Scottish Sheriff Court Decisions

SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH

 

[2016] SC EDIN 26

F551/15

JUDGMENT OF SHERIFF WENDY A SHEEHAN

 

In the cause

 

JGC

 

Pursuer;

 

Against

 

NW

 

Defender:

 

Act:   Kildare

Alt:   Duffy

 

EDINBURGH, 30 March 2016

The sheriff having resumed consideration of the cause finds in fact:

[1]     The pursuer is the father of the child T.

[2]     The pursuer resides in the Currie area of Edinburgh with his mother (the child’s paternal grandmother).  The pursuer is single and is aged 26 years.  He holds various qualifications and is a trained joiner/carpenter.  He is unemployed. 

[3]     The defender is the mother of the child T.

[4]     The defender resides in a 2 bedroom property in Tranent with the child T.  She works full time as a call consultant for Lloyds Banking Group (Scottish Widows).  She has worked for her current employer for 9 years.  She has been in a relationship with her partner MF for 2½ years.  They do not cohabit.

 

[5]     The parties’ daughter T was born on 16 October 2007.

[6]     The parties met and commenced a relationship when they were both aged 16 years.  The relationship lasted for 9 months.  The defender fell pregnant with T within weeks of the start of their relationship.  The pregnancy was not planned.  The parties only ever cohabited for a period of approximately 4–5 weeks around the time of the birth of T.  They separated when T was 3 weeks old.

[7]     T is now aged 8.  She is in primary 4 at *** primary school.  She is an intelligent, affectionate and happy child.  She is healthy, settled and doing well at school.  She has many friends in her peer group.  She attends Irish dancing classes twice a week and participates in competitions.  She attends weekly swimming lessons.  She enjoys reading.  She is a mature child but is fairly shy.  The defender provides a good home and an excellent standard of care for T.

[8]     T has a close relationship with her maternal grandparents who assist with childcare and see her regularly.

[9]     The pursuer was aged 17 when T was born.  He moved into the defender’s parents’ home shortly before T’s birth in order to cohabit with the defender.  The defender’s father encouraged him to take a labouring job with his employer Cala Homes.  This job led to the defender being offered an apprentice joiner’s role.  Three weeks after T’s birth the defender went on a night out with his friends and simply did not return to the pursuer, her home or his job.  He gave no explanation for his departure.  He pursued a relationship with another woman at this time.  He was unable to cope with the responsibility of cohabiting with the pursuer, caring for T and holding down a full time job.

[10]   The defender continued to live with her parents during most of the first year of T’s life.  She parented T well with their support.

[11]   The defender encouraged the pursuer to have contact with T.  During the early months of T’s life the pursuer visited the defender’s parents’ home in order to exercise contact with T for periods of up to 2 hours.  This contact took place in the defender’s presence given T’s young age.  The pursuer did not adhere to a routine or regular arrangements.  He contacted the defender and asked for contact on a given day which she facilitated.  Contact took place fairly regularly until April 2008 when the pursuer stopped attending.

[12]   The pursuer’s mother visited T on 3 occasions in the early months of her life.  The pursuer’s father visited T once shortly after her birth.  Neither of T’s paternal grandparents have sought or exercised contact with T since she was an infant.

[13]   The pursuer attended the defender’s home around the time of T’s birthday and Christmas in each year until 2012.  He dropped off cards and presents and saw his daughter for short periods of time in her mother’s home.

[14]   The pursuer exercised contact over a period of months in 2009/early 2010 on an erratic basis.

[15]   The defender tried to persuade the pursuer to make a more reliable commitment to contact and parental involvement in T’s life.  The pursuer failed to do so.

[16]   On 16 October 2011 (T’s fourth birthday) the pursuer attended the defender’s home unannounced to deliver a birthday card for his daughter.  The defender welcomed him in.  The pursuer had spelt his daughter’s name wrong on the card.  An argument between the parties ensued and he was asked to leave.

[17]   T started primary school in August 2012.  The defender asked the pursuer to assist her in kitting T out for school.  He promised a financial contribution but failed to make this, instead using the money to go on holiday to Paris with his friends.

[18]   The pursuer sent T a birthday card (with money) on her fifth birthday.

[19]   In 2013, after a gap of approximately 18 months the pursuer consulted a solicitor regarding contact in 2013.  In around April 2013 the pursuer began exercising regular contact with T in terms of an agreement between the parties.  Contact took place at the defender’s home between 12pm and 2pm each Sunday.  The pursuer attended regularly for approximately 9 months.  He exercised contact with T in a room outwith the defender’s presence.  He drew pictures and listened to music with T.  He sometimes played with her toys.  On occasions he took her into the garden to play.  His interaction with T was limited.  He did not understand how to relate well to his daughter or to play with her.  He sometimes listened to music on headphones whilst his daughter played by herself.  On two occasions he attempted to take T out, once to a local café and once swimming.  Neither visit was a success.  While the pursuer demonstrated a commitment to T in 2013 he did not form a bond with her.  She had no significant emotional attachment to him.

[20]   In late 2013 T began drawing pictures of her family and asking her mother who her father was.  Until that point T was unaware that the pursuer was her father referring to him as “Gogs” (short for Gordon).  The defender explained to the pursuer that she would tell T that he was her father but that quid pro quo for that was that he continued to demonstrate a reliable commitment to his daughter and was an involved parent.  He agreed.  The defender told T that the pursuer was her father.  In January 2014 shortly after this took place the pursuer stopped attending for contact.

[21]   The pursuer has had no contact direct or indirect with T since January 2014.

[22]   The pursuer suffered a right axillary and subclavian deep vein thrombosis in January 2009.  He underwent medical tests including a CT scan of his chest, neck, abdomen and pelvis and was treated with blood thinning drugs.  In February 2014 he developed a pain and swelling in his forearm and was sent to the accident and emergency department of the Royal Edinburgh Hospital.  A further deep vein thrombosis was suspected.  He was treated with warfarin over a period of weeks however, due to poor compliance, this treatment was halted after six months.  It was thought his symptoms were due to post thrombotic syndrome.

[23]   The pursuer’s health condition had a significant impact on his ability to attend for contact in February/March 2014.  He attended hospital for daily blood tests and injections over a period of approximately five weeks.  The appointment times clashed with scheduled visits.

[24]   The pursuer failed to give the defender or his solicitors an explanation for his failure to attend for contact.  He attended at the defender’s home on one occasion in February 2014 outwith the normal contact periods and attempted to discuss matters with her.  He did not fully explain the extent of his health issues.  He did not commit to restarting the contact after he regained good health.

[25]   The pursuer did not attempt to re-engage with contact until early 2015 at which point he instructed a solicitor to write letters requesting contact with T and applied for legal aid.

[26]   This action was raised on 17 April 2015.

[27]   The defender is opposed to the granting of an order for direct contact.  She is concerned that the pursuer will fail to attend reliably for contact over a sustained period.  She is concerned that T will be upset by the reintroduction of contact at this late stage.  She believes that the pursuer will let T down.  She does not consider the pursuer to be a good role model for T.

[28]   A bar report (9 of process) was prepared by Grant Knight, Solicitor on 9 September 2015.  Said report did not recommend that a contact order should be made.  The bar reporter did not consider that a contact order was in the best interests of the child.  He concluded that there were “very little positives in the pursuer re-establishing contact with his daughter” and that “the potential negatives far outweigh any such positives”.

[29]   No order for interim contact has been made in these proceedings.

[30]   The pursuer was required to undergo a drugs test in the context of said bar report.  The test was positive for benzodiazepine.  The pursuer used non-prescription sleeping pills on at least one occasion in August 2015 prior to this test being carried out.  The drugs test also disclosed cannabis use.  The pursuer readily admits to regular recreational cannabis use over a number of years.  He intends to continue to use cannabis regularly (albeit that he undertakes not to use it during contact).  Cannabis use impacts on the pursuer’s physical and mental health causing inter alia paranoia, depression and sleep disturbance.  He demonstrates insight into this but notwithstanding that intends to continue using cannabis.

[31]   The pursuer continues to suffer from post thrombotic deep vein thrombosis.  He has declined to co-operate with prescription anti-coagulant medication. He is prescribed a codeine based painkiller co-codamol.  He is at risk of further complications.  He suffers from pain and night sweats intermittently as a result of this condition.

[32]   The pursuer has been diagnosed with clinical depression.  He is prescribed 20 milligrams of fluoxetine daily.  He does not take this medication.  He has not sought counselling or other treatment for depression notwithstanding the fact that he acknowledges that his depression has a part to play in his previous failures to attend reliably for contact over a sustained period.

[33]   The pursuer has prioritised his lifestyle, romantic relationships and friendships over maintaining contact with his daughter in the past.

[34]   While the pursuer is well intentioned, his past behaviour and his current circumstances are strongly indicative of a likelihood that he will fail to maintain regular contact with his daughter over a sustained period.

[35]   T is aware of who her father is.  She has expressed a wish not to see him at this juncture.

[36]   The defender displays no hostility or negativity towards the pursuer.  She is prepared to facilitate regular indirect contact between the pursuer and T and to enable him to obtain information about his daughter’s progress.  Indirect contact of this nature would be in the best interests of the said child.

[37]   In the event that T wished to have direct contact with her father, the defender would facilitate that.

[38]   It is not in the best interests of T for the pursuer to exercise direct contact with her at this juncture.

 

Finds in Fact and Law

[1]     Having regard to the welfare of the child as the court’s paramount consideration, it is not better for the child that an order for direct contact with the pursuer be made than that none should be made.

[2]     It being in the best interests of the child to maintain a link with the pursuer, it is better for the child that an order for indirect contact with the pursuer is made than that none should be made.

 

THEREFORE repels the first plea-in-law for the pursuer; sustains the first plea-in-law for the defender; makes an order that the pursuer shall be entitled to exercise indirect contact with T by means of a monthly letter or e-mail and the provision of a modest gift for her birthday and at Christmas; ordains the defender to provide the pursuer with copies of the child’s school reports and a recent photograph at least once per annum.  Finds no expenses due to or by either party.

 

 

NOTE

(1)     The parties in this action are the parents of T.  The pursuer is her father.  The defender is her mother.  T is a female child, born 16 October 2007.  All three live within the Sheriffdom.  Both parties have parental rights and responsibilities in relation to T.  The issue in this case is whether the pursuer should have contact with T.

 

Factual Background

(2)     The parties are not and never have been married to each other.  They met when they were both aged sixteen and were in a relationship for approximately nine months.  They only cohabited for a few weeks at the defender’s parents’ home immediately prior to and following T’s birth.  The pursuer left the defender when T was three weeks old.

(3)     The defender has very supportive parents.  While initially disappointed by their sixteen year old daughter’s unplanned pregnancy, they helped the parties.  They provided two rooms in their home as a livingroom and bedroom for them and welcomed the pursuer into their home.  Until that point, the pursuer had lived with his own parents.  The defender’s father has worked as a builder for Cala Homes for sixteen years.  He encouraged the pursuer to take a job initially as a labourer, and then as an apprentice joiner on the site he was working on.  The pursuer was seventeen years old when his daughter was born.  He was young and immature (in his own words “I was young and dumb”).  He was not equipped to cope with the responsibilities of having a full time job, fatherhood and a family to support.  Three weeks after T’s birth he went out for a night out with his friends and simply didn’t come home.  He spent the night with a woman he had just met, left the defender and his job and never came back.  He did not contact the defender to explain his actions until some weeks later.

(4)     The defender lived with her parents for the first year of T’s life.  She worked for Lloyds Banking Group and after taking maternity leave, returned to work.  She has worked for her employer for nine years.  She is now a call consultant and works full time in a role where she has reasonable promotion prospects.  Her parents helped her with T’s care.  T is now at *** Primary School in p4.  She attends breakfast and after school club.  Her maternal grandmother helps the defender with her care.  The defender has her own tenancy of a two bedroom property with a garden.  She has lived there since T was two years old.  T is a happy and healthy child who is doing well at school.  She is bright and articulate, if a little shy.  She enjoys swimming, reading and her Irish dancing classes.  The defender is a good mother.  All witnesses agreed that she has done an excellent job of caring for T.  The arrangements for T’s residence are not in dispute.

(5)     The pursuer began exercising contact with T in the early months of her life.  Contact took place at the home of the defender and her parents for up to two hours at a time, in the defender’s presence.  The defender facilitated contact whenever the pursuer requested it.  There was no predictable routine.  Contact took place roughly once a week for approximately four or five months.  The pursuer stopped attending for contact in April 2008.

(6)     Contact recommenced in October 2009.  The pursuer’s evidence was that he continued to attend fairly regularly until January 2011.  The defender’s evidence was that contact took place erratically and for a shorter period of months in 2009/10.  I preferred the defender’s evidence as the more reliable account.

(7)     The pursuer attended the defender’s home on T’s birthday and close to Christmas each year.  He did so without invitation or prior warning.  Notwithstanding this the defender let him in and allowed him to give T a card or present and to have contact with his daughter for a short period of time in her home.  This stopped following the incident on T’s fourth birthday (referred to in finding in fact sixteen).  The pursuer sent a card (with money) for T’s fifth birthday.

(8)     The pursuer consulted a solicitor in April 2013.  He sought contact with T.  The defender agreed to contact for two hours per week between 12pm and 2pm on Sundays at her home.  Contact took place on this basis (as set out in findings in fact nineteen) for approximately nine months.  The quality of the contact was not particularly good.  The pursuer did not know how to interact with his daughter or to engage her attention well.  There was a limited bond between them.  The pursuer’s own evidence was that after nine months “we were starting to build a bond”.  T was between five and six years old at this point.  Only two visits took place outwith the defender’s home.  Neither was a success.  The pursuer lacked the skills to care for T safely and to meet her needs during contact.

(9)     Throughout T’s life the defender has sought to encourage the pursuer to have a meaningful relationship with his daughter.  She was of the view that he ought to attend regularly for contact and become an involved parent in his daughter’s life or withdraw altogether.  She gave him many chances to do so.  She encouraged T to have a relationship with the pursuer.  The defender did not tell T that the pursuer was her father until early 2014.  T called the pursuer “Gogs” (short for Gordon).  The defender did not want T to understand that the pursuer was her father until he had demonstrated a reliable commitment to her.  By late 2013 the pursuer had attended contact regularly for approximately eight months.  T was asking questions about her paternity.  The defender advised the pursuer that she proposed to tell T that he was her father but that the quid pro quo for that was that he remained committed to her and continued to attend reliably for contact.  He agreed.  The defender told T the pursuer was her father.

(10)   In January 2014 the pursuer stopped attending for contact.  He did not contact the defender for a period of weeks.  He did not contact his solicitor with an explanation.  He has not seen T since.  He has not exercised indirect contact with her since then either.

(11)   T knows that the pursuer is her father.  Her expressed view is that she does not want to see him.

(12)   The pursuer has health problems.  He has a history of deep vein thrombosis.  This causes pain in his right arm, fatigue and night sweats.  In February 2014 he developed pain and swelling in his right forearm and attended the accident and emergency department of Edinburgh Royal Infirmary where a further deep vein thrombosis was suspected.  Ultimately this was diagnosed as post thrombotic syndrome.  He required to attend hospital appointments on a daily basis for blood tests and injections for around five weeks in February/March 2014.  This prevented him from attending contact at 12 pm on Sundays for approximately five weeks.  He was treated with Warfarin thereafter.  This treatment was halted after six months due to his poor compliance.  He continues to suffer from this condition intermittently.  He is prescribed a codeine based painkiller Co-codamol which he takes daily.

(13)   The pursuer suffers from depression.  He is prescribed 20 milligrams of Fluoxetine daily.  He does not take his medication.  He has not sought other treatment.

(14)   The pursuer uses illicit drugs.  He uses cannabis regularly.  He uses benzodiazepines occasionally.  His evidence was that he accepts these drugs impact upon his sleep and his mental health.  Notwithstanding this insight, he does not intend to stop using them.  He undertakes not to take drugs during contact with his daughter.  I accepted his evidence in this regard.

(15)   The pursuer has had no contact with T in over two years.  He has not even acknowledged her birthday or Christmas during that time.  He has no existing relationship with her.  She has expressed a view that she knows that the pursuer is her father but that she does not want to see him.  While the defender will obtemper a court order if made, she does not believe that contact is in her daughter’s best interests at this stage.  She does not believe that it is in T’s best interest to be forced to see the pursuer again against her expressed wishes.  Even in the event that contact went well, she is concerned that T may form an attachment to the pursuer and that he will let her down again.  She would find it very difficult to encourage contact at this juncture.

 

The pursuer’s evidence/supporting witnesses

(16)   The pursuer is genuine in his wish to have a relationship with his daughter.  While he accepted that they do not have an existing relationship his evidence was that he “wants to make it right” and that “it is good for a child to have two parents”.  His evidence was that he wants to “offer her support and love” and to “do things with her”.  While the pursuer came across as someone sincere who genuinely attempted to be truthful when giving evidence, he was not a reliable witness. 

(17)   The pursuer gave evidence that having exercised contact for the early months of his daughter’s life he stopped attending in 2008 as a result of health difficulties.  He then gave fairly detailed evidence about the first diagnosis of deep vein thrombosis.  However, his general practitioner’s report (appended to the bar report 9 of process) clearly states that these health difficulties arose in 2009.  There were other instances where the pursuer’s evidence as to dates and events did not tie in with the chronology and the evidence of other witnesses.  Consequently, when considering conflicting evidence as to the history of contact, I have preferred the evidence of the defender and her father.  At points the pursuer’s evidence was vague.  The pursuer exercised contact with his daughter intermittently in 2009.  His evidence was that this took place fairly regularly first at the defender’s home and then at her parents’ home.  When asked when and why contact stopped he said that he could not remember that it was “some argument or me making a mistake”, that he was “young and dumb and made bad decisions”. 

(18)   It is to the pursuer’s credit that he was honest in acknowledging his shortcomings.  He said “I didn’t do as much as I could have but I am here now trying to make amends for the mistakes I have made”. 

(19)   The pursuer’s evidence was that in the early years of his daughter’s life he had received little support from his parents.  He referred to his mother as “being there is body but not in spirit” and said that his father simply “wasn’t there”.  His mother visited T on three occasions in the early weeks of her life.  His father visited only once.  Neither had been proactive in either seeking contact with their granddaughter or supporting the pursuer in doing so (albeit that on occasions his mother drove him to the defender’s home to exercise contact). 

(20)   The pursuer exercised contact with T on a fairly regular basis during the first six months of her life.  There was no regular routine and the quality of this contact was limited given T’s young age and the defender’s lack of experience in dealing with a young baby.  I did not accept the pursuer’s evidence that he attended for contact fairly regularly at intervals throughout 2009 and 2010.  This evidence did not hold up to scrutiny and I concluded that the pursuer attended for contact on his daughter’s birthday and at Christmas in each year and on a handful of occasions during 2009/early 2010.

(21)   The most significant period of contact in T’s life took place between April 2013 and January 2014.  Until that point, T regarded the pursuer as “Gogs” or as “the man who brought presents” at Christmas or on her birthday.

(22)   Contact been the pursuer and T took place between around April 2013 and January 2014.  This contact took place at the defender’s home between 12.00 pm and 2.00 pm each Sunday.  The pursuer attended contact regularly for approximately nine months.  The contact took place in the living room of the defender’s home (and largely outwith her presence).  The pursuer drew pictures and listened to music with his daughter and sometimes played with her toys.  On occasion he took her into the garden to play.  By his own admission he did not really know how to interact with his daughter or play with her.  Sometimes he listened to music on his headphones while she played by herself.  Despite the regularity of this contact he accepted that he was only beginning to form a relationship with his daughter and that he didn’t really have a bond with her.  When asked whether his daughter enjoyed the contact he responded “sometimes”.  Latterly the defender allowed him to take T out, on one occasion swimming and on another to a local café.  Both of these trips were unsuccessful.  The pursuer simply didn’t know how to look after his daughter during contact or how to meet her needs.  He formed a limited emotional connection with her.  She was between the ages of five and six years old during this period of contact.

(23)   The pursuer vaguely recalled a conversation with the defender regarding her intention to tell T about her paternity.  I found this chapter of his evidence to be puzzling as one would imagine (having attended for weekly contact for over eight months) that he would have pressed the issue of T understanding that he was her father much earlier and certainly would have had strong views on this.  He did recall the defender finding this an emotional issue to deal with and her stressing to him the importance of him maintaining a reliable commitment to T if she was to be told that he was her father.  Notwithstanding that in January 2014, very shortly after T was told that the pursuer was her father, he stopped attending for contact.

(24)   In February 2014 the pursuer suffered a significant health problem (as set out in findings in fact 22 and 23).  While this did have a significant impact on his ability to attend for contact in February/March 2014, I did not accept his evidence that this was the reason for his initial failure to attend in January 2014.  The dates simply do not add up.  While it may not be appropriate to speculate as to his reasons for failing to attend at least a couple of visits before he encountered health difficulties, it is perhaps unsurprising given the history of this case that this took place immediately after it was made clear to him that he must reflect on his responsibility and commitment to his daughter after she was told about her paternity. 

(25)   There is also no adequate explanation as to why the pursuer failed to notify the defender about his health difficulties in February 2014.  At that juncture he was accustomed to going to her house weekly for eight months.  She had lived at the same address for a number of years.  I did not accept his evidence that he did not know her address to write to her.  He maintained and he had no telephone number and no means of communicating with her.  Solicitors were instructed throughout this period and he also did not contact his solicitor.  Ultimately when cross examined about this he acknowledged “I never contacted her to tell her, I was too wrapped up in what was going on”.  His medical treatment ended in Spring 2014 and there is absolutely no explanation proffered for the pursuer’s failure to attempt to reengage with contact until early 2015 when he instructed solicitors.  He made no attempt at all to contact his daughter throughout that year.  It was clear from his evidence that he had prioritised his own health, his college courses and his social life over contact and at one point had also failed to pursue contact because his partner at the time had been unsupportive of him doing so.  He demonstrated an abject failure to consider his daughter’s best interests at all let alone place them in priority to his own. 

(26)   The pursuer has had no contact (direct or indirect) with his daughter since January 2014.  He has no existing relationship with her.  His evidence was that he wanted to “make it right”, that it was “good for a child to have two parents”, that he would like “to do things with T and to offer her support and love”.  He suggested that contact initially starts in a contact centre such as Dr Bell’s and was then developed gradually from there.  His evidence was that his focus is now on T and that he wants to prove everybody wrong by building a positive relationship with her.  He accepted that the introduction of contact “might mess T’s head up” and that she has expressed a wish not to see him.  He felt that if contact was introduced gradually, that ultimately would be in her best interests.  When the concern about him failing to commit reliably to contact and attending for a period and then stopping was put to him he responded “there are no guarantees in life but it is in my heart to do what I can”.  This lacked the level of commitment and certainty one would hope for when considering the genuine depth of his commitment to sustain contact with his daughter.

(27)   The pursuer’s parents both gave evidence.  While the pursuer now lives with his mother, it is clear that for periods of time he has not had a particularly close relationship with her.  There had clearly been some tension between her and the defender’s father around the time of T’s birth.  That is perhaps understandable as her 16 year old son had moved in with another family and started a job obtained for him by his partner’s father (working alongside him at a Cala Homes building site).  She saw T on only three occasions in the early weeks of her life.  By her own admission she did not press the issue of contact thereafter.  She had provided transport for her son for some of the contact.  Initially she had lived within 10-15 minutes of the defender’s home.  In early 2009 she moved to the Currie area which resulted in a two to two and a half hour round trip by bus for the defender to attend contact.  This may also have been a contributory factor to the breakdown of contact in 2009.  She considered that her son had “grown up a lot” and that he is genuine in his intention to have contact with his daughter adding “we’d all love to see her” in relation to the extended family.  Beyond that, she could not add a great deal by way of valuable evidence to my assessment of this case given her limited involvement with T throughout her life.  The pursuer’s parents separated and divorced in 2004.  His father also gave evidence.  He lives in Fife and does not have a particularly close relationship with his son seeing him only a couple of times a year.  He saw T only once just after her birth.  His evidence was that “I would love to see my granddaughter but at the same time I don’t want to disappoint her”.  I found that statement a little curious and I am unclear what he meant by it other than perhaps to indicate that his commitment was limited and he envisaged seeing his granddaughter on only an occasional basis.  He was also of the view that his son has matured and that he loves T.  When asked about his son’s commitment to contact he responded “his heart’s always been in it – it’s what goes on in his head”.  He did not elaborate on what he meant by this.  From my limited opportunity to assess them and from the evidence which they each gave, the pursuer’s parents may offer a positive relationship with T as her grandparents but have demonstrated a very limited commitment to her thus far.  While they tried to support their son in their evidence (they were both of the view that he has grown up considerably since T’s birth), it was clear that they both have some reservations about his stability and genuine commitment to contact in the long term. 

(28)   At the time of T’s birth the pursuer was an immature 17 year old boy who was unable to cope with the responsibility of cohabiting with a partner and caring for a baby.  He was also not ready to settle into a fulltime job.  He used cannabis regularly and prioritised his social life and romantic relationships over contact.  That situation continued to prevail throughout the early years of T’s life.  The pursuer was able to demonstrate a period of sustained commitment to contact in 2013, however when faced with difficulties and other issues in his own life in 2014 his commitment to contact again fell by the wayside.  He prioritised other things and failed to communicate with the defender to explain properly his absence from his daughter’s life or to restart contact when things settled down.

(29)   The pursuer asked the court to accept that he has matured and he is no longer “such a deadbeat”.  He attended Newbattle College, obtained some higher qualifications and also an HND and SVQ in furniture design.  He has a workshop in his mother’s garage.  While he continues to be unemployed he maintains that things have moved on for the better.  He has no work history and no immediate plan to enter employment or to start a business.  He continues to have problems with his physical health.  He suffers from post thrombotic syndrome which in his own words causes “profuse sweats especially at night”, mood swings and means that he cannot use his left arm to any extent.  While he is stable “doing anything physical would cause a flare up”.  Medical advice is to have an operation on his hand, to engage with haematology appointments and to take blood thinning drugs.  By his own admission he has failed to attend medical appointments or to cooperate with prescribed treatment regimes, as “he doesn’t want anything else going on” while this case is pending.  However, there is a very real risk that health difficulties will recur and Mr Chapman appears to acknowledge that in the past, when he was dealing with health problems, he was unable to commit to contact. (The logical corollary of him indicating he cannot engage with treatment while applying for contact is that the vice versa also applies.)

(30)   One of the excuses which the pursuer gave for his lack of commitment to contact was that “he did not know he had depression”.  He referred to a family history of mental health problems.  As recently as 2015 he acknowledged feeling suicidal and that a trigger for this had been conflict with others in his local community.  He has been diagnosed as suffering from clinical depression by his GP but has not sought treatment and despite being prescribed 20mg of Fluoxetine daily does not take the tablets.  His depression is therefore persistent and ongoing and in the past has impacted on his commitment to contact.  There is at least a concern that that may be the case in future.

(31)   The pursuer uses cannabis recreationally on a regular basis and has done for many years.  He acknowledges that cannabis use may, in part, account for his depression, causes paranoia, interferes with his sleeping patterns and causes insomnia.  He occasionally self-medicates with illicit diazepam to help him sleep.  He recognises that his drug use has had an impact both on his health and his ability to commit to contact yet he gave clear evidence about his intention to continue using illicit drugs.  When asked whether (with reference to having made bad decisions in the past) “his head was in a different place now” he answered “my head’s always in a different place - there’s that much going on in my head”.  That chimed with his father’s evidence “his hearts always been in it – it’s what goes on in his head”.  The pursuer’s evidence and that of his parents did not paint a very convincing picture that his commitment to contact with T would be of lasting duration.  While he is undoubtedly well intentioned, in the event of difficulties with his physical health, mental health, challenges in his personal life or emotional stability coupled with his regular illicit drug use arise there is every reason to believe that his commitment would dwindle and fail as has been the case in the past on several occasions.

 

The defender’s evidence/supporting witnesses

(32)   The defender is a mature and capable woman and was an articulate and composed witness.  Her evidence was reliable regarding dates.  At points in her evidence she was close to tears.  She was, however, very measured and did not embark upon character assassination of the pursuer.  She is to be commended on the extent of which she encouraged contact between the pursuer and T throughout her life until approximately two years ago.  I accepted her evidence that she never refused or missed contact until these proceedings were raised. When she was unavailable her father facilitated contact.  Even when the pursuer appeared on her doorstep on her daughter’s birthday or at Christmas time with no prior warning, she let him in and facilitated contact.  Throughout T’s life her approach has been to encourage a relationship between T and her father (and indeed initially between T and her grandparents).  However, what she asked for in return was a reliable commitment to her daughter rather than that the pursuer dipped in and out of his daughter’s life.  The points in her evidence where the pursuer became distressed were when she was asked to reflect on the impact on her daughter of forming an attachment to the pursuer and then being let down.  The decision to tell T about her paternity in late 2013 had been a very difficult one for the defender.  She spoke of “begging” the pursuer to commit to a reliable and sustained relationship with his daughter if she told her of his paternity and how distressing it was when her daughter asked her “why have I not got a daddy” and “do I have a daddy? does he love me?”.  Telling T about her paternity and then coping only a few weeks later with the pursuer’s subsequent abandonment of T had a profound effect on the pursuer and her attitude to this case.

(33)   When solicitors’ letters requesting contact with T were received in early 2015, the defender had reached the point that she no longer believed it to be in T’s best interests to see her father.  She considered that the pursuer had been given every opportunity to have a relationship with his daughter and on many occasions had simply been unreliable and had let T down.  T is now eight years old and although she knows who her father is, she has expressed no wish to see him and does not ask questions about him.  The defender has tried to create an environment where her daughter can speak about her father or ask questions about him but she does not do so.  There is no existing relationship or emotional bond between T and her father.  She believes that T would be distressed if required to attend for contact.  While the defender would obtemper a court order were one to be made, she would find it very difficult to believe contact to be in her daughter’s best interests, to genuinely encourage her and be supportive of her relationship with the pursuer at this juncture.  She would facilitate indirect contact ensuring that a link between T and her father is preserved by receiving modest birthday and Christmas gifts, letters or e-mails, etc., and for her father to be provided with information regarding her wellbeing.  I accepted her evidence that if T expresses a curiosity to see her father and asks for direct contact that her mother would facilitate this.

(34)   It was put to the defender in cross examination that as she now has a nice home, a good job and a new partner who has begun to develop a relationship with T, that this action is simply inconvenient to her and that her motivation in opposing the pursuer’s application was not rooted in T’s welfare.  There was nothing in her answers to this line of questioning which were indicative of that being the case and I accepted her evidence was given from the perspective of her views as to her daughter’s best interests. 

(35)   The defender’s father also gave evidence.  He was an impressive witness.  While he professed to have been “devastated” by his daughter’s unplanned pregnancy at the age of 16 he ultimately accepted her decision to proceed with the pregnancy and he and his wife set about supporting their daughter and the pursuer as best they could.  Their daughter had a double bedroom with space for a cot for T and a separate living room in their home.  They invited the defender to live in their home. The pursuer’s father secured the defender a job leading to a joinery apprenticeship on the Cala building site he worked on.  His initial view was that T’s father should be involved in her life; he shared his daughter’s view that a father attending at Christmas and on her birthday was not enough.  His impression was that the pursuer’s commitment to T became less and less as time went on.  He did not view this as fair on his granddaughter but was quite clear in his evidence that had the pursuer attended regularly for contact then he would have been supportive of his relationship with T and would have had no difficulty with it.  He sees his granddaughter regularly a couple of times a week.  His wife is very involved in supporting the defender with T’s care.  He regards his daughter to be a very good mum especially “for someone so young with all she has been through”.  It was put to him in cross examination that he was controlling of the defender (and indeed at points of the pursuer) and that he and his wife had not been altogether welcoming of the pursuer and had made it difficult for him to have a relationship with T.  There was nothing in his answers to these lines of questioning to indicate that this was the case.  He is a loving father and grandparent.  His views on contact have been informed by past events.

 

The Child

(36)   T is eight years old and in primary four at *** Primary School.  She is an intelligent articulate child who is doing well at school.  She enjoys reading.  She attends after school clubs.  She goes to Irish dancing classes twice a week and performs in competitions once a month.  She has a weekly swimming lesson.  She has a close relationship with her maternal grandparents.  She has also formed an attachment to the defender’s partner MF (that relationship having been ongoing for approximately two and a half years).  She is an affectionate, happy and well-adjusted child.  She is aware that the pursuer is her father.  When asked by the bar reporter whether she wished to see the pursuer she responded in the negative.  This is perhaps unsurprising given that she had not seen the pursuer or had any contact with him in the two years prior to this question being put to her.  It is also questionable whether she is of sufficient age and maturity to form and express a view about the issue of contact with the pursuer.  However, it may be concluded that she is aware of her paternity and that she has not expressed a wish to see the pursuer at this stage.

 

The Bar report

(37)   Grant Knight, solicitor, was appointed by the court on 3 June 2015 to undertake a report in this case.  Neither party sought to cite the bar reporter as a witness.  Both agents accepted that I may make findings in fact from the content of the bar report where the evidence contained therein did not differ from any parole evidence led at proof.  The bar report took three months to prepare, in large part because the pursuer delayed in signing a mandate authorising a medical report and cooperating with the drugs test required by the court.  The pursuer told the bar reporter that in 2015 that he was enrolled at Telford College to undertake a history course and was considering applying to University to study history or archaeology in the long term.  There was no mention of this in his evidence during the proof.  He also told the bar reporter that his elder brother raised court proceedings for contact and is exercising contact at a contact centre.  This had spurred him to raise these proceedings. 

(38)   Despite the bar reporter’s meeting with the pursuer being prearranged, when he arrived at his home address the pursuer was still in bed and had to be roused by his mother.  The pursuer readily admitted regular cannabis use but denied using other illicit medication.  The drugs test subsequently carried out indicated the use of illicit diazepam immediately before the test was carried out.  Both the bar reporter and the pursuer’s general practitioner questioned the rationale of taking diazepam the night before a drugs test in connection with an ongoing court case if this were a one off instance.  The more logical explanation is that (given his difficulties with insomnia) the pursuer utilises diazepam or similar medication on a more frequent basis.  The bar reporter concluded that the pursuer is “principally the author of his own misfortune insofar as the lack of contact having taken place to date…. However that he has now made the effort to raise these proceedings. He is T’s biological father and therefore has parental responsibilities and rights.  In my view, the principal issue is whether it would be in T’s interest to re-establish contact, even on a supervised basis, at her age and stage of development.  The pursuer maintains that he will be able to establish a relationship with his daughter and, in time, introduce her to her paternal family…  The pursuer here, as I have mentioned, has done himself little favour.  He unfortunately gives the impression of not being wholly interested in pursuing this matter.  He delayed in arranging the drugs test which had been ordered by the court and could provide no credible explanation for that delay.  He has delayed over several periods of time in consulting a solicitor.  In addition, while it might not be such an important matter in isolation, the fact that he could not get himself out of bed to meet me at a prearranged time is perhaps indicative of his mind set in these proceedings.  What I have had to consider are the potential positives to T in having contact re-established against these potential negatives.  I regret that I can see very little positives in the pursuer re-establishing contact with his daughter.  The potential negatives far outweigh any such positives.  In all the circumstances, therefore, I cannot recommend that any award of contact be made in favour of the pursuer.  I would therefore recommend that his crave be refused and that the proceedings are brought to a conclusion”.

 

Submissions for the pursuer

(39)   Mr Kildare began his submissions by reference to the record and invited me to sustain the pursuer’s plea in law and to grant an order finding the pursuer entitled to direct contact with the child T, initially supported in a contact centre, during such times and periods as I deemed fit.  Failing direct contact his esto position was that an order for indirect contact between the pursuer and T should be made finding the pursuer entitled to regular letterbox or e-mail contact, to the provision of a gift on T’s birthday and at Christmas and to receive information regarding her wellbeing in order to preserve a link between the pursuer and T and leave the door open in relation to future direct contact.

(40)   Mr Kildare referred to the statutory framework governing this matter and in particular to section 11(7) of the Children (Scotland) Act 1995 (“the 1995 Act”).  In terms of that subsection the court “(a) shall regard the welfare of the child concerned as its paramount consideration and shall not make any 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 into account 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 (c) have regard to such views as he may express”.  The pursuer has parental rights and responsibilities as a matter of law.  Mr Kildare referred me to White v White 2001 SC 589, particularly at paragraph 21.  His submission, put broadly, was that there is an assumption that it is conducive to the welfare of the child to have contact with both parents.  There is no onus on the pursuer.  The decision will depend on the application of the welfare principle if fact specific.  If the court is minded to make an order because it would be conducive to the welfare of the child, it has to then consider whether it would be better for the child to make an order than not to make an order at all.  Mr Kildare invited me to weigh the factors applicable to this case against the general proposition that it is ordinarily conducive to the welfare of the child to have contact with both parents. 

(41)   Mr Kildare also referred me to the decision of M v K 2014 SLT 469 and in particular to paragraph 20 thereof where reference was made to the recognition that it was generally in the best interests of any child to have and maintain contact with both parents (with reference to White v White) and further held that “in order to terminate that family relationship, important and weighty reasons were therefore required”.

(42)   Mr Kildare then referred to the evidence and submitted that the pursuer has attempted to be a father to T in the past.  He began to build a bond with her during contact, particularly during the course of 2013.  While the pursuer has not made the most of what he was offered in terms of contact or prioritised his relationship with his daughter, his heart was in the right place albeit that his head wasn’t.  He was young and immature at the time of his daughter’s birth and in the early part of her life.  He lacked motivation and commitment.  He submitted that despite the pursuer’s past shortcomings he is now motivated to be a father, has made changes in his life and has matured.  It was also submitted that there was no evidence that past contact has caused any distress to T or that there had been any issues with her behaviour or wellbeing either before or after contact.  While there may be issues regarding the pursuer’s proactivity in pursuing contact and indeed in pursuing this action, I was invited to accept the pursuer’s evidence that it would be different if contact were allowed this time and that the pursuer is genuinely motivated to be a father and will now not waver in that commitment.  Mr Kildare accepted that the making of a contact order may be a “high risk decision” in this case but given the importance of preserving the biological link between T and her father that the benefits to her in having a relationship with him, and her extended paternal family, were worth the risk.

 

Submissions for the defender

(43)   Mrs Duffy invited me to refuse the pursuer’s crave and to dismiss the action.  She confirmed that the defender was amenable to allowing indirect contract between the pursuer and T by means of a modest gift on her birthday and at Christmas and occasional letters, cards or e-mails.  She did not object to him receiving limited information regarding T’s progress.  The defender would do this voluntarily and with no necessity for an order for indirect contact to be made.  Should an order be made she would cooperate with it.

(44)   She did not demur from Mr Kildare’s submissions as to the legal framework.  She submitted that while there is no onus which the pursuer requires to discharge, there is nonetheless no assumption that it is always in the best interests of a child to have contact with a parent.  Each case is fact specific and the court should consider all relevant material and properly take a view.  She submitted that in this case a proper consideration of the factual material would result in a view being reached that the pursuer’s application must fail.

(45)   She also referred to the case of M v K supra and in particular to paragraph 25 thereof.  She sought to distinguish this case from the facts and circumstances of M v K in which at paragraph 25 it was acknowledged that there was an existing, and in practical terms significant, family relationship between the parent and child.  That was patently not the case here.  She also referred to the dicta in that paragraph that “in substance, bringing that relationship to an end a careful balancing exercise required to be carried out and factors required to be identified which clearly make that step necessary and justified in the paramount interests of the child”.  In her submission there were factors in this case which could be identified which justified, on a careful balancing, the conclusion being reached that it was not in T’s best interests to have direct contact with the pursuer at this juncture.  She referred to the evidence and to the limited extent of the pursuer’s involvement throughout much of T’s life, to the long gaps in contact and in particular to the circumstances surrounding the breakdown of contact in early 2014.  She submitted that the breakdown in contact immediately after T had been made aware that the pursuer was her father would have been traumatic and distressing for her and that the court should be slow to accept the pursuer’s evidence as to his explanation for the breakdown in contact at that juncture and his subsequent failure to pursue contact over the course of the following years.  Further, the pursuer’s actions during the course of these proceedings were indicative of a lack of genuine commitment and motivation – a number of delays in proceeding with this case could be identified in addition to the facts and circumstances set out in the bar report in terms of the pursuer’s interview with the bar reporter and his lack of co-operation in providing samples for a drug test or medical report requested by his solicitor on a number of occasions prior to proof.  She submitted that the pursuer had failed to demonstrate an ability to put his daughter’s interests first throughout her life and that despite significant support and encouragement by the defender the pursuer had failed to demonstrate any sustained commitment to contact.  The evidence of the pursuer’s circumstances at the current time did not paint a compelling picture of his stability either in terms of his personal circumstances or his health.  Mrs Duffy submitted that it was unlikely that the pursuer’s primary focus would be on T’s welfare.  The reintroduction of contact at this stage may be stressful and upsetting to T and there was a substantial risk to her emotional wellbeing if, as was likely, the pursuer attended for contact for a period and then again failed to attend for contact regularly.  At this stage in her life this would be distressing and upsetting for T who is otherwise a happy and well-adjusted child.

(46)   Both parties were agreed that there should be no award of expenses due to or by either party.

 

Decision

The legal framework

(47)   Both parties have parental rights and responsibilities as defined in sections 1 and 2 of the 1995 Act. 

Section 1(2)(c) provides:-

“A parent has in relation to his child the responsibility - … (c) if the child is not living with the parent, to main personal relations and direct contact with the child on a regular basis… but only insofar as compliance with this section is practicable and in the interests of the child”.

 

Section 2(1)(c ) provides:

“A parent, in order to enable him to fulfil his parental responsibilities in relation to his child has the right… (c) if the child is not living with them, to maintain personal relations and direct contact with the child on a regular basis”.

 

The parental responsibilities and rights held by the pursuer are qualified to the extent that it is practicable and in the interests of the child for them to be exercised.  Section 11 enables the court to make orders in relation to parental rights and responsibilities.

Section 11(2)(d) provides that the court may:-

“Make an order regulating the arrangements for maintaining personal relations and direct contact between a child under that age (16) and a person with whom the person is not, or will not be, living (any such order being known as a “contact order”).  In considering whether or not to make an order, and what order to make the court must refer to the terms of section 11(7) which provides (a) shall regard the welfare of the child concerned as its paramount consideration and shall not make any order unless it considers that it will 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 practical – (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”.

 

(48)      The leading authority is the case of White v White 2001 SC 689 to which both agents referred.  At paragraph 21 the Lord President concluded:-

“A court must consider all the relevant material and decide what would be conducive to the child’s welfare.  That is the paramount consideration.  In carrying out that exercise the court should have regard to the general principle that it is conducive to a child’s welfare to maintain personal relations and direct contact with his absent parent.  The decision will depend on the facts of the particular case and, if there is nothing in the relevant material on which the court applying that general principle could properly take the view that it would be in the best interests of the child for the order to be granted, then the application must fail.  That might be so, for instance, if a father had abandoned his wife when the child was born and, years later, suddenly sought a contact order.  A Fortiori the application will fail if the relevant material shows that it would definitely be contrary to the child’s welfare for the order to be granted…  If having considered the material, the court is minded to make an order because it would be conducive to the welfare of the child; it is then to consider whether it would be better for the child to make an order than not to make any order at all.  This second limb of the test is designed to give effect of parliament’s view that, wherever possible, matters should be regulated by the parties without the intervention of the court”.

 

(49)      The case of White also dealt with the application of article 8 of the ECHR to the interpretation of the 1995 Act.  That issue assumes an importance when dealing with the cases of M v K 2015 SLT 469 and Elsholz v Germany (2002) 34 EHRR 58 to which I was also referred by Mr Kildare.  Article 8 of the ECHR provides that everyone has a right to respect for his family life and that there should be no interference by a public authority with the exercise of this right except as in accordance with the law and is necessary in a democratic society for the protection of health or morals or for the protection of the rights and freedoms of others.  At this point I refer to a decision of Sheriff Holligan in the case of HTJH v FM 1 December 2015 (unreported) and in particular to the following paragraphs:-

“In considering the application of article 8 to applications for contact, the Lord President analysed the matter as follows.  Again, read short, in addition to prohibiting action by the state contrary to article 8, there are positive obligations on the state to adopt measures to secure respect for family life, including the adoption of measures designed to secure respect for family life as between individuals.  Those measures include adjudicatory and enforcement machinery.  It seems to me that that is a statement of particular importance when it comes to the interpretation of the court’s powers pursuant to the 1995 Act.  The Lord President went on to say:-

 

“[24]… More particularly, the obligation of the national authorities to take measures to facilitate the non-custodial parent’s contact with his children after divorce is not absolute and any obligation to apply coercion must be limited since the interests, as well as the rights for freedoms, of all concerned must be taken into account.  More particularly, the best interests of the child and his/her rights under article 8 of the Convention must be considered.  Where contact with a parent might appear to threaten those interests or interfere with those rights, it is for the national authorities to strike a fair balance… In Elsholz v Germany the court had already observed (at paragraph 50) that a fair balance must be struck between the interests of the child and those of the parent and that “in doing so particular importance must be attached to the interests of the child which, depending on their nature and the seriousness, may override those of the parent.  In particular, the parent cannot be entitled under article 8 of the Convention to have such measures taken as would harm the child’s health and development”. 

 

[25] These passages are sufficient to suggest that the structure of our law complies with the requirements of article 8 since it respects family life and contains provisions enshrined in legislation for balancing the competing interests of the various members of the family.  In making regard for the child’s welfare the paramount consideration, section 11(7)(a) is in conformity with the approach laid down by the European Court….”.

 

It is necessary to look at the case of Elsholz v Germany, referred to both in White and JM.  That was a case concerning the right to contact of an unmarried father with his child.  The matter was governed by a particular article of the German Civil Code which restricted the rights of unmarried fathers to contact.  The domestic court refused the father contact and gave its reasons therefor.  The relevant part of the court’s judgement is set out in paragraphs [43] to [53].  They are too long to set out in detail.  I summarise the key points as follows.  “Family” in article 8 extends to de facto relationships and is not limited to those who are married; from birth there is a family unit and there exists between child and parents a bond amounting to a family unit; mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life, even if the relationship between the parents has broken down; domestic measures hindering such enjoyment amount to an interference of the right protected by article 8.  The decision of the court refusing the applicant access to his son therefore interfered with the exercise of his right to respect for his family life.  The court accepted that the decision made was “in accordance with the law” and pursued a “legitimate aim”, namely protecting health or morals and the rights and freedoms of the child, provisions specifically contained within article 8.  The remaining part of article 8 to consider was whether the measure was “necessary in a democratic society”.  The “measure” concerned was the decision of the court.  In deciding whether that decision was “necessary” in a democratic society the court examined the reasons adduced to justify the decision in order to ensure that they were “relevant and sufficient” for the purposes of article 8.  As part of that process the court went on to say (in a passage referred to by the Lord President in White):-

 

[50] The court further recalls that a fair balance must be struck between the interests of the child and those of the parent and that in doing so particular importance must be attached to the best interests of the child which, depending on their nature and seriousness, may override those of the parent.  In particular, the parent cannot be entitled under article 8 of the Convention to have such measures as would harm the child’s health and development.“

 

The court held that there was an infringement of the father’s right but it is important to be clear as to the basis for the decision.  The court concluded that the reasons given for the domestic court’s decision were inadequate, particularly in relation to the decision not to seek expert advice, and that the father had been insufficiently involved in the decision making process.  In my opinion, as is evident from the case law, by its very nature article 8 covers a very wide range of circumstances and requires some manipulation to fit any given instance.  In the present type of case one significant aspect thereof is the limitation of the state’s power to interfere with the enjoyment of family life.  However, the situation is different when it is the relationship of the members of a family amongst themselves.  Implicit within paragraph [50] is the concept of a family in which parents and children are united.  Where that unity is fractured the effect of article 8 is that the state ought to lend its aid in securing its restoration.  However, self- evidently, where it is the members of the family and not the state who brought about the separation, restoration of the unit, however limited that restoration may be, must involve balancing the interests of all members of the family and in that balancing process particular attention must be paid to the interests of the child. 

 

The case of JM involved a claim for contact by a father.  On the facts of the case the father had previously enjoyed contact after the parties had separated.  The Inner House characterised the relationship between the father and child as “existing and significant” (paragraph [25]).  The father’s claim for contact was rejected both by the sheriff and the sheriff principal.  The sheriff’s order was reversed by the Inner House without that court substituting any order of its own for contact.  The opinion of the court was given by Lord Eassie.  Lord Eassie recorded the submission made on behalf of the father at paragraph [18] of his opinion which I summarise as follows. The decision of the European Court in Elsholz meant that interference in the relationship between a parent and child involved an element of necessity and necessity meant that where a court was invited to bring to an end the substance of a relationship between a parent and child there require to be weighty and cogent grounds before the court could properly hold that the best interests of the child necessitated determination of that family relationship.  All factors require to be carefully considered examined and balanced.  It should be for the party contending for the ending of a relationship to establish those significant, cogent elements in the factors to be balanced which necessitated, in the best interests of the child, that the relationship should in its substance be ended.  At paragraphs [25], [27] and [28] Lord Eassie set out the substance of the court’s conclusion.  In short, he accepted the father’s “broad submission” that where a decision is taken to interfere in an existing, and in practical terms significant, family relationship between a parent and a child by, in substance, bringing that relationship to an end, a careful balancing exercise requires to be carried out and factors require to be identified which clearly make that step necessary and justified in the paramount interest of the child.

 

I have set out at some length what I understand to be the authorities to which I was referred because it is essential to identify correctly what I take to be the process which the court must go through in order to reach its decision. 

 

It seems to me that the interlocutor I pronounce on the issue of contact, whether it be making, or refusing to make, an order for contact is a “measure” to which the European Court referred in Elsholz. That said, Convention rights are not free standing in the sense that they are given effect to, either by the court interpreting the relevant domestic statutory provision in accordance with Convention or by the court, as a public authority, acting in accordance with the Convention. White decided that the structure of the 1995 Act is compatible with the Convention (so much was also conceded in the case of JM).  The issue here is the decision on the merits. Domestic law requires that in reaching its conclusion the court must regard as its paramount consideration the welfare of the child.  The court must also make its decision by reference to the provisions of article 8.   It seems to me that, however one chooses to formulate it, the starting point, both from the perspective of domestic law and article 8, is that there is a general assumption that there ought to be contact between a parent and a child.  A refusal by the court to grant contact to a father who seeks such an order will constitute interference with the right to a family life.  The authorities seem to accept that a decision made by the court is in accordance with the law and has a legitimate aim.  The key provision, referred to in JM, is whether the measure is “necessary in a democratic society”.  As I read both White and Elsholz, the parent’s right is not absolute; a fair balance must be struck between the interests of the child and those of the parent and in so doing particular importance must be attached to the best interests of the child.  Putting the matter another way, where a father pursues a claim for contact with a child, the starting point may well be an assumption that he ought to have contact but any decision by the court must involve an examination of all the relevant material and a judgement as to the best interests of the child.  I consider that there is little substantive difference between section 11(7) and article 8 in prescribing consideration of the interests of the child.  It seems to me that, read in the wider legal context, JM is a case confined to its facts.  As I have said the Inner House described the relationship in that case between the father and child in positive and continuing terms.  It was not satisfied with the decision of the sheriff and the sheriff principal in deciding not to award contact.  I can see that in such circumstances, as a matter of fact rather than as a matter of law, there may require to be good reasons for not ordering contact and that an apparent failure to do so (as in Elsholz) might constitute an infringement of article 8.  However, consistent with the authorities, I do not read JM as setting a separate test of necessity as a basis for refusing contact.  The issue is one of balancing interests, with particular regard for those of the child and giving adequate reasons for the decision.  Indeed, in White the Lord President stated that the sheriff had gone too far when he said “only the strongest competing disadvantages will be likely to prevail to establish that the welfare of the child would not be served by allowing contact with the parent” (paragraph [26]).  The factual circumstances in contact cases vary very widely.  At the heart of the issue lies an examination of the balance of interests between parent and child in the factual context.  Some cases involve an application for contact against a background of an existing relationship; others may involve none whatsoever.  Where there is an existing relationship the reasons for not allowing contact may require to be more persuasive than where there is no existing relationship.  So much is really a qualitative exercise in the examination of the reasoning”. 

 

I wholly concur with Sheriff Holligan’s analysis of the process which the court must go through in order to reach its decision.

(50)      The pursuer is T’s father.  He holds parental rights and responsibilities in relation to T.  There is a general principle that it is conducive to T’s welfare to maintain personal relations and direct contact with the pursuer.  It is against that context that I turn to the relevant evidence in this case when considering the application of that general principle.  There is sufficient material for me to form the view that it would be in T’s best interests for a contact order to be granted.  I must consider whether it is better for T for the order to be made than not to make any order at all.  The pursuer lived in family with T for only three weeks after her birth.  He exercised limited contact during the early months of T’s life.  Contact thereafter was intermittent (as set out in findings in fact 13-18 inclusive).  The most sustained period of contact was between April 2013 and January 2014 when the pursuer attended the defender’s home for contact with T for two hours each Sunday.  The quality of that contact was not good and his interaction with T was limited.  While T was not distressed by the contact either before, during or after the visits, there was no evidence that she greatly benefited from it.  The pursuer accepted in his evidence that he did not always relate well to T or know how to play with her and that by the end of the eight month period they were only “beginning to build a bond”.  T had no strong emotional attachment to the pursuer.  Until the very latter stages of that contact T was not aware that the pursuer was her father.  She was told about her paternity in January 2014.  Very shortly afterwards the pursuer stopped attending for contact and he has not seen his daughter since.  The most recent contact between T and her father therefore amounted to mutual enjoyment by parent and child of each-others’ company during at least some of the contact.  There was however, no real sense of a family unit, bond or emotional attachment between the pursuer and T.

(51)      T is a happy healthy well-adjusted child.  She is aware that the pursuer is her father.  The defender has created a climate of openness where her daughter may ask questions or speak about the pursuer at any time.  T does not do so and it is perhaps unsurprising given the lack of any direct or indirect contact which she has had with the pursuer over the last two years, that when asked by the bar reporter for her views she indicated that she did not wish to see him.  The defender has reached the point that she no longer supports contact between the pursuer and T.  She has made considerable efforts in the past to facilitate and encourage their relationship.  She has simply reached the point that she considers her daughter has been let down too many times and that the likelihood is that if contact were to restart between the pursuer and T that her daughter would be let down again.  While the pursuer would obtemper an order she would struggle to genuinely encourage her daughter to have contact with her father.  The combination of the absence of any de facto relationship between the pursuer and T, T’s expressed views and her mother’s attitude to contact at this juncture would make the reintroduction of contact a challenge.  There would be some inevitable anxiety and distress caused to T.  Ultimately that level of distress and anxiety may be worthwhile if as a result a real emotional bond was formed between T and her father and the pursuer reliably committed to having a significant role in his daughter’s life.

(52)      The key issue when considering T’s welfare and whether it would be better for her that an order is made than that none is made at all is the assessment of the pursuer and the likelihood of whether he would attend reliably for contact.  If his past behaviour is any predictor of his likely future conduct then there is a strong likelihood that he would attend contact for a period of months and would then lose interest and abandon T as has been the pattern on a number of previous occasions.  I approached this case entirely prepared to give the pursuer the benefit of the doubt and to assess his current circumstances and his evidence.  I took into account the fact that the parties were very young parents and that there was some evidence that he had matured.  I accept that he is genuine in his intention to have a relationship with T and that he has no other motivation in pursuing this action.  It is likely that he was encouraged to do so by his family as his brother has recently raised proceedings and is exercising contact with his child in a contact centre.  I did not find the pursuer to be an impressive witness.  Many of the factors which led to his failure to attend for contact or to demonstrate any reliable commitment to his daughter in the past remain present.  He has sought a number of different qualifications, and within the course of these proceedings, has disclosed a number of different plans in terms of either future education or work.  At the age of 26 he has no clear plan either for further education or employment.  The pursuer has serious issues with both his physical and mental health.  The deep vein thrombosis condition he suffers from is currently stable but still causes pain (particularly on exertion) insomnia and night sweats.  He takes daily prescription painkillers but despite medical advice to undergo minor surgery and to take blood thinning medication he has, over the last year, deliberately failed to engage with recommended medical treatment or to take medication.  He recognises that if he were to do so that may take his focus away from T.  The corollary of that would be that were his health to deteriorate or if he required to engage with treatment that he would be unable to devote his attention to T.  The pursuer also suffers from clinical depression. As recently as last year he admitted to feeling suicidal.  He has a family history of mental health issues yet does not take prescribed medication, seek counselling or other treatment.  He made various references in his evidence to “his head not being in the right place”.  His father’s evidence also was that “while his heart may be in the right place in relation to these proceedings his head may not be”.  The risk of recurrence of depression presents a further challenge to his commitment to contact.  The pursuer is not someone who is able to cope with more than one challenging set of circumstances in his life at a time.  In the past as soon as he has encountered difficulties in prioritising a romantic relationship, friendships or problems in his local community or his health has deteriorated, he has been unable to make any commitment to T.

(53)      The pursuer also takes non-prescription drugs.  He is a regular cannabis user.  While I accepted his undertaking that he would not smoke cannabis during contact, I am concerned about his drug use.  He accepts that cannabis use may contribute to his depression, cause anxiety and insomnia.  He self-medicates for disturbed sleep patterns with illicit diazepam on occasions.  He is not sufficiently committed to T to recognise that taking steps to address his drug use and properly address his mental health issues are an important part of being able to form a positive and committed relationship with her.  These difficulties were highlighted during the course of these proceedings.  This case was continued on a number of occasions to enable him to provide an updated medical report.  The pursuer did not cooperate with that.  He delayed in cooperating with the drugs test required in the context of the bar report.  He was in his bed asleep when the bar reporter attended for a prearranged meeting with him.

(54)      Having considered the evidence carefully, I have reached the conclusion that there is a very high likelihood the pursuer would not commit to a sustained pattern of contact with T and that even if he has a genuine intention to do so the other issues in his life would impact on this and ultimately he would fail to attend for contact reliably.  T has had no meaningful relationship with the pursuer as her father.  It would be very emotionally damaging to her to introduce contact with the pursuer and to try to develop a genuine father daughter bond only to have the pursuer abandon her again.  In consequence I have reached the conclusion that it is not in T’s best interests for an order for direct contact to be made at this point.

(55)      There is a benefit to T in having a link with the pursuer as her father.  I had no difficulty in accepting the defender’s evidence (particularly when viewed in the light of her past conduct), that she would facilitate indirect contact between the pursuer and T.  I consider that it would be in T’s best interest to receive a present on her birthday and at Christmas from the pursuer and for him to have the option to write to her either by card, letter or e-mail once a month.  If T wishes to respond then she should be encouraged to do so.  The pursuer should also be given copies of her school reports and a photograph at least once a year.  In the past T has shown some curiosity about her father and it is possible that this indirect contact would result in her expressing a wish to meet with the pursuer.  In that event not only would the door be open but I accepted the defender’s evidence that she would set up contact.  It is to be hoped that in the intervening period the pursuer may address some of the issues in his own life which would present challenges to him making a reliable commitment to T.  For these reasons I consider that an order for indirect contact should be made and that, in order to ensure its frequency and regularity, that it is better for T that such an order is made than that no order be made.

(56)      As requested I shall make no order for expenses due to or by either party.