AB AGAINST CD AND JAMES FRANCIS SAVAGE [2016] ScotSC 8 (08 November 2016)

SHERIFFDOM OF TAYSIDE CENTRAL AND FIFE AT ALLOA

[2016] SC ALL 78

F22/08

JUDGMENT OF SHERIFF SG COLLINS QC

In the cause

Pursuer

Defender

and

JAMES FRANCIS SAVAGE

Curator ad Litem and Third Party

Act: Robb

Alt: Marsh

Alloa, 26 January 2016.

The Sheriff, having resumed consideration of the cause, makes the following findings in fact:

1. The pursuer and defender were married on 31 December 2003. There are two children of the marriage, namely EF, now 11 years old, and GH, now 9 years old.

2. The parties’ relationship was very volatile from the outset, with repeated arguments, separations and reconciliations. The pursuer alleges that the defender subjected her to physical and sexual violence and threats of violence. He has however never been convicted of a crime of violence towards her.

3. On occasions during their relationship the pursuer and defender would download from the internet and watch, and sometimes themselves make, adult pornographic videos together. The defender did not however ever exhibit to the pursuer any sexual interest in children or in child pornography.

4. Initially the parties lived together at House A. Following a separation in around August 2005 the pursuer took the sole tenancy of House B, from around December 2005.

5. The defender has three other children although not to the pursuer. His eldest daughter, IJ, now 24 years of age, was placed in care in July 2005 as a result of an allegation of assault on her and the pursuer by the defender. These allegations were later withdrawn, and the defender was not charged. IJ was however placed on the child protection register.

6. After the pursuer’s move to House B the parties continued to periodically reconcile and separate again. This happened on many occasions over the period 2005 to 2008. During periods of reconciliation the defender would stay at the pursuer’s house. On occasions his daughter IJ would also visit there. The defender stayed for periods of up to two months. In particular the defender was present at the birth of GH, in 2006, and stayed with the pursuer for a few days afterwards.

7. By late 2007 both parties had engaged in other relationships. The pursuer had started a relationship with KL. Nevertheless the parties continued to have contact with each other, and the defender continued to visit House B.

8. When the pursuer moved to House B she took EF with her. When GH was born he also lived with the pursuer at this address. During periods when the parties were separated after 2005 the defender exercised contact with the children on an intermittent and informal basis.

9. In around February 2008 the defender moved back into House B again for a short period, following which there was an incident which led to police being called to the house. As a result the pursuer left House B with the children and went to live with her mother, MN, at House C. The present proceedings were raised at this time, with the sheriff granting the pursuer a non-molestation interim interdict by interlocutor of 29 February 2008.

10. The defender thereafter lived alone at House B. Criminal proceedings were however brought against him in relation to the incident which led to the pursuer leaving the house. The defender was bailed on special conditions not to approach or contact her. He repeatedly breached those conditions, and was remanded in custody in around April 2008. This same month he was convicted on summary complaint of a domestically aggravated breach of the peace. Sentence was deferred. He remained in custody until June 2008 when he was transferred to hospital for psychiatric assessment. Following discharge he did not return to live at House B. The pursuer subsequently moved back into this property. The defender was later sentenced to probation and fined in relation to above mentioned offences.

11. The defender lodged defences to these proceedings and sought residence and contact. By interlocutor of 18 July 2008 Mr. James Savage, solicitor, was appointed to report to the Court on these issues. Mr. Savage produced a report dated 18 December 2008. By interlocutor of 19 December 2008 the pursuer was awarded an interim residence order in respect of both children. At the same time the defender was found entitled to supervised contact at the Family Centre for two hours on four occasions at times to be agreed.

12. The contact ordered by the Court on 19 December 2008 was the subject of a supervised contact report by OP, Service Manager, Family Mediation Scotland, dated 17 February 2009. As is made clear in this report very positive contact between the defender and the children took place on the four occasions ordered in January and February 2009. The children were noted to be happy and relaxed on arrival at the Family Centre. EF recognised the defender and ran to give him a hug. He was noted as easily able to relate to the children, to interact with them positively, to be patient with them, and to play and engage in quieter activities appropriately. Both children were happy in the defender’s company, talked to him constantly and enjoyed their play. They were both comfortable in approaching him and with giving him a hug and a kiss at the end of contact.

13. This report was considered at a child welfare hearing on 27 February 2009. On that date the defender was found entitled to contact with the children for two hours on Saturdays, again at the Family Centre, starting 7 March 2009, but now unsupervised. Again this contact was successful from the children’s point of view, and was enjoyed by them. Accordingly by interlocutor of 24 April 2009 the Court found the defender entitled to unsupervised contact of four hours each Saturday, with the Family Centre now merely to be the collection and drop off point.

14. On 2 May 2009 contact took place pursuant to this interlocutor. The circumstances surrounding it are as described by OP in her letter to the defender’s solicitor of 22 July 2009. As OP narrates, the original arrangement was that the defender would collect the children from the Family Centre at 11am and return them at 3pm. However the pursuer forgot to bring the children’s swimming costumes and had to go back and get them. She then agreed that due to the delay in doing so the defender could return the children at 3.15pm. In fact he did not return the children until 4pm. He had been under the misapprehension that he was due to return them at 4.15pm. In addition he had tried unsuccessfully to contact the Centre by telephone. The children were not upset when they were returned to the Centre by the defender.

15. The pursuer subsequently alleged to police, the social work department and the Court that the defender had sexually and physically abused EF in the course of the contact on 2 May 2009. In particular the pursuer claimed that the defender had sexually assaulted EF by touching her private parts in the swimming pool during contact. The basis for this allegation was a remark said by the pursuer to have been made by EF, after coming home from a visit. She claimed that EF had jumped onto her partner’s knee, pointed at his private parts, and said “what is that KL?” and that the defender “was going eee, eee, eee under my legs.” Further, the pursuer maintained that EF had made an allegation that the defender had stabbed her in the foot with a car key following an argument in Burger King.

16. In the light of the pursuer’s allegations, on her motion, on 29 May 2009 the sheriff varied contact to nil pending an evidential child welfare hearing, which ultimately was assigned for 14 August 2009.

17. Meantime the police and social work authorities investigated the pursuer’s claims. A joint interview of EF took place. She made no disclosure of sexual abuse, or of being touched inappropriately by the defender. She complained of having been smacked by the defender on her bottom over her trousers after leaving Burger King, because she had wanted to stay and play with her friends, and also of him then hurting her foot with his car keys. After interviewing witnesses and the defender, it was concluded that there were no grounds for further action. There were concerns that the defender had used physical chastisement on EF, but no evidence of sexual abuse.

18. At the hearing on 14 August 2009 having heard from parties’ solicitors, and on joint motion, the sheriff ordered interim contact to resume, with the defender being found entitled to exercise contact from 10.30am to 12.30pm for four Saturdays at the Family Centre. Notwithstanding the allegations which she had made of the defender physically and sexually abusing EF the pursuer instructed her solicitor to agree to the resumption of contact.

19. Subsequently, in around September 2009 the pursuer agreed through her solicitor that the defender could have unsupervised contact with the children between 11am and 6pm on a Saturday, with his then partner QR collecting and returning the children. By interlocutor of 11 September 2009, and on joint motion, the defender was awarded unsupervised interim contact with the children in these terms. Overnight contact at QR’s house also subsequently took place with the pursuer’s agreement.

20. The parties also attended mediation on three occasions between October and November 2009. Mediation is a voluntary process. The pursuer was not required to attend, but agreed to do so. OP conducted the mediation and reported to the defender’s solicitors in a letter of 1 December 2009. Initially the mediation had appeared to be successful, and there was a thaw in the parties’ otherwise frosty relationship with each other.

21. As a result of this thaw, the parties exchanged phone numbers. The defender visited the pursuer’s house. The pursuer offered him a place to stay, he having then separated from QR. As a result of her going to mediation with the defender the pursuer had a row with KL and they too separated for a while. The pursuer and defender also attended a parents’ evening together in relation to one of their children’s schools.

22. The parties also exchanged text messages. Copies of a number of these messages, sent between 29 October 2009 and 5 November 2009, are lodged. A number of the texts from the pursuer to the defender are of a sexually explicit nature. They indicate (i) that the pursuer wanted to reconcile with the defender, including resuming having sexual intercourse with him and having another child by him (“…hey I feel like im having an affair with my husband its crazy lol”; “OK when we starting I want to b preg by xmas”; “yeah il show u a gd time x it il b gd 2 fuck my hubby again” etc. etc.; (ii) that the pursuer was keeping her resumption of sexual contact with the defender secret from her mother and family (“…text b4 u phone jst incase ma mums in xx”); and (iii) that in the light of this the pursuer was willing to reach agreement regarding the defender’s contact with the children (“jst spoke to my lawyer dnt think we need 2 go 2 coart on fri cause were all inagreement as 2 whats 2 happen…”).

23. Around this time the pursuer instructed her solicitor to enter into a joint minute agreeing that the defender should have residential contact. This was her agreement, and was not forced on her by the defender, the Court, or anyone else.

24. The case called again for a child welfare hearing on 4 December 2009. An order for two hours’ supervised contact on a Saturday at the Family Centre was again made. Mr. Savage was appointed curator ad litem, there being concerns raised by him that neither party was acting in the best interests of the children. He was directed to produce a supplementary report.

25. Also around this time the defender became involved in a physical altercation with KL following which KL was charged and prosecuted for assault. This altercation occurred because the defender told KL that he had resumed a sexual relationship with the pursuer behind his back. However in part because of the assault the parties’ brief reconciliation, as expressed in their text messages described above, came to an end. Contact arrangements in respect of the children also broke down again around this time. By the interlocutor of 4 December 2009 the Court also reduced contact to two hours at the Family Centre.

26. The pursuer then made a further allegation to the police that the defender had assaulted EF by biting her fingers and had put keys into GH’s face in the course of a contact visit at the Family Centre. Again she claimed to base this allegation on statements made by the children to her following the visit. On 15 January 2010 contact was suspended while the police carried out an investigation. No action was taken against the defender as a result of this investigation.

27. Contact was resumed by order of 12 February 2010. The defender was found entitled to two hours contact each Saturday. As had earlier been the case, this was to be supervised contact, to take place at the Family Centre. At this time also Mr Savage was permitted, as he recommended in his supplementary report, to become a party to the proceedings as curator ad litem to the children, and was appointed to lodge a minute for this purpose.

28. On 16 April 2010 an anti social behavior order was granted against the defender ad interim pursuant to an application made by the local authority. This interim order was continued on 23 April 2010.

29. At a hearing on 7 May 2010 contact was again considered, and the defender was again found entitled to two hours supervised contact each Saturday at the Family Centre. The case was continued to monitor contact and for a report from the Centre. The pursuer’s solicitor had expressed on her behalf her agreement to development of further contact outwith the Family Centre.

30. OP prepared a report dated 16 June 2010 detailing observations from six contact visits at the Family Centre between 8 May and 12 June 2010. This represents a true and accurate account of these visits. Generally, contact between the defender and the children on these visits was positive and appropriate, with good and active engagement on all sides. Notwithstanding the pursuer’s allegations that the defender had recently assaulted the children, they were relaxed and chatty on arrival and showed no hesitancy in engaging with him. On the contrary both children came running into the playroom with EF brushing past GH to get to the defender first and into his arms for a hug. Their presentation was not consistent with their being frightened of the defender, as the pursuer had previously alleged. On the contrary, the children enjoyed the contact visits and expressed affection for the defender.

31. At a child welfare hearing on 18 June 2010 supervised contact at the Family Centre for two hours each Saturday was again continued, and a further report from OP was ordered. Mr. Savage as curator expressed concerns regarding the behaviour of both parties towards each other and the possible adverse impact that this was having on the children. In the light of these concerns the case was continued to a hearing on 9 July 2010 to identify a psychologist to prepare a report on the children. When the case called on that date, a psychologist with the Aberlour Trust was appointed to prepare such a report and the case was continued to a child welfare hearing on 8 October 2010 to await this assessment.

32. OP prepared a further report for that hearing, dated 5 October 2010, which provides an accurate account of eleven contact visits between 19 June and 2 October 2010. As before, contact was generally positive for the children, and no concerns were raised concerning the defender’s behaviour towards them. As before neither child showed any hesitancy in meeting or engaging with the defender during these visits. The defender was able to relate to and interact well with the children at their level. The majority of contact was positive, natural and relaxed. GH did show hostility towards the defender on occasions, however, including venting his anger by kicking the defender or throwing toys. The defender responded appropriately to this and remained calm in the face of it. GH also made a number of comments which suggested that derogatory remarks concerning the defender had been made by the pursuer and the pursuer’s mother, tending to suggest an intention by them to discourage him from seeing the defender. EF did not display such negativity but remained cheery, content and happy in the defender’s company most of the time.

33. The psychologist’s report from the Aberlour Trust, dated July 2010, was however markedly less positive about the benefits of the relationship between the children and the defender. It recommended reduction of contact to two hours per fortnight, to be fully supervised. However a significant question mark later arose over the qualifications of the psychologist who prepared the report.

34. On 17 September 2010 the pursuer gave birth to a son, ST. KL is the father of this child. Following his birth ST resided with the pursuer and the children at House B.

35. The child welfare hearing set down for 8 October 2010 was continued on joint motion to 22 October 2010. In the light of the information then available, the Court reduced the contact between the defender and the children to two hours supervised contact on Saturday at the Family Centre once per fortnight. This was continued by interlocutor of 18 February 2011, when the cause was sisted to await the outcome of ongoing children’s hearing referral proceedings by now initiated in respect of the children.

36. The anti social behavior order granted against the defender on 16 April 2010 had been recalled on 12 November 2010 and the application was dismissed on 21 January 2011. No evidence was ever led in support of this order.

37. The sist in the present proceedings was recalled on 17 June 2011, and at a child welfare hearing on 22 July 2011 the award of contact was varied by extending the period of contact for one hour on one occasion only, to be supervised but to take place outwith the Centre. A motion by the pursuer to reduce contact to nil was refused.

38. At a further hearing on 12 August 2011 a proof was finally assigned, for 21 November 2011, with a supplementary report appointed from the Aberlour Trust. The defender’s agent then withdrew from acting for a period, leading to the discharge of the proof diet by interlocutor of 11 November 2011 and the fixing of a further such diet on 23 February 2012. Contact remained as previously ordered.

39. On 23 December 2011, the defender moved to discharge the new proof diet. This was refused. Supervised contact was continued. The Aberlour Trust was ordered to produce a further report, no report having been received pursuant to the interlocutor of 12 August 2011. Parties were also appointed to attend mediation again. They attended on one occasion. They subsequently agreed that the defender would have contact with the children including overnight contact. It was further suggested that a joint minute might be entered into to that effect.

40. The pursuer had continued to reside with the children at House B since 2008. At around the end of 2011, however, she secured a mutual exchange and moved to a tenancy at House D in early 2012. The pursuer was helped to make this move by KL and by her mother’s partner, UV. UV cleared the loft at House B. In doing so he found and removed around ten black plastic bin bags of items, together with a number of children’s toys and pushchairs. At least some of the black bin bags had previously been stored in the loft by or on behalf of the pursuer. UV took all the bags and other items which he found in the loft to the pursuer’s mother’s house, House C, and stored them in the attic there. This was because there was no similar storage space at the pursuer’s new property. He did not look inside the black bags when moving them.

41. On 27 January 2012 the defender renewed his motion to discharge the proof diet, which on this occasion was granted, and the case was continued to await the outcome of the further report ordered from the Aberlour Trust.

42. On 10 February 2012, on the pursuer’s unopposed motion, her crave for divorce was allowed to proceed as undefended by way of affidavit evidence.

43. In March 2012 a further assessment report was produced by the Aberlour Trust pursuant to the Court’s interlocutor of 23 December 2011. The assessment team concluded that it could find no current evidence to suggest that the defender was acting in a way which was detrimental to the children during contact, nor that he would pose a risk to the children should the contact arrangements be altered. The overall quality of the observed contact between the defender and the children was assessed as ‘good’, with no concerns raised regarding the children’s presentation when with the defender. The relationship between both children and the defender appeared to be emotionally warm, mutually beneficial and mutually reciprocal. The recommendation was for a further period of supervised contact and, if that was of good quality and no other concerns arose, to move to unsupervised contact.

44. On 27 April 2012 interim contact was again varied, and was now to take place on a Friday for a period of two hours, supervised by Aberlour Trust. A further report was requested from the Trust and a child welfare hearing was assigned for 22 June 2012.

45. By interlocutor of 8 May 2012, pursuant to the interlocutor of 10 February 2012 and in the light of affidavits lodged by the pursuer, the Court found it established that the parties’ marriage had broken down irretrievably and granted decree of divorce, quoad ultra continuing consideration of the other craves of the initial writ.

46. The hearing fixed for 22 June 2012 was continued to a further hearing on 6 July 2012. By that time a third report, dated June 2012, was available from the Aberlour Trust. It found the recently observed contacts between the defender and the children to have been of good quality and mutually beneficial. It recommended that contact should be increased and should now progress to unsupervised contact at the defender’s home. In the light of the information available, at the hearing on 6 July 2012, the Court increased contact such that two weeks in every three the defender would have unsupervised residential contact between Saturday at 10am and Sunday at 6pm.

47. The contact so ordered was successful for the children, who enjoyed seeing their father. It was continued at this level through child welfare hearings in September and December 2012. No concerns were raised regarding the defender’s care for or conduct towards the children. For a short period from the end of October 2012 contact was varied such that the defender’s daughter IJ should not be present during contact. This was because of an allegation by the pursuer that she had bitten EF during a contact visit. This allegation was investigated and no proceedings were taken against IJ. On 21 December 2012 the restriction on IJ’s presence at contact was removed and the defender was granted an additional period of Christmas contact between 10am and 6pm on 26 December 2012.

48. On the evening of 24 December 2012 UV went up into the attic in the pursuer’s mother’s house, House C. He was looking for Christmas presents for the children, which were normally bought during the year and stored there. He found the black plastic bin bags which he had transported from House B earlier in the year. He opened one of them and saw a portable DVD player. He brought the bag down from the attic. He phoned the pursuer and asked her about it. She said that she did not have a DVD player, but asked UV if it worked. He ended the call and went to find out. There was a DVD already in the player (hereinafter “the DVD”). He plugged it in, switched on at the socket, and it started playing the DVD immediately. It was soon apparent to him that the DVD contained child pornography. He stopped watching it. He returned the player to the bag and the bag to the attic and did not tell anyone about his discovery. He was unsure about what to do but did not want to spoil Christmas by phoning the police at this point.

49. Christmas Day passed without incident. UV did not mention the DVD to the pursuer or anyone else. On 26 December 2012 he went to work in his employment, as a baker, between 6am and 12pm. On his return from work UV told the pursuer’s mother about the DVD. At this time the pursuer was at her home with KL. The children were with the defender for contact pursuant to the interlocutor of 21 December 2012. UV had not previously been aware that this particular contact visit was to take place. The pursuer’s mother telephoned the pursuer and asked her to come round to her house. She did so, accompanied by KL. The pursuer’s mother and UV showed them the portable DVD player and she viewed some of the DVD.

50. The pursuer’s mother then contacted the police. They came to her house, took statements from her, the pursuer, and UV. The pursuer and her mother both suggested to the police that a male who appeared in the video engaging in sexual acts with a child was the defender himself, the pursuer claiming to identify him from his voice, his face not being visible in the video. The pursuer repeated this allegation in her pleadings in the present case. The police removed the black bag and all its contents. They then went to visit the defender. They found the children to be present at his house and saw that both were well. They then left. They did not mention the discovery of the DVD to the defender at this point.

51. Later the same day the defender returned the children to the pursuer. She too did not mention the discovery of the DVD to him. The defender then attended at the pursuer’s house the following weekend to collect the children for contact as per the interlocutor of 6 July 2012. The pursuer refused to send the children out to him. The defender then contacted the police. They advised him at this stage of the allegation made against him in connection with the DVD.

52. Thereafter, on 10 January 2013, the pursuer enrolled a motion to reduce contact to nil. Consideration of this motion was continued to 1 February 2013 at which time it was refused and interim contact was allowed to continue. The defender then collected the children for contact but there was a further altercation in which the police were again called. The pursuer sought leave to appeal the interlocutor of 1 February 2013, which was refused at a hearing on 8 February 2013. On the same date, the defender not then insisting on interim contact, it was varied to nil in any event, and the cause was sisted to await the outcome of the police investigation into the circumstances surrounding the discovery of the DVD. The defender has not seen the children since.

53. The criminal investigation is summarised in the police report now lodged for the pursuer. Forensic analysis was carried out of the items in the black bag and in particular the DVD. However no warrant was sought in relation to the defender’s property in order to search for any other potentially unlawful material, or to seize and interrogate any electronic devices or computers he might possess. He was not invited to attend at the Police Office until 21 March 2013. On that date he was detained and questioned in connection with a possible offence under section 52A of the Civic Government (Scotland) Act 1982. He answered “no comment” to the majority of questions and made no admissions. He claimed that both he and the pursuer had had similar DVD players in the past but that she had broken his. He was released without charge. No charges were ever brought against him in connection with the DVD.

54. The forensic examination of the black bag given to the police by the pursuer and her family on 26 December 2012 disclosed that it contained numerous miscellaneous items in addition to the DVD, including two portable DVD players, a digital camera, a video camera and accessories, and a quantity of discs. There was also an envelope addressed to the defender.

55. Both the pursuer and the defender had previously owned portable DVD players very similar to the one in which the DVD was found.

56. On examination by a police forensic computer analyst the DVD was found to contain 24 non sequential video files. The majority of these contained adult pornography. There were however four files containing indecent images of children under 16, three of which were classified as being at level four on the copine scale, namely serious abuse with penetration of a sexual nature involving a child or children or both children and adults. The fourth file was classified at level one, being images of child nudity depicting erotic posing but with no sexual activity. The total length of the four files was about 27 minutes. None of the males in any of the videos was the defender.

57. One of the level four video clips has a file name “A.mpg” (“A” being a name, and the same name as the pursuer’s first name). This file, with this name, was well known to the police from other investigations. It was previously available for download from the internet.

58. Data found on the DVD included the ‘last modified date’ of “20 November 2006”. This is the date on the internal clock of the relevant computer at the time when the video files were first burned onto the DVD (or first burned onto another disc from which the DVD might have been copied). All 24 files would have been burned at the same time and probably copied from another disc, hard drive or USB drive. It is not possible to say when the content was actually created, that is, when the film was originally made.

59. The child pornographic content of the four video files would have been obvious to anyone viewing the DVD.

60. The DVD had handwriting on it, the words “Nov Porn“- being short for “November Porn”. The pursuer claimed to the police that the handwriting was that of the defender. No examination was however carried out by the police to determine whether this was correct.

61. DNA swabs were taken from fourteen items in the black bag. A positive mixed match for the defender’s DNA was found on a swab taken from the digital camera, but not from any other swabbed item. No DNA from the defender, or anyone else, was identified on the DVD.

62. It is likely that all the video images on the DVD were burned onto it in November 2006. It is likely that at some point between then and 2008 the DVD was in the possession of the defender. It is likely that he had knowledge of the content of the DVD and in particular that it contained child pornography. It is likely that the defender left the DVD at House B, in the black bag with other items belonging to him, when he moved out in 2008. It is likely that it remained in the loft there until the bag was moved to the pursuer’s mother’s house by UV in early 2012.

63. On 9 August 2013 a motion by the defender to recall the sist and to assign a child welfare hearing was refused. No further attempt was made to do so for more than a year, further procedure being ordered by interlocutor of 19 September 2014. Following further amendment and associated procedure the present diet of proof was assigned for 24 February 2015.

64. The defender has a number of significant mental and physical health conditions. He takes a range of medication for these various conditions. None of them, individually or collectively, render him unfit to have contact with the children.

FINDS IN FACT AND LAW:

1. That it is in EF and GH’s best interests that they have contact with the defender.

2. That it is better that an order for contact be made than that no such order should be made at all.

THEREFORE:

Sustains the fourth plea in law for the defender; repels all remaining pleas for both parties other than as already disposed of; grants the defender’s second crave, to the extent of finding him entitled to contact with EF and GH; continues consideration of the frequency, duration and other conditions of such contact to a procedural hearing to be assigned hereafter; refuses all other craves for both parties other than as already disposed of; continues consideration of the question of expenses until the said procedural hearing.

NOTE:

Introduction

[1] This case first called before me for proof on 24 February 2015. I had no previous knowledge of or involvement with it. The pursuer’s agent moved me to discharge the proof. Apparently to his surprise this motion was opposed. I refused it, and evidence was led. Further evidence was then led on 31 March 2015, 1 April 2015 and on 1 September 2015. A number of other dates allocated for concluding the proof were cancelled due to mishap and injury to the pursuer’s solicitor, and also illness on the part of the pursuer herself. Submissions were heard on 2 September 2015. Given the protracted and fragmented nature of the proof I considered it appropriate to have the shorthand notes extended prior to issuing judgment, which has regrettably led to yet further delay.

[2] As described above this action began in early 2008 as an action of divorce, in which the pursuer also craved residence of the children and a non molestation interdict against the defender. The defender initially responded by himself seeking residence, which failing contact, and in due course also sought a specific issue order that the children be enrolled at school under his surname and not the pursuer’s. Mr. James Savage, solicitor, provided two reports for the Court in 2008 and 2009, but was then appointed curator ad litem for the children and in that capacity entered the process as a party in 2010.

[3] The pursuer’s crave for divorce was allowed to proceed by way of affidavit evidence and was granted on 8 May 2012. Her crave for interdict, and the defender’s craves for residence and a specific issue order, were not insisted in before me. At the conclusion of his submissions the pursuer’s solicitor moved me to grant a residence order, but there was no dispute that the children have always resided with the pursuer and should now continue to do so. The evidence was not sufficient to suggest that the making of a residence order was necessary in the children’s best interests, nor that it would be better made than not made. Indeed the evidence in the proof had not been focused on the question of residence at all. Accordingly I refused to make such an order.

[4] The real disputed issue for determination, therefore, was whether in principle the defender should be entitled to contact with the children. The pursuer’s position was that there should be no contact at all. In the event that I determined this matter in the defender’s favour, I understood parties to be in agreement that the exact frequency, duration and conditions of contact should be determined at a further hearing in the light of my findings and conclusions.

The law

[5] There was no real dispute about the applicable law. Section 11(1) of the Children (Scotland) Act 1995 provides that:

“(1) ... An order may be made under this subsection in relation to – (a) parental responsibilities; (b) parental rights…”

Section 11(2) provides that:

“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: - … (d) an order regulating the arrangements for maintaining personal relations and direct contact between a child under that age [16 years] and a person with whom the child is not, or will not be, living (any such order being known as a “contact order”)…”

Section 11(7) provides that:

“… 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…”

Section 11(7)(b) contains provisions in relation to ascertaining the views of the children, but parties in the present case were agreed, as I understood it, that it would not be appropriate to seek to ascertain their views in relation to whether in principle the defender should be entitled to contact. This was given the nature of the factual issues central to the question for determination, the young ages and level of maturity of the children, and standing also the fact that Mr. Savage appeared as curator ad litem to represent their interests.

[6] The central question in the present case is therefore whether, in the light of the facts found, it is in the welfare (‘best interests’) of the children (no distinction having been made between them for this purpose) to have at least some contact with the defender from this point on, and whether it would be better for them that a contact order be made than not made.

[7] Inevitably each case will ultimately turn on its own facts, but useful guidance has recently been given in the case of JM v PK 2015 SLT 469, to which I drew parties’ agents’ attention at submission stage. In this case the sheriff made an order refusing a father all contact with his child. He did so against a background where it was found (a) that the father had previously played a significant part in the child’s life, but (b) that he had (put shortly) behaved badly in respect of his relationship with the child’s mother, including making malicious allegations against her as respect her care of the child. In allowing the father’s appeal, the Inner House held as follows:

“[25] In our view Mr. Maxwell [for the father] was correct in his broad submission that where a decision is taken to interfere in an existing, and in practical terms significant, family relationship between a parent and the child by, in substance, bringing that relationship to an end a careful balancing exercise requires to be carried out and factors require to be identified which clearly make that step necessary and justified in the paramount interest of the child…

[27] … The greater the substance and extent of the interference, the more is required in the opposing scale of the balance to justify that interference. The practical import of the sheriff’s decision in the present case was to end for an indefinite time – with no identifiable prospect of resumption – the existing and continuing family life enjoyed by the child and her father. That interference required to be one which could be justified as necessary, in the sense in which Mr. Maxwell deployed that concept, even if the interference did not involve the technical extinction of the legal relationship of parent and child…

[28] The question then becomes whether… the sheriff has properly approached that task in this case and has properly directed himself to the need to carry out a careful balancing exercise and in that, perhaps difficult, ponderation to identify the weighty and cogent elements which necessitated interfering by way of severance, unlimited in time, of the existing family relationship between the defender and his daughter.”

While the defender’s behaviour was open to criticism, fuelled by his animosity towards the pursuer, there was on the facts:

“[31] …no proper basis for concluding that the relationship between him and the child was other than satisfactory and should continue on the accepted view that it is best that a child have a relationship with both parents…”

The sheriff’s decision therefore turned on his conclusions concerning possible risks to the child in the future. On the facts, his balancing of such risks, against the intrinsic value of the child having a future relationship with its father, was held to be plainly wrong. The appeal was allowed and the case remitted for reconsideration.

[8] In the present case, too, to accede to the pursuer’s position would be, in practical terms, to bring the relationship between the defender and his children to an end. He has not seen them for three years as a result of an interim order granted in this case, and contact was also suspended for several relatively short periods between 2009 and 2012. There is thus a question as to whether there is truly an existing and continuing family life between them, as that concept is described in JM v PK. If so, the task is then to carry out a careful balancing exercise, recognising and giving due weight on the one hand to the value of the defender’s relationship with his children, and on the other to consider whether there exist weighty and cogent elements necessitating and justifying its indefinite severance. In that regard, however, the focus must be kept firmly on the best interests of the children, and not distracted by undue attention on the behavior of the defender towards the pursuer, even if that behaviour can be said to be open to criticism.

The witnesses - the pursuer

[9] I heard oral evidence from the pursuer over more than a day of the hearing. I did not find her to be a generally credible or reliable witness. Her evidence was repeatedly vague, evasive and lacking in detail on important issues, dates and events, that is, matters on which notwithstanding the passage of time I would have expected her recollection to be clearer. Indeed she was at times vague to the point of being offhand and dismissive – “I really, I don’t care for dates and times to be honest”; “I really don’t know. I don’t really care”; “…times, dates, whens, wheres, is not really important to me anymore because this is all in the past”. That ignored the fact that she was in part seeking to rely on past events, for which she was her own principal source of evidence, to defeat the defender’s claim for contact. Her unwillingness to answer straight questions regarding whether she had sent certain text messages said to have been sent to the defender in late 2009 was particularly evasive.

[10] The pursuer’s evidence was distorted by her animosity towards the defender, of whom she appeared anxious to accept every possible negative interpretation of events and reject any possible positive interpretation. Indeed she accepted that she wanted to stop the defender seeing his children “at any cost” “because I don’t want him in our life.” A particular example of this was her willingness to believe that the defender had sexually assaulted EF in May 2009 on the basis of statements said to be by her, which in my view were at worst ambiguous, and at best innocent. She was also readily prepared to believe and allege to the police that it was the defender himself who had appeared in the child pornographic video found on the DVD. This was an allegation which the pursuer then repeated in her pleadings, but was then forced to withdraw in oral evidence, it having since become clear from the police inquiry that the video in question was well known to them from other investigations and thus that the defender could not have been the man photographed in it.

[11] The pursuer’s evidence was also internally inconsistent in certain respects. For example in her sworn affidavit of 21 February 2008 she had said that she and the defender had lived together at most on three occasions after August 2005, whereas in oral evidence in the proof she accepted that he had stayed with her numerous times over the period 2005 to 2008. To Mr. Savage when compiling his first report (page 5, last paragraph) she is reported as saying that the defender had never lived with her for more than a couple of months during this period. In oral evidence she denied that it had ever been more than a couple of days. She is also reported as saying to Mr. Savage that the defender was living at House B on the occasion when she left in February 2008, yet in oral evidence she said that he had been there only a matter of hours.

[12] The pursuer’s evidence showed inconsistency between her allegations regarding the defender’s conduct towards her, and her willingness to reconcile with him, have a sexual relationship with him, and agree to him having contact with the children. In particular it is apparent that following mediation in October and November 2009 the pursuer sent a series of text messages of a sexually explicit nature to the defender which clearly suggested an enthusiastic desire even then to reconcile and resume a sexual relationship and to agree contact. The pursuer had no good explanation as to why, given the serious allegations of sexual and physical violence which she had already made regarding the defender’s conduct towards her prior to 2009, she was then prepared to resume sexual relations with him, have another child by him, and agree to him having contact with the children.

[13] More concerningly, the pursuer’s evidence showed an inconsistency between her allegations regarding the defender’s conduct towards the children, and her subsequent willingness to permit him to have unsupervised contact with them. Thus, although the pursuer stated that she believed that the defender had physically and sexually assaulted EF on 2 May 2009, she subsequently agreed to his resuming contact – and indeed entered into a joint minute specifically agreeing that he have unsupervised residential contact. Thus she was content, in effect, to give the defender a golden opportunity to further abuse EF if he was indeed minded to do so. In my view she could give no rational or adequate explanation for this, or how on her logic it could possibly be in the best interests of the children she claimed to be trying to protect. Indeed the only plausible explanations, it seems to me, are either than she knew or believed that the allegations which she had made of the defender abusing EF were false, or that she was prepared to expose her daughter to possible further abuse as a risk worth running in order to resume her own relationship with the defender as expressed in her text messages of October and December 2009. Neither explanation does her any credit.

[14] I also consider that the pursuer can be criticised for her failure, indeed refusal, without good cause, to produce documentary evidence which should have been available and which if true would have supported some of her allegations against the defender. I have particularly in mind her claims to have been raped by him and subject to a physical assault which she said caused her to be hospitalised in September 2007. Although medical evidence from her health records or a letter from her GP would likely have cast light on the veracity of these claims the pursuer refused to consent to this. No good reason for this was put forward – “If I’m prepared to forget about it everyone else should be… I just don’t see it has any importance”. Yet the pursuer then complained that she had to agree to contact because no-one would believe her allegations of rape and domestic violence against the defender because there was no independent proof of these.

[15] In the light of all these matters I was prepared to accept very little said by the pursuer other than where corroborated by some other source of evidence. At points I got the impression that she either did not know where the truth of the details about her relationship with the defender lay, or indeed did not really care. More pertinently perhaps I was not prepared to accept as true and accurate her evidence of the allegations against the defender which she claimed to have been made by her children (in particular the allegation of physical assault on GH and sexual assault on EF). It seemed to me that the pursuer is – or at least was – chronically ambivalent about the defender. On the one hand she accused him of dreadful abuse of her, on the other she kept agreeing to reconcile with him. That same ambivalence extends to his contact with the children. On the one hand she has repeatedly agreed to it taking place, on the other she states that she is completely opposed to it, and has made serious allegations against the defender as regards the children – to date none of them independently established – with a view to stopping it.

[16] Ultimately however, and notwithstanding these criticisms, the pursuer did accept in her evidence that if the DVD had not been found, and the subsequent allegations made based on it, that the residential contact which the defender was exercising in December 2012 would have likely progressed. She also accepted that if it were established in these proceedings that the defender had had no part in this allegation then she would accept that contact should recommence. She accepted that by the end of 2012 the previous issues between her and the defender had been put aside – indeed at one point she accepted that they were irrelevant – in that contact between him and the children was working well and that she was at that point content that it should proceed and the case be resolved by agreement.

[17] WX is a forensic computer analyst with Police Scotland. He spoke to his examination of the DVD in January 2013. His expertise and evidence was not challenged and I had no hesitation in accepting it as credible and reliable, insofar as it went. However he could not categorically state when the images were burned onto the DVD. He accepted that the ‘last modified date’ of 20 November 2006 was only as accurate as the clock of the computer which burned the files onto disc, and that the actual disc which he examined could have been a copy made later but which could still bear the same date. However the handwritten words “Nov porn” on the DVD are consistent with the last modified date of 20 November 2006, and it seemed to me most likely that the video files were indeed burned onto the DVD at that time.

[18] YZ is a detective constable with Police Scotland. He has 19 years police service and is currently based at Gartcosh. He was the reporting officer in the investigation into the complaint made by the pursuer and her family following their discovery of the DVD in December 2012. He spoke to the report which he compiled and submitted to the procurator fiscal, albeit that he had had no direct involvement in recovering the bag of items from the pursuer’s mother’s house, nor in interviewing the accused.

[19] While I had no difficulty accepting YZ as a generally credible and reliable witness, I did have some concerns about the thoroughness of the inquiry, and his memory of it was incomplete or uncertain on some important details. Fundamentally, the witness was well aware that given the circumstances in which the DVD was found and the allegation made by the pursuer the purpose of the police inquiry was to establish ownership of it, and whether it could be linked to the defender – or anyone else. In that regard he was able to say that a positive match for the defender’s DNA was found on a swab taken from the digital camera found in the black bag, but that his DNA was not found on any of the other fourteen items from the bag which were swabbed, in particular the DVD itself. However it was ultimately unclear to me from YZ’s evidence whether any other persons’ DNA samples were found on any of these items, nor whether any attempt was made to match them with samples taken from the pursuer or any of her family members.

[20] YZ also confirmed that an envelope had been found in the bag addressed to the defender, but was unable to recall what the address on the envelope was (for example whether it had been sent to him at House B), nor the nature, or date, of the letter contained within. He confirmed that there was handwriting on the DVD, and did not dispute in cross examination that the defender was asked for a sample of his handwriting at interview, but said that no comparison was ever carried out, for reasons which he did not know. Further, he was not aware whether this would have been normal practice or not. He did not dispute that no search of the defender’s property was ever carried out, for example so as to seize and interrogate any electronic equipment he might possess, but could not say why this was not done. He said that the decision would have been made by the detective inspector in charge of the inquiry. He accepted that the defender was not interviewed until nearly three months after the initial allegation had been made. He said that this was delayed until after the forensic inquiry into the DVD, but there still appeared to have been a general lack of urgency in bringing the defender in for questioning.

[21] UV is the longtime partner of the pursuer’s mother, MN, and effectively the pursuer’s step-father. He has known the defender throughout the parties’ marriage. He claims to have been threatened and assaulted by the defender in the past and has animosity towards him as a result. To that extent he was a partial witness. He was therefore ready and willing to accept the pursuer and her mother’s accounts and interpretation of past events, especially when they showed the defender in a bad light. His evidence was also coloured and undermined by his ignorance of certain matters, for example, of the full extent of the pursuer’s relationship with the defender as indicated by the texts exchanged by them at the end of 2009, or by her statement to Mr. Savage when compiling his report that the defender had resided with her in House B for periods of up to two months up to 2008. UV freely admitted that he hated and was wholly opposed to the idea of the children spending any time with the defender, but he was also ignorant of the repeatedly positive Family Centre reports regarding the quality of their contact over the years. For these reasons I was not prepared to accept as reliable any of UV’s recollections or views regarding the history of the parties’ relationship or the previous allegations of mistreatment of the children by the defender.

[22] However in relation to the provenance and discovery of the DVD the defender’s position had in effect to be not merely that UV was partial or unreliable but that that he was being wholly untruthful, telling lies made up as part of an elaborate conspiracy with the pursuer and her mother to attribute ownership of the DVD to the defender for the purpose of defeating his claims to contact in this action. That I was not prepared to accept. He may have been partial against the defender but overall I did not consider that UV had the level of malicious and premeditated dishonesty which it was in effect necessary to attribute to him in this regard. Nor did I consider him to have the necessary level of intelligence, technical and otherwise, to devise and implement such a conspiracy.

[23] It was suggested, in particular, that it was improbable that UV would have found the DVD on Christmas Eve, but not mentioned it to anyone until Boxing Day, and had allowed the children to go to contact with the defender on that day notwithstanding his discovery. However I accepted UV’s evidence that he did not know what to do when he found the DVD, and that he believed that if he had called the police on 24 December 2014 Christmas would as a result have been ruined for all the family. I also accept that he did not know that the children were to go to contact on Boxing Day, this having been only ordered by the Court on 21 December 2012, and that he disclosed his discovery to the pursuer’s mother on his return from work. This was therefore not a situation where he allowed the children to go to contact with the defender notwithstanding his discovery of the DVD.

[24] I was therefore prepared to accept as credible the essentials of UV’s evidence regarding the finding of the DVD. Accordingly I accept that he cleared the loft at House B in early 2012 and moved a number of black bags, unopened, to the loft at House C. I also accept his evidence regarding his finding and removing the black bin bag from the loft at House C on Christmas Eve 2012, and so finding the DVD. There is other evidence more directly linking the items in the bag, including the DVD, with the defender, but UV’s evidence provides at least a plausible mechanism whereby the bag and its contents came to be discovered and disclosed to police in the manner in which it was. Importantly these aspects of UV’s evidence were not dependent on accepting the pursuer as a credible and reliable witness. She may of course have been lying in denying all prior knowledge of the black bag and its contents. And certainly she was more than ready and willing to use the discovery to seek to defeat the defender’s claims for contact. But accepting UV’s evidence, as I do, the pursuer was not responsible for transporting the DVD to House C, nor for the manner and circumstances of its discovery there.

[25] One further matter on which UV gave evidence, and which I accepted, was that he gave DNA swabs to the police, at the pursuer’s house, at some point during the investigation into the discovery of the DVD. This suggests that the pursuer too may have given such a swab, that the forensic examination of the items in the bag may have included an attempt to match any DNA found on these items with samples taken from her and her family – and that no matches with their samples were found. However ultimately, and given the lack of clarity in YZ’s evidence, it is not possible to be sufficiently clear about this to make positive findings one way or the other.

[26] MN is the mother of the pursuer. She readily admitted to an intense and longstanding hatred of the defender. She was implacably and uncompromisingly hostile to him, and biased in favour of the pursuer. Regardless of the available evidence she was ready and willing to assert and accept as unimpeachable fact any interpretation of past events which showed the defender in the worst possible light, and equally quick to reject any interpretation to the contrary. She was as keen to defeat the defender’s claim for contact as the pursuer, and had been active in reporting and promoting certain of the unsubstantiated complaints which had led to contact being stopped prior to 2012. She was prepared to make wild and serious allegations without a proper basis to do so, for example, her claim that the defender had been having a sexual relationship with OP of the Family Centre while she had been supervising contact, and so had been lying in her reports in his favour.

[27] Generally, I found MN to be a witness who was not prepared to let mere evidence disturb her prejudged and partial view of matters. I found her own evidence to be generally neither credible nor reliable and did not accept it other than as consistent with the facts set out above. Insofar as I was prepared to accept MN’s evidence in relation to the discovery of the DVD that is because and insofar as it was consistent with and corroborated by UV. Unlike him, I might perhaps have been prepared to believe that MN would not have been past fabricating this whole chapter of evidence in order to try to implicate the defender with involvement in child pornography, but again I did not think that she had the necessary resources, intellectual or technical, which would in the circumstances have enabled her to do so. And as I have said, acceptance of UV’s evidence on this point precludes a finding that such a conspiracy took place.

[28] KL is the current partner of the pursuer and father of her child ST. Like UV and MN, he has a strong dislike of the defender bordering on hatred. Indeed he was convicted of assaulting the defender in around the end of 2009, albeit that he was admonished for this offence and does not have any other criminal convictions. He gave evidence corroborating UV’s evidence regarding the house move from House B and the disclosure of the DVD on Boxing Day 2012. He also identified the DVD player as very similar to one which the defender had previously owned.

[29] Acknowledging that KL did not have a good word to say about the defender, his evidence was otherwise relatively restrained. Unlike the pursuer’s other witnesses he did not immediately leap to conclusions adverse to the defender without any good basis to do so. Thus while he said that the DVD player looked very similar to one which the defender had previously owned, he accepted that it might not in fact be the defender’s. Unlike the pursuer he did not immediately assume that the man in the pornographic video was the defender. He thought that the DVD was the defender’s, but ultimately accepted that he did not know. All this gave his evidence at least some measure of credibility and, limited in scope though it was, I was essentially prepared to accept it to the extent reflected in the findings in fact set out above.

The defender

[30] The defender gave his evidence in a belligerent, curt and uncompromising manner. On occasions in cross examination he was impertinent or rude to the pursuer’s solicitor and, but for the intervention and advice of his own solicitor his refusal to answer certain questions, or to answer them without prevarication, placed him at significant risk of being found in contempt of court.

[31] Insofar as his account of the history of the parties’ relationship differed from that of the pursuer and her witnesses, he responded by simply branding them as liars, or by flat denial, often without further explanation or elaboration. He maintained that he had lived with the pursuer in House B as man and wife until 2008. He flatly denied any sexual or physical abuse of the pursuer, accepting only that he may have “neglected to show her attention now and again”. He denied any physical or sexual abuse of the children. He attributed the repeated break downs in contact entirely to the pursuer and what he saw as her repeated and unfounded allegations against him. He refused to accept that he was in any way to blame.

[32] As for the DVD found by UV at House C on 24 December 2012, the defender flatly denied any knowledge of it. He denied ever possessing DVDs with child pornography on them, or of putting any DVDs into the loft in House B. As for the other items found in the black bin bag in the loft, he claimed that his digital camera and camcorder were stolen in February 2008, that he had reported this at the time, and that the pursuer had been questioned about it.

[33] The pursuer’s solicitor sought to question the defender in relation to his previous relationships, in particular with his first wife, and then QR. His intention was apparently to seek to establish a pattern of violent behaviour by the defender towards women. I sustained the defender’s solicitor’s objection to questions regarding his first wife on the grounds of lack of record. In any event they were of doubtful relevancy. The pursuer’s solicitor then sought to question the defender about the anti-social behavior order granted against him in April 2010, and put it to the defender that this related to allegations made by QR. The defender flatly refused to even acknowledge that this was the basis of the application, or that he had even read it, let alone that there was any truth in it. This was quite incredible, and I did not believe it. Possibly a familiarity with the criminal courts had mistakenly led the defender to assume in the present case that a flat denial of knowledge of inconvenient facts was sufficient to positively establish the truth of his own position.

[34] Overall the defender struck me as an aggressive and uncompromising individual, scarcely able in his evidence to contain his contempt for the pursuer and her witnesses, or indeed the Court process. I did not find him to be a credible and reliable witness and was not prepared to accept much of what he said. Critically I was not prepared to accept his denial of all knowledge of the DVD or its provenance, for reasons that I discuss further below.

[35] Having said all that, however, there remains clear independent evidence from the agreed Family Centre reports, observed in many sessions over the period 2009 to 2012, to the effect that the defender’s behaviour towards the children has been appropriate and positive, that they have enjoyed and benefited from contact with him, and therefore that overall such contact has been in their best interests. Moreover the assessment of these matters has been made since May 2009 in the knowledge that an unsubstantiated allegation of sexual abuse of EF had been made against the defender.

[36] IJ is the 24 year old daughter of the defender from his first marriage. She was placed in care when she was 14, that is, in around 2005. She said that this was because she did not get on with the pursuer, that she had been sexually active with an older man, and that she had made up an allegation that the defender had assaulted her. She corroborated the defender’s account that he had lived with the pursuer at House B until February 2008, that there was no truth in any of the allegations against him, and that there was no good reason why he should not have contact with the children. She denied that she was now telling lies in support of his position to try to repair her relationship with him.

[37] I did not find IJ to be a credible or reliable witness. Her attitude to giving evidence appeared offhand, almost flippant. She had clearly made allegations of physical assault against the defender when she was 14, sufficient for her to be placed into care. Either these were false allegations, or her denial of them in these proceedings is false. Either way she is someone who is prepared to tell lies when it suits her to do so. Her true motivations can only be guessed at. It makes as little sense to lie to have herself put into care as it does to now lie in protection of a father who ex hypothesi previously assaulted her. She was of course herself the subject of specific allegations of mistreating EF by biting her in 2012, which may of course have caused her to choose to now take sides with her father against the pursuer. But in any event I did not get any sense that she would have had any great concern about not abiding by her oath as a witness. Overall I was not prepared to place any significant weight on her evidence.

Submissions

[38] Mr. Robb, solicitor for the pursuer, submitted firstly that contact had not worked in the past. He accepted that it had operated sporadically, but had been characterised by repeated breakdowns. Secondly, he submitted that there was a risk to the children from any further contact, in that the evidence suggested that between 2006 and 2008 the defender had possessed a DVD with 4 clips of child pornography on it, and further that he continued to deny responsibility for it.

[39] In relation to the DVD Mr. Robb submitted that it was important to note that the mix of adult and child pornography was not a “global download”, which suggested that it had been created as a compilation disc, and that whoever did this could not have been ignorant of its whole content. Mr. Robb invited me to find that it was likely that the DVD had been burned on the ‘last modified date’ of 20 November 2006. In addition, the DVD had been found in a DVD player, the reasonable inference being that whoever had possessed the DVD must also have viewed it and been aware that it contained child pornography.

[40] Mr. Robb reminded me that the DVD had been found in a bag together with a digital camera which had the defender’s DNA on it, and also an envelope addressed to him. On the evidence of UV, prior to discovery on 24 December 2012 it was likely that the bag had lain unopened in the loft at House C, and before that in the loft at House B. It was submitted that there was no evidence that the pursuer and her family had had prior knowledge of it. The defender resided at House B in 2008 and would have had access to the loft at that time. The DVD player had been identified by the pursuer and by KL as either belonging to the defender, or very similar to one previously owned by him. Other items in the bag had also been identified as belonging to the defender. The pursuer had identified the writing on the DVD itself (“Nov porn”) as the defender’s. UV’s evidence in relation to the transportation of the black bag containing the DVD from the loft at House B, and his finding of it on 24 December 2012, should be accepted.

[41] Overall, Mr Robb submitted that the proper conclusion to draw from the evidence was that the DVD had likely been in the possession of the defender at some point after it had been burned in November 2006 and, along with the other items in the bag, had been stored by him in the loft at House B prior to his ceasing to live in that house in 2008. He must have known that the DVD contained child pornography, but kept it nonetheless.

[42] Mr. Robb further submitted that if the DVD did not belong to the defender, then logically it could only have belonged to the pursuer. However, he submitted, that was highly unlikely. One of the most offensive video clips was labeled “A.mpeg”, and the pursuer would hardly have given it her own name. There was nothing else to link her to the items in the bag. If the pursuer had truly intended to create, or produce the DVD, solely in order to defeat the defender’s claim for contact, then she would have been unlikely to have done it in the convoluted manner described in evidence.

[43] If it was accepted that the defender had possessed the DVD in the knowledge of its content, Mr. Robb submitted that there was then evidence of interest in child pornography on his part, and that gave rise to a risk to the children. That was so, submitted Mr. Robb, even if there was no other evidence of such an interest, let alone of any contact crime. It was particularly concerning that the defender continued to lie about any knowledge of the disc, which would tend to increase the risk presented by him to the children.

[44] Mr. Robb sought to distinguish the case of JM v PK. He disputed that prior to the end of 2012 there was really an “existing family relationship” between the defender and of the children. Less weight should therefore be attached to this factor in carrying out the balancing exercise. In any event an acceptance that the defender had been at one time in possession of the DVD amounted to weighty and cogent evidence establishing that termination of all contact was necessary and justified.

[45] In relation to past contact Mr. Robb accepted that on the face of it, by the end of 2012, it appeared that parties were close to agreement that the defender should have extensive residential contact with the children. However he said that contact had always failed since 2008: it had in effect always been ‘on trial’. He referred to EF’s allegation from 2009 regarding the assault with the key. There were other signs that contact was not always a positive experience for the children.

[46] Mr. Robb also criticised the defender’s evidence as evasive and littered with denials, in particular that he always blamed someone else for the breakdown in contact and was unable to accept any responsibility himself. I was invited to accept the evidence of the pursuer and to recognise her as a victim of abuse, bullying and harassment at the hands of the defender. Therefore, it was submitted, contact had not been a success because the atmosphere surrounding it, created by the defender, made it impossible. It didn’t work, and it wouldn’t work in the future.

[47] For all these reasons, Mr. Robb moved me to refuse the defender’s crave for contact. The pursuer was legally aided, and accordingly he moved for expenses in the event of success.

[48] Mr. Marsh, for the defender, submitted that the pursuer had originally sought to end contact by persuading the Court that she was subject to systematic abuse by the defender. He submitted that there was no merit in that allegation whatsoever and that I should accept the defender’s evidence in this regard. He criticised various aspects of the pursuer’s evidence and submitted that she should not be accepted as a credible and reliable witness. I do not repeat the detail of these criticisms, if only because I have largely accepted them, as set out above.

[49] Mr. Marsh submitted that in the period 2009 to 2012 the clear weight of evidence was that contact had been successful, had gone well, and had been to the significant benefit of the children. He drew attention to the many reports of positive contact produced by the Family Centre. He rejected the suggestion that contact had somehow been ‘on trial’ during this period. All the breakdowns in contact in the period since 2009 had been as a result of allegations made by the pursuer which had been subsequently independently investigated and found to be without merit. By the end of 2012 the defender had had many months of regular residential contact with both children, with the agreement of the pursuer, and discussions were taking place with a view to settling the proceedings on the basis that this contact should continue and develop.

[50] As regards the DVD, Mr. Marsh submitted that the defender was in an impossible position in relation to this allegation. He could do no more than state his position, which was that he had no prior knowledge of the DVD, its content or its provenance. He urged me not to accept the evidence of the pursuer and her witnesses, submitting that it was clear that they would say or do anything in order to try to stop contact. He pointed out that the defender’s DNA was on the digital camera, but not the DVD or the DVD player. He criticised the police enquiry, pointing out that it was unclear whether anyone else’s DNA was on any of the items in the bag, and questioning why the defender’s house was not searched and his computers not seized and interrogated. What was clear, however, was that the defender had not been, and would not be, the subject of criminal prosecution in connection with the DVD.

[51] Mr. Marsh submitted that in order to find that the DVD had been possessed by the defender, I would have to accept the pursuer as a credible and reliable witness. He further submitted that it would be unsafe to do so, but accepted that if her evidence was accepted there was just enough for the Court to hold on the civil standard that the defender had had possession of the DVD, and thus that he must have viewed it.

[52] Mr. Marsh submitted that UV’s evidence regarding the discovery of the DVD should not be accepted. He had said that the DVD had been found on Christmas Eve 2012, but it was implausible that he would not have disclosed this until Boxing Day, and that he would have allowed the children to go to the defender’s house for contact on that date.

[53] As regards Mr. Robb’s submissions in relation to the defender’s character, Mr. Marsh submitted that there was no basis to make any finding in this regard. I should reject the pursuer’s evidence that she was subject to physical or sexual abuse. There was no good evidential basis to accept that the defender had assaulted IJ, QR, or anyone else.

[54] Ultimately Mr. Marsh’s submission was that there was no evidence to suggest that the defender was a danger to children in general, or to his children in particular. Even if it were held that the DVD had at one time been in his possession, that did not mean that it was established that the defender had a predilection for child pornography, still less that he had any interest in direct sexual contact with children. He pointed out that there were numerous discs found in the bag, but none of the others had child pornography on them. The 2009 allegation of sexual assault on EF had been found to be without merit. And apart from that there was no other evidence to even suggest that the defender had any sexual interest in children, nor that he was a danger to children.

[55] Even if I accepted therefore that the defender had at one time possessed the DVD, Mr. Marsh submitted that I should not make a leap from that conclusion to the further conclusion that he was a risk to the children. I would need expert evidence for such a conclusion. It was not a matter within judicial knowledge. Similarly, I should not conclude that the defender’s continuing denial of knowledge of the DVD increased any risk in this regard. Again, there had been no evidence led in relation to this, and again it was not a matter that was within judicial knowledge.

[56] In relation to the case of JM v PK, Mr. Marsh accepted that the relevant legal tests were as set out in that case. He submitted that the evidence established that the defender prior to 2013 had had regular, substantial and beneficial contact with the children, and thus had a valuable existing and continuing family life with them. The pursuer had not led evidence sufficient to show that it was necessary and justified to effectively terminate that relationship, whether or not the defender was held to have had prior possession and knowledge of the content of the DVD.

[57] Mr. Marsh therefore moved me to grant a contact order in principle, and to continue matters to a further hearing to assess and determine the exact nature and level of contact. He indicated that the defender’s legal aid had been withdrawn three years ago, and he submitted that if successful an award of expenses should be made in his favour.

[58] Mr. Savage, the curator ad litem, submitted that it was clear, whatever the many disputes and allegations over the previous years, that at the end of 2012 contact was progressing well. He rejected Mr. Robb’s suggestion that contact had not worked well prior to 2012. He too drew attention to the repeatedly positive terms of the reports from the Family Centre over a significant period. He criticised the behaviour of both parties towards each other as having an adverse effect on the children, but nevertheless submitted that the picture presented by those entrusted to assess matters by the Court indicated that contact was working well. Therefore although there were considerable difficulties between 2008 and 2012 those were now in the past. They did not in 2013, and do not now, justify stopping contact altogether. Contact stopped in 2013 for one reason and one reason alone, the production of the DVD. Mr. Savage associated himself with Mr. Marsh’s submissions in relation to the reasons for breakdown of contact prior to that.

[59] Mr. Savage submitted that there were useful parallels to be drawn between the present case and that of JM v PK. He submitted that in that case, as in this, the behaviour of the parents towards each other should not obscure the fact that prior to 2013 the defender had had significant engagement in the children’s lives, and that the available evidence suggested that this had been in their best interests. He did not dispute the legal tests explained in JM v PK, and which would require to be met before the Court could order that there be no contact between the defender and his children in the future.

[60] In relation to the DVD, Mr. Savage submitted that a finding that the defender had possession of it would impact on his suitability for contact with children. That would have to be assessed, and any continuing denial by him would form part of that assessment. Such a finding would undermine the reports which had been prepared by the Family Centre. Had it been known that the defender had at one time possessed child pornography, this would have had to have been examined as part of the contact evaluation. Similarly, Mr. Savage accepted that his own reports for the Court would have limited value given that they were written in ignorance of this issue.

[61] Mr. Savage examined the evidence relating to the discovery of the DVD and its links to the defender. Like Mr. Robb, he submitted that if this evidence was accepted there was sufficient to find that the defender had at one time been in possession of the DVD. He submitted that it was a direct choice: either the defender had possession of the DVD, or the pursuer and those close to her had conspired to create the allegation. He accepted that this was not an easy matter to assess. On the one hand there was ample evidence of the strong opposition by the pursuer and her family to any form of contact. On the other hand, it would be a very improbable hoax. At least some of the items in the bag with the DVD could be linked to the defender. It would take a degree of stretching of the imagination to conclude that the pursuer and her family might have concocted such an allegation, and there was perhaps implausibility in the complexity of producing all the evidence pointing towards the defender.

[62] Ultimately Mr. Savage did not take a firm position on this. However he reminded me that the children’s interests are paramount. He submitted that where a person is alleged to have an interest in child pornography this requires to be examined and assessed before contact is ordered. Thus he suggested that if it was held that the defender had had possession of the DVD there should be no contact until and unless he confessed this and was subject to assessment.

Discussion

[63] The central question for determination is whether the Court should uphold the pursuer’s submission and make a final order refusing the defender’s crave for contact with his children EF and GH, now 11 and 9 respectively. If such an order were granted this would effectively preclude such contact for the foreseeable, and indefinite, future. In these circumstances it seems to me that the considerations and legal tests explained by the Court in JM v PK – which is of course binding on me – are very much in issue.

[64] In the first place, therefore, it seems to me to be necessary to consider and assess the value to the children of the contact which they had had with the defender in the period to the end of 2012. In the second place it is necessary to consider carefully what findings in fact can and should be made in relation to the discovery of the DVD. In the third place it is necessary to consider whether such findings necessitate and justify an order precluding any further contact between the defender and the children.

[65] On the first matter, I accept that for most of their lives, prior to the end of 2012, the defender had contact with both his children. Contact was first regulated by the Court, as far as I can tell, from December 2008, when an interim contact order was made in the defender’s favour. That contact went well, such that by May 2009 it had progressed from two hours supervised contact per week in the Family Centre to four hours unsupervised contact per week outwith the Centre. Contact was then suspended on the basis of an allegation against the defender which was investigated and determined to be unfounded. It started again in August 2009, again for two supervised hours per week at the Family Centre. Again it went well, such that by the end of 2009 some residential contact had taken place, and parties were negotiating a joint minute to confirm such contact into the future. Again contact was suspended, between January and February 2010, again on the basis of an allegation against the defender which was later not established. From February 2010 to July 2012 the defender had regular, generally supervised access at the Family Centre. The amount of contact varied over the period, for example between two hours per week and two hours per fortnight. But as is clear from the many supervision reports it generally went very well. From July 2012 contact was increased to unsupervised residential contact, two weekends in three. Again this went well, and contact was only suspended because of the discovery of the DVD and the allegations relating to it.

[66] I therefore agree with Mr. Marsh and Mr. Savage that the general pattern of the three years prior to the events of December 2012 was that the defender would be granted contact, it would progress well from supervised, to unsupervised, and then residential contact, only to be suspended by the Court on the basis of allegations by the pursuer, which on investigation were later found to not be established – or at least not to justify denial of contact. I further agree that the evidence, in particular as contained in the independent reports from the Family Centre, makes clear that the contact with the defender was generally of good quality and positive for the children, and in their best interests, and that there was nothing observed in the defender’s behaviour towards them which suggested that it would not be appropriate for him to have contact.

[67] I think it important to note, perhaps differing from Mr. Savage in this regard, that observation and assessment of the defender during contact since May 2009 had been made in the knowledge that an allegation of sexual abuse had been made against him in relation to EF. A finding that the defender had previously had possession of a DVD containing child pornography would therefore not wholly undermine the value of these assessments. Staff would already have been alive to the need to consider and report any conduct by the defender which was indicative of inappropriate sexual behaviour by him towards them. Yet none was noted.

[68] I therefore accept that prior to suspension of contact in February 2013 the defender had, through regular and by this time relatively extensive contact with the children, an established family life with them as that expression is explained in JM v PK. Whatever the rights and wrongs of his behaviour towards the pursuer (or anyone else) I am satisfied that there is no good basis for concluding that the relationship between the defender and the children at this point was other than satisfactory. But for the events arising from the discovery of the DVD contact would have continued. This was not just on the accepted view that it is best that the children have a relationship with both parents, but also on the basis that the evidence suggested that the contact to this point had been observed to be positively in the best interest of the children.

[69] Turning to the second matter, the DVD produced to the police by the pursuer on 26 December 2012, I note firstly that all parties’ agents were agreed, if it was accepted, that there was sufficient evidence to permit a finding on the civil standard that the DVD had previously been in the possession of the defender. While this is obviously a matter of some difficulty I have ultimately decided that I do accept the evidence to this effect and that I reject the defender’s denials to the contrary. I have therefore concluded that it is likely that the defender did at some point between 2006 and 2008 have possession of the DVD. I also accept that it follows that he must have had knowledge of its contents, and yet retained possession of it for a period notwithstanding this.

[70] My reasoning is as follows. As noted above, while I found the pursuer to be generally neither credible nor reliable, I consider that it is UV’s evidence which establishes the movement of the black bag containing the DVD from the pursuers’ house to the pursuer’s mother’s house in early 2012, and its discovery on 24 December 2012. I was prepared to accept this evidence. It follows that I therefore essentially accept the pursuer and – for what it’s worth – her mother’s evidence, regarding the discovery of the DVD, if only because it is corroborated by the evidence from UV which I have accepted. It also follows that I reject any suggestion that the production of the DVD to the police was the product of an elaborate conspiracy, whereby the DVD was created or planted by the pursuer and/or her family for the purpose of defeating the defender’s claim for contact.

[71] That being so, it is apparent that the DVD was one of a number of items in a black bin bag which had been in the pursuer’s house when it was cleared in early 2012. A number of pieces of evidence then point towards a connection between the contents of the bag and the defender. Most obviously there is the finding of a match for the defender’s DNA on the digital camera. This evidence satisfies me that the defender had previously likely come into direct contact with this camera. Secondly there was a letter addressed to the defender. That is plainly his property. Next there is the pursuer’s evidence that the words on the DVD itself ‘Nov Porn’ were in the defender’s handwriting. Given my reservations about her evidence I do not attach much weight to this, but I do not discount it entirely. Then there is the evidence of KL that the DVD player in which the disc was found was very similar to one which he had seen the defender with previously. Again, given KL’s obvious partiality, I attach little weight to this, but again do not discount it entirely. There is then the evidence of the ‘last modified date’ of the DVD, which I accept suggests that it is likely, all things considered, that the DVD was burned with the pornographic video images in November 2006. That is consistent with a timeframe within which the defender could have been in possession of the DVD, accepting that he had last been in the pursuer’s house, and thus had access to the loft, in 2008.

[72] Putting all these pieces of evidence together I am satisfied that it is likely that the items in the black bag, including the DVD, were the defender’s possessions or were at one time in his possession. I then accept, for the reasons that all parties’ agents recognised, that the defender could not have had possession of the DVD without also being aware of its contents.

[73] As I have said, I do not consider that this finding is dependent on acceptance of the pursuer’s oral evidence as credible and reliable. However her evidence does bear on the movement of the black bag containing the DVD and the other items in the period before they were found and transferred to the pursuer’s mother’s house by UV. The pursuer’s position was that she had not put the bag in her loft and had no knowledge of it or its contents prior to 26 December 2012. That of course may not be true, but on balance, and even given my considerable concerns regarding her evidence, I think it unlikely that she would knowingly have retained and stored the defender’s property in her own loft, particularly had she been aware of the DVD and its content.

[74] That takes me to the third question, whether, against the background of the value of the family relationship between the defender and his children prior to 2013, the limited findings which I have been able to make in relation to his possession of the DVD necessitate and justify termination of all future contact. Balancing matters as best I can – the value of the defender’s family relationship with his children against the risks to them of at least some future contact – in my judgment the answer to that question is no.

[75] Essentially in this regard I accept Mr. Marsh’s submissions and reject those of Mr. Robb. A finding that the defender at one time possessed child pornography is undoubtedly concerning. But it is important to recognise the limits of my findings in fact in this regard. I find only that, as a person who has an interest in adult pornography, the defender at one time had and retained possession of a single DVD, predominantly of such adult material, but which also contained four video clips of child pornography. I therefore cannot and do not find that the defender is a paedophile. I cannot and do not find that he has interest in direct sexual contact with children. I cannot and do not even find that he was or is a regular or habitual user of child pornography. I do not consider that such inferences are properly open to me. I agree with Mr. Marsh that they would be based on matters which are not within judicial knowledge and which were not the subject of evidence at the proof.

[76] It is also necessary to remember that, apart from the allegation regarding EF in May 2009, which was investigated and found to be without merit, there was no other evidence to suggest that the defender had any sexual interest in children. Even the pursuer was prepared to accept that during the currency of their relationship over a number of years, in which they used adult pornography, she had not known him to have any such interest.

[77] I therefore do not accept Mr. Robb’s submission that findings such as I have been able to make in relation to the DVD mean that the risk to the children from the defender is such that it is necessary and justified to terminate all future contact. In particular, I fail to understand what particular risks were thought likely to arise from contact which was in the form of supervised contact at a Family Centre, as it often was between 2009 and 2012.

[78] I have not forgotten Mr. Robb’s point that the defender’s denial of all knowledge of the DVD was in itself a further indicator of risk. He went so far as to suggest, in terrorem, that it might only be years from now that the children might make further disclosures, as sometimes happened in other cases. True, I did not find the defender to be a credible or reliable witness, and rejected his denial of knowledge of previous possession of the DVD. But it seems that this is not necessarily the same, for example, as a case where an accused person has been convicted to the criminal standard of contact crimes of sexual abuse yet continues to deny his responsibility. But again there was no expert evidence led on this, and again it relates to matters of considerable difficulty which I do not consider are within my judicial knowledge. And insofar as it may be recognised that victims of childhood abuse sometimes delay disclosure, to suggest that this is likely in the present case on the basis of the facts now established is simply speculation.

[79] It will be apparent that I have not sought to make positive findings in relation to the historical allegations of physical and sexual abuse by the defender made by the pursuer. In part this is because I found neither of them to be credible or reliable witnesses, for the reasons which I have set out. It is also because, as the pursuer herself was at one point prepared to accept, they were in the past and had not prevented a successful progression to unsupervised residential contact by the end of 2012. But perhaps more pertinently still – and I am fortified in this view by the facts of JM v PK – it is because these matters are ultimately irrelevant to the central issue, of whether it is in the children’s best interests to have at least some contact with the defender. Even if he had abused the pursuer in the past as she claimed, the evidence did not establish that this had or would in the future adversely impact on the children.

[80] In these circumstances and for all these reasons I will refuse the pursuer’s motion and grant the defender’s crave for contact. As invited by agents, I will continue consideration of the precise frequency, duration and conditions of such contact to a procedural hearing to be fixed as soon as possible. My expectation, although I will hear submissions on it, is that regular supervised contact should recommence. I do not accept Mr. Savage’s suggestion that resumption of such contact would have to await both further assessment and an acceptance by the defender of my findings in fact regarding his possession of the DVD. I will however hear submissions on whether it is appropriate to seek to ascertain the views of the children themselves in this context, and if so how that should best be done.

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	Scottish Sheriff Court Decisions
You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> AB AGAINST CD AND JAMES FRANCIS SAVAGE [2016] ScotSC 8 (08 November 2016) URL: http://www.bailii.org/scot/cases/ScotSC/2016/[2016]SCALL78.html Cite as: [2016] ScotSC 8

Scottish Sheriff Court Decisions