Scottish Sheriff Court Decisions

SHERIFFDOM OF TAYSIDE CENTRAL AND FIFE

 

Dundee Sheriff Philip Mann

 

 

Act: MacKinnon

 

Alt: McIlravey

 

The Sheriff, having resumed consideration of the cause:-

 

Finds in fact:

 

1. The Pursuer and Respondent (hereinafter referred to as "the Respondent") is LW. The Defender and Minuter (hereinafter referred to as "the Minuter") is JW. The Parties are designed in the instance.

 

2. The parties are the biological parents of KB, born 28 April 2001 and RB born 15 January 2005. The parties married after the birth of the children. Both parties have parental rights and responsibilities in respect of the children

 

3. The parties were divorced by decree granted in this Court on 15 July 2009. Said decree was granted in absence and contained a residence order in respect of both children in favour of the Respondent.

 

4. During their marriage the parties separated and reconciled on more than one occasion. By agreement with the Respondent, the Minuter maintained contact with the children during such periods of separation. Following the last such separation in August 2008 the Minuter maintained contact with the children until January 2009. Since January 2009 the Respondent has refused to allow the Minuter to exercise contact with the children. The Minuter has not had contact with the children since that date.

 

5. During the cohabitation of the parties, the Minuter worked in a bar or nightclub. He often worked until very late. As a result he would be tired and would sleep during the day. He occasionally slept when he had the care of the children whilst the Respondent was at her work. On one such occasion KB went out of the house and called at a neighbour's house asking for breakfast.

 

6. If the Minuter was wakened from sleep he would be bad tempered. This caused arguments and disharmony between the parties. Following the incident mentioned at the end of finding in fact 5 the Respondent woke the Minuter from sleep by striking him with her fist. She was angry. The Minuter awoke and responded by striking the Respondent with his fist, causing bruising to the Respondent's face.

 

7. On one occasion when RB was in the care and control of the Respondent she ran in front of a bus. On another occasion when she was in the care and control of the Respondent she struck a young baby with a book.

 

8. When the parties were living apart, the Minuter would transport the Respondent to her work and the children to their nursery and school, respectively. The Minuter, if necessary, would then have the care of the children after nursery and school, respectively, until the Respondent finished her work. On these occasions the Minuter would sometimes take the children with him to his friend's house.

 

9. On one occasion when the Minuter was transporting the Respondent to her work there was an argument and the Respondent removed herself and the children from the car. The children went and stood at a nearby bus stop. Whilst the Respondent was still in contact with the car the Minuter reversed it. This alarmed the Respondent and the children. The Respondent did not sustain any injury. Following further altercation between the parties the Respondent and the children again entered the Minuter's car and they were transported to work, nursery and school, respectively. The children have mentioned this incident to third parties on more than one occasion.

 

10. On one occasion the Minuter was angry because he had information that the Respondent was with a man who, the Minuter believed (wrongly, as it turned out), was a drug user. He went to the Respondent's house and, outside the house, armed himself with a small baseball bat in the presence of and to the alarm of the Respondent. He was arrested. His arrest was witnessed by RB. He was charged and convicted in connection with that incident.

 

11. Both parties have often smacked the children. On one occasion the Minuter smacked RB as he was going out of the house and she was asking for a cuddle. The smack left RB with a red mark on the top of her leg.

 

12. The children have sometimes stayed with the Minuter at the Minuter's mother's house. This house was not always clean and tidy.

 

13. The relationship between the parties, when they lived together, was volatile and occasionally violent. During the periods of separation, including the current one, the relationship between the parties has been acrimonious. The children were aware of this state of affairs and were upset by it. KB developed a stammer. This has improved since the parties separated in August 2008.

 

14. The children have stated to third parties, including the Curator ad litem appointed by the court, that they do not wish to have contact with the Minuter.

 

15. The Respondent does not encourage the children to have contact with the Minuter. The Respondent would agree to contact between the children and the Minuter in the future were the children to express a desire to have such contact.

 

16. Both children are currently well settled and doing well at school.

 

17. The Minuter wishes to resume contact with the children. He considers that to be in the best interests of the children.

 

Finds in Law

 

1. It is better for the children KB and RB that a contact order be made than that none should be made at all

 

Therefore:

 

SUSTAINS the Defender and Minuter's plea in law, REPELS the Pursuer and Respondent's plea in law; FINDS the Defender and Minuter entitled to contact with said children at such times and for such periods as shall be afterwards determined; Appoints parties to be heard on the precise terms of the contact order to be pronounced and on the issue of expenses and FIXES at within the Sheriff Court, Sheriff Court House, Dundee as a diet therefor.

 

 

 

Sheriff Philip Mann

 

 

Note

 

1. The Background

 

1.1 The background is disclosed in the evidence afterwards described.

 

2. The Evidence

 

I heard evidence on 26 November 2010 and 7 January 2011. Both parties gave evidence and each called one witness.

 

2.1 The Minuter

 

2.1.1 The Minuter was presently unemployed. He had previously worked as a barman.

 

2.1.2 He and the Respondent had had a relationship for about ten years. They had married after the children were born. They were now divorced. The Minuter had not entered the divorce process and so there was no formal contact order in his favour in respect of the parties' children. The Minuter blamed his failure to enter the divorce process on his then lawyer.

 

2.1.3 The Minuter had continued to have contact with the children following the separation of the parties in August 2008. At that time the Minuter went to stay with his mother. He described how he would go and collect the Respondent and the children from their home in the morning. He would run the Respondent to her work and take the children to school and nursery, respectively. He would pick the children up after school/nursery and would take them to visit his friend or to the park or to his mother's house. He said that the children enjoyed having contact with him. He accepted that his mother's house was not always clean and tidy.

 

2.1.4 In about February 2009 the Minuter intimated to the Respondent that he could no longer collect her and take her to her work. This was because his then partner had objected to that practice. Shortly thereafter the Respondent had put a stop to his contact with the children and he had not had contact since then.

 

2.1.5 The Minuter accepted that he would sometimes be asleep when he had care of the children. This was because of his job as a barman which required him to work very late hours, such as an occasion when he was working at a foam party and did not get home until 6 am. He acknowledged that he had been inclined to spend more time on his car and on his friends than on the children. He put this down to immaturity.

 

2.1.6 The Minuter accepted that he had occasionally smacked the children but denied a suggestion that on one occasion he had smacked RB so hard that she had been left with the mark of a handprint on the top of her leg and that she had wet herself. He indicated that the Respondent would also smack the children.

 

2.1.7 The Minuter accepted that he had been convicted of an offence involving the possession of a baseball bat. He had been sentenced to community service which he had completed. The offence arose out of an incident when the Minuter had gone to the Respondent's house and had been angry about the presence of a man who he believed (he accepted wrongly) was a drug user. The Minuter had taken a toy baseball bat from the boot of his car. He refuted a suggestion that he had chased the Respondent, armed with the bat. RB had seen him being arrested in connection with this incident. The Respondent had stopped his contact with the children after this incident but had reinstated it about two weeks thereafter.

 

2.1.8 The Minuter accepted that there had been an incident involving his car which had been distressing for the children. The Minuter was transporting the Respondent to her work and the children to their school and nursery, respectively. An argument had developed between him and the Respondent. He stopped the car and the Respondent and the children got out. The children went and stood at a bus stop close to the car. The Minuter reversed the car whilst the Respondent, unknown to him, was still in contact with it. As soon as he realised the situation he stopped the car. He had travelled only a few feet. The Respondent was unhurt. A short time later after some further altercation the Respondent and the children got back into the car and the journey was resumed.

 

2.1.9 The Minuter acknowledged that there had been an occasion when he had the children and he had fallen asleep. KB had gone out of the house and had gone to a neighbour's house and had, apparently, asked for breakfast. He refuted any suggestion that the child had any need to ask the neighbour for breakfast because he always ensured that the children were fed at the appropriate times.

 

2.1.10 The Minuter suggested that the Respondent did not always have the children's interests at the forefront of her mind. He cited as an example an occasion when he had the children and RB had wet herself. He did not have a change of clothes for her and he telephoned the Respondent on her mobile phone to ask her for some clothes. She was with a male friend and she refused to do deal with the matter.

 

2.1.11 Generally, the Minuter accepted that the Respondent looked after the children satisfactorily. He accepted that if contact between him and the children were to resume it would need to be a gradual process and that initially the contact should be supervised so that the children could feel comfortable and would have support. He would go along with the suggestion of the Curator that he should have contact with the children at the school

 

2.1.12 The Minuter maintained that the Respondent had offered to give him contact to the children on an informal basis if he agreed to withdraw the current proceedings. This was at a late night meeting near the Tesco supermarket. The Minuter had declined to agree to this suggestion because he was fearful that without a court order in his favour the Respondent could simply withdraw contact at any time that it suited her to do so.

 

2.1.13 The Minuter acknowledged that KB had developed a stutter. He maintained that she did not stutter when she was in his company without the Respondent. The stuttering happened when KB was in the company of the parties together.

 

2.1.14 The Minuter thought that the children would be happier if they could have contact with him. They would know that their father would protect them no matter what. He was living in a two bedroomed flat and he had kitted out one of the bedrooms ready for the children. If he had unsupervised contact with the children in due course he would take them to the park and take them visiting his extended family. He maintained that the children would be safe with him. He realised that, in the past, he had paid less attention to the children than he should have but he realised that he missed the children and wanted to be part of their lives.

 

2.1.15 The Minuter felt that the Respondent hated him and that she was withholding contact simply to punish him. He felt, however, that it was right that the children be with the Respondent but that it was best for the children that they have contact with both parents.

 

 

2.2 Mr RB

 

2.2.1 Mr RB was a friend of the Minuter. He was 26 years old and had known both the Minuter and the Respondent for eleven years. He had last seen the Minuter with his children about 2 years previously. The Minuter's children were roughly the same age as his own children. The Minuter would take his children to Mr RB's house about twice per week when they would play with his children. The Minuter would also take his children to the park.

 

2.2.2 Mr RB knew about the parties' separation. He said that the Minuter continued to see the children after the separation. The Minuter would drive the Respondent to her work and pick the children up at the same time. He followed the same routine, bringing the children to his house about twice per week. The Minuter stopped seeing the children when he stopped taking the Respondent to her work. He did not know why this had come about.

 

2.2.3 Mr RB had never seen the Minuter raise his hand to his children or strike them. He had never seen bruising on the children. He had seldom seen the children crying. He thought that the children doted on their father and thought highly of him. For the Minuter's part he loved his children and had lots of time for them.

 

2.2.4 In cross examination, Mr RB dismissed the suggestion in the Curator's report that the Minuter did nothing with the children because this did not accord with his own observations. He thought that the children were lying about that to the Curator.

 

2.3 LA

 

2.3.1 The next witness was LA. She was called by the Respondent. She was called before the Respondent gave evidence, without objection, as this better suited her child care arrangements.

 

2.3.2 LA was 27 years of age. She had two young children of her own. She had known the Respondent for about five and a half years. She had known the Minuter for a slightly shorter period.

 

2.3.4 LA had never seen the Minuter on his own with his children. She had seen the Minuter in the passing when she had visited the Respondent and her children.

 

2.3.5 LA said that whenever she had seen the parties together the relationship seemed to be very volatile and there was always "quite an atmosphere". She had been told by the Respondent that the Minuter cheated on her with other women. The parties' children would play up quite a bit when both parties were present and the children would play one off against the other. She said that the children were milder and calmer when the Minuter was not there.

 

2.3.6 In examination in chief, LA said that she had seen both parties smacking their children. The Respondent would smack the children and send them to their room. LA recounted an incident when she had been visiting the parties and an argument had developed between them as a result of the Respondent waking the Minuter later than she should have. The Minuter had gone to leave the house. RB had followed him to the hallway and LA had heard RB scream. RB told the Respondent that the Minuter had smacked her. LA had seen a hand print on RB.

 

2.3.7 LA also recounted an incident when KB came to her house asking for something to eat because, she said, she had not had her breakfast. She telephoned the Respondent at her work. The Respondent said that she was coming home shortly and would pick RB up from playschool on her way. LA had then gone to the parties' house and had found the Minuter sleeping in a chair. She left him sleeping, locked the house door and posted the keys back through the letterbox. When the Respondent came home she had called at LA's house first and had then gone to her own house. She came back to LA's house a short time later. She had a mark on her face and was crying. She had said that the Minuter had punched her.

 

2.3.8 LA also said that on one occasion RB had come back from staying with the Minuter and his mother. She had asked LA if she could have a bath at her house because she was dirty. She was still wearing the same underpants from the day before. LA had seen photographs of the Minuter's mother's house. She said that the photographs depicted squalor, with dirty things lying about.

 

2.3.9 In cross examination, LA said that she had never seen the Minuter smack his children. Any smacking that she had seen had been done by the Respondent. She had not seen the incident at the front door that resulted in RB having a mark on her body. She had only heard RB scream. RB had come back into the living room. She had wet herself. The Respondent had taken down her pants with the intention of smacking her and that was when she had seen the mark.

 

2.3.10 LA said that the volatile relationship between the parties had an adverse effect on the children. KB had developed a stammer which improved once the parties had separated. She understood this because this mirrored her own personal experience as a child. She said that the problem lay in the relationship between the parties. She was clear that the problem did not lie in the relationship between the Minuter and the children.

 

2.3.11 LA described the Respondent as being quite harsh with the children.

 

2.4 The Respondent

 

2.4.1 The final witness was the Respondent.

 

2.4.2 The Respondent was 26 years old. She was the mother of KB aged 9 and RB aged 6. She had been married to the Minuter who was the father of the children. She and the Minuter were now divorced.

 

2.4.3 The Respondent said that the relationship between her and the Minuter had been volatile, with a lot of shouting and arguing between them. The arguments had been about domestic matters, child care issues and the fact that the Minuter was sleeping around. The relationship had been that way since about one year after they had got together in 2000. The Respondent described a cycle of separation and reconciliation with both of them wanting to work on the relationship but failing. The Respondent said that the children had witnessed the volatile relationship between the parties.

 

2.4.4 The Respondent described KB as being very quiet and timid. She had been diagnosed with depression at one point and had been on sleeping tablets for a while to help her sleep. She described RB as being boisterous. RB played up even more when the parties were arguing and fighting. The Respondent said that she would discipline the children mostly by shouting at them and telling them off and stopping their activities. She said that RB had always been difficult to control. She had been picked up as suffering from the condition ADHD. On one occasion she ran in front of a bus when she had been told to stay inside. On another occasion she had thrown a book at a baby. Such incidents frightened the Respondent. She would give RB a smack but not to the point where she was marked.

 

2.4.5 The Respondent said that the Minuter would smack the children but not for discipline reasons. For instance, he would smack them if they woke him up. On one occasion he had smacked RB as he was going out of the house. RB had simply asked for a cuddle and he had smacked her so hard that she had been left with the mark of his hand on her body.

 

2.4.6 The Respondent said that the Minuter would be out all night with his friends and would sleep all day. He would be angry and argumentative when he was wakened. The Minuter was violent towards her. On one occasion he had pinned her against the wall by the throat. This had been witnessed by KB.

 

2.4.7 The children had also witnessed an incident when the Minuter had deliberately reversed his car when the Respondent was in contact with it. There had been an argument in the car between the parties. The children were present and RB was getting hysterical. The Respondent had got out of the car with the children who had gone to stand at a bus stop nearby and had witnessed the incident from there.

 

2.4.8 The Respondent also described an incident when the Minuter had armed himself with a baseball bat. This had been on the morning after he had had overnight contact with the children at a time when the parties were separated. He had dropped KB at playschool and still had RB in the car with him. He had come to the Respondent's house because he had somehow known that she had a man in the house. She had gone out to meet him. He was angry because he did not want the man to be around his children. He had the mistaken belief that the man was a drug user. He had taken a baseball bat from the boot of his car and chased her into the close of the house. The police had been called and the Minuter was arrested. RB had witnessed the whole incident. The Minuter had subsequently been prosecuted and convicted and had been given community service.

 

2.4.9 The Respondent referred to the incident when she had received a phone call from her neighbour to say that she had KB with her and that the Minuter was asleep in the house. She had collected RB from Nursery and had left her with her neighbour before going to her house to confront the Minuter. She had wakened the Minuter by punching him. She was very angry. The Minuter had awakened and had assaulted her by punching her on the face.

 

2.4.10 When the parties were separated they would have arguments about the Minuter taking the children to his mother's house. The Respondent had herself visited that house and described it as disgusting. She also spoke of seeing photographs on a mobile phone, taken by one of the children, which showed the house as being in a mess and untidy. The Minuter would refuse to transport her to her work unless she agreed to him taking the children to his mother's house.

 

2.4.11 The Respondent spoke of the arrangement whereby the Minuter would transport her to work. She maintained that this was the best arrangement all round as it allowed the Minuter to maintain contact with the children and to contribute towards their care by allowing her to get to work more easily.

 

2.4.12 The Respondent spoke of a late night meeting between her and the Minuter near the Tesco store. She said that she had arranged to meet the Minuter to discuss the court case. She had explained to the Minuter that she could not afford her legal aid contribution. She had tried to explain to him that the children did not want to see him. She had said to him that when the children wanted to see him she would contact him. She said that the Minuter did not believe that the children did not want to see him and that was the reason that this case had continued to this point. She denied the suggestion that she had offered to give the Minuter contact to the children on an informal basis if he agreed to drop the court case.

 

2.4.13 The Respondent said that she had allowed contact to resume after the baseball bat incident because the children loved their father. She thought at the time that the children needed both parents. At that time the children still wanted a relationship with their father. She had hoped that the Minuter would improve his behaviour towards her and the children and would get a job but he never had.

 

2.4.14 The Respondent said that she had stopped contact between the Minuter and the children about two years ago because she felt that "enough was enough". She had always hoped that the parties could come to an agreement but it came to a point where the children did not want to see their father. One of the stipulations for contact had been that the Minuter would have the children on their own outwith the company of any girlfriend. However, on one occasion he had been with a girlfriend, KB's nursery teacher, when he had the children and the children had seen her naked. This had made the children feel uncomfortable. The Minuter had asked the children to lie to her about this.

 

2.4.15 The children complained that when they were with their father they did nothing but sit on a couch watching TV or playing on a computer. She maintained that RB constantly came home from contact with the Minuter saying that he had smacked her. KB was unhappy about this.

 

2.4.16 The Respondent did not want the contact to resume because the children did not want it to. KB was doing well at school but was subject to bouts of depression, feeling that everything in her life was sad. She did not want to see her father and it was the Respondent's job to pick her up when she felt down. She said that stress made KB fit and she could not handle the thought of KB fitting when she was not there. She thought that the Minuter could not cope with this. She also felt that RB was so boisterous that the Minuter would not be able to cope with her.

 

2.4.17 When asked if she had ever tried to encourage the children to see the Minuter the Respondent said that she had spoken to KB recently and that KB had indicated that she did not want to see the Minuter. A Christmas card had arrived this year for KB from her father. She said she did not want it but she had asked the Respondent to keep it as she might want it later.

 

2.4.18 The Respondent was against contact even in a supervised environment. She said that she did not want to get back to square one as it was she who had to deal with the children's upset.

 

2.4.19 The Respondent agreed that the fact that the children had been affected by the parties' behaviour was down to her and the Minuter. However, she also maintained that the Minuter's own behaviour towards the children contributed further to their upset. She was adamant that the children did not now want to see their father.

 

3. Submissions

 

3.1 Submissions for the Minuter

 

3.1.1 Mr McIlravey for the Minuter suggested that the matter came down to a question of credibility and reliability. He urged me to prefer the evidence of the Minuter and his witness to the evidence of the Respondent. It was clear that the Respondent had simply set her face against contact and that her view of matters was very much coloured by the difficult and violent relationship between the parties.

 

3.1.2 Mr McIlravey pointed out that the Curator's first report had recommended contact in very specific terms. Her second report had recommended against contact on the basis of further evidence obtained from LA; but LA's evidence had not wholly coincided with what was in the Curator's report.

 

3.1.3 Mr McIlravey submitted that my decision had to be based on what was in the best interests of the children. He maintained that it was in the best interests of the children that there be contact between them and the Minuter. He accepted that contact would need to be on a supervised basis initially. He intimated that the Minuter had no specific proposals to make in relation to contact but would accept any contact arrangement that I might consider to be suitable and appropriate.

 

3.2 Submissions for the Respondent

 

3.2.1 Mr McKinnon for the Respondent referred to the provisions of the Children (Scotland) Act 1995. He referred to the case of White v White 2002 SLT 485 (First Division) which referred to the assumption that children should have contact with both parents. However, in this case the evidence showed that the relationship between the parties was a terrible one and it was not surprising that the children had been badly affected by that. Each of the incidents referred to by the Respondent in her evidence had been reprehensible on the part of the Minuter. There was evidence that the Minuter had failed to feed KB and that she had been at large in Dundee whilst the Minuter slept. There was evidence that the Minuter had smacked RB so hard that he had left a mark on her. There was also evidence about smacking generally and evidence of RB saying that the Minuter battered her, although he accepted that LA's evidence was not wholly supportive of the Respondent.

 

3.2.2 Mr McKinnon pointed out that the children were doing a lot better now, when they were not having contact with the Minuter, than they had been before. He maintained that there needed to be a good reason to disturb that. He maintained that the children should be allowed to get on with the progress that they were making. He pointed out that the Respondent had said that she would contact the Minuter if and when the children expressed a desire to see him. In an age of information technology it would be easy for the children to contact the Minuter themselves in the event that the Respondent went back on her word.

 

3.2.3 Mr McKinnon urged me to refuse the minute and to make no award of contact.

 

4. Discussion and Decision

 

4.1 There are no issues of credibility and reliability that materially affect the matter that I have to decide but, in general, where there was discrepancy between the evidence of the parties, for example in relation to the incident with the car, the incident with the baseball bat and the nature of the discussion at Tescos, I preferred the evidence of the Minuter. Having said that, the behaviour of the Minuter is certainly nothing to be proud of; but even if I had preferred the Respondent, with the consequence that the Minuter's conduct would have been even more reprehensible, my decision in this case would not have been any different. Doubtless, the conduct of the Minuter caused upset, perhaps even great upset, to the children but that, in itself, is not sufficient to warrant refusing the Minute.

 

4.2 It is clear from the evidence, particularly that of LA, that both parties were in the habit of smacking the children, albeit that the Respondent claimed that on her part, but not on the part of the Minuter, this was a necessary form of discipline. It is clear from the evidence also that the parties made little effort to hide their antagonism towards each other from the children. In that kind of atmosphere no one can be surprised if children become unsettled and upset and if they manifest that upset by difficult and challenging behaviour. Overall, the evidence discloses that neither party can expect to escape criticism in regard to their care and control of the children

 

4.3 There was evidence that the Respondent is a manipulative person. Having had the opportunity to see the Respondent give evidence I accept that that is a description that can be applied to her. I have no doubt that the Respondent has convinced herself that the stance which she has taken as regards contact is in the best interests of the children but that stance is at odds with the fact that she was prepared to allow contact to continue after the several incidents discussed in the evidence - incidents that were bound to have upset the children. At best for the Respondent that reflected her belief that the children loved their father and that the children should have contact with both parents. At worst, at least in respect of the incident with the car, it suggests that the Respondent was motivated by what best suited her own purpose, namely her reliance on the Minuter as a means of transport and as a child minder to allow her to work.

 

4.4 I do not mean to criticise the Respondent unduly because I recognise that she had a right to expect that the Minuter would play a full and fair part in bringing up the children and by his own admission that is not what he was doing when the parties were together. The Respondent made a very valid point, namely that it is she who has to be there constantly for the children, it is she who has to deal with them on a day to day basis and it is she who has to pick up the pieces if and when they get upset. I have some sympathy for the Respondent in taking the view that the children are more settled now since contact stopped and that a resumption of contact might threaten that stability to the detriment of the children.

 

4.5 However, whilst it may be true that the children are more settled now in the absence of contact with the Minuter, with KB having lost her stammer, it does not necessarily follow that it was contact with the Minuter, per se, that caused the children to be unsettled and upset. The evidence suggests to me that the problem lay in the relationship between the parties and their failure or unwillingness to keep that from the children. The improvement in the children suggests to me not that there should be no contact between the children and the Minuter but that the parties should not burden the children with their own difficulties. Both parties have to bear the responsibility for the effect that their relationship has had on the children and both parties now owe it to the children to find a way to allow the children to have contact with the Minuter without them feeling threatened, upset or unsettled.

 

4.6 In terms of Section 11(7)(a) of the Children (Scotland) Act 1995 I require to regard the welfare of the child as my paramount consideration and I am not to make an order unless I consider that it would be better for the children that the order be made than that none should be made at all. In terms of Section 11(7A) of the Act I require to consider questions of abuse (as defined in Section 11(7B) of the Act) and its effect, or likely effect, on the children. The case of White v White suggests that it can be assumed that it is conducive to the welfare of children that they have contact with both parents and I proceed on that basis. Of course, the assumption can be displaced. If, for instance, contact were to expose the children to the risk of physical or mental abuse then that would point away from contact being conducive to their welfare. No doubt that was what was in the mind of the Curator when she recommended in her supplementary report that there should be no contact in hoc statu. However, the Curator's reservations were based on a concern that a certain state of affairs existed, which was not really borne out in the evidence presented to me.

 

4.7 In the whole circumstances I have concluded that it is in the best interests of these children that they have contact with the Minuter. I have had regard, as I am required to do, to the children's views. These were expressed to the Curator. They were essentially against contact. However, the views of the children are not determinative, particularly having regard to their ages. To borrow a piece of social work jargon from the realms of adoption, it seems to me that the Respondent has not given the children permission to have contact, and to enjoy contact, with the Minuter. That being the case, I would imagine that one of the concerns that the children might have might be that they will upset the Respondent if they have contact with the Minuter and enjoy it. I recognise that it may be hard for the Respondent to do, but I suggest that she owes a duty to the children to encourage them to have contact with their father and to encourage them to view that as a positive experience. Up to this point, it seems to me, the Respondent has done little to encourage the children. I suspect that she has portrayed the Minuter, and the prospect of contact with him, in a negative light. It should not be surprising, then, that the children should express the views that they have expressed. In these circumstances it does not do justice to the children just to accept their views as being determinative.

 

4.8 The Minuter accepts that contact will need to be reintroduced gradually and that initially contact should be supervised, this latter to ensure that the children will feel comfortable and unthreatened. He too has a duty to the children; that is to ensure that contact is a positive, nurturing, non abusive experience for them.

 

4.9 I am attracted to the Curator's suggestion that, initially, contact should take place during school activity but with the passage of time I cannot be sure that that option remains available. If it is not available then I will have to consider providing that contact be supervised by the local authority social work department. If that were to be the case, the local authority would need to be notified in terms of rule 33(25) of the Ordinary Cause Rules.

 

4.9 In these circumstances I have put the case out for a hearing as to the precise terms of the contact order. At that hearing I will expect parties to be able to advise me as to the availability of the school option. I will also expect parties to have discussed how contact might progress in the best interests of the children so that I can consider making provision for the future. Parties will not be surprised to know that I hold the view that in matters of this nature it is far better, especially for the children, if disputes can be settled by agreement rather than by the imposition of a court order.