encouraged her to say such things.

[53]      Accordingly, in my view, there is considerable doubt as to the veracity of the disclosures of abuse which [Z] made to her father. These disclosures cannot be relied upon as a foundation for any suggestion that the defender physically or emotionally abused [Z] or [S].

[54]      Having discounted [Z]'s disclosures, the extreme nature of the allegations contained within [Miss ZS]'s statement is unsupported by any other evidence. The defender's sister, [Mrs JB], who saw the children regularly, neither saw nor suspected that such abuse was occurring. Neither Professor Furnell nor Dr Boyle identified any signs of abuse or distress on the part of the children during their investigations.

[55]      One concerning aspect of this material and the way it was used arises from the line taken by pursuer's counsel in cross-examination in contrast to the pursuer's own evidence. The defender was cross-examined on this statement in considerable detail. She was taken through it line by line. Time after time it was specifically put to the defender that the allegations contained within the statement relating to abuse by the defender towards her children were true. That line was reinforced by counsel emphasising that this was the proposition he was putting to her and ensuring that she understood it.

[56]      When the defender's counsel cross-examined the pursuer, he asked the pursuer if he wanted a finding-in-fact about whether [Z] was living in an abusive household in November 2002. His response was weasel worded. He was unable to answer that question and was looking towards his counsel for assistance. Contrary to the positive assertions that were made on his behalf by his counsel, the pursuer was extremely reluctant to state what his opinion was on these allegations. Initially he said he did not know if they were true. Latterly, when forced to pin his colours to the mast, he accepted that they probably were true although his language was not particularly direct on the issue.

[57]      Some of the other content of the statement is worthy of note. Towards the bottom of the first page and at the beginning of the second page, [Miss ZS] refers to having accidentally overheard the defender saying to [Z] 'This must stay between the two of us!' She goes on to state that she does not know what that conversation was about. Nevertheless she goes on to state that it clearly indicated 'that this "secret" should be kept from [her]. That conclusion is in my view unwarranted. It is not explained why she comes to this view. She then indulges in speculation. She continues, 'It is possible that they were talking about their previous Au Pairs and about their stays. [The defender] wanted to keep the truth about this away from me. However, to do this she needed [Z]'s help'. Such speculation is valueless. Nevertheless, the pursuer's counsel cross-examined the defender in relation to this passage on the basis that this was a sinister statement detrimental to the defender. Frankly, what immediately springs to my mind, if there is anything sinister about it, is that [Miss ZS] should seek to gratuitously and speculatively damn the defender when she admittedly does not know what they were talking about. What is sinister is: firstly, that she immediately jumps to the conclusion that they are talking about her; secondly, that she should indulge in unfounded speculation about previous au pairs; and, thirdly does not state what she believes that 'truth' to be.

[58]      The language was in places general, vague and imprecise. It was a commentary or opinion expressed without detail of the facts upon which it was based. For instance, in the paragraph following that one just dealt with, at page 2, [Miss ZS] states, 'Slowly, the true face of this family started to reveal itself. Constant distress, tension and fear, together with screaming and crying were taking over this family. The whole atmosphere had a very negative effect on the children who were often completely stressed-out, tired and tense'.

[59]      She went on to state that the children often lacked a feeling of security, commenting that this is 'so vital for children', because they were overcome by fear of their mother. She does not state how she knows that the children lacked a feeling of security.

[60]      There is an inconsistency between what [Miss ZS] says in her statement and what she said to Mr Waters. She states on page 2 that the defender's 'behaviour in the presence of her friends and acquaintances was also very strange. All of them were surprised that she had a new au pair again. In the first few days they often questioned me about how long I intended to stay with the family'. However, when she was interviewed by Mr Waters for the purposes of his report, he noted her to say that the defender 'appeared to have few friends and no one came round to the house'.

[61]      Another inconsistency is noted, not from the statement itself but from what Mr Waters noted [Miss ZS] as having said to him. He notes in his report 'She told me that she met [the pursuer] four times just for a couple of minutes each time, when he came to collect the children'. This cannot be right because the pursuer and defender both gave evidence that the pursuer had been invited to the defender's house on Christmas day 2002 to open presents, during which visit the pursuer engaged [Miss ZS] in conversation. The pursuer also had two lengthy meetings with her, to which I have already alluded, on 3 and 4 February 2003.

[62]      On occasion, the language used is almost whimsical. On page 2, for instance, [Miss ZS] states, 'A few hours later, or the next day, everything would get back to the old ways and the friendly atmosphere would seem only a dream'.

[63]      For all of those considerations, any fact-finding tribunal would find it almost impossible to lay any credence on a statement of this extreme nature unsupported by any other credible evidence without having heard the maker give evidence and cross-examined upon it.

Steven Waters

[64]      The pursuer led Steven Waters, solicitor, as a witness. He was a reporter routinely appointed by the court in October 2003 to investigate certain matters. It is unusual for a reporter to be called to give evidence at a proof. Indeed, the curator commented that he had been writing reports for the court for 30 years and had never once been cited to a proof. Before he was led, counsel for the defender raised certain concerns about the purpose of leading Mr Waters and the extent of his examination. There was a discussion, following which I took the opportunity to reflect upon the position overnight. Upon reconvening the following morning I made the following remarks:

The issue that has arisen in relation to leading of Mr Waters as a witness is not raised on the grounds of incompetency. It is accepted that the leading of Mr Waters as a witness, albeit that he is a court reporter and has provided a report to the court at an earlier stage, is competent. Ordinarily, there would be no discussion about it, and the relevancy of his evidence would be dealt with if objection was taken in the course of his testimony. I welcome, however, the opportunity to discuss this issue at this stage.

This is all against the background that it is generally accepted that in the normal course a reporter who has prepared a report to the court such as Mr Waters has in this case, would not be cited to give evidence and his views and opinions that he has given in his conclusions would not be subject to examination and cross-examination. That traditional view is touched upon in Bailey 2004 FamLR 133 and Lord McCluskey also touches upon reasons for it in Oliver v Oliver 1988 SCLR 285.

I have... had the opportunity of looking again at Mr Waters' report. There are a number of observations that I make:

·        this was ordered by the court on 24 October 2003; that is more than five years and is nearly 6 years ago;

·        it was specifically to prepare a report upon the question of parental rights and responsibilities, residence and contact in respect of both [Z] and [S];

·        [The pursuer]'s position as recorded in that report is that [the defender] is not a suitable person to have children in her care; that it is essential that he ([the pursuer]) bring them up; that he believes the children are at some physical risk; and that he would like two thirds of the month with the children and unfettered access when they are with their mother to 'observe' the situation;

·        [The defender] told Mr Waters that she needed to have [the pursuer] make contact with [Z] and [S]; that she did not intend to stop contact; that if [the pursuer] gets parental rights and responsibilities he will damage [S]; that [the pursuer] should have supervised contact with [S].

It is self-evident that the issues that Mr Waters was asked to report upon are different from the issue that I have to decide in this case. The issue of parental rights and responsibilities has been resolved and is no longer before this court. The issue of residence has been departed from and is no longer an issue before this court. [The defender]'s attitude, so far as her evidence tells me, is entirely different to that which pertained at the end of 2003 when Mr Waters was preparing his report. I have yet to hear from [the pursuer], if he gives evidence which I assume he intends to do. However, the issue of residence at least is departed from, which is different from his position as reported to Mr Waters.

The report of Mr Waters is, as far as I can see, irrelevant to the issue of whether [S] should have contact with his father now. [S] has not seen his father for more than 18 months. There is nothing in Mr Waters' opinion or conclusion that is going to assist me, having regard to the length of time and the events that have taken place since he reported in January 2004.

I am told that one of the aspects that Mr Waters is to be examined upon is the impression he has formed on certain matters. That is not in my view an appropriate topic for examination. Nor is his opinion or conclusion that he reached in January 2004 relevant to the decision that I have to reach today. The only extent to which it would be appropriate to examine Mr Waters, if it is appropriate at all, would be in relation to any factual matter where perhaps an inconsistency, discrepancy or an issue of fact has arisen in relation to the evidence in this case as opposed to what is contained in his report. However, it will be noted that Mr Waters in his report interviewed a number of witnesses who are not to be led in this proof. It would be quite improper for evidence of Mr Waters to be led if the only purpose of that was to introduce that hearsay evidence into the evidence in this case.

It seems to me that the leading of Mr Waters has been embarked upon without sufficient care or thought. I am anxious to discourage the citation of court reporters unless it is absolutely necessary. I cannot prevent it, but I am concerned that the leading of Mr Waters should not be reduced to an exercise in point scoring. I am concerned that the leading of his evidence will degenerate into such.

I am anxious that in light of my remarks parties reflect thoroughly upon the procedure to be adopted in this case and whether, in light of these remarks, Mr Waters is to be led and, if he is to be led, that consideration is given to the matters upon which he is to be examined, and indeed whether he be led before or after [the pursuer]...

[65]      After giving parties the opportunity to reflect on these remarks, the proof resumed and Mr Waters was led in evidence. His recollection was understandably limited having regard to the passage of time. The circumstances in which he came into possession of the statement from [Miss ZS], he could no longer recall. Initially, he said that her English was 'quite good' and that she was 'able to communicate and express her views quite clearly, although he went on to say that he did not recall her using the phrase 'emotionally unstable'. I consider that it would unreliable to proceed upon Mr Waters' distant recollection of her English language capabilities because, firstly, it is contrary to other evidence that was led. The defender said [Miss ZS]'s English was far from adequate and the defender's sister, [Mrs JB], said her English was not very good and was amazed she could write a statement in these terms. I accept their evidence on this matter. Secondly, the pursuer subsequently gave evidence that revealed her initial statement in English was rejected in favour of one written in her own language and subsequently translated, which in my view casts doubt on her English. There was nothing in Mr Waters' evidence that contributed materially or significantly to the issues in this proof.

22 August 2003: petrol station incident

[66]      There was an incident at a petrol station about Friday, 22 August 2003. The only direct evidence that was led about this came from the pursuer. The defender was not asked about it. Her husband was asked about it but he was not there. His account is obviously hearsay and I have disregarded what he said. I have made findings-in-fact from only the pursuer's evidence.

[67]      I have to say I found the pursuer's description of this incident pathetic and inappropriately emotional. He described how the defender had recognised his car, had 'slammed' on the brakes and 'immediately' reversed back 'into what anybody who knows this area is a very, very busy main road and sped off'. This evidence was given in a manner calculated to portray the defender's driving certainly in a bad light, and possibly as careless or dangerous. He was anxious to impress that this was a very busy main road. What he did not say was that the defender reversed into the face of traffic. Any busy road will have gaps in the traffic during which it will be perfectly safe to reverse a car onto. The pursuer was content, without actually saying so, to infer that the defender had carried out an unsafe manoeuvre with the children in the car.

[68]      The pursuer should have had no business following the defender. The fact that he did so demonstrates that he had cared not for how his actions would have been perceived by the defender and the children. He was intent on provoking a confrontation or at the very least causing the defender and her children concern that he was following them. His explanation was pathetic: 'I decided to follow them because I was worried... I didn't know what was happening in the house. I hadn't even met or seen [the defender's husband] at that time'.

[69]      He then gives an account of what can only be described as a pursuit. He says the defender 'sped off', which suggests an element of fast speed in her departure. The pursuer has not drawn any fuel from the pump, but he has to get back into his car, drive off the forecourt onto the main road, which, of course, he has already said is a very, very busy main road. He then drives in such a manner, which again must involve an element of fast speed because he is able to catch up with the defender, follow her through one roundabout and then draw level when approaching the next. The pursuer is no doubt that the children have seen him at the petrol station. So, he is heedless to how this pursuit at some speed will be perceived by the defender and children.

[70]      He tells me that when he drew level he could see [Z] sitting in the front passenger seat. He does not immediately describe the look on her face. Instead, for dramatic effect, he says that he will never forget the look on her face, adding, for emphasis, 'never'. He has to be asked to describe the look on her face. He says it was 'screwed up and her head bowed... screwed up in contortion, her head was bowed and she just stared at me. It was only a matter of seconds'. I have not accepted that evidence to the extent I am prepared to make any finding of fact. However, I do observe that even if [Z] were in some state of distress, is it any wonder with the pursuer chasing after the car she is in, drawing level at her side and looking at her?

[71]      One might have thought that having carried out this manoeuvre, the pursuer would have, even then, invoked some common sense and discontinued the chase. However, he continued to follow the defender and, when she drove into a different petrol station, followed her in. The pursuer acknowledges that the defender decided not to fill up there because of his presence. However, he then said that [S] turned and stuck his tongue out at him. He then describes blowing [S] a kiss and [S] blowing two kisses back, which seems a little incongruous that this pursuit, begun because of worry or concern as to [Z] and [S]'s welfare, should end in this fashion. I got the impression that the pursuer was determined to reflect a favourable impression of [S]'s disposition, but because of the incongruity of that, I am unable to accept his evidence to make any finding-in-fact to this effect.

[72]      Although there was no direct evidence led about it, counsel for the pursuer asked the defender's husband in cross-examination if he remembered, after this incident, 'a threat being made through solicitors... that interdict proceedings would be raised, seeking a power of arrest, under the Protection from Abuse (Scotland) Act 2001'. If such a threat was made, it would hardly be surprising.

Letter of 28 July 2003

[73]      When the defender stopped the pursuer having contact with [Z] and [S] in August 2003 following her discovery, through [Z], that the pursuer intended to raise court action to have [Z] and [S] removed from her care and that the pursuer had been questioning [Z] for many months about her home life and had encouraged her to tell lies that her mother had abused her, the pursuer wrote a letter, dated 28 July 2003, to the defender's sister, [Mrs JB].

[74]      This letter is a serious condemnation of the defender as a person and a mother. It criticises her suitability as a parent. It refers to personality flaws, which are seen by the pursuer to jeopardise the children's safety and security. It accuses the defender of mentally torturing [Z], which the pursuer claims he saw and describes as 'ceaseless'.

[75]      This letter was intended to persuade the defender's sister to side with the pursuer and to tell the defender some 'home truths' as he saw it. It had no such effect. In my view this letter is pathetically self-serving and pontificating. The views expressed therein are extreme. It is difficult to imagine, if they are genuinely held views, that someone in the pursuer's position could ever justifiably abandon his quest for residence of the children. At the proof diet in July 2004, he was still seeking an order that the children be removed from the defender to live with him. He was still maintaining and offering to prove that the defender had physically mistreated both children and that her abusive behaviour was likely to harm the children's mental welfare and development. [Miss ZS] was cited and ready to appear as a witness. Nevertheless, he elected not to try to prove his case. He elected to compromise his quest for residence. He was, obviously, content that the children should live with the defender.

Agreement of 7 July 2004

[76]      I have set out the terms of the agreement reached in July 2004 by setting out in full the interlocutor of 7 July 2004 in my findings-in-in fact. That agreement was not made against a background of cordiality and reconciliation. The relationship between the parties was poor by then because the pursuer was still seeking an order to remove the children from the defender, to which I have just alluded. The defender did not trust the pursuer. Negotiations took place over the first two days set down for proof. The pursuer and defender were in separate rooms. The negotiations were conducted between counsel and solicitors instructed by each party. Professor Furnell, who had been appointed by the court to carry out a psychological examination of the children, was in attendance within the building and available for consultation by the parties. As I understand it, the parties never met face-to-face in the course of these negotiations.

[77]      I had no difficulty in accepting the defender's evidence that she felt under considerable pressure to agree to any settlement which allowed the children to remain with her. It is not difficult to comprehend that in the face of the allegations being made by the pursuer, particularly knowing that [Miss ZS] might give evidence, the defender may very well have been asked to comprehend the uncertainty of litigation and, notwithstanding the defender's belief that the pursuer's allegations of mistreatment were unfounded, she may well have been apprehensive of the risk that the pursuer might have been successful.

[78]      Equally, it does not reflect well on the pursuer that, having offered to prove such serious allegations against the defender, he should then depart from that case. It is difficult to see how any party, having come to court ready to prove such a case, could simply walk away from it and leave the children living with someone so abusive if he genuinely believed that to be the case.

[79]      The interlocutor of 7 July 2004 appears at first blush to be detailed and comprehensive. However, it failed to provide for the dates on which regular weekend contact was to begin, or when during the four-week period it was to occur. It did not provide any guidance as to whether contact weekends were to be alternate or consecutive. The pursuer understood it to be alternate, but his solicitor in subsequent correspondence suggested dates which provided for consecutive weekend visits.

[80]      There was no express mention within the interlocutor of a pre-arranged holiday which the children were to take with their aunt in Ayrshire. It was put to the defender in cross-examination that no such discussions had taken place and that this had been an attempt by the defender to immediately undermine the agreement. However, it is clear from the correspondence that the pursuer's solicitor acknowledged that such a holiday was to take place and so the pursuer was clearly aware of it and that it had been discussed. I am, consequently, at a loss to know what the foundation was for this line of cross-examination by pursuer's counsel.

[81]      The terms of the interlocutor provided for very generous contact between the children and the pursuer. Indeed, Professor Furnell referred to it as an 'almost shared-care' arrangement, which, clearly with the benefit of hindsight four years later, he considered was not wise.

[82]      The agreement could also be criticised for lack of definition in the term 'summer'. Furthermore, although holiday contact was to include the regular contact that would otherwise have taken place, it was unclear whether that would be inclusive of the long or short weekend, or indeed both.

[83]      The agreement did not provide for the method of communication that was to take place between the parties to make arrangements for the contact provided for in the interlocutor. This proved to be a material omission. It was not even discussed in negotiations.

[84]      It is clear that on any view of the matter it would be necessary for the parties to communicate in some manner in order to give effect to the agreement set out in the interlocutor. It was not necessary, as counsel for the pursuer persistently maintained during his examination and cross-examination of witnesses, that the communication be direct between the parties.

[85]      The defender candidly admitted that she very quickly regretted the agreement. No doubt, that attitude informed her response when the pursuer's solicitor wrote to her solicitor on 23 July 2004 proposing dates for contact. Perhaps, although well-meaning, the pursuer's solicitor might, with the benefit of hindsight admittedly, have been better not to comment about the agreement or to refer to both parties having made compromises. This, clearly, was like a red rag to a bull, so far as the defender was concerned.

[86]      Matters were not helped by the fact that the defender's solicitor was leaving his firm and left the defender to respond directly to the pursuer's solicitor. This was most unfortunate because it resulted in the defender communicating in an entirely unrestrained fashion. Had she had the continued benefit of a solicitor to advise her at that stage, matters might not have developed so inharmoniously.

[87]      The defender stated she was prepared to communicate either directly with the pursuer's solicitor or another intermediary. She suggested the pursuer's secretary or any person who had been on the pursuer's list of witnesses. She said that she was prepared to correspond with anyone the pursuer deemed fit. The initial response from the pursuer was that he was not prepared to use his solicitor because of the cost implication. In the event, no intermediary was ever proposed by him. Against that background correspondence continued, initially between the defender and the pursuer's solicitor and, on occasion, the parties e-mailed each other directly.

[88]      In the event, when responding to the pursuer's solicitor, the defender took umbrage at the suggestion that both parties had compromised in reaching agreement. She had always been offering contact, but as the pursuer had conceded his crave for residence, he was the only one, in her view, who had compromised. She indulged in combative correspondence. She made it plain she was not prepared to communicate directly with the pursuer, as his solicitor had suggested in his letter. It seems to me, having regard to the history of matters, the way in which negotiations took place against a complete absence of any form of cordiality or reconciliation and without addressing the pursuer's case of maltreatment and abuse with the concomitant lack of trust such a case was likely to engender in the defender, any expectation that there would be direct communication between the parties was unrealistic.

[89]      The tone of the correspondence between the defender and the pursuer's solicitor quickly deteriorated. Disputes had immediately emerged about each party's understanding of the date upon which weekend contact was to commence and the dates of the children's holiday with their aunt. The next e-mail from the pursuer's solicitor of 5 August 2004 introduced the threat of having to return to court for breach of the order if the pursuer's proposed timetable were not agreed.

[90]      On 17 August 2004, the defender e-mailed the pursuer directly but again asked that he find an intermediary. Her e-mail was in robust, assertive and peremptory language. She underlined phrases and used bold type for emphasis. She stated that the proposed timetable for contact was outwith the agreement at court and described the pursuer's proposals as 'obviously ridiculous'. She complained that his proposals for contact over Christmas and New Year 2004/5 would result in [S] being shunted backwards and forward between the parties no less than six times within a fortnight. She complained that the pursuer failed to recognise that [S] lives with the defender. She asserted that she would not have [S] 'shunted from pillar to post'. She threatened that failure to return [S] on any of the due dates would result in the police being informed and contact being suspended. She complained that the pursuer was obsessive, trying to regulate [S]'s life like a military exercise devoid of flexibility. She complained of harassment and left an ultimatum that either he accepts what he had in terms of the interlocutor or they returned to court for review on the grounds that it is not working.

[91]      Between 19 and 31 August 2004 the pursuer had holiday contact with [S]. He took [S] to England. On his return, the defender wrote again to the pursuer. She did so directly in the absence still of any intermediary having been proposed. She observed that [S] had returned in a confused and uncertain state. [S] had complained that he had been away too long. This had been the second time he had commented on the length of his visits. She observed that [S] had been refused a request to telephone the defender. The defender complained about [S] being taken out of the country without her knowledge. She observed that upon return [S] had begun to have 'bad dreams'. He had disturbed sleep. He had not hitherto been prone to having bad dreams. He had reverted to using his dummy and his favourite blanket. He had begun to wet the bed again. The defender observed that these were classic signs of a distressed and upset child. She complained that [S] was becoming uncharacteristically clingy, unsure and insecure. He was constantly seeking reassurance of who would pick him up from nursery. He no longer seemed settled there. His relationship with [Z] was being affected. [Z], the defender observed, was becoming extremely unhappy and unsettled. She was constantly asking when [S] would return during the recent 12-day contact period. The defender noted that the 12-day summer contact was offered by her to allow continuity despite the recommendation of Professor Furnell that contact should not be for more than four or five days at a time. She stated that she would not agree to a visit of more than five consecutive days and for the foreseeable future summer contact should be taken in three 4/5-day blocks to avoid further confusion and upheaval for both children.

Chickenpox episode

[92]      In September 2004, the arrangement in place for contact was that the pursuer would uplift [S] from nursery and return him there first thing in the morning at the end of contact. One day, the defender was telephoned by a member of staff requesting that she take [S] home because he had chickenpox. This occurred two or three days before the pursuer's next contact visit was to take place. It is perhaps regrettable that the defender left it to the nursery to tell the pursuer that contact would not be occurring. Nevertheless, the pursuer did receive this information. However, he refused to accept that having chickenpox was a valid reason for contact not taking place. He maintained that he could look after [S] and that [S] would enjoy the day's activities he had planned. He insisted on contact taking place. He demanded production of a medical certificate. He demanded that [S] be taken to a car park to be collected so that contact could proceed. The defender refused so to do because of [S]'s illness.

[93]      In my view the pursuer's attitude was entirely unreasonable and lacked any form of compassion and understanding for [S]'s circumstances. His request for a medical certificate was on any view unjustifiable, particularly when he had some form of independent confirmation in the form of the nursery staff telling him that [S] had to go home because he had chickenpox. The pursuer appears to me to have preferred to use this episode as a means of perpetuating his dispute with the defender, cynically preferring to view every step she takes as an attempt to thwart and undermine the contact to which he considered he was entitled to insist upon in terms of the court order.

[94]      There was a repeat of this behaviour on the part of the pursuer the following month. In October 2004, [S] had a temperature and was absent from nursery. The pursuer demanded production of a medical certificate and to know when contact would take place. He accused the defender of being obstructive and failing to obtemper the court's interlocutor. He threatened to restart court proceedings.

[95]      Against that background, correspondence between the parties became increasingly hostile and threatening. The tone of the defender's communications was, on occasion, vituperative, vitriolic and inappropriately personal towards the pursuer's solicitor. She felt particularly incensed after the pursuer's solicitor sent one e-mail about 10 o'clock one night. The defender saw that as harassment and lacking objectivity in carrying out the pursuer's instructions.

[96]      In December 2004 the pursuer lodged two minutes: one seeking residence of [S]; the other seeking to find the defender in contempt of court and to punish her.

[97]      What then followed was an attempt by the sheriff at Alloa to regulate contact by a series of child welfare and other hearings. Over 35 months between February 2005 and January 2008, some 42 interlocutors were written. 21 of these assigned child welfare hearings. Only a handful of the rest were formal interlocutors assigning dates to hear motions.

[98]      For reasons that were not explored in evidence or otherwise explained, although the minute to find the defender in contempt of court was lodged on 17 December 2004, a proof on that issue was not appointed until 21 October 2005. It was conjoined to be heard along with proof on the pursuer's minute for a residence order. Two issues arise.

[99]      The first is the extraordinary delay before proof on contempt was assigned. Bringing a minute to find a party in contempt of court is a serious step that should only be taken after the most careful deliberation. It should not be taken lightly. It should not be taken procedurally merely to pressurise an opponent. The repercussions for an opponent can be devastatingly serious. The opponent, if found to be in contempt, potentially faces imprisonment. When lodged, such a minute should be determined expeditiously and without delay. It is quite apparent that the pursuer, after lodging this minute, was content to allow it to sit in the background and bring additional pressure on the defender. There is no sign in the interlocutors of any refusal of the pursuer moving for a proof on this issue. I conclude that the pursuer's approach in lodging such a minute was simply as another weapon in his armoury to bring pressure on the defender. Such motivation is to be deprecated.

[100]  Secondly, and only by passing comment, there would appear to me to be evidential difficulties in hearing a proof on contempt conjoined with a proof on a minute seeking a residence order. As I understand it, the sheriff assigned a conjoined proof because he felt that the evidential issues in relation to a finding of contempt were inextricably intertwined with those that would affect the question of residence. However, as I have pointed out in an earlier judgment issued in the course of this proof, the standard of proof in proceedings for contempt is proof beyond reasonable doubt. The defender would not be a compellable witness in such proceedings. The standard of proof in proceedings for a residence order is only on the balance of probabilities, and in such proceedings it is likely that the defender would wish to give evidence on these issues and indeed would probably be an essential witness if the court was to be properly informed of all the evidential issues it had to determine. For these reasons it would be dangerous and potentially unfair to the defender to conjoin the proof on these separate minutes.

[101]  In the event, the conjoined proof was assigned to begin on 10 January 2006, but it was discharged on joint motion on 13 December 2005. On 24 February 2006, some 14 months after it was lodged, the court granted the pursuer's motion to dismiss his contempt minute.

[102]  Between February 2005 and January 2008, the procedural course of the pursuer's minutes was punctuated by motions to have the defender ordained to appear at the bar of the court in respect of alleged failures to obtemper interlocutors in relation to contact. None of these motions was ever determined by a finding that the defender was in contempt of court.

[103]  In May 2005 John Andrew, solicitor, Edinburgh, was appointed curator ad litem to [S]. He was originally appointed to investigate and report on the arrangements for contact with [S] and the second name by which [S] should be known. Subsequently, Mr Andrew was sisted as a party to the action.

[S]'s surname

[104]  An issue arose in the course of the proceedings about the surname [S] should use. The pursuer had enrolled a motion for a specific issue order that he should use the same surname as the pursuer. The pursuer seeks a finding-in-fact that prior to this the defender had attempted to ensure that [S] was called by her present married name at school. The evidence in my view does not support such a finding. The pursuer's contention is based, I believe, on the fact that when the curator spoke to [S] subsequent to the order being made, [S] said it was his mother's idea. The pursuer himself says that [S] told him that, on the same day as the curator had spoken to him at the pursuer's house. The defender in evidence said it was a matter that she had been concerned about, but denied that it was her idea. She said that [S] wanted to be known by the same name as his mother, stepfather and sister. [Z] was by then known by the defender's married name. According to the defender, [S] felt a degree of isolation in having a different surname and did not want to have to explain why that was. The defender's husband also denied that this idea was driven by the defender. [S] was registered at school under the pursuer's surname.

[105]  I take the view that the evidence of what [S] said is not a reliable indicator of the truth of the matter. I accept the defender's evidence that [S], when in difficulty or in trouble, blames or seeks to divert attention onto someone else. The curator saw [S] after the decision had been made. It did not appear that [S] was aware of the matter. Why the curator came to the impression that [S] was worried about telling his mum that the matter had been decided rather than, for instance, that [S] was disappointed that his wishes had not been granted, was not explored. It should not be overlooked that the pursuer's motion was not opposed by the defender. The sheriff determined the issue on the basis that [S] was too young to understand the issue let alone decide by what name he is to be known and [S] should be told that his name is that of the pursuer because that is his father's name.

[106]  The issue of by what name [S] should be called is of course an important issue in itself. But, for present purposes, the more illuminating aspect is the attempt by the pursuer to use this as another element in what is perceived by him to be a determination on the part of the defender to alienate [S] from and marginalise the pursuer. I am unable to accept the curator's conclusion that any worry [S] may have indicated, when the curator spoke to him after the court's decision was made, was necessarily to do with apprehension of telling his mother. It seems a rather strange conclusion to reach, because his mother firstly did not oppose the motion and secondly would already have known about it. Nonetheless, in cross-examination of the pursuer, the curator asked the pursuer why [S] should be worried, to which the pursuer replied that [S] 'felt under great pressure', presumably from his mother. Why the pursuer enrolled such a motion in the first place was never explored in evidence. Arguably, it might be said that this was another example of a self-serving motion initiated by the pursuer.

[107]  On 20 September 2005 the sheriff directed Professor Furnell to report on issues of residence and contact in relation to both [S] and [Z].

Sexual abuse allegations

[108]  Within days of Professor Furnell's appointment, the pursuer made allegations of sexual impropriety involving the defender's husband in relation to [S]. The pursuer denies that he made any such allegations, and indeed his whole case at proof on this issue was predicated on the basis that he did not and was not making any such allegations against the defender's husband or anyone. I do not believe the pursuer and reject his evidence on this matter. His stance on this issue is disingenuous and deceitful. It does not bear scrutiny.

[109]  To accuse someone of sexual impropriety involving a child is a most grave allegation. Even although there may be no truth in it, the fact that the allegation has been made can have devastating effects on the person against whom it is made. The very fact that an investigation is initiated can be irretrievably catastrophic to that person's personal and business relationships and his standing in the community, particularly if it becomes public knowledge in a small community such as that in which the defender and her husband lived. That the pursuer attempted to squirm his way out of this issue at proof in the way he did, is abhorrent, reprehensible and spineless.

[110]  More than any other incident in the course of this long litigation, the fallout from these allegations has served to elevate the mistrust and bitterness the defender already felt towards the pursuer to outright hatred, disdain and utter contempt. I find myself unable to be critical of that reaction.

[111]  It has also similarly informed the attitude of the defender's husband towards the pursuer, who until these events, had probably, compared to the defender, been more tolerant of the pursuer.

[112]  I cannot make any finding-in-fact about what it was that [S] said. I find the pursuer's evidence on this matter untrustworthy. His evidence was vague, uncertain and ambiguous. At times, under cross-examination, he was pedantic, and evasive almost to the point of prevaricating. He had poor recollection of detail. He contradicted himself.

[113]  The method by which counsel for the pursuer approached this topic with the pursuer is worthy of note. He took the pursuer in examination-in-chief to a production, number 5A of process, which is a police report that had been lodged by the curator. He then took him through what was written therein as to the events and exchanges between [S] and the pursuer. There had been an initial objection, or more an observation, by defender's counsel that this was a matter which was contentious and suggested that counsel for the pursuer ask open questions rather than closed leading questions. Counsel for the pursuer confirmed that he would do so.

[114]  Counsel for the pursuer then read out to the pursuer what is stated therein to have happened and what is noted therein to have been said to the pursuer by [S].

[115]  The examination-in-chief proceeded as follows:

Can you see the third paragraph which says, "On Sunday 25^th September 2005 [S] was in the bath and [the pursuer] saw [S] playing with his penis. [The pursuer] challenged [S] saying, 'No, we don't play with our willies'. [S] said 'It's all right, dad'. [The pursuer] said, 'No, it isn't all right to do'. [S] said, 'No, B**** says it's all right and he plays with it'. Do you see that's what it says? - I see that's what it says.

 

Is that an accurate account of what you remember happening? - No.

All right. First of all do you remember something of this nature happening? - Yes, indeed.

On Sunday 25^th September 2005? - Yes, indeed. There is a key factor which is wrong here.

What then happened? - May I just read this again, please? The exchanges between [S] and myself are I believe correct but the incident, if that's what we can call it, happened while [S] was in the living room taking his clothes off preparing for his bath.

Does this third paragraph accurately detail what [S] said to you? - To the best of my recollection.

[116]  So, the pursuer, having been taken to this passage and led through it, agreed that the exchanges between him and [S] were accurately recorded, but had happened while [S] was taking his clothes off in the living room before taking his bath, not during his bath as the report recorded.

[117]  A little later, counsel for the pursuer continued:

You see the report goes on, "After [S]'s bath he was dressed in his pyjamas and was again playing with his penis on top of his trouser bottom. Again [the pursuer] challenged this and [S] said something along the lines of 'It was okay to press it' and asked, 'Is it okay for others to press it?' to which [the pursuer] replied, 'No'.

[118]  At this point, counsel for the defender interjected that it would be his intention to make comments that this was directly leading the witness rather than simply asking the witness what happened. I was conscious that this had not been tabled directly and explicitly as an objection, but rather an intention to comment on the quality of the evidence by the manner it had been elicited. I stated that I did not understand counsel for the defender to be suggesting that it was incompetent for the pursuer's counsel to proceed in this fashion but I was sensitive to the fact that it could be interpreted as leading and, of course, the answer to any leading question is valueless. In the event, counsel for the pursuer was keen that I should not entertain such an argument and he departed from eliciting the evidence in this fashion.

[119]  It could, of course, be argued that the damage had already been done. Nevertheless, counsel for the pursuer then simply asked the pursuer what had happened. It is noteworthy that the pursuer had a certain reluctance to put down the summary that had been in front of him and, when directed by me to hand it back to the clerk, he observed 'It was just useful, my lord, to see the quotes, that's all'. I thought this to be a curious remark at the time. As his evidence unfolded, he was unable to give consistent evidence about the exchange.

[120]  The pursuer was then asked what had happened and he said:

It was just before bath time... and I saw him I believe playing with his willie and as I said in the report this was not an unusual phenomenon in itself and I just said I think what I had said before to him, "Come on", made a joke of it, "we don't do things like that", or "we don't do that", and he for the first time in this instance came back at me and said something like, "Yes, it's all right to do it", and I believe I said smilingly, jokingly, "No, it isn't," and then I think he said something like, "Yes, it's all right to do it: B**** does it," ... He had his bath. He got dried and dressed in pyjamas as normal and he went to sit down on the sofa. We put on a DVD... and I saw him playing with it, playing with his -- excuse me, pressing his penis with his pyjamas on from outside so to speak and I can't remember without looking but an exchange happened in which I said, "Come on, we don't do that", and I think he asked me a question in a -- with a question tag -- in question tag form, "It's okay to press willies, isn't it?" and I said, "No", and he said -- then followed up with, "It's okay" -- I believe something like, "It's okay for others to do it". The police report I think uses along the lines -- and I think that's the correct expression -- and my natural reaction to that rightly or wrongly at the time, I don't know why I spontaneously arrived at this with the last comment, "It's okay if others do it", or whatever the expression was referred to others doing it to themselves, if you can grasp, rather than others doing that to others. That was my natural, rightly or wrongly, my natural interpretation of what he said and then the matter was dropped.

[121]  Cross-examined about what had been said by [S], the pursuer said the first thing [S] said was:

"It's okay" or "It's all right" and maybe "It's okay, it's all right to play with it".

Told that it was not, the pursuer said [S] continued:

"I believe he said something like "It's okay" or "It's all right" maybe "dad". I may, I think I may have said, "No, it isn't" but then at one point either then or just after he said "It's okay to play with it", I believe. The exchange was very, very quick and very short and it's difficult to look back now and recall everything visibly, especially as I was pretty soon in a state of shock and confusion... then [S] I think said "Yes" and just followed it up with "B**** plays with it".

[122]  In relation to the episode on the sofa after [S]'s bath, the pursuer said under cross-examination that [S]:

"started playing with his willie again I believe; I think it was then".

Told not to do it, the pursuer said [S] said:

"something along the lines of it was okay to press willies... I said something like "No, it isn't" and I believe that was the end of these eventful occurrences".

[123]  So, there is already seen to be an inconsistency in exactly what it was that [S] is supposed to have said.

Firstly, before [S]'s bath, the pursuer stated that the terms of the police summary, number 5A of process, were accurate so far as the exchange between the pursuer and [S] was concerned:

'No, B**** says it's all right and he plays with it'

A different version is later given during evidence-in-chief:

'yes, it's all right to do it: B**** does it'

Then, a third version during cross-examination:

'It's okay...' or 'It's all right...' or 'It's okay, it's all right to play with it', with maybe 'dad 'added;

then when it was suggested that it was not okay:

'Yes, B**** plays with it'

And another version is to be found in the pleadings, in an open record, number 26 of process, before they were subsequently removed. There, the pursuer avers [S] said:

'its (sic) ok to play with your willie'

and, when told that it was not right, [S] is averred to have said:

'yes it is, dad, B**** plays with it'.

[124]  Similarly, the pursuer gave different versions of what [S] is said to have said after his bath while sitting on the sofa.

Firstly, in the police summary, which, of course, the pursuer accepted as accurate, it is recorded that [S] said:

'It was okay to press it. Is it okay for others to press it?'

In examination-in-chief, the pursuer said that [S] was:

'playing... pressing his penis with his pyjamas on from outside'

and said:

'It's okay to press willies, isn't it? It's okay for others to do it.'

Then, in cross-examination, the pursuer said that [S] started playing with his willie again and said something along the lines of:

"it was okay to press willies"',

but no mention of [S] saying it in the form of a question, which the pursuer had been at pains to explain in his examination-in-chief.

Again, in the pursuer's pleadings in the Open Record number 26 of process, the pursuer offers to prove that [S] said:

'its (sic) ok to press willies together'.

[125]  This was, according to the pursuer, a matter of gravity and importance. The pursuer himself says that he was, variously, 'numb', 'shocked' and 'very, very confused' about what he had apparently heard. It was of such importance that he spoke to his solicitor about it, reported the matter to a doctor and then discussed the matter with the police, albeit without disclosing his name, before formally reporting it to the police. Yet, I find it impossible from his evidence to make any finding-in-fact as to what, if anything, [S] said. The pursuer took no contemporaneous note of what was said for accuracy. When asked about this by his own counsel, his response was typically lacking any forthright quality to a question, the answer to which I would have expected a straightforward 'yes' or 'no'. His answer was 'In writing?... No I didn't, not that I can recall anyway'.

[126]  As already alluded to, the pursuer denied in evidence that he had made any allegation of sexual impropriety against the defender's husband. That denial cannot stand any scrutiny. Almost immediately after the defender had, upon legal advice, declined to allow [S] to be interviewed on a joint police and social work investigation, the pursuer enrolled a motion in court wherein he asserted that there had been disclosures of a serious sexual nature relating to the defender's husband in his care of [S]. The motion stated, inter alia, that the pursuer sought

interim residence of [[S]]... to allow investigations by professionals of the disclosures made by the child involving the defender's husband. Following disclosures of a serious sexual nature by the child to the pursuer, the police attended at the home of the defender to interview a child

That is an allegation of sexual abuse.

[127]  In his pleadings, subsequent to these events, the pursuer averred

... that [[S]] made certain disclosures of the sexual inference in respect of the defender's husband with whom [S] resides which gave cause for concern about his safety.

That is an allegation of sexual abuse.

[128]  His pleadings are not, however, the only source. In cross-examination he admitted that the attempts to remove [S] from his mother was 'because the reality of sexual abuse was one potential explanation'.

[129]  The pursuer was asked in cross-examination by counsel for the defender who was 'B****' being referred to by [S], to which the pursuer replied 'I don't know'. Pressed further if he knew who [S] was referring to as B****, the pursuer replied, 'Rightly or wrongly it seemed to point to [the defender's husband] but, as I said, it was a very confused time for me'. Specifically then pressed as to whom the pursuer thought [S] was referring when he said 'B**** says it's all right and he plays with it', the pursuer said, 'I thought it might be [the defender's husband]; that was my instant reaction rightly or wrongly'.

[130]  In suggesting that he was making no allegation against the defender's husband from what [S] said, the pursuer is being dishonest and disingenuous. The only conclusion I can come to is that the pursuer, having realised, perhaps upon advice and perhaps independently, that making allegations of sexual inference against the defender's husband is likely to be so detrimental to his case and to any prospect of civilised or harmonious relations with the defender and her husband, that he has chosen to depart from any suggestion that he was making allegations himself and, instead, to take the stance that he was merely a reporter of what [S] had said. That does him no merit. Furthermore, he is not even a reporter upon whom any reliance can be placed as to what, if anything, [S] said.

[131]  I am left to wonder, in light of the pursuer's original pleadings and the pursuer's subsequent admissions from which there can be no doubt that he thought that the person to whom[S] referred was the defender's husband, what the explanation is for counsel for the pursuer's cross-examination of the defender that the identification of the person referred to as B**** was unknown or could have been any B****.

[132]  Another unsatisfactory reflection of the pursuer's evidence comes in relation to the question of whether [S] was showing any sign of distress that weekend. The pursuer was cross-examined closely on this aspect and, at first, the pursuer was quite certain, almost unusually so, that [S] had shown no signs of distress that weekend. It is instructive to note the exchange in cross-examination:

Now, in all this, in all of the events that weekend that doesn't sound as if [S] was distressed? - I would agree with that.

He was not in distress? - He did not show signs of distress.

Over the whole weekend -- I presume from Thursday you picked him up there was no sign of distress? - No.

None? - I can't recall any signs of real distress that would have stuck in my mind.

Because if there had been distress you would have perhaps been able to focus more on the meaning of the words you heard, is that fair to say... if there had been that distress? - I think one would need to elaborate a bit of what one meant by distress.

Well, did you see anything that you think was distress that weekend? - I can't recall seeing anything. Now thinking about it I cannot recall any incidents that I would associate with visible signs of distress -- not that I can recall anyway.

Then, pressed a little further, the pursuer is asked if he heard anything other than seeing things. The pursuer then says there was an incident where [S] had said 'don't touch me', but he could not recall if it was that weekend or before. He was sure that he had told the police about this matter, although it does not appear in the police summary.

[133]  It is convenient to pause at this point to observe that if there had been such an incident that weekend when [S] had said 'don't touch me' (and the details were not elaborated upon in evidence) it is extraordinary to think that the pursuer would not have related it as part of the events of that weekend at the outset and certainly when initially cross-examined about whether [S] had shown any signs of distress that weekend.

[134]  However, Professor Furnell, in his report number 33 of process, took evidence from pursuer about the events of this weekend when making his investigations for his report. He recorded on page 5 of his report what the pursuer told him. That paragraph begins:

Thereafter, at the end of September 2005, during a visit to his father, [S] was said to have been distressed. The child was said to have woken up during the night crying "Don't touch me". [The pursuer] stated that he was shocked.

There would appear to be no doubt, if Professor Furnell has accurately recorded what he was told, that the pursuer told the professor that this occurred on the same weekend as the pursuer says [S] made his disclosures. It is regrettable that, because the pursuer was called after his other witnesses had given evidence, no opportunity was given to question Professor Furnell about this.

[135]  Matters do not rest there. In his report, Professor Furnell goes on to narrate:

... [S] had been getting ready for his bath. He is said to have asked his father "It's okay to play with willies, isn't it?" In response to a question from his father, [S] is said to have responded "B**** plays with it". [S] then confirmed "Yes he plays with it". [The pursuer] indicated that he was taken aback at these statements.... Later, [S] was said to have pressed his penis outside his pyjama trousers. [The pursuer] had indicated to [S] that he should "leave it alone". [S] had responded "It's alright to press (or squeeze) willies together". [The pursuer] responded "No it's not". [S] then reiterated "Yes it is".

So, here we have yet another version of events. The question "It's okay to play with willies, isn't it?" is recorded here as being asked before his bath rather than, as the pursuer said in evidence, after his bath on the sofa. Again, the lack of consistency in phraseology is apparent. It is again regrettable that Professor Furnell had given his evidence before the pursuer gave his. However, I have every confidence that Professor Furnell would be fastidious in his note taking and recording of events such as these. I have no doubt that he kept a very detailed and careful note of what the pursuer told him. He has recorded certain phrases in quotation marks, indicative of either the pursuer's direct speech or that of [S] as conveyed to the professor by the pursuer. In my view, this reinforces my view that on such matters, when accuracy is of the utmost importance, where the precise words said to have been used by [S] is crucial, the pursuer is, at best, a thoroughly unreliable historian.

[136]  Yet another example of this comes from the fact that, from the professor's report, it appears that the pursuer told him that these events took place on the Saturday rather than, as the pursuer stated in evidence, the Sunday. Of course, the pursuer had been led initially through the police report, which had stated that this occurred on the Sunday. This is not something that can be dismissed in the category of either a typographical error or mishearing or faulty recollection of what the pursuer said. The pursuer is quite precise, according to the professor's report, as to when this happened to the extent that he notes the time to have been given as approximately 7.45 pm. Not only that, the professor goes on to report 'In any event, [S] and he had a normal day the following day which was a Sunday. [The pursuer] then returned [S] to school on the Monday morning as usual'. The pursuer, when cross-examined about this, said that it would be wrong to have told the professor that the events took place on the Saturday, because they took place on the Sunday.

[137]  While Professor Furnell was perfectly clear that it was not his role to investigate anything arising from what [S] was said to have said, he said that he noted as accurately and factually as he could what was said by the pursuer to have been said by [S]. Regrettably, the professor was not examined about this inaccuracy during his examination-in-chief, although the point that is made by counsel for the defender in his submission that the pursuer would have been aware of this discrepancy, is well made. I agree with the submission of defender's counsel that it is unlikely that the professor wrongly recorded what the pursuer told him. In countenancing that it would be wrong to have told the professor that these events took place on Saturday, it seems to me that the pursuer countenances the possibility that he did tell the professor that, and, consequently, I conclude that he did, which only serves to emphasise the pursuer's unreliability.

[138]  Another source of confusion surrounds the issue of [S] commenting about apparently finding a long store key. It is noticeable that, in examination-in-chief, the pursuer was taken through three significant events of the evening in question. From the time [S] is said to have made these disclosures while preparing for his bath to the point of going to bed, no mention was made of [S] finding a key. The pursuer is taken by his counsel to the following day when the pursuer contacted his solicitor. Later, counsel returns to the events of [S]'s bath night. He asks the pursuer, 'Now, apart from what you have told his lordship [S] said at around bath time, did [S] at any other point say anything else that you thought of note?', to which the pursuer replies:

Around that time I can't quite remember when, but I think it was the same weekend he noticed hanging up I think -- I think it was in the kitchen, I think it was in some document there's a reference to a car but my recollection is that he noticed a long key or one of the few long keys hanging up at the back kitchen door at the house and he looked at it, he might have even got it and there was some reference about shoving this up I thought maybe -- I can't quite remember but I think it was either "your" or "dad's arse" or something like that or "bum", maybe "bum" but there was reference to the use of a key for adverse purposes and that was also -- that took me aback.

He was then asked, 'Was that before or after the bath time?, to which the pursuer replied:

I think it was after, I think.

[139]  Cross-examined by counsel for the defender about this, the pursuer is asked 'Now, had there been any other problems that weekend?. The pursuer replied:

No, I'm fairly sure there hadn't been.

The pursuer was then asked, 'Had there been anything else that weekend that was a disclosure or conduct or what other people might call just events that were significant?', to which the pursuer replied:

Do you mean beforehand?

The exchange went on:

I think I had said, was there anything else before? - I don't think beforehand but if not beforehand, afterwards; I can't quite remember now.

What do you mean you don't think beforehand, if not afterwards; are you saying there was something before or not? - There was the comment, I have presented to the Court, that [S] made about the long key which he saw but now standing here I can't quite remember if that was beforehand or I thought it was afterwards.

The defender's counsel returned later to this issue after dealing again with the exchanges said to have taken place between [S] and the pursuer before and after bath time. The following exchange took place:

And when was the exchange about the key; when was that? - I thought it was after the events that we have just talked about possibly the next day but I can't remember now.

So possibly the next day, possibly before you spoke to Mr Kee or possibly afterwards? - I couldn't say that.

Is it possibly before you saw the doctor, possibly afterwards? - No, I think it was... ... I think it was before the doctor's.

Can I be clear here... Are these exchanges, discussions, disclosures, conduct are these the significant events over that weekend? - Significant? Certainly noteworthy. They're the ones that caused the great concern, yes.

[140]  It is clear that the pursuer considered the reference to the long store key to be an important exchange on any view. Yet, he could not explain why there was no reference to this in the police summary or in Professor Furnell's report. At best, all he could say was that he thought he had mentioned this to the police and the professor. It is impossible for any fact-finding tribunal to make any finding-in-fact on evidence of such poor quality. It is also noteworthy that in his pleadings at the stage of the open record number 26 of process the pursuer offered to prove that the finding of the long store key and [S]'s comment was made in the pursuer's car.

[141]  Before leaving this, I find it astonishing and curious that the pursuer cannot recall if [S] used the term 'dad's arse' or the word 'bum'. The pursuer, I would have thought, is someone who would be likely to have reacted with surprise and disapproval, at the very least, if he had heard his five-year-old son using the word 'arse'. For that reason, he would almost certainly have remembered if his son had used that word, and if he had not used it, I am curious why he should speculate that [S] might have used it.

[142]  It is clear that the pursuer was at least angry and frustrated that [S] was not going to be the subject of a joint child protection interview by police and social work. Probably, his reaction tended towards incandescence. He is critical at the defender's refusal to allow this to take place. His counsel cross-examined the defender at length about her decision and suggested in no uncertain terms that she was wrong to have done so. The curator thought that a joint investigation would have been beneficial and should have proceeded.

[143]  I think it is unfair to be so critical of the defender. She herself had originally indicated to the police that she would agree to such an interview. It was only after she took advice from her solicitor that she changed her mind. I do not think the defender can be criticised for wishing to take advice from her solicitor or, having obtained advice, delivered forthrightly and in peremptory terms, for following it.

[144]  Contrary to the pursuer's position in evidence, there is no doubt that the pursuer was making allegations of sexual impropriety against the defender's husband in relation to his care of [S]. That was the perception of the defender and her husband. It was entirely reasonable that they should have that perception. That is the perception of the curator. That is the understanding upon which the police attended at the defender's house and interviewed the defender and her husband.

[145]  I am confident that there is no truth in such allegations. There is nothing sinister in a boy of that age playing with his penis. Although what he was doing before his bath was never precisely explained, that in itself was acknowledged probably by all parties as natural for a boy of that age as part of growing up. So, the fact that he might have been doing that for some time, as the pursuer suggests, is not in itself a matter of concern or significant.

[146]  The concerning aspect of these allegations was the involvement of the defender's husband in some form of sexual impropriety. Firstly, I am completely unable to say whether [S] made any comments of such a nature. At best, the pursuer could have misinterpreted what was said, but even that is difficult to establish because of the inconsistency in what the pursuer says [S] said. Nevertheless, upon the evidence, it is quite apparent to me that [S] showed no sign of distress that weekend. Whatever was said was not accompanied by signs of upset or anxiety. His behaviour before, during and after the supposed comments was entirely normal. His bedtime routine was unremarkable that night. The pursuer read him a story as usual, but [S] appears to have almost immediately fallen sound asleep. There is no evidence of any unusual behaviour reported by outside agencies such as the nursery. [S]'s aunt, who probably saw him at that time more than once a month, saw nothing in his behaviour or conversation to give any cause for concern.

[147]  There have been no other instances, either before or after this weekend, of a similar nature.

[148]  There was a report by the police to the Children's Reporter. An investigation by social services did not reveal any concerns. The Children's Reporter decided not to make any referral to a Children's Hearing.

[149]  The curator said in evidence that he was suspicious of the pursuer's motivation in making these revelations shortly after the appointment of the professor to investigate and report on all questions surrounding the pursuer's quest for residence of [S] and [Z]. He came to the view, as postulated by Professor Furnell in evidence, that perhaps the pursuer had stumbled his way into police involvement, not knowing what he should do and being inexperienced in such issues as a layperson. I think such a view is over-charitable. The pursuer is an intelligent man. I find it difficult to believe that if [S] had made comments that weekend pointing unequivocally to [S] having been sexually abused by the defender's husband the pursuer would not have known to report the matter directly to the police or social services. After all, he had previously made a complaint to social services that the defender was an unfit mother. The pursuer says that he was variously left 'numb', 'shocked' and 'very, very confused' by what [S] had said. There is no doubt from what he said in evidence that whatever [S] said pointed to the defender's involvement. Although initially trying to avoid that by saying he did not know who it really was, he conceded that he thought it was the defender's husband. There is no doubt from the immediate aftermath in lodging a motion for residence that he was alleging sexual impropriety against the defender's husband. He wanted residence of [S] so [S] could be interviewed. Yet, when the pursuer had opportunity to do something about it when [S] was with him that weekend, he did nothing other than, if his evidence is to be believed, pace the floor 'just trying to make head or tail of what was said and aware that it would be very wrong to point fingers at anybody based on what I had heard'.

Instead, what the pursuer did was to consult a solicitor the following day. His solicitor advised him to consult his general practitioner. That general practitioner took advice and advised the pursuer to telephone the police. This is consistent with a protocol involving all NHS employees that all such allegations would have to be reported.

[150]  The pursuer made great play of the fact that he was unaware that the telephone number he had been given was for the police. He was asked by his counsel if he had phoned that number intending to report the matter to the police, to which the pursuer replied, 'No, I don't think I had'. His answer is weak and inexplicably lacking in certainty. He either knew or did not know he was phoning the police. There is no room for equivocation or uncertainty. I do not believe him. Firstly, he confirmed later that matters had been left with the doctor that he would call her 'after he had spoken to the police'. There is no doubt that he knew the number he was telephoning was a police number. Secondly, and in any event, he knew beyond peradventure that he was telephoning police when the call was answered by a recorded automated message stating he had reached Tayside Police and calls would be recorded. He could have terminated the call. Yet, he continued with the call. He explained that he had intended only to take advice after explaining what had happened. Thirdly, the pursuer in his own pleadings at the stage of the open record number 26 of process offers to prove that his general practitioner '...advised police involvement and provided the pursuer with a telephone number to make contact'. I believe he knew full well that was the number of the police.

[151]  Interestingly, he commented that he did not know what he had to report 'other than precisely what [S] had said'. It is doubtful if the pursuer ever knew precisely what [S] had said having regard to the inconsistent phraseology the pursuer has used. The doctor was not led to speak to precisely what the pursuer reported to her. The police officer to whom the pursuer gave a statement was not led.

[152]  I have formed an unfavourable impression of the pursuer to the extent that he finds it difficult to make independent decisions about important matters, particularly where it involves [S]. He appears incapable of making his own decision. He appears incapable of accepting responsibility. He needs other people to tell him what to do, so that if anyone criticises a decision he can avoid responsibility for it by directing it on to his advisers. He was asked why certain steps were taken in the course of litigation. For instance, he was asked why he applied for residence of [S] at certain stages. He did not say that it was because he thought that it was in [S]'s best interests that he should live with him. Instead, he said that he took legal advice and that is what was decided 'we' should do. He often spoke in the third person, seeking to involve others in important decisions.

[153]  His evidence was littered with qualifications and caveats. It was delivered in a fashion that suggested he was not sure of things. He constantly used the qualification 'I believe' when it was inappropriate to do so. He often used 'not that I can recall' to qualify an answer. His recollection of the words [S] had apparently said was often qualified by the caveat that everything happened 'very, very quickly' or that he was 'very, very confused' as if to excuse any inaccuracy or inconsistency. But what he was giving evidence about happened over a very short space of time and involved only a few sentences. It is somewhat ironical that the pursuer's business logo was, 'Communicate to Win'.

[154]  He was evasive, almost to the point of prevaricating at times, during cross-examination by the defender's counsel. He said he believed that it was the job of defender's counsel to 'catch him out' whenever he could. He referred to the defender as 'the opposition'. The pursuer was reluctant at times to give a straight answer to a straight question. This is exemplified by the following exchange during cross-examination by defender's counsel:

Now, before you just go any further, that was the first problem then or disclosure or that weekend was at the time when the bath was being run or involved; is that right? That was the first? - The first what?

The first disclosure, the first conduct, the first something that caused you concern? - Well, I think that's important to differentiate between conduct and disclosure, but if we're talking about disclosures of, I believe, Sunday 25th September, if that's what you're asking me about... ..

I'm asking you about the events of that weekend,... What conduct then was there that gave you cause for concern? - There were disclosures in tandem with conduct.

All right. So we're looking at two different things, disclosures and conduct; is that fair to say? - In general, yes.

Well... I'm asking you, are these the two matters that the Court should be listening for evidence about -- disclosures and conduct -- I'm asking you now? - Disclosures in tandem with and connected with conduct.

All right. Disclosures and conduct, Mr..? - Disclosures in tandem with and connected with conduct.

What was the first disclosure in tandem with conduct over that weekend? - Do you mean the first thing [S] said?

What was the first disclosure in tandem with conduct that weekend, Mr..? - I would like to have time just to think about the exchange between me and [S] to answer that. I think it was in terms of disclosures "It's okay" or "It's all right" and maybe "It's okay, it's all right to play with it". You're asking me to dissect an exchange between [S] and me.

[155]  At best he was trying to be deliberately obtuse and difficult. At worst he was trying to avoid answering the question. None of those is an admirable quality.

[156]  I have regrettably come to the conclusion that his conduct and evidence in relation to the sexual abuse allegation was motivated and directed by his obsession with the litigation against the defender rather than having [S]'s interests as his paramount concern.

October 2005

[157]  The pursuer's anger and frustration at [S] not being interviewed continued to distract him in the days that followed and inform his conduct throughout October 2005. He enrolled a motion on 4 October 2005, number 7/6 of process. He sought interim residence of [S] to allow, in terms:

investigations by professionals of the disclosures made by the child involving [the defender's husband]. Following disclosures of a serious sexual nature by the child to the pursuer, the police attended at the home of the defender to interview the child [S]. The defender having been informed of these disclosures refused permission to allow the child to be interviewed by officers of the Child Protection Unit. The defender by withholding her consent to allow the child to be interviewed is in breach of her parental responsibilities and parental rights in terms of the Children (Scotland) Act 1995, section 1 (1) (a) and has placed the child at serious risk to his health, development and welfare.

The pursuer also sought an order to deliver the child to him without delay and sought power to instruct sheriff officers to do so forthwith.

[158]  In my considered view this was not a reasonable step for the pursuer to take. It ignores the fact that the defender only declined consent to interview [S] when she was given forthright legal advice to do so. Irrespective of the defender's position on the matter, a child protection investigation was being undertaken. If it was thought that there were sufficient grounds to do so an application could have been made for a child protection order. That could have resulted in the child being interviewed or examined notwithstanding the defender's decision. At no time had the pursuer advised the curator of his concerns. It sits ill in the pursuer's mouth to complain about the defender's decision when he could have done something about it when it arose during [S]'s contact visit. Why did he seek residence? Why did he not seek, for instance, a specific issue order that [S] be interviewed? He says that he was told that the legal advice given to the defender was 'appalling'. That is nothing to the point. What should have informed his actions was a consideration of what was in [S]'s best interests.

[159]  It is instructive that the pursuer said that his reason for seeking residence of [S] on this occasion was nothing to do with the refusal of the defender to allow him to be interviewed. He tried to suggest that it was based on wider concerns. He was not being truthful. When he was faced with the terms of the motion in cross-examination he declined to take responsibility. He reverted to the third person saying, 'if that's what we put in, that's what we put in'. Asked why he sought to remove [S] from the care of the defender, the pursuer vacillated between explanations at one end of the spectrum that it was because of 'a cloud of unknowing', whatever that means, and 'because the reality of sexual abuse was one potential explanation'.

[160]  The pursuer's explanations for seeking residence at this time are wholly unsatisfactory. I conclude that he was motivated by a sense of outrage that the defender had not allowed [S] to be interviewed. He allowed that outrage to get the better of him and paid little heed to whether it was in [S]'s best interest.

[161]  Of course, I can also look at this now with the benefit of having heard evidence in this case. The pursuer has singularly failed to bring forward believable evidence that [S] said anything that was worthy of investigation. That he should seek residence of [S] to have him exposed to some form of joint child protection interview when the quality of his evidence justifying such a course is so poor, is concerning. Such a step should never be taken lightly. It is not clear to me upon the evidence that the pursuer stopped to consider whether he should expose [S] to this. By the time he enrolled his motion it would have been apparent to him that the police and social services were not taking any urgent or emergency child protection measures.

[162]  It is not entirely clear when the pursuer's motion for interim residence was heard. It would appear to have been dealt with at a hearing on 5 October 2005, although the interlocutor for that date makes no specific mention of it. It is certain, of course, that it was never granted. The curator did not support it.

[163]  It is also important to observe in passing at this stage that on 5 October 2005 the defender enrolled a motion, number 7/7 of process, seeking to suspend contact between the pursuer and [S] until Professor Furnell had reported. The sheriff suspended contact at a hearing on 21 October 2005. The curator supported the defender's motion.

[164]  There was a contact visit due to take place between 6 and 14 October 2005. This visit had been put in place at the hearing on 20 September 2005, before the sexual abuse allegations were made. This visit did not take place.

[165]  On 13 October 2005, the pursuer enrolled a further motion seeking contact between 14 and 25 October 2005. That motion also sought an order to ordain the defender to appear at the bar of the court to explain her failure to allow contact on 6 October 2005. This motion was heard on 14 October 2005.

[166]  An issue arose as to whether the defender was aware that contact was to be substantively dealt with at the hearing on 14 October 2005. She was cross-examined in detail about this. Her explanation for not being present on that occasion was that she had been advised by her solicitor that, on that day, another date would be assigned when she would require to appear to explain the events of 6 October 2005. I accept her evidence that she was led by her solicitor to believe that contact was not to be discussed on 14 October and that consequently she was unaware that contact was to be moved to commence later that day. It is fair to say, as the defender herself pointed out in evidence, she was not in the habit of being absent from hearings when important matters such as this would be discussed.

[167]  It appears to me that what happened is that the motion was intimated by facsimile to the defender's solicitor directly on 11 October 2005, but the defender's solicitor was on holiday and that another solicitor, who was not so au fait with the minutiae of the case did not communicate to the pursuer that an order for contact would be sought by the pursuer on 14 October 2005, despite its terms, perhaps the solicitor being distracted by the motion seeking to ordain the defender to appear at the bar. I accept the defender's evidence that, had she known a contact order was going to be sought that day, she would have been present.

[168]  Before leaving this issue, I am bound to again observe that, while it is quite in order for pursuer's counsel to test the veracity of the defender's evidence about her knowledge of whether she knew contact was to be discussed that day, counsel went beyond that and asserted positively to her that she did know it was to be discussed. No evidence was ever led to support that assertion and so I do not know what counsel's foundation was for putting that to her.

[169]  In the event, contact was discussed. Her solicitor attending the hearing on her behalf, her usual solicitor being abroad, telephoned her during a break in proceedings to advise her and take instructions. At the conclusion of the hearing, the sheriff appointed a contact visit to commence that evening until 25 October 2005. This visit did not take place.

[170]  On both 6 and 14 October 2005 the curator, at the sheriff's request, was present for the handover. I have set out the relevant findings-in-fact at findings (87) to (101).

[171]  These failed visits have to be considered against the contextual backdrop of the pursuer recently, indeed within the previous 48 hours on the occasion of 6 October 2005, having made allegations that the defender's husband was involved in serious sexual impropriety towards [S] which placed the child at serious risk to his health, development and welfare. They have to be considered against the backdrop of the pursuer now, again, seeking residence of [S] and the defender seeking to suspend contact pending Professor Furnell's report. These were developments, particularly the allegations, of a material nature that were not before the court when the contact visit of 6 October was appointed on 20 September 2005.

[172]  The pursuer has continually failed to disclose any insight or understanding of the effect that making such allegations would have on the defender's family and household. This lack of insight or failure to accept any responsibility on the part of the pursuer is amply demonstrated by his evidence, during re-examination by his own counsel, to it being put to him if he understood that the defender's position that had been put to him in cross-examination was that he should now have no contact, direct or indirect, with [S]. The pursuer said he did. Asked what his thoughts on that were, he said, 'It's shameful. It is utterly shameful, in particular,... but I have heard nothing by way of what I am supposed to have done which justifies such a drastic development in [S]'s life'.

[173]  The pursuer will, of course, now be in no doubt about what it is that he has done. He has alleged that the defender's husband was involved in impropriety in relation to [S] of a serious sexual nature. That allegation is unfounded. The pursuer's conduct is aggravated by the fact that he has come to court and denied that he made any allegation when it is plain as a pike staff that he did. This failure to accept responsibility for his own actions and failure, even now, to recognise how others, including in particular the defender and her husband, would have perceived his conduct places considerable doubt as to whether he can conduct himself responsibly in the matter of contact with [S] and in his dealings with the defender and the defender's husband in the future and, consequently, whether contact between [S] and pursuer is in [S]'s best interests. His suggestion that the defender and her husband should effectively just forget about this matter and move on is naive, unrealistic and risible. It leaves him open to ridicule.

Contempt of court

[174]  The pursuer seeks a finding-in-fact that the actions of the defender and her husband on both 6 and 14 October 2005 were blatantly contemptuous of court orders. Firstly, it should be observed that the defender's husband is not a party to this action and is not subject to the court orders in question. They do not involve him. I would be very reluctant to make any finding of contempt against the defender's husband in these circumstances without being addressed on competency by reference to authorities.

[175]  That apart, I had no difficulty in accepting the curator's evidence about what happened on these occasions. On 6 October, prior to the pursuer's arrival, the atmosphere in the defender's house was electric. The defender's husband was in a state of near frantic distress. The defender herself swung between being tearful and in a state of rage. The children did not know why the defender and her husband were distressed.

[176]  I pause to observe at this point that I accept the evidence of the defender and her husband that neither [S] nor [Z] knows anything about the allegations of sexual abuse made against the defender's husband or anything about the child protection investigation. It was suggested forcibly and persistently by counsel for the pursuer in the course of his cross-examination of the defender, on two separate occasions, that the solicitor who represented the defender at the hearing on 14 October 2005, at which the defender was not present, told the court that the detail of what [S] was said to have said had been canvassed with [S]. Now, again, and with a sense of déjà vu, it is one thing and all very well for the defender to be asked about this and whether, if the solicitor did say that, he was wrong in giving that evidence to the court. That was put to the defender and, while stating that she did not know that the solicitor was said to have said that, she vehemently and robustly stated that her solicitor most certainly was wrong. However, cross-examination went further than that. It was put directly to the defender that she was telling lies. Later, returning to this topic, counsel for the pursuer put it directly that it was the pursuer's position that the defender's solicitor explained to the sheriff that the detail of what [S] is said to have said to the pursuer had been discussed by the defender and her husband with [S]. Again, the defender made it clear that she was not present and, if her solicitor had said that, then he was very much mistaken. The pursuer did not lead any evidence about what was said by the defender's solicitor. Yet again, I am wondering what the foundation was for putting to the defender that she was telling lies about this matter.

[177]  It is plain that the curator explained to the defender the need to obtemper the contact order but, notwithstanding these overtures, the defender was adamant that she would not allow [S] to go. She was terrified, and I accept the curator's use of that particular description as being apt, that the pursuer would take [S] to be interviewed and would induce [S] to make further false and malicious disclosures. By this time, the defender's husband was in a state of complete distress. He indicated that, even if the defender would let [S] go, he would not.

[178]  I accept the curator's evidence that when he spoke to [S] on his own he was not, on this occasion, distressed or crying. Nonetheless, although the curator told him that the court had ordered that he was to go for contact with his father, [S] refused and stated, straightforwardly and in forthright terms, that he would not go. Even when told that his mother, and possibly even the curator, might get into trouble if he did not go, [S] was unmoved. He still refused.

[179]  I can well understand the curator's apprehension if the defender's husband and the pursuer came face-to-face, that it would come to blows. That was probably why he advised the pursuer by telephone of the difficulty in advance of his arrival and kept the pursuer in his car upon arrival, to keep him, as it were, at arms' length. The pursuer wished to speak to [S], but although the curator conveyed this request to the defender both she and her husband were apprehensive that [S] might be talked round, so they would not allow this. Matters ended on that occasion by the pursuer leaving his telephone number so that [S] might phone him. The pursuer then left.

[180]  On 14 October 2005, the curator was again in attendance for the handover. This was a contact period that had only been authorised hours earlier, that very afternoon. I accept the curator's evidence that when he arrived at the house the defender was very angry that contact had been appointed by the sheriff because arrangements had apparently already been made for [S] and [Z] that particular weekend. On this occasion [S], who had of course been advised of the contact visits by then, was, in contrast to the last occasion, very anxious, distressed and upset when the curator spoke to him. The atmosphere in the house would appear to have been similar to that on 6 October. The defender's husband was still in a state of anger and distress. Both he and the defender would not allow [S] to have contact with the pursuer for the same reasons they had expressed on the previous occasion. [S] was still refusing to see the pursuer. The curator was unable to talk him round.

[181]  I interject to agree with the curator that, although they know nothing of the allegation or investigation, at this time [S] and [Z] would be aware of the level of distress within the household. They could not have avoided knowing that something was wrong. Inevitably, they would have heard raised voices.

[182]  The curator, on this occasion, had been understandably even more cautious in his preparatory arrangements. He clearly had an apprehension from the previous week that the visit might not take place. He had arranged for the pursuer to wait in his car in a lay-by a little further away from the defender's house until the curator contacted him. He walked up to the pursuer's car and explained that [S] would not be coming for contact. It is the curator's evidence, which I accept, that the pursuer was quite unable or perhaps unwilling to appreciate what the atmosphere was like in the defender's house. He could not acknowledge the effect involving police and social services had on the defender's household. That resonates with my own view of the pursuer's present attitude, as already alluded to. These events are taking place on the evening of Friday 14 October 2005. The pursuer's response, perhaps predictably in light of the curator's evidence of his reaction, was to lodge another motion on Monday, 17 October 2005 seeking interim residence of [S], which was heard in 21 October 2005.

[183]  The hearing on 21 October 2005 was a significant one. The sheriff heard the defender's motion for suspension of contact as well as the pursuer's motion for interim residence. The importance of the hearing and issues to be debated was emphasised by the fact that the defender's husband was present. He was represented independently by a solicitor. The sheriff, having heard that solicitor, allowed the defender's husband to be sisted as a party to the action and appointed him to lodge answers. For completeness and in parenthesis, the defender's husband was subsequently allowed to withdraw before the proof diet I am about to mention.

[184]  The sheriff, having heard solicitors for all parties and having heard the curator, appointed a proof to take place over 10 January 2006 and two succeeding days to deal with both the issue of contempt of court and that of residence and contact. Significantly, contact in the meantime was suspended.

[185]  I have already made comments about the difficulties involved in assigning a proof on both contempt and substantive contact matters and shall not return to that here. Nevertheless, it is instructive to read the note to the sheriff's interlocutor of 21 October 2005 to observe that the sheriff found it inappropriate to attempt to deal with the most recent allegations of contempt in isolation or indeed without proof. He observed that the issue of alleged contempt was inextricably linked to the issue of residence and contact. Indeed the sheriff observes that the pursuer seeks an order for residence 'and is strengthened in his resolve to obtain such an order in light of the defender's perceived flouting of orders of this court for contact'. In the meantime, and in particular light of a clear recommendation by the curator that [S] should be given a rest from the tensions surrounding contact arrangements, the sheriff suspended all contact until further order of court.

[186]  I am in no way being or intending to be critical of the sheriff, but I do find it passing strange that when mentioning the wider background against which these motions were set, there is no any mention within the four paragraphs of his note of the events of the weekend of 23 and 24 September 2005, the statements said to have been made by [S], the allegation of sexual impropriety against the defender's husband or the child protection investigation.

[187]  What I do seek to highlight from the note, however, is the fact that the sheriff on that occasion felt the issue of contempt was inextricably linked to the contextual background against which the defender's conduct had to be considered, and which had a bearing on the wider question of residence and contact. In my respectful view he was right to do so, although I would not have conjoined the two matters for the reasons I have already given. The defender's conduct on 6 and 14 October 2005 was entirely and exclusively driven by her fear, in light of the allegations of sexual impropriety made by the pursuer against her husband, that if contact took place the pursuer would take [S] to be interviewed and would induce him to make further false and malicious disclosures. She obviously knew that she was acting contrary to orders of court. She had enrolled a motion seeking to suspend contact, but this had not yet been dealt with. She had enrolled that motion before the contact visit of 6 October 2005. She was absolutely convinced that there was no truth in these allegations and that the pursuer had acted maliciously and had made false disclosures. She was convinced that she was acting in [S]'s best interests and for his protection. I would certainly not be prepared to find-in-fact that her conduct was 'blatantly contemptuous', as the pursuer asks me to find. Even if such conduct were to come within the definition of contempt, upon which I have not been addressed, I doubt if I would have imposed any punishment.

[188]  Contrary to the pursuer, I have no difficulty in accepting the curator's description of the defender being terrified on these occasions of the consequences for [S] if the pursuer was to have contact with him on those dates. I have no doubt that her fears were genuine. She was justified in her view. He had previously complained to social services that the defender was an unfit mother. He was again seeking to remove [S] from her care. She did not trust him and from her point of view at that time her position was entirely understandable. I accept that she genuinely, on those occasions, considered she was acting in [S]'s best interests. These were extreme and unusual circumstances in which I am not prepared to find that she acted contemptuously on 6 and 14 October 2005.

[189]  For completeness, there was another incident at [S]'s school on 18 October 2005. I have dealt with this in my findings-in-fact (103) to (105). The pursuer attempted to pick [S] up from school at lunchtime. This had been the normal collection point for contact visits. However, contact normally began at the end of the school day. On this occasion the pursuer telephoned the headteacher to advise of his plans to pick [S] up at lunchtime. The headteacher was not happy about the pursuer's intention. She took legal advice from the local authority. She informed the defender of the pursuer's plans. As a result, in the event, the pursuer decided not to pick up [S] early. He turned up at the end of the school day. The defender and her husband were in attendance. Police officers were also in attendance, having been called by the headteacher because she apprehended that there might be a disturbance. [S] was upset and distressed. He said that he did not wish to go for contact with the pursuer and contact did not take place.

[190]  I have been unable to make any finding-in-fact that there was an arrangement for contact to take place that day. The defender and the pursuer themselves seemed not to have any knowledge of an arrangement, certainly not directly, but it seems also not even of any made between the parties' solicitors. The tenor of the pursuer's evidence about this matter was that he was proceeding to uplift [S] on the strength of the interlocutor pronounced on 14 October 2005. The pursuer said contact had been 'agreed', but on being examined closely about this by both myself and his counsel, it is clear that the 'agreement' to which he was referring was one reached exclusively between him and his own solicitor. He was vague and evasive regarding any contact that his solicitor might have had with the defender's solicitor. The defender said she was unaware of an arrangement and could not recall one. There was a suggestion put in cross-examination of the defender by counsel for the pursuer, that [S] had been prepared for contact that morning. There was no evidence to support that. The defender seemed to agree that there was an arrangement, but it is not clear to me how that arrangement could have been put in place, particularly standing the events of 6 and 14 October 2005. It was put in the form of a report from the headteacher that contact was to take place, but this was not evidence and there is no evidence of how the headteacher came to be of this view. Accordingly, on the whole evidence, I hold that this attempt to uplift [S] was on the strength of the pursuer maintaining that he was entitled to do so because he had a court order allowing him contact between 14 and 25 October 2005.

[191]  Again, it is noteworthy to observe that, firstly, the pursuer's recollection of this incident was mistaken. He initially gave evidence that these events happened on the day before, Monday. However, he later conceded that this was not the case and that these events had taken place on the Tuesday, 18 October 2005, going on to explain that he had been in contact with the school on the Monday and had taken a copy of a court order after the pupils had gone for the day. Secondly, the pursuer again adverted to the involvement of a solicitor in his decision to try to pick [S] up at lunchtime.

[192]  This decision appears to me to be ill-judged at best. If my conclusion is correct that there was no agreement for contact to take place, then it was, on one view, entirely naive of the pursuer to think that it would be a simple matter to arrive at a time when the pursuer was not expected, uplift [S] and take him off for contact. One of the pursuer's reasons he gave for uplifting [S] early was because [S] would not be expecting him to come at that time. The other view, which seems the more probable when viewed against the background of the pursuer, the previous day, enrolling yet another motion for [S] to be removed from the defender into the pursuer's care, is that this was an attempt by the pursuer to have [S] residing with him, albeit under the guise of a contact visit, when his motion for interim residence was heard on 21 October. Whatever the truth of the matter, he apparently gave no thought or did not care as to what the defender's perception or reaction would be to such an approach. He appears not to have comprehended, or did not care, that in advising the headteacher of his plans, the defender was likely to find out. He appears to have put his own selfish interests ahead of [S]'s.

[193]  Much was made by the pursuer of the number of people present when he did arrive to uplift [S]. He said the defender had no reason to be there. He said he used the term 'mob-handed' when he spoke to Professor Furnell about it later. Professor Furnell used that expression himself. However, I tend to agree with the line taken by the curator when cross-examining the pursuer on this, that, given the pursuer's recent conduct in the previous fortnight, that the defender had received visits from police and social workers and the pursuer's repeated motions to have [S] removed from the defender's care, why would she want to stay away after the headteacher advised her that the pursuer, whom she mistrusts, had attempted to turn up at school when not expected and take [S] out of school in the middle of a school day? It should have been obvious to the pursuer that this was bound to be viewed by the defender as a clandestine attempt to remove [S] from school only increasing further her mistrust and suspicion of the pursuer and his motives.

Professor Furnell

[194]  Following suspension of contact on 21 October 2005, parties awaited the preparation of Professor Furnell's report. It was delayed because of the child protection investigation. It was lodged in court on 8 March 2006. He recommended that [S] continues to reside with the defender and that the pursuer should have contact with him. He also recommended that the parties and other adults in [S]'s life moderate their behaviour so as to prevent a situation arising whereby [S] takes responsibility for whether or not contact takes place.

[195]  The professor further recommended that [Z] should reside with her mother and have no contact with the pursuer. He concluded that her role was more as [S]'s half-sibling and a member of a family and household with whom [S] was then spending the majority of his life. He concluded that [Z] was likely to be an influence on [S]'s views of his family situation, for better or worse.

[196]  It should not be overlooked that despite the intense acrimony, bitterness and mistrust evident when contact had been suspended, the defender and her husband cooperated in the preparation of the report. Not only that, they agreed to a contact visit so the professor could observe the interaction between the pursuer and [S] for the purposes of his report.

[197]  The professor concluded that [S] appeared to be trusting and at ease with the pursuer. He felt that the pursuer then had much to offer as a father to [S]. This conclusion was based upon a contact visit on 4 March 2006 for two hours, supervised and observed by the professor. I do not doubt the accuracy of what the professor reported as having been observed during that visit. Nevertheless, observed behaviour in such artificial and contrived circumstances is not necessarily a reliable indicator of the interaction that might take place when the professor is not there. Dr Boyle made a similar observation in the course of his evidence. The professor thought some data could be taken from it but ideally he would have wished to have observed two or three such visits. That had not been possible.

[198]  The terms of the professor's report are now largely only of historical significance. Professor Furnell recognised that himself. He acknowledged in evidence that a lot has happened since then of which he was unaware. In these circumstances, any conclusions he reached then may not be relevant or important now. He himself stated in response to one question that the proposition contained in it only served to emphasise how out of date he was. Of course I am not bound to accept his conclusions in any event. Much of his evidence was founded in common sense rather than psychology, as he himself pointed out on occasion.

[199]  In relation to the interlocutor of 7 July 2004, when asked by the pursuer's counsel if direct communication between the parties was important, the professor, while acknowledging the inevitability of eventualities arising that are not catered for, and that it would be sensible for some sort of communication, he distanced himself somewhat from direct communication.

[200]  Later, when being asked about the defender's refusal to deal directly with the pursuer within a month of that interlocutor, he observed:

I am tempted to say common sense would suggest at the time of the drafting of the interlocutor, presumably, methods of communication might have been discussed. More to the point, if there was going to be some difficulty about basic communication it might have been helpful if that could have been canvassed at the time of the drafting of the interlocutor or in the discussion at least some sort of agreement of what was and was not an acceptable avenue of communication might have been helpful.

[201]  Although hardly a matter that involves psychology, I entirely agree with the professor. It was in my view a glaring omission. Clearly, communication was an issue. The parties did not speak to each other in the course of two days of negotiation. They never met. Communication was carried out through counsel. It would have been pellucidly obvious to counsel and solicitors that the parties could not speak to each other. It was essential that the parties would require inevitably to communicate, even in relation to the arrangements that were contained within the terms of the interlocutor let alone for any unforeseen eventualities such as illness.

[202]  Not to address the avenue of communication was in my view a significant failure. It did not help that the defender, through no fault of hers, did not have the services of a solicitor in the immediate aftermath of the agreement. Direct communication was not necessary. Indeed, it was probably undesirable. It would have been better if an intermediary had been found by the pursuer. It would have been better if the defender has been able to communicate through her solicitor. This would have acted as a filtering, refining and restraining process for her communications that unfortunately contained her unrestrained, combative, aggressive and, at times, vitriolic and inappropriately personal views.

[203]  One of the issues upon which the professor was examined and which engaged his professional capacity was in relation to the prospect of again observing a contact visit between the pursuer and [S]. Counsel for the pursuer was understandably keen to pursue this because of what he perceived to be a successful observed contact in March 2006, particularly as [S] had then not seen his father for some months.

[204]  Professor Furnell was extremely cautious, indeed hesitant, about embarking on such a course. His first response was that he would not approach such a suggestion lightly. He would require considerable time for thought. He observed that [S] has now not seen his father for more than a couple of years. The professor had no idea what culture the child had been party to and exposed to concerning the pursuer in the intervening years. The professor was unaware of [S]'s present relationship and dependencies. He would have to apply great caution before agreeing to be a party to anything like this. He made it very clear that he would wish to meet once again with the relevant adults before even giving an opinion as to the desirability or otherwise of any contact exercise. He implored the pursuer's counsel to hear his caution because it could place [S] in a 'very, very difficult position', which the professor would not wish to do.

[205]  Counsel for the pursuer asked the professor if he thought there would be value in a similar reporting exercise in order to formulate a view as to whether the exercise of observing contact was at all possible. The professor again articulated great caution and in greater detail. Any such process would have to be, in his view, a stepped exercise taking into account [S]'s views, which would hold more weight now due to his increasing maturity, before considering the desirability of contact. He emphasised that before expressing an opinion on the desirability or otherwise of setting up, carrying through and observing a contact meeting now, he would wish certainly to meet with and discuss in some detail matters with both parents, and others if necessary, and with [S]. With his increasing maturity, the 'difficulties or any enthusiasms' [S] might have about such a proposed exercise become increasingly central. Any discussions with him would require to touch directly on his current understanding of the history of this matter and also family politics of how it might affect him and his life. There would require to be a lot of preparation before he could be in a position to give a formal view on the desirability or otherwise of even an observed contact.

[206]  Professor Furnell thought it would be very difficult for a child such as [S] who has made a very public statement of not wanting to see his father, to 'recant' or 'row back' from that position.

[207]  Most significantly, when asked, particularly from his observation during contact in March 2006, if he had a view as to whether it was better that the stepped investigation be embarked upon than not at this stage, he was unable to answer. He thought it was very finely balanced but from his lack of recent involvement there would be others far better placed to make that judgment. He later observed 'I'm completely out of touch with the current position of [S], his development and whatever is happening between his parents... I am reluctant to predict or extrapolate now having had nothing to do with this for nearly four years'.

[208]  He countenanced the possibility that entrenched views held by adults may either not be correctable or be extraordinarily difficult to correct and may involve those with specialist skills in working with adults. He recognised that if a situation existed where at least on one side there was such hatred and bitterness to the extent that the spirit of cooperation necessary for this procedure to go forward, then a decision may have to be made that the process should go no further before anyone goes near [S]. That might conceivably be determinative of the issue.

[209]  The professor's evidence at the end of the curator's cross-examination was illuminating. After having noted that the professor was sceptical of the idea of a psychologist being 'a sort of fixer' and that effectively a psychologist can only give advice and that it is for people to follow it, the following exchange took place:

Given therefore the point that you made earlier in your cross-examination that the relations between the pursuer and the defender seem to have remained constantly bad, do you see further input as having any value? - You need to ask the two parties to this matter, the two parents that. They have presumably sat in court and listened to matters affecting their own child in considerable detail over a long time and one wonders if there has been any sort of grounds for some sort of perhaps slight shifting of view or compromise or anything else or even an outbreak of common sense.

If there has been no shifting of view or if there has been no more enlightened approach, do we not run the risk of harming [S] by again experimenting with his well-being? - That would seem to me to be a difficulty in that this matter has been going on for five years anyway, probably longer than that. [S] is painfully aware, I think, I believe, of a lot of, at least the polarised positions of both parents, let's put it that way. He has become much older now and more aware of these difficulties. Yes, I foresee the difficulty, yes.

[210]  Cross-examined by counsel for the defender, Professor Furnell confirmed that the views, comments and conclusions contained within his report should not be directly lifted now and applied to [S]'s present circumstances because all the work took place years ago and there have since been more events, circumstances have inevitably changed and [S] is older.

[211]  During re-examination, the professor acknowledged that the current litigation process might be all that is left for resolution. The matter has gone on for a long time with much heightened emotion and conflict. Discussion with someone like himself, he said, might not take matters anywhere. While a psychological assessment of [S] was one possibility, that was not his wish because it was doubtful, if there was a distinction between [S]'s expressed views and his true feelings, if his true feelings could be ascertained. The child had been exposed to serial investigations. He had reservations about whether further prying was desirable. On the other hand, it would provide an opportunity for [S] to express any views on the apparent contradiction between his expressed views and his observed behaviour, which he considered had not been done.

Tactic of threatening residence change

[212]  At one stage in his examination of the professor, counsel for the pursuer asked him if he had heard of extreme situations in which as a result of contact orders not being effected, the fact of where a child lives was sometimes being 'transferred'. The professor said that he did and had had some direct involvement in such cases through the years. It was suggested to him that this might involve some short term unsettlement for the child, to which the professor replied that the idea that residence should be changed is potentially very unsettling. It was suggested to him that the rationale might be that in the longer term it achieves the most appropriate result conducive to the particular child's welfare. However, the professor did not agree with that and restricted his observation that such a judgment should not be taken lightly. He was then asked if he had a view about such a 'short-term difficulties/long-term gain approach', to which he replied that he did not. He said situations where that mechanism is realistically in prospect would require very difficult judgment in light of the circumstances and that he would not wish to get involved in the debate about the principles of such matters.

[213]  I have three observations about this passage of evidence. Firstly, why did the pursuer instruct examination along these lines? This proof is in relation only to contact. The defender may understandably be concerned about, yet again, the spectre of residence being raised by the pursuer.

[214]  Secondly, my impression from the professor's evidence is that he does not appear to be in favour, in general terms, of using a change of residence or a threat of change of residence as a means of enforcing contact orders.

[215]  Thirdly, in the course of cross-examining Dr Boyle, counsel for the pursuer suggested that the threat of removal of residence of a child is a legitimate tactic used in difficult situations by some sheriffs. I would like to take the opportunity to distance myself immediately from such a suggestion. It is not a practice or tactic I have used. It is not a practice or tactic that I am aware of other sheriffs using. To do so, would be entirely improper. It would involve the sheriff in treating the child as no more than a ping-pong ball, which is often precisely the sort of behaviour for which the bench requires to admonish parents to avoid. If such a tactic were to be used by sheriffs, it seems to me that it is a dangerous tactic. The neutrality of the sheriff should never be forgotten or disregarded. To be seen to take such an approach might provide inappropriate encouragement to a party to pursue or provoke a particular course of action. Changing residence of a child should never be taken lightly. It can be hugely unsettling to a child. It should never be used merely as a tactic solely or primarily to enforce compliance with court orders or as a punishment for a parent said to be reluctant to comply. That is not to say that it would not be appropriate in certain cases to warn parties, as I have occasionally had to do, that their conduct may justify a referral to the Children's Reporter, which may result in their child or children being taken into care, but that is an entirely different matter to the practice suggested by counsel.

[216]  In the course of this proof, counsel for the pursuer was keen to introduce discussion about an organisation called the Jamma Umoja Group. Indeed, at one stage he invited me to speak to the sheriffs in Glasgow who had used it. I dismissed this is an entirely inappropriate suggestion. It is not for me, in the middle of a proof, to embark on a research frolic of my own, privately with another sheriff. If the pursuer wishes me to consider the merits of such an organisation then the proper way to do that is to lead evidence about it, provided, of course, there is foundation in the pleadings. No evidence was led about it. Professor Furnell had some experience of it, but he understood that it was no longer operating in Scotland. He observed it was essential, however, that any referral to such an organisation required a spirit of cooperation between the parties rather than negativity. He certainly did not give the organisation a ringing endorsement. They 'reckoned', he said, to specialise in cases where difficulties in contact cases had arisen from adults' entrenched views. While he knew it had been successful on one occasion, he emphasised that it depends entirely upon the facts of each case and how many layers of the onion had to be unpeeled. I formed the impression that he did not have any confidence that they would be successful in this case. Dr Boyle had limited experience of the organisation and had not been impressed by the quality of its reports. The curator had only very limited, indirect knowledge of the group.

Landing incident

[217]  Professor Furnell finished his evidence just before lunchtime on 3 September 2009. Upon resuming after lunch, the curator told me that he had been approached over lunch by the professor who told him that shortly after the professor had left the courtroom there had been 'some sort of discussion' on the landing outside between the professor and the defender's husband. I was told that the professor had described the approach of the defender's husband as 'menacing'.

[218]  I was reluctant to become involved in this at all. I was concerned, by use of the word 'menacing', that criminal conduct was potentially involved. Initially, I was told that the professor's concern was that he might be the subject of a complaint to his professional body and wished his version to be recorded in the form of giving evidence to the court about it. That seemed an inappropriate use of the proof. There were other ways the professor could preserve a record of what had happened, if he was so concerned.

[219]  As the discussion developed, counsel for the pursuer made a motion to have the professor recalled so that his evidence on this matter could be taken. Again, I was hesitant to embark upon this. I was only persuaded to do so when the curator concurred in that motion because he had wider concerns that the incident 'might have a bearing on the capabilities of particularly [the defender's husband] to support the idea of, for instance, letterbox contact or suchlike in the future'. He also raised concern '[if] this is indicative of how things are going to be for [S] in the future,... we need to be clear about it, particularly in relation to [the defender and her husband]'s dealings with professional persons... If what the professor is saying is correct, it raises issues about particularly [the defender's husband]'s ability to work with such professionals in the future for [S]'s benefit'.

[220]  Throughout the discussions, I was anxious not to be told precisely what had happened or been said. Firstly, so that the risk that one party might fear I was improperly influenced by ex parte statements of those events could be avoided. Secondly, I might have to hear evidence about these matters and I should hear it directly from the parties involved.

[221]  I had been told that both counsel for the parties and the curator had together spoken directly with the professor about this issue. It was apparent that the curator and counsel for the pursuer were sufficiently concerned that I should hear evidence about it and counsel for the defender accepted that the professor was concerned about the matter.

[222]  Nevertheless, I allowed parties the opportunity of precognoscing those involved. At the end of these discussions, which took some considerable time, I allowed the professor to be recalled. I heard him that afternoon in examination-in-chief by counsel for the pursuer. I then adjourned until the following morning to give counsel for the defender and the curator the opportunity to finish the precognition process before cross-examining the professor.

[223]  Having then heard the professor's account of what happened and having the opportunity to reflect upon it overnight, before cross-examination commenced I thought it instructive and helpful to make some observations. This is what I said:

I wish now before cross-examination takes place to make some observations on the developments that took place yesterday afternoon. I cannot of course come to any conclusion at this stage as to whether what Professor Furnell gave evidence about yesterday afternoon did in fact take place at and it would be improper for me in addressing parties at this stage to suggest I have come to any conclusion. Nevertheless, having heard Professor Furnell give evidence, I think it is appropriate, and I hope parties and representatives might find it instructive, if I make these observations now.

This is a litigation that has been enduring for some years, mostly in Alloa before it was transferred here. Next week will bring the first anniversary of the beginning of evidence in this proof. It will be evident to anyone either sitting on this bench or listening from the public benches even with the evidence incomplete that this is a litigation between a mother and father that is redolent of tension, contention, bitterness, hatred and bile. There is no one more anxious than me to ensure that any witness, professional person or otherwise, is protected from any abusive or threatening approach before, during or after evidence is given, and no less so than when present within the precincts of this building.

If what the professor told me yesterday in evidence did in fact occur, and I hasten to add that I have come to no conclusion about that nor could I at this stage, it is not of the level that I regrettably was led to believe was the case when parties addressed me upon it immediately after lunch. It is indeed regrettable if an incident of this sort occurred, but it is in my view important, as Professor Furnell mentioned himself in the last thing he said to me in evidence yesterday, that the parties do not over-emphasise the incident.

When I was addressed by representatives, it was suggested that this was a matter of such importance by its very nature and import that I should hear the evidence. It is regrettable that the detail of precisely what is said to have happened was not investigated. Had it been investigated, with some time for reflection, as I was anxious to try and provide yesterday, perhaps matters might have taken another course. I am concerned that the failure to investigate the detail of what the professor is said to have witnessed has had the effect of blowing this matter up disproportionately.

If it happened, it is most regrettable incident. It is most regrettable on a variety of levels having regard to the delicate and important stage this proof has reached. It is extremely disappointing that all parties have had to divert their attention from the normal course of this proof and at a time when [the pursuer] himself had asked that he be able to reflect upon matters, particularly the professor's evidence that had been given yesterday morning.

If this incident happened, it would of course be argued that this has adverse implications at least as to the character of [the defender's husband]. Much of that has already been explored in evidence. This case is about [S]. There is a danger that the focus on [S] is being lost, if it has not already been lost. It is regrettable but sometimes inevitable that proofs of this nature are reduced at times to point scoring. I have no wish to encourage that.

Parties should be well aware that from my observation point I have had more opportunity than is normally afforded to a tribunal to observe parties over time and to listen to them in the witness box. The intensity with which this case has been fought is pellucidly obvious. These developments at this particular stage were as inopportune as they were unwelcome. I would be resistant to this episode being promoted as a threshold for any other evidence being led which might be considered no more than tit for tat.

There is a young boy who, for all I know, is in some torment and anxiety awaiting my decision. Parties would do well to remember that.

Having made these observations I shall adjourn for a few minutes to allow parties to reflect. I shall reconvene and at that stage any cross-examination can take place. I should say I am particularly anxious, as was put to me yesterday by [counsel for the pursuer], but these events have not been conducive to the reflection that [the pursuer] wished to have at this delicate and important stage. Once the evidence in yesterday's development is complete, I do not intend to hear any more evidence today. I am conscious that this is a holiday weekend locally. Any evidence that begins today would have to wait until Tuesday. I think in the interests of justice and particularly in the interests of [S], [the pursuer] should have the opportunity that he wished, at more leisure than would otherwise be allowed, to consider what he wishes to consider over the weekend. I realise that there may be implications for the programming. We have effectively lost a day and a half over this, but it is in my view in [S]'s interests in the longer term that I should suffer this adjournment at this stage.

[224]  Some explanations are required.

[225]  Counsel for the defender had in the course of the previous day's discussions stated that he wished to open up this procedure to introduce other incidents that had occurred. I had made it plain that any evidence I was hearing was restricted to the incident that happened on the landing. In these observations from the bench, I was trying to suppress counsel's enthusiasm to raise other incidents, if it remained.

[226]  I was trying to convey that the professor's evidence did not match the 'menacing' gravity that I had expected from what the curator and counsel for the pursuer had told me immediately after lunch the previous day. It was particularly irksome that the professor had apparently been in the company of experienced counsel and an experienced solicitor, none of whom appear to have ascertained precisely what was said. It seemed to me that, had the detail of this incident been precisely ascertained from the professor, wiser and more reflective consideration may have resulted in the court not being troubled with what was no more than a minor and somewhat fleeting contretemps. I was hoping that, upon reflection, either cross-examination or the need to lead the defender's husband might have been considered unnecessary. My hope was dashed; my optimism unfounded.

[227]  Reference to the pursuer's wish to reflect upon evidence that had particularly been given the previous morning was related to evidence I had explored directly with the professor. He had been re-examined by pursuer's counsel about evidence that the professor had previously given that parties' positions might change, that having listened to the evidence led in this long proof that there might be an outbreak of common sense. Counsel for the pursuer, perhaps inevitably, had been exploring this from the standpoint that if any party were to change it should be the defender.

[228]  Partly in the interest of balance, partly from previous professional experience of a very difficult case some years ago and partly from an anxiety that the pursuer might not have considered it, I was interested to learn if the professor had in his experience come across a situation where, for instance, a father had taken the view that despite his wish for contact he might realise that this was creating so much conflict and difficulty in the child's life that he might conclude that it would be in the child's best interests that he withdraw his claim for contact in the hope that, when the child is older, and perhaps with the passage of time, he might be able to resurrect and rebuild the relationship.

[229]  The professor confirmed that he had been aware of such cases and he gave some interesting views about how the party might withdraw, for instance, how withdrawal is managed, and the desirability for some form of communication to the child and the need to draft that with care, and the possibility of maintaining some form of letterbox contact thereafter.

[230]  I assumed the particular reason for the request to allow the pursuer to reflect related to that evidence and I was, of course, content that he should have time to do so. So, I had risen a little early for lunch and arranged to reconvene a little later than normal. I would have been willing to allow more time had that be requested. That was why I made reference to the interruption being unwelcome at such a delicate and important stage. In the event, to allow the pursuer that time for reflection I adjourned after the professor's evidence about this incident had been concluded, particularly as the next witness was to be the pursuer himself and it would not have proceeded very far before having to be adjourned for what was a local holiday weekend. It seemed to me that it would be a better use of time for the pursuer to be able to reflect upon the position at greater leisure before he was required to give evidence.

[231]  At a much later stage, the defender's husband was recalled to answer questions on this issue. I have set out my findings on this issue within my last finding-in-fact. There was no material inconsistency between the professor and the defender's husband on the facts. The defender's husband walked past the professor who was standing on the landing. The defender's husband made a remark about not being happy or being unimpressed with the professor's evidence, which he thought had been biased towards the pursuer. The defender's husband continued walking to the other end of the landing and as he was going through a doorway he said that he and the defender would be writing to the professor.

[232]  At no time, said the professor, was he afraid he would be assaulted. Nevertheless, he probably spent more time explaining how taken aback he was by this approach than it took him to tell the court what happened. In his uninterrupted answer to the question 'What happened?', he told me three times that he was taken aback. As if by way of further emphasis, he stated that he was well used to dealing with angry people in his professional practice. He was used, he said, in matters such as this, to professional persons and parties acting in an almost exaggeratedly light and restrained manner towards each other within the environs of the court. However, this was, he said, very different from that. He said that he was 'old enough and sophisticated enough as a professional to understand that a threat need not be of a physical nature when dealing with professional persons. There can be an implied threat... in relation to a professional body, which is in some ways devastating. At the time, I took what was said was an implied threat that that might happen'. He went on to say that he was aware that the defender and her husband may have made other complaints against professional persons involved in this case. His first reaction, he said, was that this may be a presage of some complaint, justified or not. He could not think of any previous incident in his professional life within a court setting where he had been exposed to such an experience and that, usually, people are of exaggeratedly good behaviour.

[233]  When asked by pursuer's counsel if as a result of this personal experience he had any additional comment to make in relation to [S]'s welfare given that the defender's husband is one of the primary day-to-day carers for [S], the professor said that he had experienced first-hand 'what [he] at [his] age construed to be or perceived to be an angry man acting in a somewhat unrestrained manner... [He supposed] the implication could be if someone does that here they might do it elsewhere, perhaps in the presence of a child'. Pressed further, asked if his personal experience of this incident had any bearing on the wisdom of the pursuer withdrawing because circumstances are simply too difficult, leaving [S]'s welfare to the judgment of his mother and stepfather, the professor supposed that what was a minor adult incident in itself could have implications 'possibly taking one somewhere in the direction of reservations about restraint and judgment on the part of one of the adults having care of whom (sic) [the pursuer] might leave his son. [The professor] can therefore understand how that might to some extent and to some degree heighten [the pursuer's] reservations about such an action, about such a decision'.

[234]  Cross-examined by the curator about whether the reservations he had expressed might impinge upon the success or otherwise of any letterbox contact that might operate should the pursuer withdraw from seeking contact, the professor was not sure if it would affect the viability of letterbox contact in itself, but he could understand why yesterday's events might give someone in the pursuer's situation additional reservations about retiring from monitoring the care of his child on the basis of leaving him in the care of somebody who may well have a certain lack of judgment about how to behave and a certain lack of restraint. Asked by the curator how much weight, as a psychologist, he would attach to his experience yesterday, the professor said he found it unpleasant, that he was in a position to speak up and that the child exposed to similar treatment might be apprehensive and less in a position to retort or respond in any way.

[235]  This is a most regrettable episode on a variety of levels. It took up more than two days of the court's time. It was nothing more than a minor contretemps. I have no doubt that the defender's husband did not leave the courtroom with the intention of confronting the professor. It is quite clear from his evidence that he was surprised to find the professor still standing there. The landing is relatively small. The direction from which the defender's husband approached and the way in which the door opens would place him within inches of the professor as he passed him on the landing.

[236]  I make it plain that I do not condone the behaviour of the defender's husband. His behaviour is regrettable and he should not have conducted himself in this way.

[237]  This litigation, however, has been conducted throughout in an atmosphere of tension, allegation and counter allegation. Counsel have complained about the conduct of each other. Witnesses giving evidence have complained about the conduct of counsel and parties while giving evidence. There have been complaints about the conduct of a witness towards a party outwith the court. On one occasion counsel complained about a witness staring at him to intimidate him. That witness, separately and unaware of counsel's complaint against him, subsequently complianed about counsel staring at him in an intimidatory manner. Parties have repeatedly reacted to evidence in an exaggeratedly animated fashion, and have had to be admonished. The subject matter of some of the evidence involving allegations of sexual abuse is naturally going to heighten the emotions of parties and witnesses. It is not surprising, and is indeed perhaps inevitable, that some confrontation was going to happen. I deprecate any behaviour of that nature, whether involving a professional or any other witnesses. As I said at the time, I am particularly anxious to protect all witnesses from any confrontational or intimidatory behaviour. However, this, on any view of the matter, was an incident at the lowest end of the scale.

[238]  The professor has considerable experience of proceedings such as these. If this is the first time that he has ever experienced behaviour such as this then he is most fortunate indeed and would appear to have led a very charmed professional life.

[239]  In my view, the professor's attitude towards this incident was overly precious. He completely overreacted. I obtained the impression he was sensitive to that criticism. He more than once referred to the incident as minor or an incident into which one should not read too much. I do not accept his evidence where, as a psychologist, he suggests that anything is to be taken from this incident so far as [S]'s welfare is concerned. That he should have sought to persuade me otherwise has in my view undermined the objectivity of the evidence he had previously given and probably disables him from any professional involvement in this case in the future. It also provided the pursuer with easy justification to continue with this litigation, if he was looking for such, at a delicate and important stage when he otherwise had apparently wished time to consider whether he should do so.

[240]  I also consider that counsel for the pursuer and the curator would have been better to have taken the opportunity to reflect upon the incident. They should have ascertained precisely what was said before raising the matter and urging the court so forcefully to recall the professor. Had they done so, arguably the matter may not have been brought to the court's attention.

Dr Boyle

[241]  Dr Jack Boyle was instructed by the defender in December 2006 to provide a report about contact. That instruction was not supported by the curator. The pursuer did not cooperate in the preparation of the report and so, even although it is more recent than Professor Furnell's report, it is fatally flawed. It would be improper and unsafe to rely upon it.

[242]  The curator disapproved of Dr Boyle's instruction for two reasons. Firstly, Professor Furnell had already been appointed by the court and had prepared a report. Secondly, the curator was aware that Dr Boyle's opinion had previously been criticised in one case and the curator stated he had never seen a report in which Dr Boyle had recommended that contact take place. The curator believed Dr Boyle's reputation within the profession was that he was hired to bolster a case against contact on the tenet that all relationships proceed from the relationship with the mother and if the mother cannot promote contact then it will not be successful and as contact has to be a nurturing experience it will not be such if the mother is opposed to it, and so there is no point in going on with it.

[243]  I have no knowledge of Dr Boyle having such a reputation. Whatever may have been the terms of his report, he was certainly prepared in evidence to carry out further investigations to see if something coulld be done to re-establish contact. It was he who used the phrase 'last chance saloon'. He would of course wish to speak to the pursuer. There is no prospect of that, just as there is no prospect of the defender or her husband having any confidence in moving forward with the involvement of Professor Furnell. While it is fair to say that Dr Boyle's report concluded that there should be no further contact with the pursuer, his position in evidence was less categoric insofar as he said that he would like to speak to the parties to see if there was any way forward. To that extent there was a similarity to Professor Furnell's approach, as the professor himself observed.

Post March 2006

[244]  The pursuer intimated through his solicitor that he accepted the conclusions of Professor Furnell's report. So, notwithstanding the circumstances in which contact had been suspended, contact was restored, initially by two non-residential contact visits followed by residential contact from April 2006 on alternate weekends between Friday and Sunday.

24 July 2006

[245]  On 24 July 2006, during a residential contact visit, the defender telephoned the curator to say that she had received a telephone call from [S]. She said that he was extremely distressed. She said he wanted to return home to his mother. As it happened, the curator lived only a 10-minute walk from the pursuer's house. He walked round to the pursuer's house unannounced. On arrival, while standing at the door, he overheard the pursuer say to [S], 'Now come on, [S], this is your time with me' or words to that effect. The pursuer was surprised to find the curator at the door. However, he invited the curator to come in. The curator saw no sign of any tears on [S]. If he had been crying, he had calmed down by the time of the curator's arrival, which the curator observed in evidence is how it should be. The curator spoke to [S] on his own. There was no difficulty. The contact visits continued until its scheduled conclusion.

[246]  When the defender initially spoke to the curator on the telephone, she wanted to travel there and then to pick [S] up and take him home. The curator told her to remain where she was until he had visited the pursuer. Before he had had the opportunity to do so, the curator received another call from the defender to say that she and her husband were on their way. Again, the curator had to persuade the defender not to do so.

[247]  The curator appeared to accept under cross-examination from counsel for the pursuer that he had been misled by the defender. Precisely how he was misled was not explored or entirely clear to me. Perhaps, he thought that the defender had misrepresented the degree of [S]'s upset. I did not understand the curator to be suggesting that the defender had entirely fabricated the story and I am sure she did not.

[248]  While it is understandable that she might be distressed to receive a telephone call from [S] in which he is upset, the defender is, at times, too quick to intervene and has a tendency to over-react. Instead of trying to reassure [S] and encourage him to continue to enjoy the contact visit, she was too ready to identify this as a reason for terminating contact.

[249]  It was put to the curator by counsel for the pursuer that, as an officer of court, in calling upon the pursuer unannounced, he had failed to pay adequate respect to the private and family life of the pursuer with his child. I think, in a case such as this, involving a background of allegations of emotional, physical and sexual abuse; of repeated applications for residence; of complaints to school and social services of the pursuer being an unfit mother; of intense acrimony and mistrust between parties; and of [S] previously expressing forthright views that he does not wish to have contact with his father, no criticism can be attached to the curator for acting as he did. Indeed, he would arguably have left himself open to criticism had he done nothing. The pursuer had no regard for those rights of the defender when he complained, without justification, to the school and social services she was an unfit mother. It is ironic that he should make such an issue of it when the curator, who is appointed by the court to look after [S]'s interests and has been informed [S] is distressed and wants to come home, comes round to check [S] is all right. The pursuer's right to a private and family life, in this case with such a background, would be secondary to the interests of [S] and his physical and emotional welfare. That the pursuer should wish to take such a point is more a measure of his determination to lock horns in legal argument in preference to acknowledging the curator's legitimate concern to test the strength of the defender's complaint and ascertain the true position in a matter that concerns [S]'s welfare.

27 December 2006

[250]  Although contact continued regularly until December 2006, it would appear that [S] was becoming unenthusiastic about contact. He became increasingly resistant. Consequently, the defender, and indeed her husband, found it increasingly difficult to persuade [S] to see his father. This inevitably caused difficulties within the defender's household, particularly prior to contact visits. No doubt, this was why the defender felt justified in instructing Dr Boyle.

[251]  A particular difficulty arose on 27 December 2006. [S] was due to have another contact visit with his father. There is no doubt that the defender thought that this further seven-day contact period was too much following [S]'s return from residential contact on 24 December 2006. The extent to which [S] was aware of and influenced by his mother's attitude to that particular contact I cannot say. However, he refused to go with his father. There were angry exchanges between the parties. The pursuer tried to bring [S] round by telling him that he could telephone his mother and that he had Christmas presents waiting for him at the pursuer's house. The defender took [S] into the house for the purpose of giving him her mobile telephone number so he could telephone her directly. [S] protested that his father would not allow him to telephone her.

[252]  The pursuer was still insisting on exercising contact in terms of his court order. He was asked to go away for 30 minutes while the defender and her husband spoke to [S]. The atmosphere and tone of the exchanges and the pursuer's attitude can be gleaned from the fact that his retort was that he would be back in 20 minutes.

[253]  Failure by the pursuer to display any sympathy or understanding for [S]'s obvious distress in such situations has been a major contributor to the difficulties at handovers. [S]'s unwillingness at times to go with his father has usually been met with an insistence upon exercising what the pursuer sees as his right to contact, failing to acknowledge or accept [S]'s expressed view. He seems incapable of adopting a conciliatory attitude.

[254]  While the pursuer was away, [S] complained about the sleeping arrangements while at his father's house. He complained that he did not like the nights he slept in his father's bed. He mentioned that his father slept naked. [S] told his mother that he felt uncomfortable having to check under the covers in the morning to see if his father was wearing pyjamas. The defender conceded that upon receiving this information she felt, on that occasion, that she could no longer try to persuade [S] to go for contact that night. She had not realised that [S] has slept in his father's bed on a regular basis. She felt it was inappropriate because he was now growing up. He had started primary school. She thought this was another example of the pursuer failing to accept that [S] resided with the defender and not with his father. The pursuer denied that he slept naked, but I do not accept this evidence when viewed against the defender's evidence, which I accept, that he had not denied it at the subsequent court hearing, merely then protesting that such behaviour would not be worthy of comment in other countries.

[255]  When the pursuer returned to the house a short time later, [S] was still distressed. The defender's husband explained to the pursuer that there had been certain revelations made in his absence. When it was clear to the pursuer that [S] would not be coming for contact there was a bad-tempered exchange with the defender's husband. The pursuer insisted that he would not be leaving until he had seen his son. The matter ended when the defender's husband came back in to the house, having told the pursuer that there was no point in him staying. The pursuer eventually left.

[256]  The defender continually maintains that she tries to encourage [S] to go for contact with his father. It is difficult to establish on the evidence how the defender goes about that. It was not a matter upon which she was questioned in any detail. What appeared to be a focus for criticism was that [S] was taken out to tell his father himself that he did not want to go. This is being held out as an example of responsibility for whether [S] goes being placed on [S]. What the defender's husband had to say about this was that from past experience he knew that the pursuer would not take it from him that [S] did not want to go. He refers to previous circumstances when the pursuer is said to have been abusive to him and has simply rolled up the car window and refused to speak to him. It seems to me that when relations between the pursuer and the defender are as bad as they are and when the pursuer is continually unreceptive to any suggestion that [S] might not want to go with him and is likely to react aggressively, then these episodes are fraught with difficulty. Whatever the defender and her husband do, the pursuer is likely to criticise. What is never satisfactory, however, is for [S] to be placed in the front line, as it were, of the dispute between parties. I appreciate, nevertheless, that the pursuer is unlikely to accept from the defender or defender's husband that [S] does not want to go and that he will want to speak to [S] himself. That also places [S] in a difficult position.

[257]  When the curator investigated the circumstances of these events he was told by [S]'s headteacher and class teacher that [S] spoke positively of his time with both the pursuer and the defender. I am not sure that anything much can necessarily be read into that. Contact resumed a few days later. There was an episode about February 2007 when [S] said to his class teacher that he did not wish to go on contact with his father. The headteacher telephoned the curator to tell him. There are two aspects to this. Firstly, he was noted to have had a smile on his face when he told his class teacher. Secondly, the defender, a few days later, telephoned the school to establish if the remark had been made. Again, nothing significant can be read into this.

[258]  [S]'s resistance to contact nevertheless intensified throughout 2007. By the summer, he had become disillusioned with his father. He complained of boredom. Between 7 and 14 July 2007 the pursuer took [S] to England for a holiday. They did not do very much. All that [S] could tell his mother about, upon his return, was that they had gone on one trip to a park. They had originally been due to stay with the pursuer's mother. The pursuer fell out with his mother, however, and had to leave the house. They stayed at another house with someone [S] did not know. He ended up having to sleep in a room with a number of cats. He came home with an allergic reaction, which required medication. [S] said that he did not wish to go again for contact with his father.

[259]  While I do not think that any blame can be attached to the pursuer for [S] contracting an allergic reaction, it is noteworthy and regrettable that the pursuer allowed matters to deteriorate with his mother at a time when [S] was with him and, particularly, to the extent that he and [S] required to leave the house. It is concerning that [S] had to be taken to someone that he did not know, particularly when the pursuer now no longer lives in Scotland, presently has no permanent address and for the last two years would appear to have been temporarily staying with his mother. My impression of the pursuer is of a socially lonely and isolated individual with a restricted network of friends and relations from whom he can draw support.

[260]  Despite [S]'s expressed view upon return from that holiday, there was a further contact visit between 9 and 13 August 2007. This visit had been appointed to take place by the sheriff at Alloa following a hearing on 31 July 2007. The defender was then in hospital about to give birth to [A], but she was represented at the hearing by her solicitor. [A] was born before [S] was told about this visit. When he learned about it from his mother, a few days after the birth, [S] reacted very angrily. He complained to his mother that no one seemed to be listening to him. This was apparently something which he had frequently said. He expressed the view that he wished his father was dead. Regrettable though that expression is, it perhaps serves to emphasise the intensity of [S]'s feeling.

[261]  The defender returned home with [A] about 4 August 2007. By all accounts, [S] was excited by the arrival of his baby half-brother. This served only to heighten his resistance to the forthcoming contact visit with his father. He wished to be at home with [Z] and [A]. He was only persuaded to go for contact with his father when his aunt told him that she was going to take [Z] on an activity in which [S] would not be interested.

[262]  [S] returned from contact on 13 August 2007. He was anxious to know what had happened at his mother's house while he had been away and particularly what developments that had been in relation to [A]. [S] perceived the pursuer to have no interest whatsoever in [A]. It appears that he had not reacted to the introduction of [A] when [S] had raised it in conversation, which annoyed and bothered [S]. This visit turned out to be the last visit [S] had with his father.

[263]  Two further contact visits were attempted on 31 August 2007 and again in September 2007, but [S] refused to go. On both occasions he lay on the couch, kicking and screaming. He accused the defender and her husband of forcing him to do things that he did not want to do. He expressed the view that he hated his father and he repeatedly asked why no one was listening to him, as he had done before. His refusal was resolute. There would have been nothing that could have been done, short of physically dragging him to the pursuer's car, to persuade him to go with his father.

[264]  The curator made enquiries about his refusal to go for contact. He met [S] at his school on 18 September 2007. [S] said he was getting fed up with his father now because he was 'kind of annoying' him. He said that his father was saying 'bad things' about his mother and referred to her as a 'kind of idiot and stuff'. The curator asked how often this had been said and [S]'s answer was somewhat curious. He said it only happened once and that was over a year ago. It would appear this answer may have been the result of some misunderstanding because [S] later reiterated to the curator that he did not want to see his father again because of what his father was saying about his mother, which appeared to be of more recent origin than a year ago. He reverted to the theme of 'bad things', explaining that the pursuer said that his mother was not doing the right things. He said that if he did not go on contact visits he would then not miss out on things such as swimming with his pals. Although he did go swimming with his father, he described it as boring because there were no slides at his father's club, which is where they went. He also complained about missing out on playing with friends. Certainly, there was no mention of [S] playing with any other children when he was with his father, and there appeared to be no relatives of [S]'s age on his father side with whom he ever met or played. [S] also mentioned that he did not want to be away from his new baby brother.

[265]  [S] was asked by the curator if he would not miss his father if he did not see him, but he said that he would not. [S] referred to a previous time, prior to Christmas 2006, when he had not seen his father for some months. He told the curator that he had not missed him and felt he would not miss his father in the future.

[266]  [S] also said that he did not like the pursuer's new flat. It was not as nice, according to [S], as the pursuer's last house. He described it as being dirty. The curator has been to the pursuer's flat and confirmed in evidence that the exterior environs of the tenement building and the communal stair were not particularly clean, which appears to coincide with [S]'s description, although the curator described the pursuer's flat itself as being 'in a basic state of cleanliness'.

[267]  Asked by the curator of what [S] did at the pursuer's flat, he said 'nothing really'. They went to the park, he said, but there were not very many good places to go nearby and he found it quite boring. [S] told the curator that it was better when [Z] was there because he had some company. He described them jumping on the furniture, although this had been a long time ago. Asked what he did with his father, [S] said that he went to a shop, hired a DVD and he remembered the pursuer buying a bottle of brandy. The context of that answer was not particularly plain. It does seem a little strange that [S] should mention the purchase of brandy, but Professor Furnell remarked that it was possible that a child of that age might be aware of a drink of that name, although he also remarked that a parent should be wary of buying alcohol in the presence of a child in a case with a background such as this.

[268]  Towards the end of the interview [S] again said that he would not miss the pursuer and that he was not fond of him. He made it clear that he was not willing to attend for further contact.

[269]  The curator has observed that he did not find [S]'s reasons convincing. I am not so sure that I can wholly accept that conclusion. There are some curious aspects to some of the things he said. It has to be remembered that [S] was only seven years old. He has mentioned, arguably, a wide range of matters that perhaps all cumulatively have more impact on the mind of a seven-year-old than each of them individually. The pursuer would argue of course that he has been manipulated by his mother to dislike his father and that she has thereby turned him against his father and that it is her influence that is responsible for [S]'s articulated views. I am unable to find that proved.

[270]  What the curator was in no doubt about was that [S] was resolute in his view that he was unwilling to attend for further contact. The curator met [S] again in June 2008, shortly before evidence in this proof commenced. [S]'s views were unchanged and he remained as resolute.

Interviewing [S]

[271]  I have seriously considered whether I should interview [S] myself. I concluded that I should not do so. One consideration is that the parties did not invite me to take this course. While of course it is entirely a matter for me, I am reluctant to enter upon a course that I have not been invited by any party to take. On one level, the purpose of interviewing [S] would be to ascertain his views. No one is suggesting that these views are in doubt. He is still resolutely unwilling to see his father. He has not expressed any wish to see him now or in the future. He says that he will not miss him. I think even the pursuer accepts that, if asked, that is what he would say. So, to that extent, I know what his views are and it is exceedingly unlikely that if I saw him, he would express any other view. The curator tells me that that is his view. The defender and her husband tell me that that is his view. The defender's sister tells me that is his view.

[272]  The other level upon which enquiry might be made with [S] would be to ascertain whether there is any distinction between his expressed views and his real wishes. I am extremely hesitant to embark on such an exercise with [S]. Although Professor Furnell had not been involved in this case for some years, I took on board his comments when questioned about the viability of making further investigation along this line. He was articulating extreme caution. Although he was unaware of all the events that have occurred since he was last involved in the case, he was able to glean from the questions he was asked something of the flavour of animosity that exists between the pursuer on the one hand the defender and her husband on the other. He recognised that relations were very bad and he was aware of the resolute nature of [S]'s views. One area that he thought possibly could be examined, which had not been done before with [S], was in relation to what would appear to be contradictions between his expressed views and observed behaviour. Nevertheless, before that stage would be reached, the attitude of the parents and indeed the defender's husband would require to be ascertained. Professor Furnell contemplated, as I understand his evidence, that this issue which would have to be addressed before there was any further enquiry of [S], might preclude such enquiry.. He also expressed the opinion that others, in light of his lack of involvement for a number of years, would be better placed than him to make the decision as to whether further enquiry or investigation should be embarked upon. However, even if, in this stepped exercise as he described it, further enquiry was to be made of [S], it is clear that what he had in mind would be something of the nature of a psychological investigation. In all these circumstances I concluded that, having regard to the considerable reservations that Professor Furnell expressed and the stepped decision-making process that he envisaged, it would not be appropriate for me to embark upon an interview with [S]. I have no reason to believe that [S]'s articulated views are about to change. I have every reason to believe that they will remain the same. It is unlikely that I am going to discern any distinction between expressed views and real wishes and it is extremely doubtful that it would be in [S]'s best interests that I attempt to do so, having regard to the recognition of Professor Furnell that whether such a step may harm [S] was a difficult issue. Furthermore, I remain unconvinced that much is to be derived from investigating, now, observed behaviour on one occasion almost 4 years ago which took place in somewhat artificial and contrived circumstances. Also, the evidence about precisely the circumstances in which [S] expressed views at the school was somewhat shallow and not explored in sufficient depth.

[273]  I was particularly impressed with the evidence of the defender's sister, Mrs JB, on this matter. She has a calmer personality than the defender. She sees the defender's children often and they visit her and stay with her regularly. She appears to have no children of her own; the matter was not touched upon in evidence. However, she is a teacher by profession. She has been a primary school headteacher for the last nine years. She has over 35 years professional experience of children. She is extremely fond of the defender's children, which fondness is reciprocated.

[274]  She confirmed that [S] rarely speaks about his father now. However, [S] had by chance brought him up in conversation when she saw [S] about three weeks before she gave evidence. I am entirely satisfied that she did not initiate, encourage or influence what [S] said to her. [S] told her that he did not want to see his dad, that he did not like his dad and the way his dad acted.

[275]  Mrs JB was asked, from what she had heard from [S] herself, what she understood to be [S]'s present views about contact with his father. She said that her understanding is that [S] sees his dad as a threat to his family stability. He associates his father with tension, arguments, anger and concern. She thought that he was frightened of his father and the effect his father has on the family. She said that [S] had told her that his father did not like [A] from his father's response after he was born. She said that [S] thinks his dad is angry with his mum and does not like the defender's husband.

[276]  She illustrated this by some things that she had heard [S] say. He has told her that he had seen his dad upset and angry at contact handovers; he has spoken that he does not like the way his dad speaks about his mum; he has said that he thinks his dad is very angry with his mum; he does not associate his dad was happy events, with nice things, with good times. She said that [S] sees his dad as an instrument of anger and argument. She said that he does not know why his dad does not like his mum. She said that [S] is very close to his stepfather and [S]'s interpretation is that his dad does not like him either.

[277]  Mrs JB stated that [S] is very close to and adores his mother. For instance, when he is staying with Mrs JB, he likes to phone his mum in the morning to wish her good morning. She considered from what [S] had said to her, that when [S] is with his dad, he feels alienated insofar as he cannot communicate with his family. She thought he was uneasy because he is very well aware that there is tension and he has seen and heard his dad shout. She observed that [S] had been encouraged to go for contact at times when perhaps he did not want to go when, for example, other things were happening in the family and that [S] just does not associate his dad was good times, 'with fatherly things'.

[278]  I have no difficulty in accepting the evidence of Mrs JB. Her evidence had the merit, despite being the defender's sister, of compelling objectivity. It seems to me, what she says that [S] has told her are likely to be [S]'s genuine and present views. Professor Furnell stated more than once that [S] was a bright boy. He seems also to be astonishingly perceptive in these views he has expressed to Mrs JB about his father.

Further discussion

[279]  Following [S]'s refusal to see his father in September 2007, the curator continued to try to resolve the impasse. He had discussions with the parties' solicitors. Much to his surprise, the defender was agreeable to attending a meeting. Eventually, after overcoming legal aid and diary commitments, a meeting in the form of a parallel consultation took place within the Consulting Rooms of the Faculty of Advocates in High Street, Edinburgh on 27 November 2007. The parties, their solicitors and counsel were present, along with the defender's husband and the curator. It is fair to say that in the course of the proof there was some occasional peripheral skirmishing in the form of oblique references to this meeting and the fact that it had not produced a resolution. I do not know anything, of coure, about the basis upon which this meeting was set up or what actually happened. My impression is that the parties did not even reach the stage of being in the one room. It appears the pursuer had an expectation that the defender was coming with proposals for contact. If that is correct, I am unable to say whether that was a reasonable expectation, particularly in light of his recent refusal to consider non-residential contact. The allegations of sexual abuse were again to the fore of the defender's considerations and certainly those of her husband. This primarily informed the defender's approach during the meeting. What is certain, however, is that no agreement was reached and no progress was made.

[280]  In December 2007, the pursuer indicated that he wished to give [S] a Christmas present. The curator met [S] on 28 December 2007. The curator was able to ascertain [S]'s view, which was that he would accept a gift but that he did not wish to have any contact with his father.

[281]  Since then, the pursuer has not sent [S] any presents or even a birthday or Christmas card. He has not sought to communicate with him by letter or in any other way. The defender was critical of this. Her evidence about this was unchallenged. The pursuer did not explain why he had not done so. I can only observe that any father having a commitment to their child might be reasonably expected to send a birthday or Christmas card, if not also a present. It reflects unfavourably on the pursuer that he has not done so.

[282]  The fact of the matter is that [S] has had no contact with his father now for about two and a half years. Contact ended because of the increasing intensity of [S]'s unwillingness to go for contact visits. Eventually, his behaviour was such that short of physically dragging him to see his father, there was no way in which contact could be exercised. Certainly, [S] would not have derived any benefit from contact in those circumstances.

[283]  Having heard all the evidence, it is crystal clear that [S]'s own view was that he did not wish to see his father. That remains his view. Why did it reach that stage? Not having spoken to [S] myself, I am reliant upon the evidence that has been presented from others, including of course the curator. The pursuer will have it that the defender has turned [S] against him. She resolutely denies that. She maintains that she encouraged [S] to go for contact despite his resistance at times, which resistance intensified until the last contact visit in August 2007.

[284]  It is true that there have been periods when the defender has stopped contact. In August 2003, for instance, after she found out through [Z] that the pursuer intended to go to court to take the children away from her and had been questioning [Z] about her own life with her mother and encouraging her to speak ill of her mother and tell lies about her, contact was stopped. In October 2005, contact was stopped after the pursuer's allegations of sexual impropriety involving the defender's husband.

[285]  It has to be acknowledged, however, that that on these occasions contact did thereafter resume. Indeed, the defender agreed that Professor Furnell could observe an arranged contact for the purpose of preparing his report in March 2006. After two short non-residential visits, residential contact resumed on a regular basis. It would appear, perhaps more in the earlier years, that [S] might even have enjoyed contact from time to time. The defender's husband said so.

[286]  Why did he become so disillusioned with his father? I have no definitive answer to that. However, it appears to me that a number of issues may have combined to influence [S]'s views. [S] will have been perfectly aware for a long time that his parents did not get on. There have been innumerable difficulties during handovers. For much of his life when he has been having contact with his father he is perfectly well aware of the conflict between his parents. It is inconceivable that, although he knew and knows nothing of the substance of the allegations of September 2005, he could have been unaware of the heightened tension and emotion in his household at that time, not only from discussions that inevitably would take place within the household, despite attempts by his mother and her husband to keep them from the children, but also from the frantic atmosphere during the attempted handovers on 6 and 14 October 2005.

[287]  [S] is very close to [Z]. She no longer sees the pursuer and [S] is likely to be aware of her disdainful, angry attitude towards and dislike of the pursuer. It is inevitable that they would speak to each other about this. It is likely that this would have impacted negatively on [S].

[288]  [S] has increasingly formed interests and friendships with other children arising from the fact that he is now living in a small rural community and going to the village school. He has friends nearby within that community with whom he plays and goes to school. There are facilities on his doorstep such as a nearby playpark. Like [S], his friends have gardens and they engage in the normal activities that boys of that age growing up together enjoy. He has spoken about building treehouses. He is increasingly part of a local community and developing a role as an integral part of community life.

[289]  There is no doubt that the contact the pursuer had with [S] was generous. Professor Furnell referred to it as nearly a shared-care arrangement, which he thought with hindsight, had not been wise. Accordingly, [S] was frequently being taken from the environment in which he was forming bonds with other children and adults. On average, he would not be at home every second weekend, which of course equates to half the weekends in a year. Not only was he away on Saturdays and Sundays, but the time he latterly spent with his father was either from Thursday until Monday or from Friday until Tuesday. Hence, for half the time when he came home from school on Friday or Monday, he would be going off with his father and not returning home as his friends would.

[290]  [S]'s impression of his father's flat was that it was dirty. There would seem to be some foundation in his attitude so far as the environs and the communal stair are concerned, but the curator said that the pursuer's flat itself was basically clean. Even so, [S]'s perception would impact negatively on how he viewed his father's flat.

[291]  I did not obtain the impression that the pursuer engaged in sufficient activities to stimulate [S] and maintain his interest. The pursuer sometimes spoke of 'planned activities', for instance, on the occasion that he tried to pick up [S] from school at lunchtime. He did not say what these were. [S] complained of boredom. The pursuer certainly mentioned regularly hiring and watching DVDs, going to the cinema and swimming at his 'fitness club'. It is of course true that contact visits should not be expected to be filled only with fun-packed activities. Part of the point of contact is to be able to develop the bond between father and son and it is important merely to spend time with each other without necessarily doing anything in particular. However, I can well understand that swimming at the pursuer's club is likely to be seen by [S] as boring compared to other pools he attends with slides to play on and no doubt other children contributing to the atmosphere, which would likely be absent from his father's facility.

[292]  There was no suggestion that the pursuer ever took [S] to visit friends and relatives in the local area. It would therefore appear that [S] was likely to be in the company of his father during the entire contact period with little or no opportunity to interact with anyone else or play with any other children, as he would at home. [S] complained that the visits to his father were often too long. Perhaps this was a factor. Perhaps he missed [Z]. [Z], it would appear, was anxious about him being away for lengthy periods and expressed concern about him returning.

[293]  The pursuer took [S] to England for a week in July 2007. It would appear from the defender that [S] and his father did not do very much while they were there. She said the only thing [S] could remember doing was on one occasion going to a park. The pursuer certainly did not challenge that or say that he did anything else. [S] was aware that his father had fallen out with his grandmother. There was no evidence of what [S]'s reaction was to that, but it is hardly likely to have been a positive experience. It would have been compounded by the fact that the fallout was so serious that they had to leave. He is unlikely to have enjoyed staying with someone he did not know. Of course, he contracted an allergic reaction from sleeping in a room along with a number of cats, which is unlikely to have enhanced his mood. The defender does not seek to blame the allergic reaction on the pursuer. It has to be said, however, that he was responsible for the circumstances in which [S] was exposed to the cats in the first place. Sleeping in a room with so many of them, when [S] would not be used to it, might just have occurred to the pursuer to be unwise.

[294]  The last contact visit [S] had with his father coincided with the birth and arrival home of his baby half-brother, [A]. [S] was excited by [A]'s arrival. However, [S] appears to have formed the view that the pursuer was disinterested in [A]. The pursuer says that the last thing he said to [S] was to enjoy playing with his baby brother. While I have no doubt the pursuer had no interest in [A]'s arrival, perhaps he misjudged [S]'s excitement and should have made more of it, for [S]'s sake. In fairness, however, the pursuer may not have known the extent to which, following [A]'s arrival in the house, [S] had to be persuaded to go for contact on that occasion.

[295]  All of these factors may to a greater or lesser extent have contributed in [S]'s mind to his increasing disillusionment with his father. It all became too much for [S] and it would appear that on the next two occasions [S] was in a near-hysterical state, kicking and screaming that he did not wish to go for contact. The reality of that situation has to be recognised and acknowledged.

[296]  The defender and her husband are against any form of contact with the pursuer. Their opposition is implacable. It is based, broadly, on two fronts. The first is that [S]'s own view is that he does not wish to see his father. The second is that the defender and her husband have an abiding hatred and mistrust of the pursuer.

[297]  The pursuer appears presently to play no part in [S]'s life. He rarely mentions his father. He says that he is not fond of his father. He has expressed strong views from time to time that he wishes his father was dead. That would be an upsetting comment for any father to hear. He presents as a happy, thriving and well-contented child who does not miss his father.

[298]  I do not know why [S]'s disillusionment has developed to the stage that he expresses himself in those terms and is so resolute in his view that he has no wish to see his father. It is possible that he sees this as a way of resolving conflict, knowing that his mother and father are unable to speak to each other or conduct themselves with civility so far as [S] is concerned. That involves [S] in the conflict. He may see a refusal to go for contact as one way of bringing an end to this continual source of argument and distress. He thereby removes the problem. The risk is that, when he reaches adolescence, he may either seek out his father of his own volition behind his mother's back or become resentful towards his mother if he feels that she has been responsible for his father disappearing from his life. So, although having no contact with his father now may bring relief, a settled existence and contentment in the short term, the risk is that it might bring with it difficulties for [S] at a later stage. It is also possible that these potential difficulties may not surface.

[299]  The pursuer seeks to re-establish contact with [S]. He argues that Professor Furnell's evidence is that there is a need to establish what [S]'s true wishes and feelings are now. I have already dealt with this more fully. I do not accept, for the reasons I have given, that Professor Furnell's evidence was as straightforward as that. He articulated great caution and accepted that there was a considerable risk that to embark upon this process might harm [S]. He accepted that he was out of date. He accepted that others would be better placed than him to make a decision, having regard to the position of the parties, about whether this should even be embarked upon.

[300]  The pursuer is critical of the curator in failing to apprehend that the defender's conduct towards [S] regarding contact with the pursuer over a sustained period constitutes a form of child abuse. I have already stated that it has not been proved that the defender conducted herself in this way.

[301]  The pursuer submits that it is wrong to force a child to make a choice to exclude his own natural parent from his life and that this is the mischief to be addressed as distinct from the consequences which flow from it such as problematic handovers and consequent, but inconsistent, statements by the child. I agree that it would be wrong to force a child to make a choice to exclude his own natural parent. I am unable to hold on the whole evidence that the defender has forced [S] to do so. Certainly, [S] has said that he does not want to see his father. There is, frankly, no evidence that the defender has forced him to do so. This is quite different, and it appears the pursuer accepts the distinction in his submission, from asking [S] at handovers to tell the pursuer that he does not want to go. I have already touched upon that aspect.

[302]  It is one of the features of this case that the pursuer and the defender are each assertive, articulate and opinionated individuals. They have domineering and determined personalities.

[303]  The pursuer is often sanctimoniously dogmatic and insensitive. At times his language was unnecessarily dramatic or flowery to the point of insincerity. He attaches himself leech-like to individuals in an attempt to wear them down to support his point of view, such as with the defender's sister, Mrs JB, when she tried to mediate for the sake of the children at times when the parties' relationship was not good. He once engaged a neighbour of the defender on the telephone for two hours attempting, unsuccessfully, to influence her against the defender, causing her thereafter to screen her calls to avoid speaking to the pursuer.

[304]  Each party is argumentative and intemperate. I think probably the defender is quicker to anger although it is the pursuer who has visited violence upon the defender. It is noteworthy, nevertheless, that in the course of her lengthy cross-examination, when the defender was exhaustively and persistently questioned in a manner that was at times no doubt calculated to test her temper and patience, while her annoyance and impatience was from time to time apparent, she did not over the nine days of cross-examination lose her temper. There were other aspects of her evidence, however, that were troubling.

[305]  The defender was asked her professional qualifications. She said she had an undergraduate degree in English, a Masters degree in teaching English to speakers of other languages and a PhD in applied linguistics. Asked when she obtained those qualifications, she said that she obtained her undergraduate degree in 1988, her Masters in 1999 'and I got my PhD in 2007'. She later went on to mention that she was undertaking her PhD at the same time as she was teaching at the University of Stirling and had been paid to undertake her PhD in the form of a scholarship. She felt it would broaden her horizons as she wished to pursue a career in academia. Under cross-examination she confirmed that she had said she had been awarded a PhD. Cross-examined on when it was awarded, the defender stated that it was not complete, that her thesis was still at the stage of 'revision'. Asked again when it had been awarded, she said September or October 2006. When it was put to her that in examination-in-chief she had said 2007, she said that would have been an error. Ultimately, her position was that while her thesis had been accepted there were inevitably revisions to be applied to it. She was in the course of doing that and that exercise was not complete.

[306]  The point about this is that she said that she had been awarded a PhD when plainly that is not true. When Dr Boyle reported, his report referred to the defender has 'Dr G'. Indeed, that is how he often referred to her in evidence. The defender is, regrettably, prepared, on occasion, to disregard the truth in order to convey an impression that is false if she perceives that impression to be to her advantage.

[307]  Another example of this is in relation to current, contentious proceedings presently taking place between the parties involving the Child Support Agency. About September 2006, to explain why the defender had not timeously lodged an appeal against a decision and to support a late application to appeal, the defender represented in writing that she had been seriously ill and off work for the past eight weeks, that she had recently suffered a nervous breakdown and had been receiving treatment and that her doctor would confirm this if necessary. In truth, she had not consulted a doctor. There had been no medical diagnosis of a nervous breakdown. She had been tired and exhausted. She had not received prescribed medication from her doctor. She had received advice from a friend who was a health nutritionist about diet and lifestyle. Contrary to what she had stated to the Agency, she conceded in evidence that she had not been 'ill as such'. She said she had not been off work for eight weeks solely because she had been unwell. She eventually conceded that she only had occasional days off work and the longest period would have been about a week.

[308]  There is no doubt that her representations to the Child Support Agency were capable of only one interpretation, which was that she had been seriously ill, had consulted a doctor, that her doctor had diagnosed her to be suffering from a nervous breakdown, that she had received prescribed medication and that because of this serious illness she had been unable to work for eight weeks. None of that was true. Her attempts to explain that she had not misled the Agency were pathetic and disingenuous. It is obviously of some concern that she was prepared to lie to the Agency in these circumstances. It is not a matter, however, that I find has any direct bearing on the question of contact and [S]'s welfare that I have to decide.

[309]  Notwithstanding these personality traits, I have no doubt that the defender is a loving, caring mother and perfectly capable of bringing up her children, including [S], in a healthy and nurturing environment. She will of course be perfectly capable of disciplining and chastising children when required. I do not find it difficult to accept that she may shout at them at times. She will apply, however, no harsher chastisement than might be expected of a loving, caring mother. I have no doubt that such chastisement has not crossed the boundary of physical or emotional abuse. One of the abiding difficulties in this case is that the pursuer cannot accept this, which, to say the very least, does not bode well for the future.

[310]  I think probably, in the past, the defender although no doubt attempting to encourage [S] to go for contact with his father when he did not want to, has too readily accepted [S]'s resistance or refusal, on occasion, as being determinative of the issue. I think, with hindsight, if the defender had been firmer in her approach to [S]'s resistance matters may have turned out differently. Perhaps, with hindsight, if some of the motions which the pursuer tabled to ordain the defender to appear at the bar of the court to find her in contempt of court had been immediately determined, her attitude to [S]'s resistance might have become more robust.

[311]  I find myself unable to be overly critical of the defender in this regard, however, because since August 2003 when contact troubles began, the pursuer by his conduct has given the defender every reason to be suspicious of his motives, cynical of his overtures and distrustful of his conduct, initially with [Z] and subsequently with [S]. The effect of the sexual abuse allegations in September 2005 and the pursuer's subsequent attitude towards them including his attitude at the proof, has been catastrophic to any prospect that the parties, including the defender's husband, can conduct themselves with any civility or cordiality towards each other in dealing with [S]. It has since informed the attitude of the defender and her husband to their whole approach. I believe it probably prevented any progress at the parallel consultation in Edinburgh.

[312]  Difficulties have been compounded and exacerbated by the fact that the pursuer was so insistent and inflexible in relation to the interlocutor, as he saw it, of 7 July 2004 and his insistence on the amount of contact that was awarded to him then. It was in my view too much for [S] at that time. The pursuer has not been prepared to reduce the contact he seeks. He declined to take up an offer of non-residential contact after residential contact ended in August 2007. By denying he made any allegations of sexual impropriety against the defender's husband, it is not difficult to understand why the defender and her husband have no time for him and regard him as the lowest of the low.

[313]  His insistence, in these proceedings, of findings-in- fact that the defender has emotionally and physically abused her children and has acted in a blatantly contemptuous manner towards orders of court is hardly likely to encourage a spirit of reconciliation. His continual attempts to take the children away from the defender without justification, and perhaps the manner of part of the cross-examination of Professor Furnell by his counsel in raising the question of residence, provides the defender with every reason to be concerned that he may seek to do so again in the future were contact to resume with [S].

[314]  The pursuer maintains that the curator has consistently displayed weakness in the face of the defender's considerable personality and has always been reactive to circumstances. There is no justification for this submission, in my view. This has been a bitter litigation. The curator has conducted himself entirely appropriately throughout. He has not resorted to knee-jerk reactions, in contrast, undoubtedly, to the pursuer.

[315]  The pursuer maintains that the curator failed to bring a relevant and legitimate child protection issue regarding [S] before the court in September/October 2005. This is a fatuous observation, particularly when considered against the fact that the pursuer did not even inform the curator of the matter; it was the police who told the curator of the investigation. A child protection investigation was under way. The curator was absolutely correct to stay out of it. The court was well aware of it and the immediate aftermath so far as it impacted on contact.

[316]  The pursuer considers the curator erred by viewing the pursuer's relationship with [S] as less important than [S]'s relationships with the defender and her family. I do not consider that this is a fair criticism. Indeed, in light of my findings arguably the curator has been more considerate of the pursuer than he deserves. In any event, insofar as the curator does not support contact, the pursuer, by his own conduct, only has himself to blame.

[317]  The pursuer criticises the way the curator has conducted himself in the proof proceedings by conducting the case himself and giving evidence. He calls the curator's judgment into question by electing to give what he describes as a declaration on oath in which he volunteered evidence about 'suspicion' in relation to the pursuer that had not been foreshadowed in any discussion, pleadings or reports. Firstly, in regard to the latter point, the curator has deliberately retained the pleadings that he had in place in response to the pursuer's original pleadings about the comments that [S] was said to have made. He called upon the pursuer to specify exactly what was said. One of the difficulties that the curator had was that the averments the pursuer made about what [S] said were prefaced with the word 'included'. I understand that the sheriff at Alloa had made observations along the lines that the pursuer was 'sailing close to the wind' and had called for precision about what was said. No further precision was forthcoming. The averments were subsequently deleted. There is adequate foundation within the curator's pleadings for evidence of the curator's suspicion.

[318]  In my view, criticism of the curator conducting the proceedings himself is also without foundation. Whether or not a curator ad litem is represented is a matter for the curator ad litem to consider and decide. It is a question of circumstances as to whether he should become a party to the action and whether he should conduct the case himself or be represented by solicitors and, if necessary, counsel. There is no requirement that the curator ad litem must have representation. In this case the curator was sisted as a party to the action. He was entitled to conduct the proceedings himself and to give evidence himself. It is wrong in my view to describe his evidence as 'a declaration on oath' as if to suggest the curator was doing something improper or in an attempt to distinguish it from the process that any party litigant embarks upon when giving evidence.

[319]  The pursuer submits that the defender has cynically attempted to equip herself with a plea of non-cooperation. I do not agree. It is an incontrovertible fact that [S] does not wish to have contact with his father. There is no evidence that the defender has manipulated [S] to that view. There is no evidence that [S] has been forced by the defender to make that decision. The pursuer has conducted himself in a manner that has been entirely responsible for the defender and her husband having nothing but utter contempt for and an abiding hatred of the pursuer. There is no room in these circumstances to hold that the defender has cynically tried to equip herself with a plea of non-cooperation.

[320]  The pursuer submits that there are compelling reasons for a contact order to be made, although it would have to be on a different basis from that which operated previously because the pursuer is now resident in England. The question of his residence is a curious issue. This proof had been proceeding for precisely one year before the pursuer gave evidence. The exchange between the pursuer and counsel for the defender about where he lived was, like the 'disclosures', 'conduct', 'disclosures in tandem with conduct', 'disclosures in tandem with and connected with conduct' episode, an example of how difficult and slippery a witness the pursuer was at times intent on being. Until he gave evidence, the defender and the curator, and indeed the court for that matter, were proceeding on the basis that the pursuer lived within the jurisdiction of this court. However, he disclosed that he had recently given up the lease of his accommodation in Scotland. He said that he had been residing in what he calls a temporary arrangement with his mother in Hertfordshire. He said in terms that he had no permanent address. He gave the impression that he was going to address the issue within the next few months but beyond indicating that he intended to remain within the Hertfordshire area, he was very vague. Contact would now have to be restricted, the pursuer submitted, to school holidays. The pursuer had not intimated this change in his accommodation position to the curator or the court, as might have been expected. Giving up his tenancy just as this proof concluded is too much of a coincidence, leading me to wonder if he retained it for no other reason than to conduct this litigation.

[321]  The pursuer submits that the court can safely conclude that the pursuer has been a positive influence for the vast majority of [S]'s life; that, even after the events of September/October 2005, however they are to be construed, the pursuer was committed to regular and meaningful contact with [S].

[322]  For the reasons that I have already given, I am unable to agree with this submission. While there may have been a time when [S] enjoyed contact from time to time, latterly that was certainly not the case. The source of friction between the parties which has caused so much difficulty in the operation of contact can be laid substantially and materially, though not exclusively, at the door of the pursuer in the way he has conducted himself, initially with [Z], subsequently with [S] and thereafter in his conduct in relation to the operation of contact following the agreement of July 2004, the sexual abuse allegations of September 2005, his repeated attempts historically to remove the children from the defender and the manner in which he has conducted himself in this litigation and in the proof. In these circumstances it is difficult to recognise a description of the pursuer having been a positive influence for the majority of [S]'s life.

[323]  I also find it difficult to accept that since October 2005 the pursuer has been committed to regular and meaningful contact with [S]. Rather, I have formed the impression that the pursuer has been committed to this litigation, which is a significantly different matter. The curator, when suggested to him by counsel for the pursuer that he did not doubt the pursuer's commitment to [S], stated that he had no doubts about that. I think the curator is being over-charitable towards the pursuer.

[324]  The whole flavour of the pursuer's evidence and the way he conducted himself throughout the proof suggested to me that he was more concerned with winning the argument than having [S] at the forefront of his consideration. His evidence was combative and argumentative. He lacked insight into any understanding of the effect his conduct was having on the defender and her husband or, consequently, on [S]. He had with him within the courtroom some seven large binders filled to overflowing with papers, to which he frequently resorted. He took copious notes and continually scribbled furiously on post-it notes which were then passed directly to his counsel.

[325]  Historically, by lodging frequent motions for residence and contempt he was intent on forcefully driving the litigation forward. He instructed his counsel in the midst of the defender's evidence to move a referral to the Jamma Umoja group, which was a highly inappropriate attempt to again force the issue of contact, despite a previous acceptance that no contact would be sought pending determination of the issues at proof.

[326]  The pursuer instructed his counsel to cross-examine Dr Boyle at inordinately inappropriate length and in great detail about arrangements to precognosce Dr Boyle, putting it to him that he tried to avoid being precognosced. I am again left in doubt about counsel's foundation for that specific line. Counsel referred to a previous case he had been involved in with Dr Boyle in which there had been confusion about where Dr Boyle was to meet a father. Dr Boyle had no recollection of this other than to suggest that that case must have been 8 to 10 years ago. The pursuer instructed counsel to lead the precognition agent, Marcus Brown, as a witness. It turns out that the appointment to precognosce Dr Boyle at 9.30 am one morning was made by telephone around 9.30 pm the previous evening. However, Mr Brown said that the location was not discussed. Mr Brown assumed the meeting was to take place at Williamwood Medical Centre as that was the location of previously abortive meetings. Dr Boyle was expecting to meet him at a flat he rents for business purposes in Muirend about a mile away. Perhaps a mistake was made. Perhaps the fault might be Dr Boyle's. Perhaps Mr Brown was mistaken. Dr Boyle telephoned Mr Brown to ask where he was. It appears Mr Brown did not have a mobile phone with him. Dr Boyle utterly refuted the suggestion that he was trying to avoid being precognosced. He asked why he should do such a thing, commenting that being precognosced is hardly a threatening event for anyone.

[327]  The intensity with which this line was pursued was an attempt to undermine the integrity of a professional witness. There was never any suggestion, according to Mr Brown's evidence, that Dr Boyle had refused to be precognosced or was even resistant to it. At one stage, after an initial arrangement was cancelled because the date was no longer suitable, Dr Boyle accepted that he might have, quite reasonably it has to be said, asked Mr Brown what questions he was going to be asked because he had written comprehensive reports. Astonishingly, Mr Brown did not have Dr Boyle's reports and said that he did not know what questions he would ask until he started the interview. The suggestion that Dr Boyle tried to avoid precognition was founded upon, firstly, confusion as to location on this occasion and, secondly, the same thing happening, according to pursuer's counsel, in another case he was involved in 8 to 10 years ago. But what was put to Dr Boyle was that the father of children in that case had been told by Dr Boyle to attend at a flat in Glasgow and when the father got there, Dr Boyle was not there. That would not appear to have been for the purposes of precognition.

[328]  This line of evidence was an unnecessary diversion having little to do with addressing the issue of what is in [S]'s best interests and everything to do with undermining the professional integrity of an expert witness. It was based on nothing more than potential confusion about location and the fact that counsel happened to be involved in another case nearly 10 years ago in which there had also been confusion. Counsel, and the pursuer, jumped unjustifiably to a conclusion that was not warranted on any objective view of the facts. It reflects unfavourably on the pursuer and is another instance of his obsession with the litigation and his preoccupation with defeating the defender.

[329]  In the course of his evidence, the pursuer made personal remarks about counsel for the defender. He revealed that he had researched counsel's background. He compared unfavourably counsel's experience and suitability to his own counsel. He cast aspersions on counsel's ability to conduct this case. He held counsel responsible for not telling his client she 'had got it wrong'. He blamed counsel for the litigation continuing. He considered that counsel had given the defender wrong legal advice. These indiscriminate remarks and insensitive observations were wholly inappropriate and entirely unfounded in every particular, but again reflect the intensity of the pursuer's bitterness and determination to win, at all cost and irrespective of tactic.

[330]  The pursuer's refusal to consider non-residential contact in September 2007 was particularly illuminating. If he had [S]'s interests at heart, he would have jumped at the chance to see him. That he refused to do so is eloquent of boorish inflexibility and a determination to defeat the defender.

[331]  His insistence on a finding that the defender has emotionally and physically abused both children on the strength of a statement from an au pair that he had no intention of leading as a witness and his insistence that the defender be found in contempt as a matter of fact demonstrates to me that he has more interest in pursuing this litigation and challenging the defender and less interest in his son's best interests.

[332]  His failure to take responsibility for courses that have been taken in the litigation and his constant reference to the third person and frequent references to the defender and her husband as 'the opposition' suggest to me that he views this primarily as a fight with the defender.

[333]  He protests that he has put his life on hold and that his present unemployment is a measure of his commitment to [S]. On the other hand, I suspect it has more to do with the concurrent Child Support Agency proceedings. The defender's husband fairly pointed out that he does not have the luxury of being able to put his life on hold because he requires to put food on the table. I tend to sympathise with that view. It is not commendable, in my view, that the pursuer should elect to remain unemployed. It is more eloquent of an obsession with this litigation and a desire to defeat the defender.

[334]  The curator is critical of the defender for being unable to put her own enmity for the pursuer on one side and promote [S]'s relationship with him in [S]'s interests; for viewing anything that the pursuer does with suspicion to the extent that it is now a conditioned response; for her tendency to emphasise the negative so far as the pursuer is concerned; for her 'full on' opposition to proposals that the pursuer makes; and her confrontational dealings with the pursuer's solicitor in correspondence.

[335]  I think there is merit in much of this criticism although it is also fair to say that the defender has, in my view, every reason to be suspicious of the pursuer. It was evident, particularly during her cross-examination by pursuer's counsel, that she was determined to paint the blackest side of the pursuer's character at every opportunity. She can certainly identify with ease the negative aspects of matters involving the pursuer. She was articulately verbose. At times, however, I was surprised, particularly for someone so qualified in language, to hear her say that she did not understand what appeared to be straightforward questions. At times, I am sure this was to allow herself thinking time.

[336]  The curator is also critical of the pursuer. He maintains that the pursuer has a tendency towards disputation, such as the letter of 28 August 2003 to the defender's sister. He criticises him for not taking up the offer of non-residential contact in September 2007. The curator wonders if a more measured or considered response to what [S] was supposed to have said in September 2005 might have yielded a better outcome for the pursuer between then and now. These are in my view valid and pertinent criticisms.

[337]  It is the curator's considered position on this matter that he cannot support the pursuer's crave for contact because he does not see such an order being workable. He does not see any benefit for [S]. The parties simply cannot cooperate. The previous contact order should, in his submission, be withdrawn.

[338]  So, what is in [S]'s best interests?

[339]  There has been no change in the pursuer's attitude or commitment to this litigation in the course of the proof. One of the outcomes Professor Furnell postulated was that, having listened to the evidence particularly over as long a proof as this, a party might change his or her position, experience perhaps a dawn of realisation or that there might be an outbreak of common sense.

[340]  Even at the stage of giving evidence, the pursuer protested that he did not know what he had done wrong. He requested an opportunity to consider whether he should, as I understand him, withdraw his minute in [S]'s better interests notwithstanding his wish for contact, hoping to re-establish a relationship with [S] when [S] is much older. He continued with the litigation. In my view, there was never any realistic prospect that he would withdraw. While it is unfortunate that Professor Furnell over-reacted to the landing incident and wrongly articulated that there might be consequences for [S]'s welfare in the behaviour of the defender's husband, which might have provided the pursuer with reason not to withdraw, I do not think the pursuer ever seriously considered the prospect that he should. I doubt he could bring himself to make such a decision. He would see withdrawal as conceding defeat to the defender; that would be more important to him than [S]'s interest, which would come second. Listening to the defender's evidence has served only to heighten frustration and agitation for the pursuer.

[341]  The defender's position has become even more entrenched, undoubtedly influenced by the manner and length of her cross-examination and the pursuer's insistence that she be found to have emotionally and physically abused her children and be found to be in contempt of court.

[342]  There are many cases in which separated parents are unable to get on with each other and yet it is possible for contact to take place either by the parents themselves resolving to show good manners in public, as Professor Furnell would describe it, or by using third parties, often close relatives, so handovers can take place in a manner that allows the parties not to come into direct contact with each other. The latter does not always eradicate the child's perception of conflict.

[343]  It would be wrong to view this case now as one in which either of those avenues is a realistic prospect. In some ways it will be astonishing to the casual observer that the conflict between these parties could not have been successfully resolved in some way in the last six years. However, the fact of the matter is that the intensity of hatred and bitterness is so profound that the parties are now incapable of conducting themselves civilly towards or cooperating with each other, whether for [S] or anybody else. Although the defender's sister, [Mrs JB], has in the past and particularly in the early years, been prepared to try to mediate, she will no longer have anything to do with the pursuer. There was no one, from the evidence I have heard, who would be in a position to act as an intermediary, even if [S] wished to go for contact with his father. The enduring conflict between the parties is, however, of a nature that I would be extremely reluctant to see some third party being involved because inevitably that person would very quickly be embroiled in the conflict.

[344]  If I made a contact order, in support of which the pursuer submits there are compelling reasons, [S] would inevitably be exposed to a perpetuation of the conflict he has had to endure now for more than six years. He is only nine, so he has endured this conflict for two-thirds of his life. Exposure to conflict is not in a child's best interests. Both Dr Boyle and Professor Furnell said so. Professor Furnell made the additional comment that it is difficult for someone such as [S] to recant or come round to an opposite view, having made such a public rejection of his father. There is the danger, of course, that if no contact order is made and [S] does not see his father now, there may be emotional consequences of a psychological nature as he reaches adolescence. He might resent his mother and consider her responsible for cutting his father out of his life. He may seek out his father unbeknown to his mother. Those consequences are not, however, inevitable.

[345]  In considering what is in [S]'s best interests, it is a question of now balancing the disadvantages or risks against the benefits of contact. It is, in my view, almost certain and indeed may be inevitable, that if a contact order were to be made forcing [S] to see his father, not only would [S] be re-exposed to the conflict between his parents; he would also be asked to do something that is against his present wishes. It is certain that, having regard to the history of this case, the parties' conduct towards each other over the years and the continuing animosity, lack of trust and suspicion, that the conflict would continue. The pursuer would inevitably resort again to the court and seek to prolong the litigation. [S] would inevitably be caught up in that. Contact simply would not work. It would, for [S], deteriorate into nothing more than a focus of argument, contention and turmoil with his mother, father and step-father. The defender and her husband would continually suspect, with good reason, that the pursuer would be undermining [S]'s relationship with his mother and step-father and would again seek to have [S] live with him. It is not in [S]'s best interests that he should be exposed to that.

[346]  Since September 2007 when there has been no contact, he has not shown any sign of distress or that he has missed his father or wants to see him. He has thrived in his father's absence and is a happy, well-balanced boy who is performing satisfactorily at school. Two and a half years is a significantly lengthy period during which, if he were suffering from any internal emotional conflict because he did not see his father, signs might conceivably have been expected to have emerged.

[347]  The pursuer views any decision not to allow contact as airbrushing him out of [S]'s life. That is not perhaps inevitable, but insofar as there is a risk of that, the pursuer by his conduct only has himself to blame.

[348]  Professor Furnell considered that before even considering if further interviewing should be embarked upon with [S], the position and attitudes of the parents and other relevant adults would require to be ascertained. He did not feel he was in any way now able to make that decision because he was so out of date with events. He considered that others would be better placed than him to make a decision as to whether it was worthwhile risking further interviews with [S] and potentially harming him. It seems to me that having heard parties in evidence and observed them at close quarters for the duration of this proof, I am in a position to make that decision. For the reasons I have given, there is no prospect of the parents cooperating with each other or conducting themselves civilly towards each other. It is not, therefore, worthwhile or in [S]'s best interests that he be exposed to any further investigative interviewing at the present time, of a psychological or other nature.

Decision

[349]  In these circumstances, it is in the best interests of [S] that he should not have any contact with his father. Accordingly, the defender's minute is granted and the interlocutor of 7 July 2004 varied to withdraw the pursuer's entitlement to contact.

[350]  I have assigned a hearing to deal with expenses.