Scottish Sheriff Court Decisions

A138/10

 

SHERIFFDOM OF TAYSIDE CENTRAL AND FIFE AT FALKIRK

 

 

Judgment

 

By

 

 

Sheriff K J McGowan

 

In causa

 

M L

 

Pursuer

 

 

Against

 

I.M.

 

Defender

 

 

Falkirk, November 2011

 

Introduction

 

[1]    This case concerns the defender's claim for parental rights and contact in relation to his two daughters, C and H, from his relationship with the pursuer.

 

[2]    I heard evidence over two days from the defender; his wife, SM; the pursuer; and from the pursuer's partner, CG. I also took into account the terms of two Bar Reports prepared by Ms J Higson, Solicitor (Numbers 10 and 17 of Process).

 

[3]    Having heard the evidence and submissions, I found the following facts to be admitted or proved.

 

Findings in fact

 

[4]    Between about May 2003 and September 2006 the parties were in a relationship and lived together. There are two children of that relationship: C (DOB 26th January 2004) and H (DOB 4th April 2005) ("the children").Since the parties separated, the children have resided with the pursuer.

 

[5]    Since the parties separated, the defender has exercised contact with the children. There have been numerous difficulties connected with the exercise of that contact which have been both caused by and led to conflict between the parties.

 

[6]    Both parties have been guilty, on occasions, of misjudgements in their dealings with one another and with the children. Both have shared information or expressed views about the other with their children in ways which are not appropriate. For example:

 

a.      In about June 2011, the pursuer responded to the children reporting to her things that the defender had said about her and CG by telling the children that the defender did "not pay for them": Production 17, page10, lines 19-21;

 

b.      On one occasion, the defender told C that the pursuer and CG were lying: Production 17, page 30, lines 1-2;

 

c.      The defender received a Fixed Penalty fine of £40 for a Breach of the Peace outside CG's business premises;

 

d.      Following an incident in October 2011, the pursuer received a Fixed Penalty for a breach of the peace outside the defender's house when she was shouting and swearing at SM.

 

[7]    The defender married SM on 6 November 2010. Generally speaking the children have a good relationship with SM. There have been occasions when SM has been too strict with the children. She has now allowed the defender to take the lead in disciplinary matters.

 

[8]    The defender presently exercises contact on each Wednesday from 3PM until (i) 9AM in respect of H and (ii) 8.40 AM in respect of C the following day; and from 11:45 AM on a Saturday until 6 PM on a Sunday every second weekend. On weekends when contact is being exercised by the defender, the children attend dancing classes a Saturday morning and on a Sunday morning, the children are returned to the pursuer by about 10:00AM so that they can attend Mass. The defender then picks up again at about 2 PM. The children are sometimes reluctant to resume contact on a Sunday afternoon. The defender also exercises residential contact at holiday periods.

 

[9]    The defender has a close and loving relationship with C and H. The fragmented arrangements for weekend contact inhibit the defender from fully developing his relationship with the children.

 

[10]                                 The defender's home is accommodation which is both adequate and suitable to allow for periods of residential contact.

 

[11]                                 The pursuer is a Roman Catholic and the defender is a Jehovah's Witness. There are significant differences between the parties' religious beliefs and practices. The children attended a Roman Catholic school and are being brought up by the pursuer as Roman Catholics. H does not enjoy the way in which the defender tries to include her in his religion while C is much more open to this.

 

[12]                                 In dealing with their respective religious beliefs and the differences between them need to be sensitive to (i) the differences between C and H and to treat them as individuals and (ii) the need to ensure that any discussion about such matters is appropriate to the children's age and development.

 

[13]                                 The parties do not have a good relationship. The children are well aware of this. The children do not like it when the parties argue and would like their parents to get along: Production 17, Page 28, Line 15; Production 17, Page 30, Lines 6 - 8. Both parties are aware of the children's unhappiness about the conflict between them (the parties). The defender recognises that it is the conflict itself which upsets the children. By contrast, the pursuer tends to blame the defender rather than recognising that her own conduct has on occasions contributed to the conflict and children's resulting disquiet. On occasions, the conflict between the parties has led to both children being distraught.

 

[14]                                 The pursuer is suspicious of the defender's motives and as a result has a jaundiced view of the defender's conduct. She tends to exaggerate the impact on the children of the religious differences between herself and the defender. An example of such was the occasion whgen she objected to a story which the defender had helped C to write, seeing it as being of a religious nature and an example of the defender "exploiting" C's enjoyment of writing: Production 17, Page 10; Lines 5 - 9 and a form of "brainwashing".

 

[15]                                 There is no church service at the Kingdom Hall on Friday evening. Although the defender would like the children to attend the Kingdom Hall services with him, he would be prepared to forego that for the sake of peace. If the defender had contact with the children on a Sunday morning he would be prepared not to go to or take them to the Kingdom Hall.

 

[16]                                 Although the children go to Mass regularly on a Sunday morning, they do miss such Masses from time to time.

 

[17]                                 Even without parental rights, the defender has recently been able to actively involve himself in the children's education.

 

[18]                                 The pursuer's partner, SG believes that the parties do not cooperate and that the pursuer is partly to blame.

 

Submissions for defender

 

Contact

 

[19]                                 The defender seeks an additional night's contact during the week and increased contact at weekends.

 

[20]                                 The problem on a Sunday could be resolved by the children going to Mass on another day. There was no requirement for them to go on a Sunday morning. That being so, there was no reason for the children to go back to the pursuer's house on a Sunday when the defender was exercising contact with them. Such a change in arrangements would give the defender the whole weekend with them.

 

[21]                                 This was consonant with the defender's right to a family life under the European Convention on Human Rights.

 

[22]                                 It could not be said that the defender was seeking an excessive amount of contact. It was recognised that in cases where parents had separated, a close relationship with the absent parent was desirable.

 

[23]                                 That being so, the onus was on the pursuer to show that what the defender was seeking by way of increased contact was contrary to the welfare of the children.

 

[24]                                 At one level, the fewer drop-offs there were, the less chance there was of the parties meeting and the children observing the potentially difficult encounters.

 

[25]                                 The defender would prefer to have contact every second Friday from 3 PM.

 

Parental rights

 

[26]                                 The question of aliment was not relevant to the defender's claim for parental rights. The evidence about the defender's finances was tenuous. By contrast, the pursuer's evidence about her business and the earnings therefrom was doubtful.

 

[27]                                 The defender's name was on the children's birth certificates. It was only by accident of date that he did not automatically have parental rights.

 

[28]                                 The defender has shown that he is a loving father and there was no reason why he would not be able to take on the responsibilities consonant with parental rights. There is no reason why he should be deprived of any of the parental rights.

 

[29]                                 The pursuer's evidence focused on the issues of blood transfusion and religion. This is not a question of which religion or lifestyle was "better". It was a question of credibility. The pursuer's lifestyle was at odds with her Catholic beliefs.

 

[30]                                 Any problem in this area could be sidestepped by excluding from the defender's parental rights a say over the issue of religion.

 

[31]                                 So far as the evidence was concerned, there was certain criticism of SM - but it was not unusual for them to be a degree of friction between children and a stepmother. It was clear that there was a loving relationship between the defender on the children.

 

[32]                                 The defender has plainly put effort into pursuing the issue of contact. His input and interest in the children would be greater if he was given parental rights.

 

[33]                                 Criticisms of the pursuer's lifestyle were mainly to do with credibility. She had admitted such shouting and swearing and threatening violence and obstructing contact. She was the person who made the children aware of conflict between the parties

 

[34]                                 Certain proposals have been put forward in Production 5/2/17. The court should ignore any other productions which had not been the subject of evidence.

 

Submissions for pursuer

 

Statute Law

 

[35]                                 The statutory provision for granting orders regulating parental responsibilities, parental rights and is contained in the Children (Scotland) Act 1995.

 

[36]                                 Parental responsibilities are defined in Section 1, which provides that:

 

"(1) Subject to Section 3(1)(b), and (d) and (3)1 of this Act, a parent has in relation to his child the responsibility-

(a) to safeguard and promote the child's health, development and welfare;

(b) to provide, in a manner appropriate to the stage of development of the child-

(i) direction;

(ii) guidance,

to the child;

(c) if the child is not living with the parent, to maintain personal relations and direct contact with the child on a regular basis; and

(d) to act as the child's legal representative,

but only in so far as compliance with this Section is practicable and in the interests of the child."

 

[37]                                 Parental rights are defined in Section 2 which provides that:

 

" (1) Subject to [Section 3(1)(b), and (d) and (3)]1 of this Act, a parent, in order to enable him to fulfil his parental responsibilities in relation to his child, has the right-

(a) to have the child living with him or otherwise to regulate the child's residence;

(b) to control, direct or guide, in a manner appropriate to the stage of development of the child, the child's upbringing;

(c) if the child is not living with him, to maintain personal relations and direct contact with the child on a regular basis; and

(d) to act as the child's legal representative.

(2) Subject to Subsection (3) below, where two or more persons have a parental right as respects a child, each of them may exercise that right without the consent of the other or, as the case may be, of any of the others, unless any decree or deed conferring the right, or regulating its exercise, otherwise provides.

(3) Without prejudice to any court order, no person shall be entitled to remove a child habitually resident in Scotland from, or to retain any such child outwith, the United Kingdom without the consent of a person described in Subsection (6) below."

 

[38]                                 As regards the orders which a Court may grant, section 11 provides:

 

"(1) In the relevant circumstances in proceedings in the Court of Session or sheriff court, whether those proceedings are or are not independent of any other action, an order may be made under this subsection in relation to-

(a) parental responsibilities;

(b) parental rights;

(c) guardianship; or

(d) subject to section 14(1) and (2) of this Act, the administration of a child's property.

(2) The court may make such order under subsection (1) above as it thinks fit; and without prejudice to the generality of that subsection may in particular so make any of the following orders-

(a) an order depriving a person of some or all of his parental responsibilities or parental rights in relation to a child;

(b) an order-

(i) imposing upon a person (provided he is at least sixteen years of age or is a parent of the child) such responsibilities; and

(ii) giving that person such rights;

(c) an order regulating the arrangements as to-

(i) with whom; or

(ii) if with different persons alternately or periodically, with whom during what periods,

a child under the age of sixteen years is to live (any such order being known as a "residence order");

(d) an order regulating the arrangements for maintaining personal relations and direct contact between a child under that age and a person with whom the child is not, or will not be, living (any such order being known as a "contact order");

(e) an order regulating any specific question which has arisen, or may arise, in connection with any of the matters mentioned in paragraphs (a) to (d) of subsection (1) of this section (any such order being known as a "specific issue order");

(f) an interdict prohibiting the taking of any step of a kind specified in the interdict in the fulfillment of parental responsibilities or the exercise of parental rights relating to a child or in the administration of a child's property;

...........

(3) The relevant circumstances mentioned in subsection (1) above are-

(a) that application for an order under that subsection is made by a person who-

(i) not having, and never having had, parental responsibilities or parental rights in relation to the child, claims an interest;

............

(7) Subject to subsection (8) below, in considering whether or not to make an order under subsection (1) above and what order to make, the court-

(a) shall regard the welfare of the child concerned as its paramount consideration and shall not make any such order unless it considers that it would be better for the child that the order be made than that none should be made at all; and

(b) taking account of the child's age and maturity, shall so far as practicable-

(i) give him an opportunity to indicate whether he wishes to express his views;

(ii) if he does so wish, give him an opportunity to express them; and

(iii) have regard to such views as he may express.

.........

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

(7B) Those matters are-

(a) the need to protect the child from-

(i) any abuse; or

(ii) the risk of any abuse,

which affects, or might affect, the child;

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

(c) the ability of a person-

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

(ii) who might carry out such abuse,

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

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

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

"abuse" includes-

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

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

(c) domestic abuse;

"conduct" includes-

(a) speech; and

(b) presence in a specified place or area.

(7D) Where-

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

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

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

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

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

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

 

............

(2) The court may make such order under subsection (1) above as it thinks fit; and without prejudice to the generality of that subsection may in particular so make any of the following orders-..."

 

Case Law

 

Treasure v McGrath

 

[39]                                 Although only a Sheriff Court judgment, Treasure has been referred to without criticism in Inner House cases.

 

[40]                                 The father of a ten year old child applied to the court for parental responsibilities and rights in respect of the child, under s.11 of the 1995 Act. The pursuer was not married to the child's mother. He and the mother separated in 1998. The child thereafter resided with her mother, the defender. The relationship between the pursuer and the child broke down, and the pursuer ceased to have regular contact with the child in January 2005. A curator ad litem was appointed and reported that the child was angry at the pursuer for raising the application and refusing to explain to her why he had done so, and also that the child was of the opinion that the pursuer did not have regard to her wishes. It was also reported that the child had been frightened, distressed and upset by the pursuer's conduct on several occasions.

 

[41]                                 Held, refusing the application, that there was no onus of proof in an application for parental responsibilities and parental rights; the test being "what is in the best interests of the child?". In answering this question it was necessary to consider all the factors relevant to the paramount consideration of the welfare of the child, including: (1) the degree of commitment by the applicant to the child; (2) the degree of attachment between the applicant and the child; (3) the importance of that commitment and attachment to the child's welfare; (4) the reasons or motives of the applicant in applying for the order; (5) whether the applicant would take account of the child's views, where appropriate; (6) any need to protect the child from conduct of a person; (7) where the applicant and a parent or other person having parental responsibilities and rights have to co-operate in matters affecting the child, whether they can do so; and (8) whether it is better for the child that the order be made than that no order should be made.

 

[42]                                 Section 11(7B) of the 1995 Act (introduced by s.12 of the 2006 Act) relates to "abuse" but this term is defined to include fear, alarm or distress caused by any conduct. The child in this case had on occasion been frightened and distressed by her father's conduct. Much of her distress related to her feeling that her views had not been listened to by the pursuer. It was not possible for the pursuer and defender to co-operate with each other at present. In the circumstances it was not in the child's best interests that an order for parental responsibilities and rights should be made at that time. The pursuer was deeply committed to the child, but there was no strong attachment. Until the relationship between the pursuer and the child was restored the pursuer should not have parental responsibilities and parental rights. The action should not be sisted, as the pursuer could in the future apply to the court by minute. The defender would be expected to fulfil certain undertakings to consult the pursuer and advise him of matters relating to the child.

 

[43]                                 Although the eight factors identified in Treasure are not prescriptive and may not be relevant in every case they form a good starting point for a Court to consider section 11 orders in general and applications for PRR in particular.

 

[44]                                 Treasure factors were accepted by the Court in A.H. v J..M 2010 WL 1608448, a decision of the Sheriff Cameron at Wick Sheriff Court 9 April 2010.

 

[45]                                 In White v White the First Division ruled that making an order under inter alia Section 11 of the Act of 1995, the Court is required to have regard to the welfare of the child as the paramount consideration, and it will generally be conclusive regarding the welfare of the child if the absent parent maintains personal relations and direct contact with the child on a regular basis (s. 1 of Act of 1995). In that case Lord McCluskey (at p.703) expressed the two important principles as follows:

 

"9 It follows that the possibility and the advantages of maintaining the link between the father and his daughter fall to be taken into account when the court comes to make the judgment required of it under the 1995 Act; but, however its importance may be assessed in the circumstances of any particular case, it is one factor among many. It may be determinative; it may not. It must always be a matter of weighing all the material bearing upon welfare and the interests of the child. It would be impossible to list all the other matters that might be relevant, because life constantly throws up unprecedented circumstances; and the law has to be flexible enough to cope with the unforeseen.

 

10 On the matter of onus of proof, it is inconceivable that a court, charged with the duty in such a case of making a decision about the interests and welfare of a child and having heard the evidence of the parents and others, whether family friends, or relatives, or professionals such as teachers or psychologists, would make its judgment on the basis of the failure of one party or the other to discharge the onus of proof. To do so would be to abdicate the responsibility that the Act has laid upon the court to decide on the basis of the welfare and the interests of the child, and not upon technical considerations that have nothing directly to do with welfare or the interests of the child. After all, the child commonly has nothing to do with the presentation of the case to the court, whether by the parent or by any other person. The law, as your Lordship has demonstrated, gives a potential value to the maintaining of the link between the child and each of her natural parents. The judge who approaches the issues raised in an application for a sec 11 order does not do so value-free. Once that is recognised, it can be seen that in the real world, under the 1995 Act, there is no conceivable circumstance in which the court will have to decide such an important matter as the future of the relationship between a child and her natural parents on the basis of the onus of proof."

 

[46]                                 The significance of s.11(7)(D) has just been re-emphasised in the recent Inner House case: SM v CM [2011] CSIH 65. This was a relocation case where at first instance, the Sheriff granted permission to the mother of the children to relocate to the South of England, and this decision was upheld by the Sheriff Principal. The Inner House overturned the judgment and in doing so made some welcome comments on the application of the welfare principle in Scots Law:

 

"7. On the other side of the coin, in cases where relocation was not in issue, the "traditional" view appeared to favour a grant of access (now "contact") to the non-custodial parent in virtually all circumstances. In Sanderson v McManus 1997 SC HL 55, the House of Lords in a Scottish appeal made it clear that there could be no presumptive doctrine along such lines, since that would be incompatible with the court's statutory obligation to treat the welfare of an affected child as the paramount consideration. In that case it was argued on behalf of the father that, in the absence of strong reasons to the contrary, the link between a child and his natural parent was so important in itself that it should be preserved. It was in the best interests of the child to maintain that link, and its maintenance was conducive to the welfare of the child. Section 3(2) of the Law Reform (Parent and Child) (Scotland) Act 1986 (the precursor of section 11(7)(a) of the 1995 Act) did not, it was said, alter that fundamental point. In rejecting this argument as unsound, Lord Hope, with whose speech all of their Lordships agreed, said (at pp.63-64):

"The ... question ... is whether the natural link between the child and his parent is so important that the court must always seek to preserve it unless there are strong reasons to the contrary. Whatever may have been the position at common law, the effect of section 3(2) of the Act of 1986 has been to remove any rule or principle to this effect ...

...The natural relationship is a fact of life which it will always be proper to take into account. But the importance which is to be attached to it must vary according to the circumstances. This is a matter which must be decided not by applying any presumption but upon an evaluation of the evidence. As with any factor which the court is asked to take into account, the question is whether contact with the parent has something to offer which is likely to be of benefit to the child's welfare. This question must be examined from the point of view of the child. It may normally be assumed that the child will benefit from continued contact with the natural parent. But there may be cases where it is plain on the evidence that it has nothing to offer at all. There may be other cases where the evidence will show that continued contact is likely to be harmful. Whatever the view which is taken on this matter in the light of the evidence, the child's welfare is paramount. The decision of the court will depend on its analysis of all the factors which bear on the question what is in the best interests of the child".

 

8 As regards the effect of section 3(2) of the 1986 Act, Lord Hope had (at p.62) previously observed:

"In my opinion the effect of subsection (2) is clear. The court is given a wide discretion as to the considerations pointing one way or the other which it may take into account. But all other considerations must yield to the consideration which is stated by the subsection to be paramount, which is the welfare of the child. As it is told that it 'shall not' make any order relating to parental rights unless it is satisfied that 'to do so' will be in the best interests of the child, the onus is on the party who seeks such an order to show on balance of probabilities that the welfare of the child requires that the order be made in the child's best interests."

 

9 On the binding authority of the decision in Sanderson , it can in our opinion be said with confidence that the requirements contained within section 11(7) of the 1995 Act effectively preclude reliance on any presumptive rule or guideline tending to favour the wishes or interests of either parent. As Lord Caplan observed in Osborne v Matthan (No. 2) 1998 SC 682 , at p.704:

"... Scottish courts, in particular, have resisted the temptation to elevate the primacy of the parental claim into anything approaching a principle, far less a rule." Moreover, the weight to be given to such wishes or interests must, as with any other factor, be such weight as the court deems appropriate in the particular circumstances of an individual case. In the end, the welfare and best interests of the child or children concerned are paramount, and fall to be judged without any preconceived leaning in favour of the rights and interests of others...

 

49 In such circumstances we are mindful of Lord Hope's strictures in the case of Sanderson (at p.62) as to the position of any court contemplating the possibility of making a relevant order:

"The court must ... be able to conclude that it would be in the child's best interests that the order should be made. If it is unable to come to that view, the proper course for it to take is to make no order.""

 

Religious differences in section 11 cases

 

[47]                       Some assistance can be obtained from English cases where the issue of the effect of one parent being a Jehovah's Witness has been considered.

 

[48]                       In M v H [2008] EWCH 324 (Fam) the Court had to consider completing claims by a father and mother as to where the child (aged 5 1/2) should attend school in Germany residing with her mother who was a Jehovah's Witness, or in England with her father , who was a Roman Catholic, against a background where there was deep conflict between parents:

 

"5. The main issues now before the court are governed by the paramountcy principle and therefore the court has to have regard to the matters and checklist set out in s. 1 Children Act 1989 . In her reports the Guardian has helpfully specifically addressed the checklist set out in that section. I shall not do so in this judgment. As is often the case issues in respect of items in that list overlap. I have naturally had that list very much in mind...

 

8. vi) the conflict between the parents is longstanding and deep-rooted. In large measure it flows from their respective characters and histories,

vii) this conflict has led to them both having a deep mistrust of, and a strong antagonism towards, each other in particular in respect of their care of Sophie and their motives and decisions relating to her. The mistrust and antagonism also goes wider than that...

 

The religious difference between the parents

24 When Sophie was born both parents were Catholics and Sophie was baptised a Catholic.

25 In 2006 the mother acknowledged that she had become a Jehovah's Witness. It appears that she started on the path to this change of her religion before she left for Germany. She is now baptised as a Jehovah's Witness. The father has raised a number of points about this change of religion and its effect. He makes the point that the mother kept it secret from him and the court and that it only came to light at the 2006 hearing.

26 The father made it clear during the hearing, as he had done before, that the issues he raises arising from the fact that the mother is a Jehovah's Witness are not his main points and should not deflect me from those points.

27 In this context I was referred by counsel for the mother to two unreported cases ( Re T 10/12/79 Court of Appeal and Harrison v Harrison 17/6/80 Divisional Court unreported) as support for the proposition, which I accept, that the fact that the mother is a Jehovah's Witness is of itself not a relevant point. The father accepted this and in my view has never been making this point.

28 The point that the father is a Catholic and his beliefs as such is also of itself not a relevant point.

29 So the fact that one parent is a Catholic and the other a Jehovah's Witness is not of itself relevant and a decision should not be based on a preference of one of these religious beliefs and lifestyle based thereon to the other. For example as Scarman LJ says at page 19 of the transcript in Re T :

"- it does not follow that, because one parent's way of life is more acceptable to most of us, it is contrary to the welfare of the children that they should adopt the way of life of the other parent that is acceptable only to a minority, and a tiny minority at that. It seems to me that when one has, as in this case such a conflict, all that the court can do is to look at the detail of the whole of the circumstances of the parents and determine where lies the true interest of the children."

 

And as Sheldon J says in Harrison at page 16 of the transcript:

"There have been many occasions upon which the courts have had to consider the problems that can arise in the family environment when one parent, but not the other, has become a Jehovah's Witness - problems which may be particularly difficult to resolve when they relate to the upbringing of children. Some aspects of that particular faith, indeed, may well be thought by many to create an environment which is not the best and happiest for a child's upbringing, particularly if it leads to his or her isolation from other children and from his or her wider family. Clearly, moreover, these may be matters of great importance when considering the welfare of any particular child and the orders to be made for custody and access. But there are many other matters which also have to be taken into account and it would be quite wrong for anyone to assume, in a dispute between two parents of whom one is and the other is not a Jehovah's Witness, that the custody and care and control of their child will necessarily, or even more often than not, be given to the latter. Each case must depend on its own particular circumstances; I endorse my Lord's hope that the decision of the Court of Appeal in Re T, given on 10 Dec 1975, will be reported for its very valuable summary of how these competing factors should be considered and weighed."

 

30 It follows that it cannot be said that the beliefs and practices of a parent who is a Jehovah's Witness creates a situation that is so inimical to good family life that ordinary considerations have to give way to it in determining what will best promote the welfare of the relevant child. The position is that the two opposing ways of life that are relevant in this case are both socially acceptable and certainly consistent with a decent and respectable life and one in which the welfare of children can be promoted (see pages 8 and 12 of the transcript of the judgment of Scarman LJ in Re T ).

31 Rather the relevance of the religious difference relates to the impact in all the circumstances of the case on Sophie's welfare of the respective beliefs of the parents and thus of their respective lifestyles and attitudes based thereon. This is an exercise that can only be carried out in all the circumstances of a given the case and it naturally has many comparative elements. For example, at page 12 of the transcript in Re T having referred to practices of Jehovah's Witnesses relating to the celebration of birthdays and Christmas Scarman LJ says:

"These are factors that must be considered, but I think it is essential in a case of this sort to appreciate that the mother's teaching, once it is accepted as reasonable, is teaching that has got to be considered against the whole background of the case and not as in itself so full of danger from the children that it alone could justify making an order which otherwise the court would not make."

 

33 Thus, to my mind, the only relevant point relating to blood transfusions is the failure of the mother to address it with the father when she became a Jehovah's Witness. It must at all times have been apparent to her that the father would take a different view to her on Sophie having a blood transfusion and that responsible parenting required that the issue be addressed. Her failure to do this was not investigated in evidence and I acknowledge that it may be that the mother was aware of the position in Germany and had the same view as the father, namely that he would be in effective control of the position in England, and therefore she decided not to raise the issue and thus avoid argument and conflict relating to her faith. I have therefore placed no weight on this failure over and above it being an example of a lack of relevant communication.

34 In 2007 Hogg J made the following order, which is clearly a "holding order":

"The mother is prohibited from changing Sophie's religion (sic) beliefs and should use her best endeavours to respect Sophie's Roman Catholic faith until further order; the matter to be further considered at the hearing on 30 January 2008"

 

 

"106 The religious conflict between her parents is not relevant as such in this respect but, as the cases show, the knock on effects of the ways of life of the parents by reference to their religious beliefs and practices is relevant and in my view here it is relevant to the question of Sophie's stability and security to assist her development.

107 In my view such stability and security will be assisted by Sophie having a wide group of friends of her own age, and relationships with adults, both from divergent backgrounds rather than a social life centred on the Jehovah's Witnesses. In my view such a peer group, and relationships with adults, would assist her general happiness and thus her security, stability and development. Such adults would include parents of friends, teachers and people running activities.

108 In my view the beliefs and practices of the mother as a Jehovah's Witness to parties and Christmas is likely to limit the width of Sophie's friends of her own age and her contact with adults, who can help and influence her. Further it may well cause her problems at school simply because of the differences it will create between her and her class mates."

 

[49]                       Blood transfusion issues have been considered in some English cases, most recently LA v SB and Others [2010] EWCA Civ 1744, a judgment by Sir Nicholas Wall, President of the Family Division.

 

[50]                       In that case, a Local Authority issued care proceedings for a child aged 6 who suffered from a rare brain disease. The Court had to consider whether to make a specific issue order regarding medical treatment. It considered authorities on the matter of blood transfusions and the use of blood products on children whose parents were Jehovah's Witnesses; in its Judgment the Court stated:

 

"30. The two cases most directly on point are the decision of Johnson J in Re O (A Minor)(Medical Treatment) [1993] 2 FLR 149 and of Booth J in Re R (A Minor)(Blood Transfusion) [1993] 2 FLR 757 . Both involved the use of blood or blood products in operations on children whose parents were Jehovah's witnesses. In the former case, the local authority applied for a care order in relation to the child, on the ground that there was an urgent and continuing need for medical treatment which included blood transfusions. Johnson J had to decide two issues: (1) whether the court should override the sincerely held beliefs of the parents; and (2) the legal framework in which the question was best decided. The judge decided that his duty to the child required him to ensure that whenever the need arose the child would receive the transfusion of blood or blood products that medical advice dictated...."

"33. In Booth J's case, the child's doctors considered that she would need treatment over the following two years and that this could involve the need for blood transfusions at any time. Booth J took the "specific issue" route. She took the view that the child's need for blood was so overwhelming that, in her best interests, her parent's beliefs had to be overridden."

 

Grounds of decision

 

Introduction

[51]                                 It is apparent that there have been significant tensions and difficulties between the parties since the separation. These appear to have arisen out of issues related to contact arrangements, in particular.

 

[52]                                 A significant proportion of the evidence in this case consisted of disputed versions of historical events. This evidence was of limited assistance for two reasons.

 

a.      First, it often amounted to no more than the parties giving differing accounts of specific occasions when they had fallen out or alleged that one or other had behaved badly. Absent any third party verification, it was at best difficult and at worst impossible for me to evaluate accurately what exactly happened and who was "to blame".

 

b.      Second, the question as to which (if either) of the parties was "to blame" about these historical disputes is of marginal relevance to the two questions which I have to determine. No doubt there are cases where evidence of (recent) historical events are of such significance that they have a genuine and direct bearing on contact and parental rights. In my view, this is not such a case. While I can understand why the parties may have felt the need to rehearse these points in evidence, the overall effect was simply to create a "fog of war" which has made reaching a decision in this case more difficult than it need have been if the evidence had been properly focussed on the issues of the defender's application for increased contact and a grant of parental rights and responsibilities.

 

[53]                                 In my view, so far as these historical events are concerned, it is sufficient to say that it is clear that at times both parties have been guilty of conduct which has been intemperate and ill judged. For example, on the occasion which led to the pursuer being fined for a breach of the peace, the background was that C reported to her on returning home matter after contact that she had been "kicked" by SM. But on the pursuer's own evidence, she made no enquiry of anybody as to what exactly happened but instead went to the defender's home and confronted SM in such a way that she was subsequently the subject of a police investigation and a fiscal penalty.

 

[54]                                 For his part, there was evidence that the defender received a fixed penalty for a breach of the peace at the SG's business premises. There were also examples of both parties making inappropriate comments to C and H about the other party, thereby making the children parties to matters which are plainly to do with the relationship between the pursuer and the defender.

 

[55]                                 Conduct of that nature is to be deprecated - and despite their protestations to the contrary, strongly suggests to me that both parties have been prepared to put their own needs before those of these two small children. This is a matter which to which I will return. At this stage I restrict myself to saying that if they persist with that type of behaviour, both parties are playing a very dangerous game in terms of the quality of their respective relationships with the children, going forward.

 

Credibility and reliability

 

[56]                                 Before going any further, it is appropriate that I make a few remarks about the credibility and reliability of the witnesses.

 

[57]                                 In general, I found the defender to be a credible and reliable witness. There were plainly areas where his evidence conflicted with that of the pursuer and accordingly it is possible that in some respects he was either not being wholly truthful or his memory was playing him false.

 

[58]                                 I formed a less sanguine view of the defender. I found her evidence to be guarded and self serving. I felt she was not being wholly frank in places. She also exhibited less insight into the impact of the entire situation on the children.

 

[59]                                 I formed a generally positive view of both SM and CG. Despite their respective relationships with the parties, they were not uncritically supportive. They both appeared to be able to take a more objective view of the situation than either of the parties.

 

[60]                                 I now turn to consider the parties' competing submissions. It is appropriate that the arguments in relation to parental rights on the one hand and contact on the other are considered separately, even although the decision in each case must be underpinned by a consideration of where the interests of the children lie.

 

Contact

 

[61]                                 The dispute here is relatively narrow. It is not a question of whether the defender should have contact, but instead whether he should have more contact. Put another way, the point at issue is whether the present contact arrangements are in the best interests of the children.

 

[62]                                 In my view, they are not. While it is easy to underestimate the flexibility and adaptability of even quite young children, it seems to me to be axiomatic in the context of contact arrangements that these should take place in as "routine" a way as possible. That is not to suggest that arrangements should be over rigid, but generally speaking, minimum disruption is important.

 

[63]                                 Furthermore, in cases where the point of handover for contact is (at best) a source of and opportunity for tension between parents and (at worst) an opportunity for flashpoints to occur - with all the consequent negative impact that may have the children - then it appears to me that approaching contact arrangements with a view to minimising such occasions is a reasonable starting point.

 

[64]                                 In my view, it is also necessary for both parties in this case to recognise that as a result of their separation as a couple, they will each have to give time which they would otherwise spend with children. To put that in more concrete terms, the defender has to recognise that when the children are in the care of the pursuer, then it is she who controls the "parenting agenda" in relation to them i.e. she has the right to decide where they go and what they do.

 

[65]                                 The two qualifications to that are that the pursuer cannot do anything unlawful in relation to the children and (particularly as time goes on, and the children mature and begin to make decisions for themselves) the parenting agenda tends, inevitably, to become less reliant on prescription and more reliant on reaching a consensus with the children themselves.

 

[66]                                 Equally however, the converse is true: the pursuer must recognise that when the children are in the care of the defender, then it is he who is entitled to control the "parenting agenda" in relation to them - i.e. subject to the qualifications of lawfulness and consensus mentioned above, the defender has the right to decide where they go and what they do.

 

[67]                                 My impression is that while he may not have done so to begin, the defender does recognise the foregoing. By contrast, my impression is that the pursuer does not. For example, the pursuer appears to consider that it is her inalienable right to have the defender's contact interrupted on a Sunday morning to have the children attend Mass.

 

[68]                                 In assessing where the best interests of the children lie in relation to weekend contact, it would be wrong to attempt to apply some kind of "totting up" or moral equivalence comparison or in an activity by activity basis. In my opinion, the analysis has to take place at a somewhat broader level.

 

[69]                                 I am satisfied that weekend contact between the defender and the children is in the latter's best interests. For the reasons set out above, it appears to me that the ways to-ing and fro-ing there is between the parties well that contact is taking place, the better.

 

[70]                                 On that basis, I consider that it is appropriate that contact commence after school every second Friday at 3PM and that contact continue until the children return home at 6PM on a Sunday.

 

[71]                                 It is true that this arrangement will interfere with the so-called weekly "junk nights" which the pursuer said the children enjoyed. I have no doubt that they do - but equally the terms of the reports prepared by Ms Higson unequivocally record that the children enjoy contact with the defender. In my view, it is in the interests of the children that contact takes place for a reasonable and uninterrupted period of time - and that that outweighs the extent to which their interests are served by the weekly "junk night" with the pursuer - which can, of course, continue to take place on a fortnightly basis.

 

[72]                                 The contact will then continue uninterrupted until on a Sunday evening. This will interfere with the children's attendance at Mass on a Sunday morning. However, even if the children cannot attend Mass every week, my view is that that is out weighed by the need for stability, continuity and lack of interaction between the pursuer and defender during the contact.

 

[73]                                 In any event, in her evidence in chief, the pursuer said that "the children quite often stay at my Mum's and go to Mass from there"; and in cross examination she said "when (the children) stay at their grand parents, they go to Mass on Sunday evening". Accordingly, it seems to me that it is likely that the defender already has a solution available to her in respect of the Sunday mass which the children will miss by reason of having contact with the defender.

 

[74]                                 So far as contact during the week is concerned, I am not persuaded that this stage that any increase over the present arrangements is appropriate.

 

[75]                                 Turning to the question of whether the Court should place any limitation on what activities the children are involved in during the period of contact, the starting point must be the one set out above: namely, that the defender is entitled during contact to act as any other parents would. Unless he is doing something unlawful or the court is otherwise persuaded that some constraint should be placed on the defender's rights during the period to act as a parent, there is an assumption that he is free to do as he wishes.

 

[76]                                 So far as religious activities are concerned, it is implicit in what I have said above that the defender is not required to arrange or facilitate the children's attendance at Mass. On the other hand, I consider that it is appropriate to further constrain matters by ruling that during contact, the defender shall not, directly or indirectly, provide religious instruction guidance or instruction; involve the children in his own religious beliefs or ceremonies; or say or do anything which could reasonably be interpreted as challenging the Roman Catholic faith. My reasons for placing this restraint on the defender are the same as those for refusing his application for parental rights, which I have sought to explain below.

 

[77]                                 So far as non-religious activities are concerned, I am not prepared to lay down any restriction or requirement on what the defender and the children must do or not do. The obvious example in this respect is the dance classes. Simply because the pursuer has arranged and paid for the dance classes for the children, that is not sufficient reason in itself to require the defender to facilitate the children's attendance thereat. Nevertheless, it is important that the defender does not think that he has carte blanche to ride roughshod over the children's wishes simply as a way of getting back at the pursuer.

 

[78]                                 In other words, the Court's expectation of the defender is that in deciding what the children should do during contact weekends, he should act as a caring father should, taking account of the children's wishes. Thus, if, as I was told, both the children derive significant enjoyment from their dance classes, it would be very surprising indeed if they were not permitted to go during contact weekends.

 

[79]                                 On the other hand, the defender himself spoke of wanting uninterrupted contact with a view to perhaps spending the weekend away. Accordingly, if the defender was to come to the decision from time to time to organise some other activity on a Saturday morning as a result of which the children were to miss their dance classes, that does not appear to me to be a matter which can be properly be said to be a decision by the defender which invite criticism.

 

[80]                                 Accordingly, I do not consider that it is appropriate to be any more prescriptive than necessary about the way in which contact is to exercised. It follows that the way in which contact is to exercised is also a matter about which the pursuer has no jurisdiction to lay down any rule.

 

[81]                                 All of that said, I am sure that the defender will himself understand that if, on a regular basis, he were to prevent the children from attending dance classes (or the like) against their wishes, that is ultimately likely to be self-defeating in relation to his ongoing relationship with them. But ultimately it is a matter for him to make what he regards as appropriate parenting choices in respect of nonreligious activities.

 

[82]                                 The other issue which looms large in this case is that of the defender's religious beliefs. Albeit they have relevance in relation to contact (see above), I consider that they are more easily dealt with in the context of parental rights.

 

Parental rights

 

[83]                                 Mr Marshall helpfully set out the relevant legislation in his submissions. I agree with his description of how the law requires the Court to approach this issue.

 

[84]                                 Although Treasure is a decision which is not binding on me, it is one by a very experienced Sheriff; and as Mr Marshall submitted, it has been referred to without criticism in the Inner House.

 

[85]                                 The first point is that that there is no onus of proof in an application for parental rights. The paramount issue is: what is in the best interests of the children?

 

[86]                                 Looking at the present case under reference to the factors mentioned by the learned Sheriff in Treasure, I offer the following comments.

 

The degree of commitment by the applicant to the children

 

[87]                                 It appeared to be being suggested that the defender had failed to meet the appropriate financial support for the children and that this order is indicative of a lack of commitment on his part.

 

[88]                                 On the very limited evidence laid before me about the finances, I am unable to come to any conclusion on whether the defender has in some respect failed to support the children financially (as distinct from being unable to do so). In the absence of a clear evidence of a lack of financial commitment, I attach no weight to this factor.

 

[89]                                 The other evidence suggested we that the pursuer is very committed to the children. That was his own evidence; and he was supported in it by SM and (to some extent) by CG.

 

The degree of attachment between the applicant and the children

 

[90]                                 There was clear evidence of a high degree of commitment: the pursuer; SM; Ms Higson's 2011 report.

 

The importance of that commitment and attachment to the child's welfare

 

[91]                                 Given the degree of commitment and mutual attachment between the defender on the one hand and the children on the other, I consider that both are important. The children are reported as valuing it.

 

The reasons or motives of the applicant in applying for the order

 

[92]                                 I did not form the impression that defender's motives in applying for an order were anything other than his desire to be involved with and to do his best as a father of the children.

 

Whether the applicant would take account of the children's views, where appropriate

 

[93]                                 I do not feel able, on the evidence, to express any firm view on this. I had the feeling that the defender could an occasion to be rather rigid in his thinking but the relevance of that in relation to children aged 6 and 7 seems to me to be less significant than in relation to an older child and circumstances were there was specific material before the court in relation to it (e.g. Treasure).

 

Any need to protect the children from conduct of a person

 

[94]                                 This factor does not arise in the present case.

 

Where the applicant and a parent or other person having parental responsibilities and rights have to co-operate in matters affecting the children, whether they can do so

 

[95]                                 This factor is plainly present in this case. However, it must be said that it would be unfair to both parties to suggest that they were totally unable to co-operate in such matters. Clearly that is not so. There has been a degree of cooperation from time to time although there are equally points of conflict.

 

[96]                                 A key issue in this respect is whether the parties are unable to co-operate over the question of religious upbringing and (to a lesser extent) the question of contact.

 

[97]                       In my view, it is clear that the fact that one parent is a Catholic and the other a Jehovah's Witness is not of itself relevant and a decision should not be based on a preference of one of these religious beliefs and lifestyle based thereon to the other (M v H [2008] EWCH 324 (Fam). Para 29).

 

[98]                       Instead, where there is such a conflict , all that the court can do is to look at the detail of the whole of the circumstances of the parents and determine where lies the true interest of the children.

 

[99]                                 In relation to the question of religious upbringing, the parties both have entrenched views and are not able to operate about it.

 

[100]                             I should say that I think that pursuer's concerns in this respect may well be overstated. I have already alluded to the the flexibility and adaptability of children. Simply because separated parents have different religious beliefs and discuss these with the children, it does not follow that does not seem to me that the children will be harmed. Equally, just because children ask questions about things, it does not follow that they are they are "confused" in the sense that they are being emotionally damaged. It is all a question of content and timing. Children have questioning minds.

 

[101]                             Thus, it seems to me that if both parties were to approach this issue in a sensitive and adult way and to limit what was said to the children to explaining that had different religious beliefs from each other and acknowledging the validity of the other parent's beliefs, there would be very little scope for concern or conflict. Regrettably, that does not seem to be possible at this stage.

 

[102]                             It is relevant that the children are being brought up as Catholics; they are still of tender years; the parties (particularly the pursuer) are suspicious of each other's motives and actions around the issue of religion; and it is likely to be a source of conflict between the parties going forward.

 

[103]                             The other factor which is relevant in this case is the question of the defender's attitude towards blood transfusion. No specific authority on point was cited to me, but I am grateful to Mr. Marshall for citing some English authority which provides some assistance as to how do these kinds of questions should be approached

 

[104]                   If the defender were to be given school parental rights then that potentially creates a situation whereby the children could become the centre of a dispute as to whether one or both of them was to receive a blood transfusion; see LA v SB and Others [2010] EWCA Civ 1744 - a case which was brought because it was necessary for the court to become involved in what was in effect a medical ethics question and decide whether the sincerely held beliefs of the parents should be overridden.

 

Whether it is better for the children that the order be made than that no order should be made

 

[105]                   Turning to the nub of this matter, it is necessary for me to ask myself whether it is better that an order granting the defender parental rights be made than that no order be made.

 

[106]                   I have concluded (with some hesitation) that the issue of ongoing conflict over the question of religion and possible future conflict about blood transfusions tips the balance in favour of the latter i.e. it is the children's interests that no order be made.

 

[107]                   I wish to emphasise a point made by me to parties at the commencement of the proof in this case. The "best interests" of the children is something which will change over time. These two children will grow up quickly. Accordingly, my decision in this case may well have a relatively short "shelf life". The issues concerning contact and parental rights may need to be revisited relatively soon. In relation to the latter in particular, neither party should proceed on the basis that the door has been closed for all time or defender's desire for parental rights. The decision made by me in that respect relates to matters as they stand at this time.

 

[108]                   Once the children are older, the defender may well legitimately say that it is in their interests that they are exposed to an understanding of his religious beliefs. However, that is an issue for another time.

 

[109]                   Before turning to the terms of the interlocutor to be pronounced, I should say something about Section 11 (7) (b) which requires that, taking account of the children's ages and maturity, I should, so far as practicable, give them an opportunity to indicate whether they wish to express their views; and, if they do so, give them an opportunity to express them; and ) have regard to such views as may be expressed.

 

[110]                   When this was discussed at the conclusion of the hearing, the pursuer expressed the view that I should not speak to the children, whereas the defender expressed the view that I should.

 

[111]                   I have concluded that given the precise issues which I must decide on it is not necessary for me to speak to the children directly. As already noted, the question about contact is not whether there should be contact at all but instead how much contact should be; and how it should be exercised. I am satisfied on the basis of Ms Higson's reports that the children want contact and enjoy it. It does not seem to me to be appropriate, given their age, that I should be seeking their views on precisely what the pattern of contact should be and what kind of things they should or should not be doing during that contact. The issue about parental rights is of a relatively complicated technical nature and turns in large part on issues about religious upbringing. Again, I do not consider that these are matters on which the children can usefully express any views beyond those recorded in the Bar Reports. Accordingly, in reaching this decision, I have decided not to see the children

 

Disposal

 

[112]                   I find in fact and law that (i) the defender is entitled to contact with the children from 3 PM every second Friday until 6 PM on the succeeding Sunday; (ii) midweek contact will continue to take place in accordance with the interlocutor of 8 September 2010 and (iii) the defender's application for an order granting him parental rights and imposing upon him parental responsibilities in terms of section 11 of the family Law (Scotland) Act 1985 is refused.

 

Postscript

 

[113]                   As a footnote, I would invite the parties to re-read the second, third and fourth sentences of paragraph [13] (above) and the documents referred to therein and to keep it in mind at all times in their dealings with each other. It should act as a stark and poignant reminder to both parties as to where their responsibilities lie and how they should conduct themselves.

 

 

Sheriff