S R v. S M M [2010] ScotSC 158 (14 September 2010)

F51/10 S R v S M JUDGMENT OF SHERIFF RICHARD A DAVIDSON

In causa

S.R...........................PURSUER

Against

S.M.M.......................DEFENDER

Act: J. Ferrie

Alt: Mckinnon

Dundee, 14^th. September, 2010 The sheriff, having resumed consideration of the cause, finds the following facts admitted or proved:-

1. The pursuer is S R, a 22 year old unemployed joiner, who resides with his parents in St. Cyrus, Angus.

2. The defender is S M M, also 22, a housewife, who now resides at in Dundee.

3. The pursuer and the defender are the biological parents of N L M, who was born on 6^th. October, 2007.

4. The birth of said child was registered in Dundee on 10^th. October, 2007 by the defender. The pursuer played no part in that process and is not registered as the father of the child.

5. The defender and the child both reside within the territorial jurisdiction of this court and the pursuer resides otherwise within the Sheriffdom of Tayside, Central and Fife.

6. There are no proceedings in any other court relating to the welfare of N L M.

7. The pursuer and the defender met when they were both students at Angus College in Arbroath. They formed a relationship in the course of which they regularly had sexual intercourse. While they spent time in the homes of their respective parents, prior to the birth of the child, they never cohabited in the sense of living together as partners. The relationship, even prior to the birth of the child was volatile, and punctuated by periods of time when there was no contact between the parties.

8. The birth of the child was unplanned and occurred at a time when the defender was using contraception (being on a course of contraceptive tablets.)

9. The pursuer was not present at the birth of the child nor in the days immediately thereafter, this being one of the times when there was no contact between the parties.

10. The pursuer was seriously injured in a road traffic accident in Angus. He suffered multiple fractures and severe scarring to his neck. He was admitted to Aberdeen Royal Infirmary and detained for several days. The precise date of the accident was not established but while he was in hospital he was visited by the defender. The child was about six weeks old at this time which suggests the accident occurred in mid to late November, 2007. The result of the visit to hospital was a resumption of relations between the parties and the pursuer spent two or three days residing in the defender's mother's home shortly after his discharge from hospital. This was his first encounter with his daughter. Thereafter and for about a two month period, the pursuer would come and spend the weekend at the defender's mother's home in the company of the defender and N.

11. The defender terminated these visits on discovering that the pursuer had had sexual relations with another woman while she was pregnant with N.

12. Prior to the birth of the child, the pursuer had abused cocaine and had kept company with other young men in the Montrose area who also abused cocaine including one John Stewart. He would abuse cocaine while driving and, while under its influence, drive at high speed and perform dangerous manoeuvres. This included at least one occasion when he had performed a manoeuvre known as a "doughnut" in which the car was spun repeatedly on about the same axis, while N was in the car, at the conclusion of which the defender removed N from the car and refused to re-enter it until she extracted a promise from the pursuer that he would never do this again. The defender's ascription of the expression "boy racer" to him was apt. She had on at least one occasion been in his car when he and John Stewart had both snorted cocaine and he had then driven. She had been in his car on numerous occasions when, on single carriageway roads around Montrose and St. Cyrus, he had driven at speeds in excess of 70 miles per hour. On occasions, when she had asked him to moderate his speed because she was afraid, he had increased his speed. She had complained to his mother about his driving behaviour, including later at times when N was also in the car, to no avail. The pursuer had a number of motoring convictions, particularly for speeding and for driving with a bald tire, and had been disqualified from driving for a period. He currently has nine penalty points on his driving licence.

13. Some time after the termination of the visits of the pursuer to the defender's mother's home in Dundee, the relationship resumed and the defender and the child would on alternate weekends, come and reside in the pursuer's parents' home in St. Cyrus. This was not a clean house and the defender felt obliged to clean the bedroom that she and the child were to occupy and the bathroom she and the child were to use on each occasion on which they stayed there. The pursuer's father was old fashioned, maintaining the belief that children should be seen and not heard, and shouted at the child, once she began to both crawl and walk, not to touch his belongings, causing the child to become upset. The pursuer's mother's principal interest in the child was to show her off to her friends. During these weekend visits, the defender and the child spent most of the time in the bedroom allocated to them except when they accompanied the pursuer and his mother on trips to the local shops. The pursuer spent these weekends visiting his friends or repairing his car. While there would be sufficient accommodation at this house for overnight residential contact, the condition of the house is unsatisfactory for a young child. Hygiene standards were low.

14. There were differences between the parties about the care of N. The defender did not believe in leaving the child, who was still a baby at the material time, to cry whereas the pursuer insisted that she should. The pursuer believed that to participate in bathing his infant daughter or changing her nappy would be "to act like a paedophile," while the defender longed for some assistance in the tough task of caring for her first infant child. The pursuer's father would not tolerate nappies being changed in his presence and the defender and the child had to retreat to the bedroom to carry out this exercise. On the odd occasion on which the pursuer attempted to put clothes on the infant child, he was inexperienced, rough and impatient with her.

15. After a period, these contact visits to St. Cyrus ceased. However, in about June, 2008 when N was about nine months old, the pursuer obtained the tenancy of a property in Ferryden, Angus, and the parties and N moved into the property. While living in Ferryden, the defender became friendly with A.B, who also resided in Ferryden, who had known the pursuer from school in Montrose and who had been introduced to the defender while they were at college, but who had been away from the area thereafter for some time, prior to obtaining a tenancy in Ferryden. The defender found considerable support in the friendship of Ms. B. The pursuer got it into his head that the defender was paying Ms. B to do her housekeeping. This seemed to arise from a single occasion on which N was unwell, the defender was harassed caring for her, and Ms. B did some housework, in her capacity as a friend, to help the defender. After the parties had been resident in Ferryden for about two months, the defender had taken N to Ms. B's house, where Ms. B also had a young child, and the pursuer appeared unexpectedly, shouted and bawled at the defender and Ms. B, accused the defender of wasting money on the employment of Ms. B and ordered that she leave his home and take N with her. The defender contacted her mother and her mother and grandmother drove to Ferryden from Dundee and collected the defender, N and their belongings. While they were on their way to Dundee, the pursuer telephoned the defender, apologised for his outburst and told her that she could have the tenancy and he would move out.

16. There was no occasion on which the pursuer agreed to let the defender have a night out to visit friends or relatives while he cared for the child, though he himself on a regular basis went out with his friends and relatives, leaving the defender on her own to care for the child.

17. There was however a further and final period during which alternate weekend contact visits to St. Cyrus were facilitated. This coincided with a time when the pursuer was facing a serious criminal charge and continued after he was sentenced to a period of community service. It would appear that the offence involved a revenge attack on a man in Arbroath, albeit it was not the pursuer who had been provoked into revenge. Knowing that it was planned to attack this man, the pursuer had driven the actual assailants to the locus and had been present while the assault took place though he had taken no physical part in the act. It was apparently accepted by the Crown that he had not been aware that a gun was to be used in the incident and his plea of guilty to assault on an art and part basis was accepted under deletion of any reference to the use of a gun. One of the co-accused was John Stewart referred to in finding in fact 12. He was sentenced to a custodial sentence of 18 months. The pursuer continues to associate with John Stewart, following his release from prison in December, 2009.

18. The pursuer, during at least some part of his intermittent relationship with the defender, owned a gun which he occasionally kept wrapped in a magazine in his car. He also had a collection of swords, said to be ornamental in nature, including Samurai swords, and appeared to have a fascination with oriental warlike myths and legends and with some forms of oriental martial arts which included the use of weapons.

19. By this time, the defender had obtained a tenancy of a local authority house in Dundee where she and N were residing. Further faltering attempts at contact came to a conclusion when the defender asked the pursuer to look after N while she attended her grandmother's funeral. He refused to help her.

20. Subsequent to that, the defender obtained the tenancy of her present home where she continues to reside with N. While she has assistance and support from her mother, she is well capable of caring for the child. There was a period following the birth of the child and while she was trying to encourage the pursuer to act as a father to the child, when she lost her self esteem and self confidence and put up with behaviour on his part and his family's indifference to her efforts, which, having now regained her self-esteem and self confidence, she was no longer willing to tolerate.

21. N is expected to start attending the nursery attached to F Primary School in Dundee shortly and the expectations were that she would be in nursery five mornings a week. She was also about to start ballet lessons. She has a very strong bond with the defender and was a clingy child who always looked to the defender for support and reassurance. She was not a child who would readily go with people who were not well known to her. She would be likely to become distressed were she made to do so. She was a child who thrived on the clear routines provided for her by the defender

22. The pursuer had very limited experience of caring for young children, restricted to very occasional handling of N and very occasional babysitting for some of his friends. He had played no part in N's toilet training which was continuing. He thought that it would be appropriate, during a contact period, to take her to Codona's Amusement Park at Aberdeen Beach, for which she would patently be too young. Beyond that, he had no clear plans as to how he would occupy N during any period of contact which might be awarded. He had never for more than a few minutes had N in his presence without the defender also being present.

23. It is not established that the defender at any time took money from the pursuer without his knowledge.

24. It is not established that the pursuer ever assaulted the defender but he did shout and swear at her from time to time.

25. There was a period of not more than two weeks following the defender having a disagreement with her mother that she was dependent upon friends and the pursuer and his family for accommodation. She resolved this with the assistance of Dundee City Council Homeless Persons Unit and was given the tenancy of the property at D in Dundee, where she lived on her own with N. It was in this context that she had obtained a letter from her public health nurse seeking assistance in obtaining a tenancy in the Montrose area.

26. The pursuer's mother has obtained an infant safety gate the fittings for which have been installed at the living room door of their house in St. Cyrus. The gate itself could be fully fitted in a few minutes and would be used in the event of the child coming to that house for contact periods.

27. There is no attachment between the pursuer and N.

28. The defender's present home comprises a living room, kitchen, bathroom and two bedrooms and is located in the D district of Dundee. The defender resides there on her own with N. The property is clean and tidy and in good order. There are plenty age appropriate toys and the child has her own suitably decorated room.

29. N appeared to suffer from asthma and was prescribed an inhaler but she has not required to use this since contact visits to the pursuer's home at St. Cyrus ceased.

30. N is well cared for both physically and emotionally by the defender with the assistance of her family, her mother in particular.

Finds in fact and law:-

1. N is habitually resident within the Sheriffdom of Tayside, Central and Fife, particular within the territorial jurisdiction of Dundee Sheriff Court, and this court, accordingly, has jurisdiction in this cause.

2. The pursuer not being registered as N's father and not being married to the defender does not, as a matter of law, have any parental responsibilities towards N nor have any parental rights vested in him, as these expressions are more fully defined in sections 1 and 2 respectively of the Children (Scotland) Act, 1995.

3. For the pursuer to have conferred upon him any of the parental rights set out in section 2 aforesaid or to have imposed upon him any parental responsibility set out in section 1, he would require to demonstrate that the conferring or imposing as the case may be would be conducive to the welfare of the child and that it would be better for the child that an order be made, namely an order regulating arrangements for maintaining personal relations and direct contact between him and the child, than that no such order be made and he has failed to demonstrate that the making of any such order would be conducive to the welfare of the child.

Finds in law:-

That it would not be conducive to the welfare of the child to make a contact order in favour of the pursuer and, accordingly, that it would be appropriate to make any order under section 11 of the aforesaid Act conferring such a right or imposing such a responsibility on the pursuer.

Accordingly, Refuses the plea-in-law for the pursuer. Sustains the plea-in-law for the Defender and makes no contact order; Appoints parties to be heard on all questions of expenses arising out of the cause and assigns as a hearing therefore.

NOTE

Statutory Provisions referred to:

Children (Scotland) Act, 1995, as amended, esp. sections 1, 2, 3(1), and 11(1),(2) and (7).

Parental responsibilities

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

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

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

(i) direction;

(ii) guidance,

to the child;

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

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

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

(2) "Child" means for the purposes of-

(a) Paragraphs (a), (b)(i), (c) and (d) of Subsection (1) above, a person under the age of sixteen years;

(b) Paragraph (b)(ii) of that Subsection, a person under the age of eighteen years.

(3) The responsibilities mentioned in Paragraphs (a) to (d) of Subsection (1) above are in this Act referred to as "parental responsibilities"; and the child, or any person acting on his behalf, shall have title to sue, or to defend, in any proceedings as respects those responsibilities.

(4) The parental responsibilities supersede any analogous duties imposed on a parent at common law; but this Section is without prejudice to any other duty so imposed on him or to any duty imposed on him by, under or by virtue of any other provision of this Act or of any duty.

2.- Parental rights.

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

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

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

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

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

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

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

(4) The rights mentioned in Paragraphs (a) to (d) of Subsection (1) above are in this Act referred to as "parental rights"; and a parent, or any person acting on his behalf, shall have title to sue, or to defend, in any proceedings as respects those rights.

(5) The parental rights supersede any analogous rights enjoyed by a parent at common law; but this Section is without prejudice to any other right so enjoyed by him or to any right enjoyed by him by, under or by virtue of any other provision of this Act or of any other enactment.

(6) The description of a person referred to in Subsection (3) above is a person (whether or not a parent of the child) who for the time being has and is exercising in relation to him a right mentioned in Paragraph (a) or (c) of Subsection (1) above; except that, where both the child's parents are persons so described, the consent required for his removal or retention shall be that of them both.

(7) In this Section, "child" means a person under the age of sixteen years.

3.- Provisions relating both to parental responsibilities and to parental rights.

(1) Notwithstanding Section 1(1) of the Law Reform (Parent and Child) (Scotland) Act 1986 (provision for disregarding whether a person's parents are not, or have not been, married to one another in establishing the legal relationship between him and any other person)-

(a) a child's mother has parental responsibilities and parental rights in relation to him whether or not she is or has been married to his father; and

(b) without prejudice to any arrangements which may be made under Subsection (5) below and subject to any agreement which may be made under Section 4 of this Act, his father has such responsibilities and rights in relation to him only if [-]¹

[

(i) married to the mother at the time of the child's conception or subsequently; or

(ii) where not married to the mother at that time or subsequently, the father is registered as the child's father under any of the enactments mentioned in subsection (1A).

]¹

[

(c) without prejudice to any arrangements which may be made under subsection (5) below, where a child has a parent by virtue of section 42 of the Human Fertilisation and Embryology Act 2008, that parent has parental responsibilities and parental rights in relation to the child;

(d) without prejudice to any arrangements which may be made under subsection (5) below and subject to any agreement which may be made under section 4A(1) of this Act, where a child has a parent by virtue of section 43 of the Human Fertilisation and Embryology Act 2008, that parent has parental responsibilities and parental rights in relation to the child if she is registered as a parent of the child under any of the enactments mentioned in subsection (3A).

]²

[

(1A) Those enactments are-

(a) section 18(1)(a), (b)(i) and (c) and (2)(b) of the Registration of Births, Deaths and Marriages (Scotland) Act 1965 (c.49);

(b) sections 10(1)(a) to (e) and 10A(1)(a) to (e) of the Births and Deaths Registration Act 1953 (c.20); and

11.- Court orders relating to parental responsibilities etc.

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

(a) parental responsibilities;

(b) parental rights;

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

[...]¹

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

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

(b) an order-

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

(ii) giving that person such rights;

(i) with whom; or

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

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

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

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

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

(g) an order appointing a judicial factor to manage a child's property or remitting the matter to the Accountant of Court to report on suitable arrangements for the future management of the property; or

(h) an order appointing or removing a person as guardian of the child.

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

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

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

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

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

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

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

[

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

(7B) Those matters are-

(a) the need to protect the child from-

(i) any abuse; or

(ii) the risk of any abuse,

which affects, or might affect, the child;

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

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

(ii) who might carry out such abuse,

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

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

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

"abuse" includes-

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

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

"conduct" includes-

(a) speech; and

(b) presence in a specified place or area.

(7D) Where-

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

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

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

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

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

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

Authority referred to:

1. White v White 2002 SLT 485 (First Division)

1. In this action, the pursuer, who has been found as a matter of fact to be the father of the child N L M, born 6^th October, 2007, the subject of this action, was neither married to the defender, the mother of the child, nor named at registration of the birth of the child as the child's father and therefore did not have as a matter of statutory provision under sections 1 and 2 of the Children (Scotland) Act, 1995 ("the 1995 Act") any of the responsibilities set out therein imposed upon him nor any of the rights set out therein conferred upon him. He sought to have contact to his daughter regulated by the court and thus required to satisfy the court that it would be better for N, having regard to her welfare as the paramount consideration, to have the court make an order regulating and, in effect, permitting contact, than for the court to make no order. Regrettably, I am not persuaded, at least at this point in time, that it would be better for N to make such an order than not to make such an order.

2. The parental responsibilities and parental rights normally enjoyed by parents of children are set out in sections 1 and 2 of the 1995 Act and section 3, as amended by the Family Law (Scotland) Act, 2006, section 23, determines upon whom these responsibilities are imposed and rights are conferred. Essentially, in the case of unmarried parents, the rights and responsibilities exist automatically on the male parent where he is registered as the child's father on the birth certificate. In this case the pursuer was not married to the defender, nor registered as the father and he accordingly had to apply to the court under s.11 of the 1995 Act to have any such rights or responsibilities regulated by the court.

3. A court contemplating making any order under section 11 of the 1995 Act must have regard to subsection (7) thereof and must regard the welfare of the child as the paramount consideration. While no onus beyond an evidential onus is imposed upon anyone, the subsection provides that the court is not to make an order unless it is satisfied on the evidence on the balance of probabilities that the child's best interests would be served by the making of the order.

4. In the Opinion of the Lord President (Rodger) at para. 14, page 489 of White v White, it was said that:-

"No one can doubt that section 11(7)(a) requires the court to have regard to the welfare of the child concerned as its paramount consideration. This is merely the latest in a long line of similar provisions going back to the Guardianship of Infants Act 1925. When Parliament enacts such a test, it intends to lay down a test which is capable of being understood by the judges who will have to apply it and which will, so far as possible, result in all courts approaching the issue in the same way. In other words, when Parliament says that judges are to have regard to the welfare of the child, it must consider that judges will, by and large, have a common conception of what that involves - of what will advance the welfare of children in regard to these matters. More particularly, Parliament must consider that they will have a common conception of what will, generally speaking, be in the interests of children so far as contact with their parents is concerned. If that were not so, the test would either be meaningless or else a court could never apply it without expert evidence - which might vary from case to case - as to what would, in general, best serve the interests of children and, therefore, of the child or children in question. But, of course, the test has to be applied daily in courts up and down the land, not only after proof but much more often in relation to motions for interim orders (Section 11(13)). Parliament could not have intended that courts should hear evidence in all these cases on what in general may be thought best to promote the welfare of a child. And indeed courts can and do apply the test all the time without hearing evidence as to this general issue. Rather, they look at the material presented to them and, when doing so, have regard to some general principle as a point of reference as to whether , in general, it is in the interests of a child to have direct contact with an absent parent. The point of reference to which they have regard - and which they take because it represents the consensus of society - is that 'it may normally be assumed that the child will benefit from continued contact (my emphasis) with the natural parent."

5. That in my respectful opinion is a clear statement of the assumption which has been made by courts in Scotland for decades and it was said to hold to be particularly true where the parents were married. Given the unpopularity of marriage in present times, the line for the formation of the assumption is harder to draw. Hence the importance currently of the provisions of the 1995 Act, as amended, which, so far as concerns fathers, now confers rights and responsibilities automatically on those who are registered as the father of the child on the child's birth certificate. All other "non-mothers" have to make their case in court before any order relating to the welfare of a child can be made in their favour. In the present case, the pursuer comes into that latter category.

6. The Lord President, at para [16] on page 490 went on to deal with what could be drawn from the legislation set out in the 1995 Act so far as concerned the intentions of Parliament relating to the welfare of children and looked at the terms of the responsibilities and rights set out in the Act. As he put it:-

" As the sheriff notices, in s. 1(1) of the 1995 Act Parliament has imposed on parents various responsibilities which can be enforced by their children (s.1(3)). The only possible inference is that Parliament considered that the welfare of children was best served by imposing those responsibilities on their parents. Counsel for the respondents readily conceded, for instance, that one could infer from section 1(1)(b) that Parliament had proceeded on the general principle that it conduced to the welfare of children if their parents provided them with direction and guidance in a manner appropriate to their stage of development. Such a general principle is hardly startling. Indeed it amounts to little more than a commonplace and the Scottish Law Commission seems to have considered that it was already to be found in the pre-existing law (Report on Family Law Scots Law Com no 135, 1992, para 2.1). Similarly, one can infer from s. 1 (1)(c) that Parliament has proceeded on the general principle that it conduces to the welfare of children if their absent parent maintains personal relations and direct contact with them on a regular basis. Again, the principle is by no means novel, being much the same as the assumption enunciated by Lord Hope (In Sanderson v McManus 1997 SC (HL) 55 at page 64). Even more significantly, this general principle is much to the same effect as Art. 9.3 of the United Nations Convention on the Rights of the Child which has been ratified by the United Kingdom. It provides : "State Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests." (my emphasis).

7. At paragraph [17], the Lord President made the following important point, that "like the other paragraphs of subs (1), para (c) contains nothing more than a general principle which must be applied with discrimination. Parliament has itself recognised that there is a limit to the extent to which parents can be expected to comply with the responsibilities laid upon them. They cannot be expected to do so if it is impracticable, for instance, because they are working far from home. Similarly, there may be particular circumstances where the discharge by a parent of his parental responsibilities would not in fact operate in the interests of the child. Reflecting the terms of art 9.3 of the United Nations Convention, Parliament therefore places a limit on the parental responsibilities and does not require that a responsibility which is intended for the benefit of the child should be exercised so as to work to his detriment. But that necessary qualification does not detract in any way from the general principle which is to be deduced from the provision in para (c): that it is conducive to the welfare of children if their absent parents maintain personal relations and direct contact with them on a regular basis."

8. In relation to the function and approach of a court considering an application for an order under section 11 of the 1995 Act, at para [21] he said, "The 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. But 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 the general principle, could properly take the view that it would be in the 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 it would definitely be contrary to the child's welfare for the order to be granted."

9. At para[9] of his Opinion at page 494, Lord McCluskey said, "It follows that the possibility and the advantages of maintaining of the link between the father and his daughter fall to be taken into account when the court comes to make the judgment required of it under the 1995 Act; but, however its importance may be assessed in the circumstances of any particular case, it is one factor among many. It may be determinative; it may not. It must always be a matter of weighing all the material bearing upon welfare and the interests of the child. It would be impossible to list all the other matters that might be relevant, because life constantly throws up unprecedented circumstances; and the law has to be flexible enough to cope with the unforeseen."

10. It follows from the foregoing that my responsibility in this case is to have regard to the welfare of N as the paramount consideration and not to make any order under s.11 of the 1995 Act unless to do so is both necessary and conducive to her welfare. One of the considerations that I have to have regard to in undertaking my responsibility is that it is generally considered to benefit a child to maintain personal relations and regular direct contact with the absent parent.

11. In the present case, I heard evidence from the pursuer and his mother, Mrs. L R, on the one hand, and from the defender and her friend, A B. I also had to have regard to a number of documentary and photographic productions and to a report by Mr. M.G. Ford, Solicitor, Dundee, written in his capacity of curator ad litem to N, to the contents of which report both parties referred in the course of the proof. I will deal with the evidence of the defender in more detail shortly but there is no doubt that her position was one of opposition to the pursuer having any further contact to N. The consequence of that is that if I considered that it was conducive to N's welfare that she should have the opportunity of regular contact with the pursuer, then it would be necessary to make an order under section 11 regulating that.

12. In relation to issues of credibility and reliability, there was at the end of the day not much that was material to the outcome that was in dispute so far as the facts were concerned, but, where there was, I preferred the evidence of the defender and Ms. B to that of the pursuer and his mother.

13. The pursuer told the court that he was a 22 year old unemployed joiner, currently living with his parents at the family home in St. Cyrus in Angus. He had formed a relationship with the defender in 2006 when they were both students at Angus College in Arbroath and they had regularly had sexual intercourse resulting in N's birth on 6^th. October, 2007. They spent time at weekends either at the pursuer's parents' home or the defender's mother's home in Dundee, but the relationship was volatile and ceased from time to time. There was no communication between the parties around the time of the child's birth and the pursuer did not make any immediate attempt to see her. Instead, he was the victim of a serious road accident about six weeks after she was born and required to be admitted to Aberdeen Royal Infirmary. The defender visited him in hospital and invited him to her mother's home to come and meet his daughter. He did, and, for a period, he came on alternate weekends and spent time with the defender and N. It was then discovered that, during the latter part of the defender's pregnancy, the pursuer had had a sexual relationship with another woman and that led to the termination of that arrangement.

14. Later, further efforts to facilitate contact were made, mainly at the pursuer's parents' home at St. Cyrus. The defender would be picked up from Dundee by the pursuer or his father and taken there, and returned at the end of the residential contact period. For several months, this happened on alternate weekends. However, the defender's evidence about this was that she and N spent most of the period in a bedroom in the house, that the house was dirty and unhygienic, that the pursuer's father insisted that the child be removed to the bedroom for nappies to be changed and was harsh with the child, shouting at her, though she was just a toddler, when she touched his belongings, that the pursuer spent most of these weekends under his car in the shed at the house or out drinking with his friends and that the pursuer's mother regarded N as something to show off to her friends. It was the defender who undertook all the practical aspects of care for the infant child and the pursuer not only conceded that he had hardly changed a nappy and that he had never bathed the child but expressed the extraordinary observation that for a man to do either of these things was "like being a paedophile." However, in about June, 2008, when N was about ten months old, the parties rented a flat in Ferryden, near Montrose, with the intention of making this the family home. According to the pursuer, money was going missing for which the defender could not account and he came to believe that she was paying A B to clean her house. The amount involved was said to be £150 over a three week period. Both the defender and Ms. B gave evidence to the effect that on one occasion when N was unwell and the defender was exhausted from the process of caring from her, Ms.B had cleaned her house for her, in an act of friendship, but no money had changed hands. I preferred their account. The pursuer seemed to have no appreciation of what it required and what it cost to care for an infant in a new home. In any event, apparently convinced that she was abusing the money he was giving her, he ordered that she and N should leave. The argument surrounding this took place in N's presence. The pursuer observed that every couple fought in front of their children. The defender's mother and grandmother had to travel from Dundee at short notice to collect them. As they were driving back to Dundee, the pursuer telephoned the defender offering her the tenancy of the flat in Ferryden and saying that he would move out. This offer was not accepted. He accepted that he had lost his temper on this occasion and that generally he had a short temper. But he later wrote on a social networking website that he had thrown her out and that he was "sick of her." He also conceded that from time to time he had abused cocaine and cannabis.

15. Thereafter, following another gap in the relationship, there was a resumption, albeit brief, of the weekends visits to the pursuer's parents' home. This seems to have been in part precipitated by the pursuer's involvement in a serious assault albeit on an art and part basis. It was not clear to me from the evidence why this should have led to a resumption of contact. Suffice it to say that the incident was unsavoury involving what seemed to be a revenge attack on a man in Arbroath and, while the pursuer played no part in the physical attack on the victim, he drove the attackers to and from the locus and allowed them to use his air rifle, despite the terms of the plea accepted by the Crown. He was sentenced for his part in this affair to 150 hours community service, that sentence being imposed on 28^th. April, 2009.

16. In addition, the pursuer had committed motoring offences, comprising speeding and using a bald tyre. He had had his licence revoked by DVLA under the new drivers' regulations for a six month period. He had been caught in St. Cyrus driving at 52 miles per hour in a 30 mph zone. He accepted that there were occasions when he had had both the defender and N in his car when he had driven at "slightly over" the speed limit. The defender's account was substantially different and I preferred her version. She said that he regularly drove on single carriageways in Angus at speeds of up to 80 miles per hour. She said that she had regularly complained about the speed at which he was driving and that when she did so he would then drive faster. She said he was one of a number of local "boy racers" who congregated at Montrose Beach car park and undertook dangerous high speed manoeuvres.

17. He told the court that his last period of contact with N had been "about eight months ago." The defender said that it was in August, 2009 and photographs lodged by the pursuer suggested that these had been taken in early September, 2009. These photographs depicted N and the defender at the pursuer's parents' house.

18. The pursuer was unable to tell me much about what he had done historically with the child nor what he intended to do in the future. He thought it would be appropriate to take her to the fairground at Aberdeen beach which would have little which was age appropriate. He talked about taking her to a soft toy play area in Montrose which did show better insight. But he seemed to have little understanding of the fact that the child would have little attachment to him and that he would need to do something to develop that before contact could be expected to be successful. He was prepared to resume contact using the Contact Centre in Dundee initially on a supervised basis, but accepted that that must be a means to an end. He said that all his "young mistakes" as he described them were behind him now and that he was a reformed character.

19. He suggested that the defender had dominated the agenda when it came to caring for N and that he had had to go along with what she decided. That seemed inconsistent with his reluctance to take on nappy changing and bathing tasks and the defender's persistence in her efforts to promote effective contact. He conceded that he had wanted a boy when he had discovered that the defender was pregnant and that he was " a wee bit disappointed" when it was not.

20. The pursuer also conceded that there had been an occasion when he had driven to the defender's mother's home in Dundee late at night and had come demanding to see N, refusing to move his car when told to do so, so that the defender's mother could go to the hospital where she worked as a nurse, and requiring the involvement of the police to bring matters to a peaceful conclusion.

21. He further conceded in cross-examination that he owned a number of swords for "ornamental" purposes and that he had an interest in martial arts which involved the use of weapons. He said that he was interested in myths and legends from Greek history and from North American, Indian and Chinese legends similarly. He considered that some of the beliefs systems therein followed should be taught to-day, particularly in relation to "honour." He said that he would like to share his knowledge of these topics with his daughter. He further conceded that one of his best friends was a man called John Stewart who had a number of criminal convictions.

22. He was asked what benefit he thought would inure to N from his being given the opportunity to resume regular contact with her. He suggested that she would "thrive" on seeing her "dad" but it was not clear how he thought this would happen. He said that he would be "another opinion" by which I understood him to mean "option" in the sense that he could show her the contrast to her life in the city of the way life was in a rural setting. He said he would bring her joy and support as a father, but again there was no specification as to how he proposed to achieve this.

23. He was honest about his shortcomings and about his unacceptable behaviour, historically, both towards the defender and N, but less clear about how things would be different in the future. He said, for instance, that he wanted to have a good relationship with the defender, but wanted nothing to do with her family, which seemed scarcely realistic given that the defender resides with her mother.

24. The pursuer's mother spoke about the periods of contact at her home being for either one or two nights and agreed that the parties would have arguments in the course of them but dismissed these as common to all young couples. She claimed to have babysat for them but accepted that that had not happened very often because they did not have spare money to go out. She further accepted that it was difficult to get N to go to sleep. She accepted that it was generally the defender who saw to the child's needs. The pursuer occasionally changed a nappy, she thought, but he was "wary" of doing so and "a bit squeamish" when it came to dealing with nappies. She accepted that her husband was "old-fashioned" but maintained that he talked to N and would take her for a walk. She maintained her house was a suitable location at which residential contact could take place. She disputed that there was a dangerous depression in the land adjacent to the house and said that it was now to be fenced. She said that N had always been supervised when she was outside and had never been in this potentially dangerous area. She now had a child's safety gate which could be fitted to her living room door which would protect the child from getting on to the outside stone staircase unaccompanied.

25. She accepted that her son had been very foolish to become involved in the Arbroath assault. She said that she and her husband had been very angry with him. She knew John Stewart and that her son continued to associate with him. But she claimed that he had grown up and recognised that there had to be some seriousness to life and claimed that he would find work soon.

26. She said that she would love to develop a relationship with N and that she would travel to Dundee to rekindle that. She had suffered a number of deaths in her own family in the past year and had an acute sense of loss and of the importance of the family unit. She would be able to teach N about life and would play with her and nurture her. She suggested that present difficulties were maintained by the belief of members of the defender's family that her son was not good enough for the defender. She did not think there was any prospect of the relationship between the two families improving. She had not spoken to the defender's mother since N was born. She agreed that contact would have to resume in a Contact Centre and that it would take some time to rebuild the relationship with N.

27. A B told the court that she had known the pursuer both at school and at college and had formerly regarded him as a friend. It was through him she had got to know the defender and the two of them had become close friends. Both were young mothers. After college, there was a gap until the parties moved to Ferryden where Ms. B was residing and she and the defender became close again. By that time, her relationship with the pursuer was poor on account of her knowledge of him having been unfaithful to the defender while she was pregnant to him. She had never cleaned the defender's house save for one occasion when N was ill and the defender was fully engaged in caring for her and that had just been a friendly act. This was a fault so far as the pursuer was concerned and she had been present when the pursuer told the defender to pack her bags and leave.

28. Ms. B told me that N was a very loveable child who was always with her mother. The defender undertook all the caring tasks and the pursuer did not. He did not like to be told that he had not done things correctly. She considered that he had not been in her life since she had left Ferryden and it would be better for N if it remained that way.

29. The defender conceded without dispute that the pursuer was N's father though his name was not on her birth certificate. Her relationship with him had been volatile and punctuated by periods when there had been no contact. Critical to her present attitude was the fact that the pursuer had thrown her and N out of the house in Ferryden with immediate effect, without any real concern for the welfare of either of them. N had only been eight months old. In a later telephone call, the pursuer had told her to leave N and go.

30. At a later stage, in about March or April, 2009, the defender had obtained accommodation in Dundee where she and N had lived alone. Later she had obtained her current tenancy in Dundee. She had been residing there with N since September, 2009.

31. She had tried to facilitate contact between N and the pursuer since shortly after N was born. She believed as a matter of principle that her daughter should know and have regular contact with her father. But she had become disillusioned with the process for a number of reasons. It seemed to me most significantly from the defender's perspective it was what she saw as the pursuer's disinterest in the child and unwillingness to help with her upbringing that led her to the conclusion that continuing to try to promote contact was counter-productive.

32. She said that for some time she had taken N to stay for weekends at his parents' house in St. Cyrus but she complained that she and the child would spend most of the weekend in his bedroom while he worked on his car or went out drinking with his mates. Some of his mates abused controlled drugs, as did he, and she described an occasion at Montrose Beach where the pursuer and John Stewart snorted cocaine from a CD in the pursuer's car whereafter he drove with her and John Stewart as passengers. She said that in public he acted the part of the doting father but in private he gave her no assistance with the care of the child. He had not shown any immediate interest when she was born and the defender had tried to encourage his interest in his daughter when the pursuer was recuperating from his road accident, but she considered that, generally, he was more interested in going drinking with his friends. However, he had come from time to time to her mother's house in Dundee where she was then staying and had spent some time with the child. That came to an end when the defender discovered that he had been seeing another woman during the latter part of her pregnancy. He also involved himself with another woman when N was about six months old.

33. She also described his frequently dangerous driving, as she saw it, and that he combined driving with the abuse of cocaine and cannabis. She spoke of him frequently driving at high speed and of occasions when she had been in the car with him when he had performed deliberately dangerous manoeuvres, especially in the car park at Montrose Beach. She also described occasions when he had encouraged N to shout "faster, faster," to which he would respond by increasing the speed of the vehicle.

34. She also spoke about having a different philosophical approach to dealing with N from that adopted by the pursuer. She said that she would always respond promptly to N crying whereas his attitude seemed to be that sometimes a child should just be allowed to cry and be ignored. She confirmed that his practical involvement with N was virtually nil. To the already emerging picture she added that on the few occasions on which she had tried to persuade him to dress or undress N he had struggled and had been quite rough with her.

35. The defender described suffering from a loss of confidence and self-esteem which she attributed to the behaviour of the pursuer and the lack of assistance or interest from him when N was born. She felt that she could do nothing right and her opinion was regarded as being of no consequence. She felt trapped and isolated when she was at St. Cyrus. Having returned to Dundee, having the support of her own family and having obtained her own local authority tenancy, she now felt much stronger and more capable. She also felt that she had made considerable efforts to encourage him to build up a relationship with N which had been spurned.

36. She said that on more than one occasion the pursuer told her that he had stopped abusing controlled drugs and then they would visit some friend of his who would offer him a joint, which he would accept. She felt he could not be trusted.

37. It was the defender's assessment that N would not recognise the pursuer. It was a matter of concern to her that N had settled well into a routine in her new home and that the resumption of contact would disrupt that routine. She and N were very close and it was sometimes difficult to get her to go with other people, even those she knew well. She would be distressed at being left in the care of people who were virtual strangers to her. She also reported that N appeared to have a fear of men generally.

38. N was in good health but had an inhaler. She not had to use this since she was last at St. Cyrus. The house was dirty and the defender always felt obliged to clean the bedroom they occupied and the bathroom they used the minute they arrived there.

39. The defender and the pursuer also had sharply differing views about discipline for the child. According to the defender, N was not a naughty child and responded well to being spoken to and it being explained to her if she was doing something inappropriate. The pursuer, on the other hand, tended to send her to her bedroom, and the defender was criticised when she would not allow that to continue. She maintained that giving N orders like that frightened the child and was counter-productive.

40. The defender also had concerns about the pursuer's ability to supervise N effectively. She was anxious about the child's safety while outside the pursuer's parents' home on account of the dangerous gulch thereon. She also recounted an occasion, the existence of which was denied by the pursuer, but I do not believe him, when she found N with a can of WD 40, the well known all purpose lubricant, at her mouth. The child had been with the pursuer who was working on his car. She washed out the child's mouth with fresh water and there were no adverse sequelae.

41. The defender could not see how contact at a Contact Centre would work or would lead anywhere. Her bottom line was that the pursuer was unable to care for his daughter, having historically made little effort to involve himself in her care and not having any relevant experience to fall back on now as to how to look after a three year old, leaving aside all issues relating to his demonstrable irresponsibility. She considered that the pursuer had no real appreciation of the fact that a child up to about ten still needed help with basic practical things.

42. She accepted that she had remained in contact with the pursuer and had allowed him to see N on a voluntary basis in the period after he had first appeared in court on the charge of serious assault and throughout the criminal proceedings. She repeated that during this period of her life she had lost her self-confidence and self-esteem which she felt she had regained since deciding she wanted nothing further to do with the pursuer and had got on with the task of caring for N on her own. She said that she had come to regard the pursuer as a criminal who associated with people involved with drugs and guns and she wished no involvement with such a person. She said that, amongst other things, he had regularly driven after having smoked cannabis while she was in the car and she was not prepared to expose her daughter to the risks associated with that.

43. She also complained that there were times when contact with N had been arranged and the pursuer had simply failed to appear. She explained that she hoped for a long time that the pursuer would reform and that N would be the catalyst for that. She wanted her daughter to have a father who was important in her life. But when her grandmother died and the pursuer would not put himself out to look after N while she went to the funeral, she concluded that there was no point in making any further effort with him.

44. The defender told the court that she considered that N thrived on routine and structure. She and N had a regular routine that involved visiting the same people at the same time each week. She kept a clean house and it was important to her to do so. In relation to that too, she had a routine that she tended to stick to. By contrast at the pursuer's parents' home there was no routine, no structure and no cleaning.

45. She would be unhappy about N being conveyed by the pursuer's father in his car. He drove too fast and smoked cigarettes in the car while travelling. She did not wish N exposed to cigarette smoke. She had been in his car, as had N, during the period of the pursuer's disqualification. The pursuer's parents' house was in a remote location with a bus service of the order of one every two hours. The exercise of contact using public transport would be impracticable. The defender had nothing against public transport; she and N used local buses daily in Dundee but the services were regular and over a short distance.

46. In relation to the letter she had had the public health nurse write dated 25^th. February, 2009, which had been produced by the pursuer, this occurred at a time when the defender had fallen out with her mother and was considering a reconciliation with the pursuer and thought that the way to proceed was to try to enlist help in obtaining rented accommodation in the Montrose area. Instead, she rapidly resolved her dispute with her mother and obtained a local authority tenancy in Dundee, since which time she considered that she had gone forwards with improved confidence and self-esteem.

47. For the pursuer, Mr. Ferrie reminded me that the proof had arisen largely as a consequence of the report by Mr. Ford, the child's curator-ad-litem, who had prepared a report which was critical of the pursuer and of the condition of his home, after which interim contact had been terminated and a proof fixed. Mr. Ferrie accepted that, as a candidate for parental responsibility, the pursuer had not "covered himself in glory" particularly in relation to his involvement with the criminal case and with his involvement with other women during the course of his relationship with the defender. Further, he accepted that the pursuer's driving had at times "fallen below an acceptable standard." He accepted that he was responsible for the breakdown in the parties' relationship. He regretted "throwing her out," though he knew that she did have somewhere to go. Nonetheless it was conceded that his behaviour was unreasonable. Mr. Ford had noted allegations of controlling behaviour on the part of the pursuer and there was some evidence of that but there was no suggestion of physical violence in the relationship, albeit there was some evidence about the use of a harsh tone of voice at times. It was all "low grade stuff." It was difficult, he said, for the pursuer to present himself as a parent with practical capabilities in child handling as the defender had never given him the chance. There was more than one school of child care and their differing backgrounds and experiences meant that their respective views on this were sharply different. He had to accept that there was evidence before the court to the effect that the pursuer would not know what to do with a child, but he could learn and would have the support of his mother. He recognised that there was no prospect of a reconciliation and there was no suggestion that the pursuer was using contact as a means to get back into the arms of the defender. So far as driving was concerned, it was accepted that the pursuer had an unenviable driving record and that he bore the scars from his involvement in a serious road accident, but he had since changed his style of driving and the child would be perfectly safe. It was noteworthy that, for all her complaints, the defender continued to get into the car with him and take N. This was apparently the case, according to her evidence, even when he was supposed to be doing drugs. With regard to his involvement in the serious assault, while it was accepted that this demonstrated a willingness to be involved in crime, it was impulsive, his involvement was restricted, he had been punished and he had completed his period of community service and was determined to avoid further involvement in crime. He did not associate with the people involved other than John Stewart, who was a life long friend, and he too had reformed in the meantime. He now tended to stay at home and try and find work which was hard to come by. It was important that it was now his mother's assessment that he had grown up and was ready to accept life's responsibilities. His dabbling in drugs was over and he was now taking more care of his appearance and presentation. He has a trade and the potential to be a useful member of society. He was maintaining payments to the Child Support Agency. (We did not, in fact, hear any evidence about that one way or the other.)

48. It was disputed that his parents' home was not an appropriate place at which contact, including residential contact, could take place. The alleged incident involving WD 40 was flatly denied. If it had happened it was hard to believe that the child had not been taken to a doctor and that the incident had not been mentioned to the curator-ad-litem. I should reject the evidence of this as untrue. It was accepted that, in practical terms, the pursuer would be starting as a father from scratch and that there had been a significant period of interruption, and so it made sense to restart the contact process through the services at the Contact Centre in Dundee. The pursuer had thought deeply about what his newly sought responsibility would entail and genuinely believed he had something important and different to offer N from what the defender could contribute. He could introduce her to the ways of the countryside and he could be there for her as a father, someone she would need in later life. I should make an award of contact in his favour, starting with a period of supervised contact in the Contact Centre.

49. Mr. Mackinnon, for the defender, submitted that the outcome turned largely on questions of credibility. The pursuer came into court, wanting to be trusted, asking that his unsavoury past be put behind him and disregarded. It was accepted that the defender was not in a position to comment meaningfully or lead evidence about the pursuer's current position but he had been inconsistent in his account of his involvement in the act of hamesucken to which he had pled guilty with the benefit of professional advice, and the indication was that he had tried to minimise his involvement in this serious crime, especially in relationship to the ownership of the gun involved, he disputed the record of the curator-ad-litem that he had said that he had never changed a nappy, and that could only be to put him into a better light in the eyes of the court, his denial that he would speed up when driving if he was asked to slow down - that depended on me preferring the evidence of the defender, which I do - and the WD 40 incident, where again, as I have already indicated, I prefer the account of the defender to that of the pursuer. In all these matters he had lied in the course of his evidence in an effort to present himself in a better light. I should not regard him as credible.

50. Apart from these foregoing areas, said Mr. Mackinnon, there was little in dispute. There was no issue about the defender's ability to care for N and the pursuer fairly and properly accepted that she was a good and caring mother to the child. The opposition to his having contact was based on his character. He had been unfaithful to the defender during her period of pregnancy. He drove dangerously and sometimes while under the influence of drugs while the defender and N were passengers in his vehicle. He had lost his licence for speeding. That had followed a time when he had been the victim of a serious road accident, from which experience he appeared to have learned nothing. He had been involved in a serious assault in a significant way and it was on one view unhelpful and yet on another view insightful to hear his mother describe this as "a little boy's mistake." One of the participants had been imprisoned for a significant period. He had a history of cocaine and cannabis abuse. He had engaged in controlling behaviour, not allowing the defender to have any kind of life of her own. He had shouted at her and caused her loss of self-esteem. He had shown no interest in the forthcoming birth of his daughter or in the period immediately thereafter. He had not had any intention of becoming a father at the material time and thought that contraception had been used. His upbringing had been one which separated the men from the children and left the work of child care to the women - in that respect he was very old fashioned. But that left him with no practical experience in child care which he would need to handle a three year old girl in the middle of toilet training. He seemed to have no appreciation that caring for a young child, while it brought many happy and rewarding times, was time consuming and exhausting. He had shown no understanding or empathy with the defender or the child in ordering them out of the flat at Ferryden. He had a poor grasp of the child's lack of appreciation of what would be safe, for example in leaving the WD 40 too close to hand or in not adequately supervising her near the dangerous gully on the land at his parents' home. There was a question about whether there was a safety gate which would be needed to protect N from accessing a steep flight of external stone steps. So the reality was that the re-instatement of contact would be a venture into the unknown. It was significant that all along hitherto it had been the defender who had undertaken her responsibility to try to promote contact between the pursuer and N and had gone to considerable effort to do so at some cost to herself in terms of her loss of confidence and self-esteem, and with little in the way of a positive response from the pursuer.

50. Mr. Mackinnon directed me to the decision in White v White (supra) and submitted that on any reasonable consideration of the factors present in this case, the assumption that contact would be conducive to the best interests of the child did not stand up to examination. N was currently living a stable life with the defender where she was well cared for and in a positive routine. She was about to start nursery school which would add to that stability and routine. There was nothing to indicate that she missed her father. It was now more than a year since she had seen her father and the likelihood was that she would not know him. There were concerns about his practical abilities. He had never before had contact with the child when the defender was not present. The child was not familiar with any member of his family. Insofar as he had offered any insight as to how he might cope with contact, he had demonstrated that he had little idea what to do in practical terms. N had not been to a contact centre and might find that experience disturbing. That too would be a venture into the unknown. It had been noted by the curator-ad-litem that she was a clingy child and the defender said that that remained so. Separating her from her mother at this stage would be distressing for her. Accordingly, the crave for contact should be refused and the defender's plea in law should be sustained.

51. I substantially agree with the submissions made by Mr. Mackinnon and, in fairness to Mr. Ferrie, he properly conceded that there were many shortcomings in relation to the pursuer's prospect of being a suitable candidate to be the carer for a three year old girl. N was the product of a teenage romance wherein neither party at the material time intended that a child should be born but there is no doubt that the defender has reacted more positively to the eventuality than the pursuer. I have the impression that she was very much in love with the pursuer, much more so than he was with her. Whether she pursued him once the child was born to effect a reconciliation or to encourage him to act as a father to the child is unclear but the practical effect of what she did was to give the pursuer every opportunity to demonstrate that he could be a success as a father and in my opinion it was his total failure in that regard over a significant period of time rather than any of the other factors, albeit some of them have considerable weight when viewed objectively, that led her to give up on him and conclude that she would be much better off having nothing further to do with the pursuer and getting on with the primary process of caring for N. I was impressed with the defender who demonstrated significant maturity and understanding for a 22 year old woman. She recognised that she had been emotionally abused by the pursuer and had danced to his tune. She recognised that he had let her down time and time again by getting involved with other women, by putting her safety and that of the child at risk by driving dangerously and on some occasions while under the influence of drugs, by abusing drugs, by getting himself involved in a serious and patently premeditated crime, by throwing her out of the flat in Ferryden which she had patently hoped would be the setting for family life for the three of them and by his other immature and irresponsible behaviour. Most of all, however, it had been his failure to make any effort to take an active role in the care of his child during the periods of contact, preferring to go out drinking with his friends or preferring to carry out work on his car and leaving all the hard practical graft which goes with caring for a young child to the defender that ultimately led to her reaching the conclusion that her efforts to involve him in the care of the child and with having any kind of future with her were pointless. She was right. And her evidence about the recovery of her self-esteem and confidence once she had taken the decision to have nothing further to do with him demonstrates that she was right.

52. This case is not however about the welfare of the defender but about the welfare of N. It does however appear very strongly to me that these two things are inextricably linked. The defender became pregnant at eighteen and decided to have the baby, which was a courageous decision on its own. She was entitled to expect some support from the pursuer but he appeared to be completely disinterested in the birth of his child. Mother and child moved from her mother's house to the flat in Ferryden, back to her mother's house and then to the flat in Dundee before arriving at her present abode, with a number of short interludes of them being elsewhere including spending some time in the pursuer's parents' home. Despite all that upheaval, which must have been a huge strain on its own, the defender has been the constant carer and companion for N and it is unsurprising in these circumstances that there is a particularly strong bond between mother and child and that both crave a settled routine which they now have. It is also unsurprising against so much upheaval that N clings to her mother, no doubt wondering where they are off to next. Such instability is not conducive to the welfare of the child, nor is it conducive to the welfare of the child to have a mother whose confidence and self-esteem have been battered by such instability and lack of support from the child's father.

53. Paradoxically, despite the foregoing, I was quite impressed with the pursuer as a witness. He recognised his inadequacies and made little attempt to conceal them. He was apologetic about his previous behaviour. He acknowledged that he had been extremely stupid to get involved in the serious assault, the circumstances leading up to which did not in any way concern him and made it clear that, apart from his friend from childhood, John Stewart, who he also said was a reformed character, that he had now no contact with the other young men involved in the incident. He said he had stopped abusing drugs and was supported in this by his mother who said that he had changed in that "he now gave a damn about himself." He was somewhat more equivocal about the standard of his driving and he was, I regret to say, wholly unrealistic about how easy it would be to re-enter N's life successfully at this stage. He was obliged to concede that he had no practical experience in looking after her and would be dependent on others and, in particular, his mother. He accepted that his relationship with the defender had broken down completely and that that was his fault and that it was unsurprising that she neither trusted him nor had any faith in him abiding by any promise or undertaking he might make about caring for N. He did strike me as a young man who was beginning to mature, albeit belatedly, and who might in due course have something worthwhile to offer his daughter especially, as he put it, to let her have the experience of life in the country as opposed to life in the city. I am very clear, however, that it would be contrary to N's best interests at her present age and at the present time to force that re-introduction in the absence of the defender's willingness to co-operate and I do not consider that it would be fair either to N or the defender in the light of the history of the relationship to make any order forcing that co-operation. What is required here is a total recognition by the pursuer of his responsibility for the failure of the relationship and an acceptance of responsibility for doing something positive now for his daughter's future. I am aware that he is making payments to the Child Support Agency or whatever it is now called. He could, if he is sincere, open a bank account for her and make additional payments into that. He was entirely honest about his dyslexia and I doubt if he would have much enthusiasm for letter writing - and at 3 N is too young to appreciate that anyway, but a remembrance in the way of a card on her birthday and at Christmas would maintain the link for the moment. The defender is an entirely decent and sensible young woman whose philosophy from the outset has been to recognise that the child would be better to know and have a relationship with her father and she strove to achieve that, despite the pursuer. I have no doubt that if she sees the pursuer continuing to mature and when N gets to an age when she is curious about her father she may consider that there is some merit then in trying a re-introduction. For the moment, however, N requires structure and routine. She requires to settle into and enjoy nursery school. She will need time to relax at weekends with her close family circle and to gain confidence as she heads towards the start of primary school to be able to interact with other children. She does not at this point of time need the further distraction to add to those she has already had throughout her young life of being forced to have contact with a father whom she does not know and in relation to whom her mother's patience and forgiveness has understandably been exhausted. In any event, I have substantial reservations about the suitability of the pursuer's parents' home as a location for residential contact given its unsatisfactory and unhygienic condition.

54. Section 11(7) of the Children (Scotland) Act requires that the court should not make any order unless it considers that it would be better for the child to make the order than to not make the order. This is a case where for the reasons I have striven hitherto to explain, I do not consider that, at least at this point in time, N's interests would be served by making an order. Since her welfare is the paramount consideration, I shall accordingly refuse to make any order facilitating the pursuer having contact with her and shall sustain the defender's plea-in-law to that effect.

55. Since there may be a number of issues in relation to expenses which require further consideration, I have made no order in relation to them meantime but, instead, have fixed a hearing thereon.

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	Scottish Sheriff Court Decisions
You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> S R v. S M M [2010] ScotSC 158 (14 September 2010) URL: http://www.bailii.org/scot/cases/ScotSC/2010/158.html Cite as: [2010] ScotSC 158

Scottish Sheriff Court Decisions