Scottish Court of Session Decisions

 

OUTER HOUSE, COURT OF SESSION   [2006] CSOH 122
F32/05	OPINION OF LORD McEWAN   in the cause   McG   Pursuer;   against   McG   Defender:     ­­­­­­­­­­­­­­­­­________________

 

Pursuer: Mundy; Balfour & Manson, WS

Defender: Ms Dowdall; Mathieson Ritch, Glasgow

 

8 August 2006

 

[1] The pursuer in this action is the father of two young children. He is hereinafter referred to as "the father". He is aged 35 and lives at an address in Wallyford with his partner, SQ, who is aged 37. The two children are a girl, T, now aged 7 and a boy, C, aged 5. The father's partner was formerly married and has a female child, M, who is aged 5. The father and SQ have a son, R, born on 3 June 2006. The children T and C live with their mother (hereinafter referred to as "the mother") at an address in Crookston near Glasgow. The mother is aged 26 and lives with her partner, WM, who is aged 42. The mother and father remain married to each other but divorce proceedings are pending. The only issue before me is whether the father should have a residence order to both his children and if not, what should be the proper arrangement for contact. The parties are very much at arm's length and unable effectively to communicate. The evidence disclosed an atmosphere of hostility and distrust. Although both parties had parents alive, the older generation had been forced to take sides and could not mediate in the best interests of the children.

[2] The evidence divided fairly easily into chapters viz the breakup of the marriage in July 2004 and a subsequent arrangement for joint caring; the disappearance of the mother and the children in November 2004; the resumption of contact in May 2005 and events following the first diet of proof in April 2006. Most of the facts were either agreed or not seriously disputed. The father and SQ gave evidence, as did the mother and WM. There were affidavits from two grandparents (somewhat dated now) and a school teacher and a very comprehensive report from Miss Stirling, the Court Reporter.

[3] I found it established from the evidence of both the father and mother that the marriage became unhappy in 2004. The reason for this was not clear and was not explored in any detail. In July 2004, the mother left the matrimonial home in Wallyford and did not return. She left the children with the father. I find that at this time she was already associating with WM. Two weeks after she left the father, the mother wrote the letter No 6/4 of Process. He found it in his home. I need not narrate the letter here. Part of it is averred on the Record. Suffice to say that it is fulsome in praise of the father as a parent. The mother said she had written it two weeks after the separation and when she was very unhappy. It must have been a bitter blow for the father to receive it, whatever it said. As the summer went on, the parties split their time with the children. During the week, the father would have them two days one week, three the next and the mother the same. Weekends were taken alternately. The mother was living with her parents in Wallyford and their home is only five minutes walk from the father's. For a time, this arrangement worked well. The father then met SQ whom he had known many years before. She had been married and divorced and had recently returned from Italy to Gullane. They began a relationship a few weeks after meeting in September 2004.

[4] It is convenient here to look at what is averred on Record in Condescendence 3.1 and 3.2. It is said that some of the difficulties in the marriage were related to the need to discipline the child C. The system of discipline (which resulted from a medical referral and which endures to this day) was described by the father as a two warning regime and then if C continued to misbehave; he was made to sit on the stairs as a "time out". It may seem strange and unusual but it appears to work. It is my impression from his evidence that the father took this discipline more seriously than the mother, but I doubt that it really contributed in any way to the end of the marriage. That was probably due to the appearance of another man in the mother's life.

[5] This uneasy arrangement with the children continued until November 2004. I held it proved (evidence of the father, mother and WM) that at some point WM lived with the mother at her parents' house in Wallyford. His presence exacerbated an already difficult situation. The Record (Article 3.4) avers that on Thursday 18 November 2004, there was an incident involving the father and WM when words and threats were exchanged and the father's car was damaged. The police were called. The father gave detailed evidence about what he said had happened and when WM gave evidence he was only asked about it in cross-examination. There is no independent evidence to support either conflicting account. I do not consider it necessary to make any finding about this matter. In the first place, I do not think that it is important in itself or to what I have to decide. The following day a more important event occurred.

[6] On Friday 19 November 2004, the pursuer said that both T and C were delivered to him later than usual. Now the normal arrangement would have been for the father to drop them off on the Monday following at their grandparents before he went to work. The mother, however, sent a text message to say she wanted them back on the Sunday. The father refused by text. According to his evidence, which I accept, the children were fighting and C was on "time out". Shortly thereafter, the mother came back to the home and a row developed on the doorstep. On Record and in her evidence, she alleged that the father pushed her and punched her. I do not believe this. The father said that the mother was shouting and swearing and tried to push open the door. The child C was crying. He said, and I believe him, that he closed the door on her to end the argument. SQ was in the house and saw what happened. Her evidence supports the father and I believe it. It is not disputed that the police were called and statements taken. Nobody was charged.

[7] On the Monday, the father took T and C to their grandparents. He never saw them again for six months, and in spite of his many efforts, the mother refused to say where they and she were. From her own evidence, I hold that she planned all of this. What happened thereafter is not disputed and I take from the mother's own evidence.

[8] WM was unemployed. He and the mother were living in homeless accommodation in Port Seton. After school on Monday 22 November, the mother took the children to Northern Ireland for three weeks to stay at the home of WM's sister. Thereafter all returned to Glasgow, living first in Ibrox for some months. Thereafter they lived in the Shieldhall area and finally moved to their present rented address (noted on the amended Record) in 2005. The present house is newly built. The mother did not tell the father that she intended all of this, far less where she was. She did not even tell her own parents, at first, but soon told them she and the children were safe and well. One cruel consequence of all of this was that the father spent a very unhappy Christmas in 2004, not knowing where T and C were. I am strongly critical of the mother's behaviour over all of this and her intransigence continued in 2005 as she had to admit in evidence.

[9] What then happened is even more extraordinary. The father said that he had to report his wife and the children as missing. He made inquiry of the school in case their records had been requested. In March 2005, the father received notice of an action of divorce raised by the mother in Glasgow Sheriff Court. The police also made him aware that the mother had taken the children to a police station to show that they were alive and well. By this time, the father was aware they were in Strathclyde (see Nos 6/7 and 6/8 of Process). The father's mental welfare had deteriorated and he was unable to work. He had to raise the present action in the Court of Session with the mother's address as unknown. It only became known to me when I insisted upon its disclosure at the first diet of proof and it was finally amended on to the Record at the hearing on evidence.

[10] On 21 April, the father enrolled for contact and Lord Brodie heard the motion. A Reporter was appointed and I have read and considered her very full report. Moving slightly ahead, a detailed residential contact order was made by Lord Hodge on 30 June effectively for alternate weekends. The father, however, had to collect and redeliver the children at a neutral point in Glasgow. This he duly did and contact took place. Accordingly, the children have to make the round trip from Govan Cross to Wallyford and back every other weekend. The father has to do all the driving. I will return to this matter shortly.

[11] However, before contact was regularised, the father was allowed to see the children on 7 May 2005 at the Glasgow Contact Centre in Renfield Street. Contact was for a short time and was fraught. He took about six other relations with him. No doubt they were all anxious to see T and C but in my opinion so many was unwise. The mother and WM were of course there and when the father and the others took the children for a walk, he thought WM was following him. The mother and WM denied this and said they went away in a bus. What happened next was that the father received a threatening call on his mobile phone to the effect that he would never see his children again. The pursuer's mother overheard the threat (see her affidavit - No.6/6 of process) and the parties then reported it to the police. The father considered the threat had been made by WM but he and the mother denied it. I think that the pursuer has proved that somebody made the threat but on the evidence I cannot hold that it was WM on the other phone.

[12] Before returning to contact, there is another matter which I should note, as it was not disputed. It concerns the matrimonial home in Wallyford. By 2005, the pursuer and SQ were living together there. The house had to be sold and the pursuer wanted to sell it to the Local Authority who would have allowed him to remain as a tenant. The defender would not agree to that and as a result the house was sold on the open market late in 2005. This had two consequences. The pursuer and SQ became homeless and had to live in temporary accommodation until their present house was built. They were only able to move there in March 2006. The other consequence is that there remains a sum of money which both parties will eventually have to share. There exists, unsurprisingly, a dispute about it.

[13] I now resume consideration of contact. It has to be appreciated that the only communication the parties have with each other is through solicitors. This is depressing and leads to continual problems over dates of residential contact and other necessary arrangements. Late in the day, both acknowledged that they would have to seek the help of the mediation services. The burden of the contact arrangement fell on the father and he is to be commended for making the arrangement work. There were problems. At times traffic was heavy and he might run late. I hold it established that he kept the mother informed about this. I also accept the father when he said that there were some cold and hostile exchanges at Govan Cross, especially when WM was present. I am sure the children were aware of this. While the mother did not frustrate contact, she did very little actively to encourage anything beyond what the court allowed. That was the situation faced by me at the first diet of proof in April 2006. I indicated that I was not content with the existing arrangement having heard the evidence I have just described. For example, the pursuer said that he often returned the children to Glasgow on Sunday evening only to find on Monday that the defender had brought them back by car to Wallyford to see their grandparents. At the end of the second day of proof, the pursuer moved a variation to request that the mother deliver them to Wallyford and he would return them. The defender did not willingly agree to this proposal which would have shared the burden. Through her counsel, she said that she did not want the pursuer coming to her home and that she could not afford to take the children by road or rail. I found all of this unconvincing. The defender had chosen to go to live in Glasgow away from her own family and most of the children's relatives. I accordingly varied the contact arrangements to make her responsible for delivery in Wallyford. I also indicated that I wanted to be told on 4 July that the arrangement was working.

[14] On four occasions contact has happened. Since all of these are recent events there are no averments on Record as to what happened. I only heard from the parties SQ and WM. The evidence was conflicting and it would have helped to have had an independent view. Witnesses who could have been called were not. I suspect that any difficulties were more apparent than real and the ongoing hostile exchanges soon forgotten. On 5 May, contact took place. I am prepared to accept that when the children were handed over in a kind of "no man's land" at the end of a vennel that voices were raised. The pursuer and SQ said WM was there and swore and issued threats. The defender and WM denied it. I have no independent corroboration and can form no view. It is something and nothing. There was contact on 19 May but again the pursuer had to do all the driving. The defender said her car had broken down. On 2 June, there was an alleged incident with the defender's father involving the Wallyford Gala day and a problem with what shoes T was to wear at the Gala. Once more a number of independent people must have heard and witnessed events but were not called. Again it is something and nothing. That night the baby R. was born. On 16 June, contact was successful. I hold it proved that the defender refused the pursuer contact to C on his birthday. The father was, however, allowed to phone his son.

[15] There is one final matter over contact which needs mentioned as it is illustrative of the attitude of the parties, especially the defender. During the continued proof in July, it became apparent that the defender and the children were living in Wallyford at her parents' home. The father was not offered any contact by the mother. I insisted that some contact take place and this happened without difficulty on Thursday 7 July.

[16] I now move to consider the accommodation each party can offer and the respective merits of Wallyford over Crookston. The defender's home is recently built. It is in a cul de sac. There are three bedrooms and each child has their own bedroom. It has a secure rear garden. Both children have friends of their own age in the area. The defender and WM spend time with the children and share cooking, cleaning, playing with and reading to the children. They are taken to parties and a nearby park. They also have a new extended family. WM has a mother and sisters who have children. Obviously, when the defender takes the children to her parents in Wallyford, they see her sister and brother and cousins. The girl T, has started brownies and dancing classes. WM has a child, G, (now 12 years old) from a former relationship, whom he brought up. He has contact with her regularly.

[17] Something should be said here about the suggestion made by the pursuer that the children have been in betting shops and public houses. The pursuer blames WM for this. However, the source of this belief is chance comments made by the children. For example, C is alleged to have been somewhere where there were televisions showing horses. I attach little importance to the alleged remarks of the children to either party. Such remarks are hearsay, uncorroborated and cannot be cross‑examined. At best, they are unreliable. Also, it is well known especially in cases like this that children can be "coached" to pass on the opinion of a parent or to say what the other party does not want to hear. At other times, children of that age can simply have a vivid imagination. In this case, I do not accept what the pursuer has said. I am certain that it stems from his intense dislike of WM. I believed the defender and WM who said that the children have only been on licensed premises when all were there for a meal. C has, it was accepted, been in a snooker hall when he may coincidentally have seen horse racing on TV.

[18] The accommodation in Wallyford is comparable but in some ways less satisfactory. The pursuer's house is newly built and is in a safe environment. There are three bedrooms. The pursuer and SQ share one with the baby R. M sleeps in another one. When contact takes place, T shares with M and at present C has his own room. When R is old enough, he will also have that room. Should the children go to Wallyford, the sleeping arrangements on a permanent basis would be cramped as the children grow up. I have no doubt they work well at contact time.

[19] I accept that the playing and social facilities in Wallyford are good. C and T would be closer to most of their extended family. The pursuer strongly emphasised this in his evidence, yet the proof disclosed at least two unfortunate features. He is estranged from his own father and has some ongoing problem with one of his sisters.

[20] What of education? The children have not been to school in Wallyford since they left. However, the evidence shows that there is a perfectly good primary school there and I do not doubt that they would both settle there (see 6/18 of Process). At present they go to a primary school and nursery in Glasgow (see Nos 6/13, 6/15 and 6/20 and 6/21 of Process; also 7/8, 7/1 and 7/5). It is clear that both children are doing well at school. Something was made about school absences. They do appear to be significant but in the context of a disrupted family and the problems of contact, I do not think it is demonstrated that they are excessive or causing any problem with ongoing education.

[21] There was a short hearing on evidence and the arguments of the parties may be summarised thus.

[22] Mr Mundy moved me to grant a residence order and then put the case out By Order for a further hearing on contact. He suggested, and I agree, that both children are too young to be interviewed. Counsel took me to the Children (Scotland) Act, 1995 Section 11, and referred me to the case of White v White 2001 SC 689 at 698/9. Past events were only relevant insofar as they reflected on the parent's capacity. The behaviour of the mother in going to Ireland was wholly irresponsible and even now she would not accept that she had been foolish to disappear for so long. Counsel said that there had to be a change now for the children; the mother should move back to Wallyford and shared care be reinstated. That would obviate all the travelling. The father was the more likely to act in their best interest. All of their family were in the Wallyford area and a better life was to be had there. The mother had shown that she would only obey court orders and when forced to do so viz the arrangement imposed on her in April. At one stage she wanted contact to cease (see No 16 of Process at page 32). She had shown herself to be untruthful or at least deceitful in the letter No 6/4 of process. The Court Reporter had disbelieved her in part. The school attendance figures in Glasgow were not satisfactory. The defender was mainly to blame for any recent access problems in Wallyford.

[23] For the mother, Miss Dowdalls said that the children should remain in Glasgow with the defender and WM. They were settled in a new home and progressing well at the same school. In 2004, they were not at school and although shared care worked for a few months it was not an option now. The defender had no intention of leaving Glasgow and the children had not now lived in Wallyford for almost two years. There was no evidence that the children were suffering in any way or that they were not well cared for. They had more space in their present home; contact was ongoing and of benefit to the children. It had to be recognised that the pursuer's circumstances had changed since 2004. Shortly after the defender left, he began living with another woman and she would be the main carer of the children if they were to reside in Wallyford. SQ had two children of her own, one very young. T and C had not lived with that family. It was also likely that the pursuer would resume work soon which would put an extra burden on SQ.

[24] The mother had been the main carer of the children since birth. Although her parents lived in Wallyford, the father now had no happy relationship with them as evinced by the Gala day episode. Both parties were at fault over contact, largely due to an unwillingness or inability to communicate. Summer contact had been resolved. The children should suffer no further avoidable disruption. The mother should not be punished for any past misdemeanours. That would be to penalise the children and conduct an experiment on them. Residence to the pursuer should be refused, and the court should regulate contact with or without mediation.

[25] What then is to be done? In my view, much of the evidence relating to the present is fairly evenly balanced. For example, I am sure schooling and general amenity comes out even between Glasgow and Wallyford. Neither the pursuer nor WM are working at present, although both indicated that they intend to do so when matters settle down. It is a matter of great concern that the parties do not communicate in a way which is to the benefit of the children. Children apart, and having seen them both in the witness box, I suspect that there is something very deep seated wrong with their relationship. The matter was not investigated in this process, and I can only hope things will improve. The various estrangements within Wallyford are unhelpful at the present time.

[26] I do not think I can or should attach great importance to past events or the problems of contact. In this latter respect, I am sure there have been faults on both sides. As I have stated earlier, I have only heard conflicting accounts from both sides and without some independent witness, it is almost impossible to make sensible findings on credibility. It is quite clear that other people witnessed some of the events spoken about but were not called. I can only hope that the contact ongoing as this opinion is being written will work; and I will review it later this summer.

[27] Something was said about the Report No 16 of Process. It is an excellent report and I compliment Miss Stirling. It is quite true that she found the defender untruthful in part but the same could be said of the pursuer. The report is now dated and, for that reason alone, it cannot be decisive for present purposes. What is decisive, in my opinion, is the home environment. The defender, for all her faults, has been the principal carer of the children since birth. They are well looked after and are thriving. They appear to be fond of WM and he of them. Their schooling is satisfactory. They do have better accommodation in Glasgow, each with their own bedroom. The defender intends to stay in Glasgow.

[28] On the other hand, if they were to move to Wallyford, they would have less accommodation and T would have to share a bedroom. Also, they would be growing up in a new family to which they would be unused. SQ was a good witness, but I think caring for four children is not a burden she should be asked to bear at this time, especially if the pursuer went back to work. It is my opinion that it is in the best interests of T and C to grow up together and remain where they are in Glasgow. I have been critical of the defender over her behaviour in 2004/5. I have confidence that no such wanton act will ever be repeated. She must now be well aware of what would be the consequences.

[29] I will accordingly refuse the first conclusion of the summons and find it unnecessary to deal with the second and fourth conclusions. I will repel the pursuer's first, third and fifth pleas-in-law. I will sustain the first, third and fifth pleas-in-law for the defender. Quoad ultra I will put the case out By Order on a date to be fixed for further discussion on contact and disposal of the remaining pleas-in-law.