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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> RS v. PQ [2004] ScotCS 217 (23 July 2004) URL: http://www.bailii.org/scot/cases/ScotCS/2004/217.html Cite as: [2004] ScotCS 217 |
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OUTER HOUSE, COURT OF SESSION |
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A3460/01
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OPINION OF LORD MACKAY OF DRUMADOON in the cause R S Pursuer; against P Q Defender:
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Pursuer: Wylie; Brodies
Defender: Party
23 July 2004
Introduction
[1] The pursuer in this action seeks interdict against the defender, who is her former husband. The pursuer, who was born and brought up in Scotland, now lives in L, a town in Scotland. The defender is a French National. He resides in France. The parties were married in Scotland on 5 June 1993. They were divorced on 8 March 2001, in terms of an order of the Tribunal de Grande Instance de Pontoise, France.[2] There are two children of the marriage, G Q, born on 2 April 1994 and B Q, born on 7 October 1996. Since December 1999, the children have resided with the pursuer in L.
[3] The present action was raised on 12 May 2001. There are three conclusions for interdict in the summons, as amended, viz.:-
"1. For an order interdicting the defender or anyone on his behalf from removing or attempting to remove the children of the parties, namely G Q, born 7th October, 1996, from the care and control of the pursuer or from that of anyone to whom the pursuer has entrusted the care and control of the children, or outwith the jurisdiction of the Court and furth of Scotland; and for interdict ad interim.
2. For an order interdicting the defender from molesting the pursuer by acting threateningly towards her, by inciting others to act threateningly towards her, by placing her in a state of fear and alarm or distress and by using violence towards her, and for interdict ad interim.
3. For an order interdicting the defender from entering an area of a five mile radius from (a specified location) and to grant an interdict ad interim."
[5] The action proceeded to proof before me in October 2003. At the conclusion of the proof I indicated that I would delay issuing my Opinion, until I had been advised of the outcome of proceedings that were currently taking place before a Sheriff. Those proceedings were appeals by the defender, under the provisions of section 51 of the Children (Scotland) Act 1995, against decisions by a Children's Hearing to impose Supervision Requirements in respect of both children. The terms of those Supervision Requirements are such as to prevent the defender from having physical contact with either of his children. The Supervision Requirements also provide that any contact between the defender and the children, by letter or by telephone, must be at the instigation of the children. By letter dated 29 April 2004, my Clerk was advised by the pursuer's solicitors that on 29 March 2004 the Sheriff had refused the appeals at the instance of the defender.
[6] As I have indicated, the defender is French. He has lived all his life in France, where he is employed by a major French bank as a "middle manager". The pursuer was born and brought up in Scotland. She is now employed as a teacher. After she graduated from university, the pursuer went to work in France, where she met the defender. The parties lived together for a while, before they married on 5 June 1993. The parties separated in July 1998, when the pursuer left the matrimonial home. When the pursuer did so, she took the children with her. She then raised proceedings in the Tribunal de Grande Instance de Pontoise, France, in which, on 24 September 1998, a Family Court Judge made an interim residence order in favour of the defender, in respect of the two children. Following the making of that order the children returned to live in the matrimonial home with their father. Further orders by Family Court Judges, dated 12 November 1998 and 9 September 1999, confirmed that the children should reside with the defender and that the pursuer should continue to have contact with them. On 5 October 1999, the pursuer marked an appeal against the decision of 9 September 1999. A hearing date for the appeal was allocated for 27 March 2000, before the Cour d'Appel de Versailles.
[7] On 7 November 1999 the two children were delivered to the pursuer for a period of contact with her. They were due to return to the defender on 12 November 1999. They never did. After engaging in certain discussions about the children, with the police and the public prosecutor, the pursuer left France on 4 December 1999. She took both of the children with her. She brought them to L, where her parents reside. The pursuer and the children have been in L ever since.
[8] The pursuer's decision to remove the children from France appears to have been based, at least in part, on advice that she had received from her French lawyer, Maitre Sylviane Mercier, who, on 3 December 1999, telephoned the pursuer and recommended that she take the children to a safe place. Maitre Mercier also advised the pursuer that the best thing she could do was to leave France as soon as possible and take the children with her. The pursuer was also advised to seek legal advice in Scotland, in an attempt to "better protect the children".
[9] Since December 1999, the defender has not been allowed any face to face contact with the children. The last time the children were in his care was on 7 November 1999. He has had no contact with the children since, apart from a number of telephone conversations with his son, B Q, between May 2000 and October 2001.
Earlier proceedings in Scotland
[10] Following upon the removal of the children to Scotland, the defender petitioned the Court of Session, under Article 12 of the Convention on the Civil Aspects of International Child Abduction. He sought the return of the children to France. A hearing in that petition took place before Lady Paton during April 2000. The Opinion she issued, following that hearing, is reported as Q, Petitioner 2001 SLT 243. The defender's petition was refused by Lady Paton. I refer to the terms of Lady Paton's Opinion, in which she sets out her reasons for reaching that decision. In summary they were that the pursuer (who was, of course, the respondent in the petition proceedings) had established a defence in terms of Article 13(b) of the Convention, to the effect that there was a grave risk that returning the children to the defender in France would expose them to physical or psychological harm or otherwise place them in an intolerable situation. Having held that the defence of grave risk had been established, Lady Paton then exercised her discretion not to return the children to France.[11] The following month, on 10 May 2000, the Cour d'Appel de Versailles quashed the order of the Family Court Judge dated 9 September 1999. The Cour d'Appel awarded the pursuer inclusive parental authority over the two children, fixed their usual residence as being the pursuer's home in L and ordered that the defender could exercise visiting rights in Scotland "in a specialised centre in the presence of social workers, expert in child protection, or psychologists".
[12] On 8 March 2001 the Tribunal de Grande Instance de Pontoise granted decree of divorce in the action the pursuer had raised and awarded custody of the children to the defender. The pursuer appealed against that decision. On 20 September 2001 the Cour d'Appel de Versailles allowed the pursuer's appeal and ordered that the pursuer should have sole parental authority over the two children, that their place of residence be fixed as at the pursuer's home in L and that the defender should have visiting rights to the children in Scotland, at a specialised centre or in the presence of a trustworthy third party chosen by agreement of the parties, once a month from noon to 6 p.m. or as otherwise agreed by the parents. Despite extensive correspondence between solicitors acting for the pursuer and solicitors acting for the defender, no such contact has ever taken place. In June 2001 the defender raised a further petition in the Court of Session for enforcement of the divorce judgment and an order relating to parental responsibility. In that petition he sought to have enforced the order of the Tribunal de Grande Instance de Pontoise dated 8 March 2001. That order awarded him custody of the two children. Following that order being reversed by the Cour d'Appel de Versailles, on 20 September 2001, the defender consented to his further petition being dismissed.
[13] Going back in time slightly, to March 2000, in that month the two children were referred to a Children's Hearing by the Reporter to the Children's Panel. This occurred with the full support of the pursuer, who appears to have been acting on the advice of her Scottish solicitors. Although the pursuer has lodged in process a significant number of documents relating to proceedings before the Children's Hearing, most of these relate to the subsequent referrals, which were initiated by the Reporter to the Children's Panel on 2 August 2001.
[14] The precise reasons why the earlier referrals were departed from were not fully explored during the proof before me. By the time the further grounds of referral had been framed, the defender had initiated proceedings in France seeking the return of the children to his care, in terms of Council Regulation (EC) No. 1347/2000, "Brussels II". That may be one reason why further referrals to the Children's Hearings were deemed to be necessary.
[15] The further grounds of referral state that the defender had physically and sexually abused both children. They also referred to an incident, which was alleged to have occurred on 11 May 2001, when the defender and another male had gone to the pursuer's house in L. When the further referrals came before a Children's Hearing the grounds of referral were disputed by the defender. In view of that fact, the ages of the two children and the rights of the children to have the serious allegations relating to them examined before a Sheriff, the Children's Hearing referred the grounds of referral to the relevant Sheriff, for a hearing as to whether the grounds of referral should be held to have been established.
[16] In November and December 2001, a four day hearing, under Section 65 of the Children (Scotland) Act 1995, took place before the Sheriff. Subject to certain relatively minor modifications, the Sheriff held that the grounds of referral had been established. No. 6/6 of process contains copies of the formal orders made by the Sheriff, together with a Note summarising the evidence that was presented to the Sheriff and his findings in respect of that evidence. The defender chose to take no part in that hearing, for reasons he explained during the course of his evidence before me. Those reasons included that he had not been able to afford to bring from France the witnesses he would have wished to give evidence during the hearing. The potential witness had included friends, schoolteachers of the children and doctors.
[17] The two children have remained under the supervision of the Children's Hearing since December 2001. Supervision requirements have been renewed in respect of both children. By virtue of conditions attached to those supervision requirements, the defender has been prevented from enjoying any contact with them.
Procedural matters relating to the proof
[18] The proof before me began on 21 October 2003. On that occasion the pursuer was represented by counsel and solicitors. The defender appeared on his own behalf.[19] At the outset of the proof, counsel for the pursuer sought leave to amend the Record in terms of a Minute of Amendment. This Minute of Amendment sought to introduce the following averments into Article 3 of Condescendence:
"On or around 7 October 2003 he (the defender) entered the grounds of the children's school in L, and attempted to enter the school. He loitered outside the after school club."
Counsel explained that a copy of that Minute of Amendment had been e-mailed to the defender the previous week. Secondly, counsel sought leave to call as an additional witness, E S, who was employed at the after school club. Thirdly, she sought to lodge an affidavit of Karen Sutherland, an employee of Brodies, who had transcribed a tape of a police interview of the defender. Fourthly, she sought to lodge a second inventory of productions containing a total of 14 productions. She explained that the inventory, but not the productions themselves, had been intimated to the defender during the course of the previous week.
[20] The defender explained that he intended to represent himself during the proof and that his command of English was sufficient to allow him to do so. He opposed the Minute of Amendment, on the basis that it dealt with events that were alleged to have taken place on the afternoon of 7 October 2003, at which time he had been flying from Prestwick Airport to France. He explained that there had been a hearing in the Sheriff Court in the morning and that following the hearing he had left Scotland to travel back to Paris.[21] The defender opposed the late lodging of the productions. He also opposed the late lodging of the affidavit, on the basis that he had not been given sufficient time to check the accuracy of the transcript of the police interview.
[22] The defender also explained that as far as the proof before me was concerned it would only be possible for him to be present that day, the first day of the proof. The defender explained that he would like to speak first in his defence. He explained that he had business to attend to in France and that he was unable to remain in Scotland for the duration of the proof. He explained that he also had to return to Scotland, within a few weeks, for the appeals before the Sheriff, to which I have already referred. He had only learnt during September that the proof in the present action was scheduled to last three days. I explained to the defender that there were difficulties in his giving evidence and then leaving the Court, but he was adamant that was the course of action he wished to follow.
[23] I adjourned briefly to consider the position and to enable both parties to do likewise. When the Court reconvened, counsel for the pursuer suggested that what the defender was doing was in effect making a motion to interpose his evidence during the course of the pursuer's case. She indicated that she had no objection to the defender doing so. She explained that if the defender then chose not to be present during the proof, that would be a matter for him. Evidence would then be led on behalf of the pursuer and that evidence would not be subject to cross-examination. Counsel submitted that it would be competent for me to proceed in such a manner. The defender, for his part, was content with counsel's suggestion. On that understanding of the wishes of parties, I agreed to proceed with the proof. I allowed the Minute of Amendment to be received and the Record to be amended. I allowed the pursuer to call the additional witness she wished. I also allowed the pursuer to lodge the further inventory of productions, on the basis that all of the productions it contained were, with the exception of the transcript of the police tape interview, documents of which the defender had already had copies. I disallowed the lodging of the affidavit relating to the transcription of the tape of the police interview. That was for two reasons, firstly, that the tape of the interview was already lodged as a production and could, if necessary, be listened to, and secondly, that the defender had not been given time to check the accuracy of the transcript that had been prepared. In the event, when the tape was played, it became clear that the transcript was not entirely accurate.
[24] The action then proceeded to proof. On the first day of the proof I heard the evidence of the defender. On the second day of the proof, I heard the evidence of the pursuer, E S, A V and V L. During the course of the second day of the proof, shortly before the Pursuer concluded her evidence, counsel for the pursuer sought to lodge an affidavit in the name of Maitre Sylviane Mercier, whose name appeared on the list of witnesses for the pursuer. Counsel indicated that Maitre Mercier was not going to be called as a witness. The affidavit was dated 21 October 2003, the first day of the proof. No mention of the affidavit had been made at the start of the proof, when the defender had been present. A copy of the affidavit had not been before me during the course of the defender's evidence. Many of the contents of the affidavit had not been raised with the defender during the course of his cross-examination. Having drawn attention to these points, I allowed the affidavit to be lodged, reserving all questions as to whether it would be appropriate for me to place any reliance on its contents in considering my decision in this case.
[25] On the third day of the proof, I heard evidence from the pursuer's mother. I then heard submissions from counsel for the pursuer.
The Law
[26] Before I turn to deal with the detail of the evidence that I heard, I should deal briefly with the law relating to the granting of interdicts of the nature that the pursuer seeks. At the outset of her closing submissions, counsel for the pursuer submitted that, if I was satisfied that the pursuer had established the facts that she had sought to prove, I would have 'no alternative' but to grant decree of interdict in terms of the first and second conclusions of the Summons. By this stage in the proof the pursuer had departed from the third conclusion, presumably because, if granted, such an interdict would have prevented the defender from attending the Sheriff Court, in connection with the appeals, at which, as a matter of law, he had a right to be present.[27] Counsel for the pursuer founded her proposition on a passage from Interdict in the Law of Scotland, Burn-Murdoch, at pp.102-103. However, such an approach is difficult to reconcile with the discussion of the relevant legal principles in the Opinion of Lord Macfadyen in Cunningham v Cunningham 2001 Fam.L.R. 11, at paragraph [8], in which, after referring to the cases of Gunn v Gunn 1955 S.L.T. (Note) 69 and Murdoch v Murdoch 1973 S.L.T. (Notes) 13, Lord Macfadyen said:
"In my opinion permanent interdict against molestation is a remedy that ought not to be granted lightly. Although the case of Gunn shows that it may be granted where there is reasonable ground for apprehension of future molestation, it also shows, and in my view Murdoch re-affirms, that it is an unusual remedy that the court will be slow to grant. I agree with counsel for the defender's submission that the practice of the court has not been relaxed in this respect. In assessing whether there is reasonable ground for apprehension of future molestation, the matter must in my view be looked at objectively and, in addition, past events must be viewed in light of any relevant change of circumstances since they occurred. In the present case, if one were to look at the matter from the pursuer's subjective point of view, it might be accepted that her apprehension that the defender may revert to his former behaviour should not be labelled unreasonable. But in my view, when the matter is viewed objectively, it is necessary to consider not only the defender's past behaviour, but the circumstances in which that behaviour took place and any changes in circumstances that bear on the likelihood of repetition. The defender's behaviour in the past was plainly unacceptable, and the grant of interim interdict clearly justified. Having seen the defender, however, I accept his evidence that the breakdown of his marriage, and in particular the loss of contact with his children, affected him badly. I have no reason to reject his evidence that matters were made worse by other stresses in connection with his business and his father's terminal illness. These considerations seem to me to go some way towards explaining, although not excusing his behaviour. My impression is that the defender is fully alive to how bad and how unacceptable his behaviour was. Although it might appear that his choice of language in describing his behaviour as 'less than good' was an attempt to minimise the seriousness of what he did, I do not interpret it that way. It seems to me to be more a reflection of his embarrassment, now that he has returned to his senses. It would, in my view, be uncharitable to suppose that the only reason for the improvement of the defender's behaviour latterly has been the bail condition prohibiting from approaching the pursuer. I accept the defender's evidence that with the passage of time he has become reconciled to the breakdown of the marriage and to the fact that the children will be resident with the pursuer. It is also in my view significant that arrangements for contact with the children appear now to be operating satisfactorily. I accept as sincere the defender's expression of hope that better relations between him and the pursuer can now be restored, if only in the interests of the children. In all these circumstances, I am not persuaded that there is as matters now stand a sufficient basis for reasonable apprehension of future molestation to justify me in granting the unusual remedy of permanent interdict."
Whilst that passage was obviously dealing with the granting of an interdict against molestation, in my opinion it is of some assistance in identifying the approach that I should adopt in considering whether or not to grant either of the interdicts that the pursuer seeks. In my opinion, that passage illustrates that counsel for the pursuer was in error in submitting that if the pursuer proved the facts she offered to prove, then I would have no alternative but to grant both of those interdicts. Equally the passage illustrates that counsel was in error in a further submission she made, which was to the effect that interdict should be granted if the evidence had disclosed a factual basis upon which it was reasonable for the pursuer to hold the views and apprehensions that she does. Both those propositions are inconsistent with Lord Macfadyen's analysis of the law, with which I agree and which I intend to follow. In my opinion it is perfectly clear that in considering whether there are risks which would warrant the pursuer being granted either or both of the interdicts she seeks, it is appropriate that I should consider the factual matters which the pursuer seeks to establish in evidence. I am, however, also bound to have regard to the evidence given by the defender, the whole facts and circumstances relating to the parties' separation, including what has happened since the time of the separation, and the history of the litigation that has subsequently ensued. Having considered all those issues, it is appropriate that I should then consider whether, viewed objectively, there are reasonable grounds for apprehension that the defender will (a) remove (or caused to have removed) either or both of the children out of the care and control of the pursuer and from Scotland or (b) molest the pursuer by threatening her or using violence towards her.
The chapters of evidence
[28] There are clearly a number of chapters of evidence, to which I should have regard. In the first place there is the whole background to this present action, including the protracted litigation in France and the proceedings which have taken place in Scotland, before the Children's Hearing and the Sheriff. The proceedings in Scotland have, of course, followed upon the pursuer's return to Scotland, after her French lawyer had advised that she leave France and take the children with her. There is really no dispute between the parties as to the history of the legal proceedings in France and Scotland. Those proceedings have been protracted and complicated. In different ways they must have been stressful to both parties. Whatever the proceedings may have achieved, they have not brought about a permanent resolution of the dispute between the parties as to whether the defender should have contact with his two children. Beyond that, it would be inappropriate for me to comment on the history of those proceedings. The current state of the proceedings in France is that the pursuer holds a decree in her favour, dated 20 September 2001, which provides that she should have sole parental authority over the children and that their place of residence be fixed as her home in L. As far as the proceedings in Scotland are concerned, the children remain under the supervision of the Children's Hearing, on the basis that they reside with the pursuer and do not have any contact with the defender.[29] The second chapter of the evidence I deal with is the incident on 11 May 2001, which undoubtedly precipitated the raising of the present action. The pursuer's averments in relation to this incident are to be found in Condescendence 3. She avers inter alia that the defender and another man tried to force their way into her house in L, shortly after she and the children had returned to the house late on the afternoon of 11 May 2001. I heard evidence relating to the events of that day from the defender, the pursuer and the pursuer's mother. I was also invited to rely on the contents of an affidavit of PC Derek Rose. This affidavit had been sworn on 10 October 2003. No explanation was offered as to why Constable Rose had not given evidence in Court. That was unfortunate, not least of all because the affidavit included hearsay evidence of the views of a solicitor, who was in May 2001 a partner in the firm of solicitors acting for the pursuer in the present action. The former solicitor was not called to give evidence either. The papers before me include a statement, which the defender's sister had prepared and signed in February 2002. That statement dealt briefly with the events of 11 May 2001, but in view of the age of the statement I did not find it appropriate to place any reliance on its contents.
[30] A further factor, which I consider to be relevant to an assessment of the pursuer's reaction of the events of 11 May 2001, was that shortly after that incident occurred, the pursuer received delivery, at her parents' house, of a hand-written fax message from her French lawyer. The existence of this fax message only came to my notice during the course of the pursuer's evidence, when she mentioned it. The fax message had not been lodged as a production, although a copy of a printed tract entitled "Les pères de Pontoise", which had been faxed to Scotland at the same time, had been (No. 6/15(m) of Process). For whatever reason, no mention of the existence or the content of the fax message had been raised with the defender, during the cross-examination of his evidence on the previous day. The fax message (as translated) was in the following terms, it having been addressed by Maitre Mercier to the pursuer:
"Dear Madam,
Here is the pamphlet that has been distributed in all the Advocates' pigeon holes in the private offices of the Order of Advocates.
You will note that it is a matter concerning Mr C.
This means that he indeed belongs to a group (which defends paedophiles and incestuous fathers with gangster methods).
You should anticipate a 'commando' of those individuals at the Versailles Court, as for other cases ... and therefore make provision for your security to come and leave again without mishap. Do not announce when you are coming and the flight times on the telephone. It is not a paranoid piece of advice.
Have someone accompany you and we will arrange to meet in Versailles before.
Yours faithfully"
[32] As far as what happened on 11 May 2001 is concerned, there is a measure of agreement and a measure of disagreement between the parties. It was clear from the evidence of the defender that he, his sister, F C, and another French man, F D, went to the pursuer's house in L during the afternoon of Friday 11 May. When they arrived there, the pursuer was not present. They were seen in the vicinity by a neighbour of the pursuer, A V. On her way into the house the pursuer had seen a man, who she did not recognise, walking the street. She indicated that she had noticed the smell of French cigarettes, which had made her suspicious. After she got into the house she locked the door. Shortly after the pursuer returned home, with the two children, the defender and F D went to the front door of her house. The children had then drawn to her attention that someone was at the front door. She looked through a glass panel and saw a person with a blue fleece, which was what the man in the street had been wearing. She decided to put the chain on the door before opening it. She said that she had then opened the door and asked who it was. The man had indicated he was her neighbour. She had told him she knew he was French and that he was not a neighbour. She maintained that he had tried to force the door open, saying that he was a French policeman. She then saw her husband and said that two men were trying to push open her door. The chain, however, held. She admitted that during the course of this incident she had tried to hit the hands of one of the men with keys. After they left, she telephoned her parents and then the police. By the time the police arrived she said that she was holding a knife and a golf club. She explained that she thought that the defender and the other man had come to take the children away.
[33] The defender for his part said that he had come to Scotland with his sister, in order to try and see the children, who he had not seen since November 1999. After they had arrived in Scotland they had met F D, whilst they were having a meal in a restaurant. The three of them had gone to L in an effort to see the children, either at his parents-in-law house, in the street or near his wife's flat. When they had arrived at the pursuer's flat, she had not been there. They sat and waited and saw her arriving in the car with the children. They had decided to let her enter the flat, with the children, before approaching her. They then went to the door. F D had explained that the defender was there and would like to see his children. The pursuer had refused to let that happen. She had then opened the door with the chain secured. Through the opening in the door, they could see that the pursuer had a knife. The defender reached the view that at that stage he could not reached any agreement with the pursuer. She was screaming. They had accordingly decided to go back to the car. The following day he had sought to return to France with his sister. He had been detained at Glasgow Airport by police officers, in connection with a charge of breach of the peace. He was arrested and taken to a Police Office, where he had been interviewed under caution. On the following Monday, the police had taken him to the Sheriff Court. He had, however, been released from custody, without making any court appearance. No criminal proceedings had been taken against him.
[34] During the course of cross-examination of the pursuer, certain excerpts of the tape of the police interview were played. Those excerpts included that part of the interview which bears to have been transcribed on page 12 of No. 6/28 of process. In her closing submissions, counsel for the pursuer submitted that what could be heard on that part of the tape proved that the defender had lied during the course of his evidence, when he had denied that F D had explained as soon as he went to the door that he was a French police officer. After listening to the tape, the defender's evidence was that something had been said by F D about his being a police officer, but that had occurred not at the start of the incident, but when he and F D were leaving.
[35] The evidence of the other witnesses, who gave evidence about 11 May 2001, added little to the picture of what had happened that day. A V, a neighbour of the pursuer, saw two men hanging around the parking area, near the pursuer's flat, during the course of the afternoon. Sometime later she saw the men near a parked car, with a lady in the back seat. The same afternoon, V L, another neighbour of the pursuer, heard raised voices, which caused her to look out the side window of her own house. From that position, she could see three people at the pursuer's front door, which was slightly ajar. She said that one of the voices she heard was a female voice, which was agitated and obviously upset. The witness could not see the pursuer. Within a couple of minutes, the three people had left.
[36] The pursuer's mother, gave evidence of having received a telephone call from the pursuer shortly after 6 p.m. on 11 May 2001. The pursuer had been very distressed. The pursuer had told her that the defender had been at the door and had asked her to come round to her flat. When she and her husband arrived at the house, they had discovered the pursuer standing in the hall of her house holding a golf club. The pursuer had been so upset, she had been unable to speak. She described the children as having been cowering in a corner. The affidavit of PC Derek Rose described the situation he found when he arrived at the pursuer's flat and what he had been told by the pursuer, her parents and others. PC Rose, however, did not play any part in the detention, interview and arrest of the defender.
[37] Having considered all the evidence relating to the incident on 11 May 2001, I have no doubt that the pursuer genuinely believes that the defender came to her house that day, with the intention of removing the children and taking them back to France. The arrival of the defender at her front door was obviously unexpected. Against the history of what had happened since she and the defender separated, including her own actions in removing the children from France, the judicial rulings, as at 11 May 2001, in the extensive legal proceedings in France and Scotland and the advice and information being provided to her by her lawyers, it might indeed be surprising if she had thought otherwise than that had been the defender's intention.
[38] In the present proceedings, however, it is for the pursuer to prove, on the balance of probabilities, not only what the defender did that day but what, as a matter of inference, his intentions were. And on those issues, I require to have regard to the defender's evidence, as well as the evidence tendered on behalf of the pursuer. Having considered all the evidence before me, I have reached the conclusion that the pursuer had not established that the defender, his sister and F D went to the pursuer's house on 11 May 2001, with the intention of permanently removing the children from her care. As I have indicated, there is no dispute that their arrival that afternoon was unannounced. There is no dispute that the pursuer opened the front door, whilst it was on a chain. There is no dispute that at some stage F D said that he was a French policeman. There is no dispute that she tried to close the door, after she discovered that the defender and another Frenchman were outside. There is no dispute that the men were trying to keep the door open, whilst an argument took place with the pursuer. There does not appear to be any dispute that at some stage the pursuer had a knife in her hand. There is no dispute that after a few minutes, the pursuer started screaming and the defender and F D left. However, it has not been established to my satisfaction that on 11 May 2001 the defender intended, let alone attempted, to remove the children from her care and remove them from Scotland. I accept his evidence that he went to the pursuer's house to see the children, who he had not seen for approximately 18 months, despite the terms of various orders of the French courts that he should have some supervised contact with them.
[39] The next chapter of evidence relates to the question of whether the defender was a member of or associated with a group of men, who are known as "Les pères de Pontoise". A number of productions were lodged by the pursuer as to the activities of this group, whose members include a number of men who have been involved in family law proceedings in the Court at Pontoise. Those men have been involved in litigation involving the care of and contact with their children. In a number of instances the mothers of the children involved have been represented by Maitre Mercier. Over a number of years, members of the group have maintained that false accusations of sexual abuse have been directed against them. They maintain that has been done with the intention of depriving them of their rights to look after and have contact with their children. It is clear from the documents lodged that members of the group have lodged a number of complaints against Maitre Mercier, with the President of the Val d'Oise Bar and the Ministry of Justice in France. It appears that they have also made complaints against various medically qualified personnel, who have provided reports in connection with allegations of sexual abuse, and that they have engaged with members of the media in promoting their concerns. The productions lodged include the photographs of the defender in the presence of members of the group.
[40] The defender for his part admitted being associated with the group. He gave evidence that it was no secret that he was involved with the group, the members of which were fighting to be allowed to see their children. He explained that he had been put in touch with the leader of the group. He had attended a number of meetings of the group. He had accompanied members of the group, when they had had meetings with an official of the Val d'Oise Bar and the Public Prosecutor, about Maitre Mercier. The defender has also been involved in letters sent to Government Ministers about the activities of Maitre Mercier. During the course of cross-examination of the defender, it was put to him that members of the group would do anything to see their children, including acting illegally. That was an allegation that the defender denied.
[41] Counsel for the pursuer conceded that there was nothing in the examples of the group's literature, which had been lodged as productions, that supported the contention that members of the group acted illegally. Very unfortunately, however, when Maitre Mercier's affidavit was lodged in process, the day after cross-examination of the defender, it became obvious that the affidavit contained serious allegations against members of the group. The terms of these had not been raised with the defender.
[42] One matter that was, however, raised during cross-examination was the suggestion that at some unspecified time before 17 May 2001, the defender had stated to a journalist, Claude Gilbert, that he would pay two other people to uplift his children from Scotland. When I intervened to ask for further specification to be provided to the defender, as to when and in what circumstances this threat had allegedly been made, counsel for the pursuer indicated that she was not able to put to the defender when this conversation had allegedly taken place and whether the alleged threat had been made by the defender over the telephone or during a face-to-face meeting. At that stage, I was, of course, aware that Claude Gilbert did not appear on the list of witnesses. I was also unaware of any documentary production, which supported the making of such an allegation. Reserving all questions of competence and relevance, I allowed the question to be answered. The defender indicated that it was a complete fabrication. He wondered whether this female journalist existed. Subsequently in the proof, I heard no evidence supporting the allegation that had been put to the defender.
[43] In her closing submissions on 23 October 2003, counsel for the pursuer referred to Maitre Mercier's affidavit. At that stage, she also tendered a faxed message from the defender, dated 23 October 2003, providing his response to the terms of Maitre Mercier's affidavit, which had been faxed to him the previous day. In his faxed message, the defender stated that the affidavit contained a number of false allegations.
[44] During the course of her submissions, I indicated to counsel for the defender that I had grave concerns about placing any reliance on the contents of Maitre Mercier's affidavit, having regard to the circumstances in which it had been produced on the second day of the proof and in view of the fact that the detailed contents had not been put to the defender in cross-examination. In the absence of any satisfactory explanation, as to why the affidavit, or a draft of it, (whether in English or French), had not been lodged earlier, I have reached the view that to the extent the affidavit contains matters, which are not confirmed by evidence from the witnesses who were called to give evidence, I should set aside and pay no attention to the contents of Maitre Mercier's affidavit. When a party is seeking a permanent interdict, which is an unusual remedy, it is not, in my opinion, appropriate to rely on evidence tendered in the manner in which the contents of Maitre Mercier's affidavit were placed before me.
[45] Having considered all the evidence I heard relating to the group known as "Les pères de Pontoise", I am not persuaded that the defender's membership of that group or his association with the members of that group assist the pursuer in establishing that I should grant the interdicts she seeks. Fathers, such as the defender, are perfectly entitled to join together and protest about such aspects of the administration of justice to which they object. Concerns of the nature of those raised by members of "Les pères de Pontoise" are raised by fathers in many European countries. Provided those who protest remain within the law, any embarrassment or irritation they may cause to the judiciary or individual members of the legal profession would not normally be of relevance and assistance in determining the merits of the individual cases in which members of such groups may be parties.
[46] Another related chapter of evidence (which was not actually mentioned in the pleadings) concerned the defender's admission that during January 2003 he had visited Scotland with a French film crew, who were preparing a documentary on the problems he had experienced in relation to his children. In relation to this chapter there was no dispute what the facts were. It was submitted on behalf of the pursuer, however, that the defender had been involved in intimidating his wife and children by seeking to film the school the children attended, the house where they all stayed and the town in which they all lived. I was invited to infer that the defender had done so because he was seeking to make personal contact with the children, contrary to the terms of the Supervision Requirements. I am not prepared to draw any such inference. On the basis of the evidence I heard about this visit, I do not accept that what happened during this visit provides any support for the contention that there is a risk that the defender will seek to remove the children from Scotland. I accept his evidence that he has no intention of doing so, without a Court order in his favour.
[47] A further chapter of evidence founded on in relation to the first conclusion of the summons relates to what is alleged to have happened on 6 October 2003. The evidence on this was foreshadowed by the Minute of Amendment, to which I have referred earlier and which alleged that something had happened outside the children's school on 7 October. In relation to this matter the pursuer relied upon the evidence of E S, who was a co-ordinator of the out of school hours club at the school. She explained that the C children go there every day and that they are picked up between 4.30 and 5.00 p.m. The club remains open until 6.00 p.m. E S spoke to leaving the club about 5.45 p.m. on Monday 6 October, when she saw a male walking across the playground. The pursuer had previously told her that the children's father might be around L that day. E S did not know what the defender looked like. She had, however, subsequently spoken on the telephone to A A, the mother of two other children, who had been in the after school club at that time. That mother had told E S that she had also seen a man outside the school and knew him to be the defender. E S had then telephoned the pursuer and told them what she had seen. For reasons, which were unexplained, A A was not called as a witness nor was any affidavit by her tendered in evidence. The defender for his part denied having been outside the school club. The evidence led and relied on by the pursuer in relation to what allegedly happened on 6 October 2003 has not persuaded me that I should disbelieve the defender's evidence that he did not go to the school that day. But even if he had done, for the defender to want to catch a fleeting glimpse of his children is one thing. To seek to remove them out of Scotland, so that he could care for them in France in breach of the order of a French court, is an entirely different matter.
[48] On the strength of all the evidence placed before me, including the documentary evidence in the form of affidavits and productions, I was invited to hold that there is a serious risk that the defender would remove the children from the care of the pursuer and remove them from Scotland and outwith the jurisdiction of the Court.
[49] The second conclusion seeks to have the defender interdicted from molesting the pursuer by acting threateningly towards her, by inciting others to act threateningly towards her, by placing her in a state of fear and alarm or distress and by using violence towards her. The factual basis for this conclusion appears to be what happened during the incident on 11 May 2001 and an incident at a Children's Hearing held in June 2002, at which the defender is alleged to have commented to the pursuer that she was a moron. It was also alleged that the defender had attended at a local police office and made a spurious complaint against the pursuer. In responding to those allegations, the defender stated that in France it is not regarded as being vulgar to say that someone is a moron. He denied having threatened to physically harm his wife in any way. Whilst he accepted having gone to the police station, to give a statement relating to the pursuer, that had concerned matters which he alleged had taken place prior to the date of their separation.
Decision
[50] Whilst I have little doubt that the pursuer genuinely believes that there is a risk the defender will interfere in her care of the children, I am not persuaded that such a risk exists. I have reached that view on the basis of the evidence led before me as to what has happened since the parties separated. In doing so, I take account of the fact that as matters now stand, the Order of the Cour d'Appel dated 20 September 2001 is to the effect that parental authority over the children is exclusively to be exercised by the mother, which is, of course, a significant change from the legal situation that prevailed on 11 May 2001. As at that date, the Order of the Tribunal de Grande Instance de Pontoise had been to the effect that the parental rights in respect of the children should be exercised by the defender and that their usual residence should be at their father's house. I also take account of the fact that perfectly understandably the pursuer's assessment of the situation may have been influenced, if only subconsciously, by the information provided to her by her French lawyer, her perception of what happened on 11 May 2001 and her own actings in having removed the children from France.[51] On the basis of the evidence placed before me, I am also far from satisfied that it would be appropriate to grant a permanent interdict along the lines sought in the second conclusion of the summons. The numerous court hearings and hearings before the Children's Panel that have taken place since the parties separated, no doubt have placed considerable strain on both parties. In my opinion, nothing that may have happened at the front door of the pursuer's flat on 11 May 2001 or may have been said by the defender at the Children's Hearing in June 2002 would warrant granting a permanent interdict in terms of the second conclusion of the summons. The evidence I have heard does not provide sufficient basis for reasonable apprehension that the defender will molest the pursuer in a manner that would warrant my granting the unusual remedy of permanent interdict.
[52] In these circumstances, I shall repel the first and second pleas-in-law for the pursuer, sustain the first plea-in-law for the defender and assoilzie the defender from the conclusions of the summons.
