Scottish Sheriff Court Decisions

Having resumed consideration of the cause, Finds that it is in the best interests of the child that the pursuers be entitled to an order conferring on them parental rights and parental responsibilities in terms of Section 11(2)(c) of the Children (Scotland) Act 1995 and makes such order; further orders that SIK shall reside with the pursuers until further orders of the court; repels the second defenders' pleas; ordains parties to address the court on contact and also on the matter of expenses on 23 November 2004 at 10.30 am.

This was an Evidential Child Welfare Hearing which proceeded to proof. The proof lasted 7 days. It is one of those rare cases where the differences between the parties were simply not reconcilable by discussion. The differences were not just over disputed facts or interpretation of facts but also profound disagreement on the nature and the extent of legal rights.

I was quite satisfied that the agents had done whatever they could to resolve the issues before the matter went to proof and that in this case a proof was inevitable.

It may be helpful if I set out the agreed factual background first on which there is no disagreement. The pursuers, PC and RC are the parents of the first defender, LK and thus the grandparents of her child, SK. The second defender, GK was L's husband. L had been taking controlled substances from her early teens and had been a heroin addict since the age of 16. She had been involved in the distribution of drugs to some extent and in the course of that activity had met GK who had been also a user of illegal drugs. She was then aged 22. He befriended her and kindly offered her accommodation in his flat while he was working offshore. When he was back onshore, she remained in the flat. An intimate relationship developed. They were married in Cancun on 14^th September 2000. S was born on 12^th February 2001.

S was born with neonatal dependency syndrome. This is a common condition of children born to mothers who have, during their pregnancy, taken addictive substances. He had become dependent on the drugs ingested by mother and the process of withdrawal after birth is a very distressing experience for a baby.

S also suffered from developmental retardation The full extent of any cerebral deficit is not yet known. After birth S was detained in hospital for about 6 weeks for treatment. Thereafter he was released to the care of his mother subject however to the supervision of the Social Work Department who had put the child on the Child Protection Register in view of their knowledge of the drug use and also allegations of violence. The grandparents were very concerned at their perception of the incapacity of L to look after the child and invited L and S to stay over with them from time to time. By July 2001 S came to live full-time with the grandparents.

The Social Work Department approved of the arrangement. A supervision order was made in terms of the Social Work (Scotland) Act. Successive Children's Hearing have ordered that S remain in the care of the C's.

The relationship between L and G appears to have been a kind, considerate and loving relationship initially although the relationship is now characterised by the obverse of these qualities. The relationship between G and the pursuers was initially amicable but has now deteriorated so that the customary civilities are barely or not observed.

This action commenced when it became apparent that G was not prepared to accept the decision of the Children Hearings and sought to have a larger role in S's development.

The pursuers submit that it is in the best interests of the child that an order for parental responsibilities and rights be conferred upon them and that a residence order should be made whereby S resides with them.

The first defender concurs with the grant of parental rights and responsibilities to the pursuers. There is no crave to deprive her of her rights and responsibilities.

The second defender opposes the pursuers and the first defender and seeks a residence order whereby S reside with him.

In support of their submissions the pursuers adduced six witnesses. The first, and in many ways the most important witness, was PC. He is aged 58 and a retired senior police officer (Chief Inspector) who had formerly been a registered nurse specialising in mental health and has now reverted to part-time nursing. In my view he was a very balanced witness with an insight not only into the needs of S but also into the personalities of the other persons concerned. He was able to be detached and objective. He had initially been very concerned for the welfare of the child who was a fractious and uncomfortable baby and he questioned the capacity of L to deal with the child. He accordingly took a considerable interest and encouraged both to come to his home as much as possible. He did not seek to dissimulate when discussing his daughter's capacity and acknowledged that despite the huge progress which had been made in overcoming her addiction, her rehabilitation will take a long time and she will not recover in weeks or months. He accepted that she was simply not suitable to be looking after S full-time and notwithstanding that she is no longer taking heroin and has not been taking it for many months her capability in looking after S still varied. There is other evidence of her capability in carrying out maternal functions which is far more favourable to L and I will advert to that in due course. On the other hand Mr C did not seek to denigrate GK. He acknowledged that initially he had been kind, sociable, obliging and full of fun. He acknowledged that G had been simply unable to perform the function of father as he spent most of his life offshore. He had no hesitation in acknowledging that S and G get on very well together. However, he sees G as very controlling and seemingly anxious that S should grow up in G's image. Mr C sees that desire to be in control as a principal factor that inhibits G from paying any attention to what he or anyone else says. He complains that G shouts him down and has put the phone down from time to time. He expressed himself as disappointed at the change in G's attitude and would wish that a better means of communication could be found. While not antagonistic to G he questioned G's awareness of the needs of a young child. He gave various examples of behaviour encouraged by G which he found would be unhelpful to S's development and his original perception of G as fun loving had become modified to G being boisterous, loud and inconsiderate and he sees G as trying to encourage S to be a rough tough street-wise boy like himself. Mr C does not approve of that but he does not reprove G for that attitude. What he does reprove him for however is as he sees him as using S as a tool. He did not consider himself satisfied that G was indeed in a stable relationship. He found G's contradictory remarks concerning. He regarded the behaviour of both himself and Mrs C as being very tolerant but he now feels that G has sought to overpower them and bully them into doing what he wants.

The next witness was RC, wife of PC and mother of L. She has a degree in psychology, a post-graduate diploma in counselling, is a registered midwife and health visitor and was nursing services manager in Grampian until she retired. She is now director of counselling at a private hospital and has her own private counselling practice. She and PC carry out the primary care functions for S. She is formidably qualified to deal with disputed care issues. I found her astute, able and insightful. While she had had her own health problems by way of diabetes, arthritis and a cancer scare some years ago, I did not find that these had made her introspective or self-centred. She was well capable of being objective and child centred. Notwithstanding that her relationship with G was virtually non- existent she did not seek to cast undue aspersion upon him. She explained that she had found G from the beginning loud but trusting and kind. Latterly, however, he had changed and she found his overt rudeness and lack of insight very difficult to put up with. She recognised that S loved his dad and she encouraged the contact. She was fearful now however that as G did not understand the social and emotional needs of a child that if G were to be given a residence order he would simply cut out the mother and grandparents to suit himself. I did not consider that that assessment was in any way motivated by malice. I found that was an honest and objective assessment of the probable behaviour of a man she now finds very difficult to relate to because he has turned the discussion over the best interests of the child into a contest of wills. She was a well-informed, able and reliable witness.

The next witness was Mrs B, a health visitor for nearly 30 years, the last 18 of which had been spent in Grampian Region. She first came across S in September 2003 when the child was registered with the general practice within which she works. She had seen S on about five occasions for 11/2 hours. She confirmed that he had speech difficulties but was a happy, confident, well-settled little boy who was being well looked after at the pursuers' home. He had been diagnosed with asthma but only uses the inhaler when needed. There had been an inquiry about possible diabetes but that was not diagnosed and she ascertained that proper diet is high priority in the C household as Mrs C suffers from diabetes. She commented specifically on the relationship between S and PC. P was referred to as the focal point of S's world. She found the C home very child-friendly. She had no concerns at all about care and was impressed by the balance between discipline and nurturing. She was concerned about the speech delay in S and had a cautionary eye to the future as that sometimes leads to behavioural problems and the ADHD syndrome. She was very sceptical about any change of environment for a child with the history and patent difficulties that S had. On balance she thought it preferable that commencement of school should be deferred if possible to give him longer to settle down and see if the speech difficulties improved before he started school. She had quite limited knowledge of L but had observed them playing in the garden and observed a good interaction between S and L. She had no information regarding the relationship between S and G.

The next witness was Mrs F who was now the manager of a small family business but previously had been a headmistress and a lecturer. She had a BA from the open university and a master of education from Aberdeen. She had known the C's for about 40 years. She was an occasional visitor but has taken an interest in L since she was born. She was well aware of the addiction allegations but could not say that she had ever observed any drug taking herself. In November 2000 she had been assisting P and RC in looking after L and had, while they were away, offered to have L through at her self catering lodge at Nethy Bridge, Inverness-shire. L, however, had been very disinclined to stay and left. At that time she had telephoned G in Russia to get support from him to tell her to stay but was very disappointed in his reaction in that he gave her no support at all. She explained that she had had 32 years of professional experience in seeing children develop. She has watched S playing with L and also with G. She has observed S with PC and RC. She observed that RC was frightened of G whenever he called to collect or deliver S. She regards the C's as providing a very good level of care and very good role models but she is concerned about the language development of S. She was also of the view that it would be in S's best interests to remain where he is and delay primary school education. She also said it was preferable that he has contact with both parents. She was obviously supportive of L and approving of the relationship between S and L. She now visits RC to give her reassurance should G be calling at the house.

The next witness was RI, a qualified nurse and child nurse with various other qualifications who is a former staff nurse at the sick children's hospital but now works with the Cyrenians on an agency basis. She has known the C's for the whole period of their marriage and sees them regularly. She is a frequent visitor to the C household, is well aware of L's drug problem. She has met G who behaved in a charming and friendly manner towards her. She visited S in hospital after he was born and confirmed that he was a very ill baby and her recollection was that S had to spend several months in hospital. After he came out of hospital she did some baby-sitting at the request of the C's. At that time she described the child as a very distressed baby and a poor feeder and needed a lot of walking about and comforting because he cried a lot. She does not remember G being around except occasionally. She has watched S develop into a sociable, smiley and playful child and regards him now as stable and happy. She also confirmed a phrase which cropped up in various witnesses' evidence that P was regarded as S's "rock". She considers that P and RC have coped very well over the last 3 years and she sees no reason why they should not continue to do so. She was positive that a move from the C household would be detrimental to S. She has, over S's life, observed how L has behaved towards the child. She opines that she found L always very sensitive to the needs of a child but she sees a big difference in the relationship now. She looks so much better and the interaction with the child is now very favourable. She also confirms that she has observed the inter-relationship between S and G. She has been present when G has collected the child on several occasions. She dismissed the suggestion put to her that the C's would not be able to cope when S was older stating that lots of grandparents do very well with teenagers and she was firmly of the view that the sooner all the involvement of third parties including court and children hearings was over the better it would be for all parties. She also said that she had been working with addicts for 25 years and had found it impossible to predict who would be likely to fall victim to drug addiction. Once again I found this witness was objective and honest although her factual knowledge was based on the family circumstances of the C household. She had no knowledge of G's household.

The next witness was the nursery manager at the nursery where S currently attends. She had 40 years experience as a nursery nurse and was honoured for her services to childcare and education. At the nursery she has had contact with RC, PC, L and G. She has met G on two occasions when he collected S from the nursery. S obviously enjoys being with his dad who plays quite physically with him, throwing him up and swinging him around. She observes that S loves all the adults with whom he has contact. She stated that he had a very strong bond in particular with his grandparents and she reaches that conclusion from his general chatter and activity, such as drawing in the nursery.

She also confirms that on a Monday S is more tired and more excitable, forgets the rules and needs some gentle reminders. He is more demanding of attention on a Monday than any other day of the week. She had at one stage asked the staff to monitor the behaviour that she observed and the staff confirmed what she had seen. Overall she regards him as a happy, sociable, capable boy now able to enjoy more group work. Her view over the period of the child attending was that he was consistently well looked after with an excellent diet and lots of activities. When asked about a change she considered that any change in his domestic surroundings would be likely to lead to a regression in his development. He was a 3 year old beginning to make new friends and he needs a good stable environment. She is more aware of the effect on S by the grandparents than by L. She has seen L at the nursery and she appeared very caring of the child. This witness impressed as very balanced, objective observer. She has vast experience of observing the development of children. She is clearly of the view that the current care arrangements for S provide him with an environment which is very favourable to his development that she would not support change in the arrangements.

Thus the pursuers' case was supported by the pursuers and four witnesses experienced in child care and with varying degrees of detailed knowledge of the level of care being provided under the direction of and by the C's.

Both defenders gave evidence and the second defender called four additional witnesses. While each defender gave evidence of their respective history of the relationship, little purpose is served by rehearsing it. It is valuable for the purpose of noting their accounts of their behaviour in the past and in the light of that assessing their likely behaviour in the future. This is not the forum to resolve any contradiction in the accounts of the events of their cohabitation and marriage. That would be relevant if there was significant issue of credibility in this case. I do not think that is the case here. The significant issue in this case is of judgement.

The first defender gave evidence at length, explained how she had had a bright, happy and very successful primary school but at secondary school an early experience of non-consensual sexual intercourse had been very traumatic for her, and she had been inhibited by shame from reporting the experience, had been exposed to drug taking and that drugs then essentially dominated her life. By the age of 16 she had become a heroin addict. Until that stage she had been able to disguise from her parents the real reason for her declining performance in school. While she did disclose to her parents and accepted their assistance she was unable to escape from the whirlpool of addiction. It is not necessary to rehearse in detail all her evidence and I will focus only on the salient points. By the age of 22 she was dealing in drugs to finance her own habit. Her physical condition had been badly deteriorated by constant and frequent injections into a state of what appears to have been dreadful decrepitude. She met G who she says had come to her flat to buy drugs as he was also a user. She acknowledges that she generated compassion in him and he very kindly agreed to look after her and invited her to his flat. He spent most of his life offshore. He generously allowed her to occupy the flat while he was away and when he was onshore he tried to reduce her drug taking. When he was onshore they both took drugs but she recollects taking far less. But when he went back offshore she needed more. She recognised that he did not suffer from the same kind of addiction that she had and he was able to simply stop taking drugs whenever he went back offshore again.

She had always wished to be a mother. She had expressed from her early childhood that that's what she wanted and she continued to have that expression of need during cohabitation with G. They agreed to have a baby. She became pregnant and then agreed to get married to each other. They went to Cancun to get married and while there they both bought drugs in a street market. There was some contradiction in the evidence as to which particular drugs but it was quite clear from Mrs C's evidence and L's evidence that the drugs included cocaine. Mrs RC had realised there was something going on and challenged them both and received admission that the drugs were being bought. She gave her daughter a good talking to about the effects of drugs in particular cocaine on a foetus. She insists that cocaine was purchased and both took it. GK denies that. Whether GK took cocaine or not does not seem to me to be material. What was clear is that he was aware that it was being bought and was being used. It was not clear whether he was aware of the effects of illegal substances on a foetus before RC upbraided them both. However, there was clearly dispute between L and G when in Cancun regarding the extent to which L was continuing to take drugs.

For most of her pregnancy L was very much on her own as the shift pattern of G appeared to be such that he was only home a few days per month. Occasional cohabitation was a characteristic of the marriage.

The birth of the child was very much welcomed by L but she realised how ill the child was and also realised that that illness was caused by her. That was emotionally devastating for her. She got no emotional support from G. Her perception was that he had gone from loving her greatly to hating her. He continued to spend most of his time away from home. She continued to take heroin. His behaviour when he returned home, however, was characterised by violence and resentment of her condition. In December 2001 she moved out of the house which had been the matrimonial home. The Social Work Department were assisting her. They were trying to get her clear of the effects of drugs and to become able to look after S who had been in the care of the C's since July 2001. On the morning of a hearing at which the Social Work Department had been prepared to recommend that S be returned to mother's care she was taken to hospital as an emergency having suffered a thrombosis after an injection. The Social Work Department had not known that she was continuing to inject and when they learned that they had been conned by L they effectively abandoned her. G then contacted the Social Work Department and offered to look after S. He undertook to obtain a shore-based employment. The Social Work Department then started recommending that G should have the child. From that point on (May 2002) the relationship between G and the C's began to break down. It became apparent to L that G was now, as she saw it, irremediably ranged against her and he would be derogatory of her at every opportunity and more importantly he would not encourage S to have any bonding relationship with her. She gave fairly recent examples of where S had been saying things which clearly implied that she had been a bad mother and had neglected S. L also confirmed that S was making anatomical comments which in an older child would clearly be regarded as overtly sexual and also exhibiting rude and exhibitionist behaviour which he suggests is encouraged by G. She now sees there is a considerable difference in the standard of values with which she was brought up and the standard of values which she sees G seeks to impose upon S.

L is very supportive of maintaining the relationship that S has with the grandparents and recognises that there is a particular bond between P and S. She has developed sufficient insight to realise that she has pangs of jealousy at the closeness of the relationship between her son and the grandparents but on the other hand she is glad from S's point of view that he has a close, loving relationship with the grandparents. She recognises that it was her own self-centredness that created a situation whereby she has to some extent lost out in that kind of relationship with the young child. She is wholly aghast at S being separated from the grandparents. As she dramatically puts it "that would tear up his world".

Despite what she perceives as constant antipathy from G she recognises that he has many good qualities. She is quite content to say that he is full of energy and is an enjoyable companion for S. She would wish that he were, however, more respectful of people in general and does not wish S to grow up exhibiting the disrespectful attitudes which she now sees as part of G's character.

She now sees that G regards this action as essentially a contest. She thinks he deliberately encourages S to behave badly and to get into trouble. This is totally different from the attitude promoted in the C household which attitude has resulted in S being open and gregarious and loving all the adults in his life. Her fear is that if G in fact had S living with him her contact would be progressively diminished and S would not be encouraged to perceive her as having any role in his life. In view of her life long ambition to be a mother that is a thought that she can barely contemplate.

She does not see age or infirmity creating any difficulty for her grandparents in looking after S and she points out she herself has been improving steadily over the last 9 months. She expects to continue and she will have an increasing role in S's life. L has received a considerable amount of counselling and in my view she now takes a very realistic view of her situation in life. She is quite prepared to admit her own weakness in the past and her successful deception of her parents. She has a sense of shame and is not afraid to articulate it. She does not seek to blame others for the misfortunes that have fallen upon her but is plainly still deeply hurt by the harm which she acknowledges she has visited upon her child. She is resentful of the failure of the Social Work Department to recognise that she had been trying to but not succeeding in beating her addiction and she felt they should have recognised that it was her over confidence in coming off methadone too quickly that led to her being forced into taking heroin again after S's birth. Her subsequent abandonment by the Social Work Department left her not only very confused and resentful but also fiercely resolved to beat the addiction because she recognised that if she did not, her son would have no mum. Reflecting on her evidence as a whole I think her father's observation is correct. He observed that she has been ill for a long time and she will take a long time to recover fully. I cannot say that I am satisfied that she will recover fully but it is plain she is well on the road to recovery and is probably gaining the self confidence to separate herself wholly from the unhelpful influences which are still around her.

The first defender led no more witnesses and clearly supported the pursuers crave.

The real opposition to the pursuers' crave came from the second defender, GK. The second defender's witnesses were his new partner RH now aged 20 his mother now known as JB, KM a Social Worker formerly with experience in family work but now a drugs worker, PK a senior Social Worker with the Child Protection Team in Grampian. In the course of his evidence G clearly indicated that there had been a breakdown in relationships and that is what had caused the matter to come to court and he expressed the wish that matters could have been resolved otherwise. He was convincing enough for me to suggest that there was the possibility of still entering discussions even at this stage and as he seemed anxious to depart from the formal mode of procedure I invited him to step down from the witness box and become involved in a discussion in the style of a Child Welfare Hearing focusing on what was in the best interests of S.

In the course of the ensuing discussion and my narrative to him of my perception of the problems facing the child, it became apparent that it was not just a breakdown in communication which was causing the difficulty. The second defender had acquired a perception that as a father he had a prior right to look after S, that right was being interfered with by the grandparents and they had to be stopped. He also had a view that as he himself had been brought up by his own father after mother had walked out of the matrimonial home he wanted the opportunity to do the same thing for his son and bring up S himself. I found the contrast between the somewhat plaintive tone of his assertion from the witness box that if only parties would speak to each other all problems would be solved and the hard demanding tone of his explanation round the table quite striking. The parties nevertheless were sufficiently encouraged by the extent of the discussion to seek an adjournment for further talks. Unfortunately these proved inconclusive and GK resumed his role as a witness. The second defender then complained that "he had never had his evidence interrupted before" and he felt forced into making a compromise offer which he would not otherwise have made. I have not noted the compromise. I ignore the result of the negotiations. I was not informed by the pursuers of any offer. It was the second defender's agent who referred to an offer.

It was in the course of G's evidence that the difficulty of the problem posed by this case became apparent. The interlinking of personality clashes, creates practical difficulties for which there is no easy solution. However, serious issues of principle also arise. In particular, there seemed to me to be a constant theme in G's evidence echoed in the evidence of the Social Workers who were also called to give evidence of an attitude which I characterise as the primacy of the parent. Article 8 of the European Convention on Human Rights was referred to, as was the existence of Parental Rights and Responsibilities narrated in the 1995 Act. As I understood the argument it was that the parent has a better right than any other person to be the primary carer of his or her child. The children's hearing did not accept that argument and placed the child under the supervision of the pursuers. The Social Work Department representatives professed themselves to be mystified as to why the children's hearing had not followed the recommendation that they place the child with the child's father. To be fair to the Social Work representatives who professed that view they are essentially applying their guidelines and they see that their recommendation to the children's hearing was the only logical outcome of what they regarded as binding guidelines. Guidelines are, however, not railtracks. In my view it is important to take a broad view. If guidelines are simply applied without taking into account all the facts then the best interest of the child may not only be not achieved, it may not even be perceived. In this case it is the adherence to a rigid policy which has caused some of the problems. The insistence on the "rights of the parent" has misled GK into believing that he has a legal entitlement to the child which is being frustrated by the C's. He is so convinced of the view that he has a legal right which precedes the right of any other claimant that he regards anyone who opposes his view as being awkward and anti-pathetic and antagonistic of him personally. It is that attitude that has led to the breakdown of the personal relationships between the C's and GK. I shall advert to the law later.

Much of the evidence of G related to the gradual breakdown of his relationship with L. He explained that she was using £600 - £700 per week on drugs. He was eventually made bankrupt. He attributed that to her spending his money on drugs. She denied that completely and said that he had always been a free spender and generous but she had discovered shortly before S was born that he had huge debts that she knew nothing at all about. He is probably correct when he says that he had not known that she had been such a heavy user of drugs. That he would not know is easily understandable given he was so seldom at home. At no stage did he appear to appreciate how difficult it must have been for her to be on her own while he was away. He confirmed that latterly the marriage had become affected by violence, her verbal violence and his physical violence. He was only too glad that the C's were prepared to take over looking after S and he confirms that they did a very good job. G explained that in May 2002 he realised that L was no longer capable of being an effective mother and he then stopped working offshore. He attended the children's hearing that L had failed to attend because she went into hospital and he had direct contact therefore with the Social Work Department and told them of his change of job. From then on the Social Work Department favoured him as the primary carer of the child. With the assistance of the Social Work Department extensive contact was arranged and he looked after S every weekend. For the past year and a half he has seen S every weekend. He explained that they have a very full, active weekend and he takes him on a whole variety of activities. S has his own room in G's house. His new partner gave birth to a baby in December 2003. The baby is doing well and not giving any problems and that is another source of delight for young S. His new partner LH gets on well with S and there are other cousins that he regularly meets and coming for the main part of his life to G's house, he maintained, would cause no difficulty to S. G denied the allegations that he encouraged S to use what was described as lavatorial language. G explained that while he had dabbled in a variety of different drugs he had never become addicted to any of them to any great extent. At one time he had been subject to regular testing which he never failed. He was able to take or not take the substances as he chose. Perhaps for that reason he failed to appreciate that others could be affected very differently indeed and could be totally dominated by the substances. He attributed the breakdown in relationships with the C's to one particular violent incident where he had struck L. He assumed from then on they would support her against him. Thereafter he decided that he would seek residence of S because he knew that L would be incapable of coping by herself. The Social Work Department supported him and he appears to have thought that he could simply take S. He considered that he had had a very good relationship with RC but when he found himself thwarted by the C's desire to continue to look after S he became antagonistic. He accepted that he had paid no aliment for over two years and justified that by saying that he cares for S 30% of the time. He earns £35,000 per annum. He took every opportunity to emphasise during his evidence what a great time he had with his son every weekend and how filled the weekend was with activities. When he invited to comment on the change of behaviour on Mondays which had been observed and commented upon by the nursery he had no explanation.

He explained his current relationship had commenced when he had met LH when she was aged 18 (just over half his age). They had started to go out together and it was only when she was 19 that they commenced a cohabitational relationship. He was absolutely certain that LH was sufficiently mature to be able to look after S and he emphasised how he and she would be able to install values of which good manners was highly regarded. He accepted that LH would be the main carer for S while he was out at work but he saw no difficulty with that. He had for the last year been living near his relatives but LH had been part of his life for the last three years. When invited to comment on the extent to which S would see L he indicated that he would keep contact but pointed out that due to an outstanding drugs charge L might end up in jail. He confirmed that he had been highly critical of L but that it was all in the past and that he would keep her involved with S. I did not find myself persuaded by these observations. Curiously he argued that there would be no disruption to S and that he would settle into the change without any difficulty. He explained that S recognises his dad's house as his home albeit a weekend home and he was critical of the fact that this action had taken two years to come to a conclusion.

Evidence was also given by LH, the cohabiting partner of G. She had first met G in August 2002 and was staying overnight with him in December 2002 and had permanently moved in with him in January 2003. Her date of birth is 30^th October 1984 and accordingly she must have started going out with G when she was 17. Three months after her eighteenth birthday she was pregnant to him. She professed her willingness to assist in any way possible in bringing up S but she did have her own baby. When faced with the question of what damage might be sustained by S if he were to be removed from his present environment she was patently uncomfortable and not surprisingly unsure of how to respond. I had little doubt that she would do her best but I had little evidence that she had the degree of insight that would allow her to cope with what was a damaged but recovering child.

Mrs JB is the mother of G who now resides near him in X.

She sees S regularly and confirms that S and G have a very good, happy and very active relationship. She supports the transfer of S because it is more natural for a child to be with a parent rather than grandparent and she finds LH more capable than her years would suggest.

She acknowledged she played very little part as grandmother till G moved to X. She hardly knew L. She would, however, help out as a grandmother so far as she could. She had earlier told the Social Work Department she could not take or care for S during the day except at weekends and she remained adamant that a child should be with younger persons and preferably his parents. In this case that meant G.

Mrs KM has been involved in Child Protection work from 1990 to 2003. She left that work to become "a drugs worker". In June 2003 she was appointed Social Worker for S. She prepared a report for a children's hearing in January 2004 which she explained was based on information derived from social work files. She confirms S is a happy, delightful well looked after child. While she has observed L and S at play 3 or 4 times she did not ever assess L. She has not seen S since July-August 2003. She considers that the sooner the issue of residence is resolved the better for S. As he is so well loved a transfer would not traumatise him. She favours residence with G as he is the only parent capable and available and it is the policy of the Social Work Department to place a child with a parent where possible. She has met with G twice.

She acknowledges that the C's have done very well but the department would not normally place a 2/3 year old child with an older family. She has no concerns about current care having visited the C's household half a dozen times.

She confirms that once L was discarded as a primary carer in May 2002 she was never reconsidered. Thereafter the father had a "human right" to bring up the child.

For that reason the C's were not assessed as possible primary carers either. The issue of rehabilitation of L was not a factor in the department's decision to continue to favour the transfer of care of S from the C's to G. Why prevent a child going to father if there is no reason not to she enquired. She offered, however, no reason other than the availability of G and the good relationship he had with S.

She did not consider it appropriate to take into account the patently different values of the C and G households. It was not for the Social Work Department to become involved in resolving such differences. It was clear from her evidence that there had been no assessment of the relative merits and drawbacks of the child being in the C house as opposed to the G house, either for the long-term or short-term. The basis for preferring and recommending G as primary carer was his status as father.

PK was a senior social worker based at the Maternity Hospital with 14 years experience in child protection matters. She had been involved with S from the start. By June 2001 she was aware that L and G were estranged. She tried to support L in her efforts to look after S. She maintained that the first she knew of L's continuing involvement with drug use was when the hospital confirmed on the morning of the Children's Hearing that L had been admitted with DVT. She knew that to be probably the result of frequent injections.

She confirmed that G had then approached the department and offered to take over. The department told him he would need to get job onshore and when he did the department supported his efforts to take over care of S. She acknowledges that there had been no assessment of his capability just his availability. In any event she had not seen G in the last 11/2 years. She professes puzzlement that successive Children Hearings had not accepted the Social Work Department recommendation that S be transferred from the C household to the G household. She emphasised that a father has a moral right to look after his child and an overarching principle to be applied is minimum intervention. Therefore as she saw it the decision is simple. The child is entitled to live with the birth parent. The father here has never had the opportunity to look after the child therefore he should be given it now. I got no impression that any consideration was given to any possible conflict between securing the best interests of the child and securing the right of a father to claim a child being cared for by others.

It became clear that the knowledge of the social workers as to the current domestic circumstances of any of the potential carers for S was quite limited. Not only was it quite out-of-date but despite warnings having been given by the C's no assessment of capability of G had been carried out at all. The basis of the department's opinion is found in what they regarded as the father's moral and legal right to look after his child.

No further evidence was led.

I have no doubt that G misread L. He was generous with his property but failed to see the extent to which not only was L using up his property but was getting further into an addiction slump. That does raise a question mark over his judgement and perceptiveness. I do accept his evidence that he became frustrated by her erratic and sometimes violent behaviour. He probably still is capable of being generous and loving but his whole perception has been distorted by what he regards as the improper retention by the C's of his son contrary to his "rights".

I have earlier indicated I was impressed by the extent to which the C's were able to understand the perceptions of both L and G. I was not impressed by the disregard that G had for anyone else's views. I did not get the impression he was interested in hearing anyone else's views far less adapting his behaviour to accommodate anyone else's views. I did not get the impression that he would be capable of adjusting his own plans to take account of different perceptions of the facts which appeared to indicate disagreement on practical matters.

It appeared to me that the duty of the court is quite clear. The court requires to regard the interests of a child as paramount at all times. I fully accept that there is a primary duty on a natural parent who has by statute duties and rights, but they may not be exercised at the expense of the child. At the conclusion of the evidence in this case I had heard evidence from the pursuers and four witnesses as to the level of care that had been exercised by the pursuers and a prediction of the level of care that would continue to be exercised by the pursuers and L if the status quo was maintained. I heard evidence from the second defender's witnesses of the proposed care of S both from himself and his new partner supported by Social Work Department witnesses whose opinion was based on policy guidelines. The absence of information from them that what the defender had to offer the child was better or even comparable with the environment offered by the pursuers was marked. The second defender's witnesses simply did not know what the current arrangements were and had made no attempt to find out. They were supporting the application of the second defender because he had the status of father and he was available to of looking after the child. The issue of whether he would look after the child better was really not addressed. His availability not his capability was their primary concern.

There seemed to be an assumption underlying that argument that father's household is secure, stable and likely to last for at least the child's childhood. In my view there is not enough information to reach that conclusion and there is no sign of any enquiry by the Social Work Department into assessing the suitability of that long-term environment for the child. It may well be that the immediate environment is satisfactory notwithstanding that the proposed new mother figure has just given birth to a young baby. In my view there must be considerable hesitation in declaring that G's new cohabitation arrangement as stable and likely to last the childhood of S. This is the second time he has formed an association with a much younger person, this time a teenager, and has got that young person pregnant. Care for his manifestly ill wife and ailing child was not prioritised in the past over his high earning foreign travel and offshore working. It is only since the Social Work Department discarded the mother that his interest in looking after S has quickened and he obtained and retained onshore employment to facilitate his availability.

The second factor that I would have expected the Social Work Department to have enquired into and considered before supporting father's application is the extent to which the child would be able to maintain contact with his natural mother. My impression of GK is that he was not in the least interested in repairing relationships with the grandparents, nor with L. He sees them as rivals and opponents to be defeated in this contest. I was not impressed by his insight into relationships either with adults or with a child. I note that the very experienced safeguarder who had reported in this matter had also expressed reservations about his level of insight. One further element that tends to undermine the assistance that the second defender can derive from the Social Work Department witnesses is the assumption made that the mother will never sufficiently recover to look after the child as primary carer. No account appears to have been taken of the consequence of mother recovering on the future care of the child. Once the Social Work Department had switched from trying to support and rehabilitate mother to supporting the application of father, mother was essentially discarded as a potential primary carer. In my view such an approach does not take into account the best interests of the child.

Furthermore, that approach ignores the balancing exercise which requires to be carried out between short-term and long-term benefit and short-term and long-term drawbacks. While it was argued with obvious force, but as a generality, that the younger the child is at transition from one household to another household the more quickly he will get over the trauma associated by such disturbance in his life, there does not appear to have been any consideration of the particular effects of disturbance of stability on this particular child nor any consideration of the psychological, emotional benefit to the child in maintaining what are patently significant bonds of affection and dependence. I can well see how successive children's panels have simply not followed the Social Work Department's urgings. These witnesses do not provide persuasive support for G's demands of this court.

There is no doubt that G and S get on very well. It is relatively easy for a parent to have a good time with an active 3 year old at weekends. It is relatively easy to expose the child to a wide variety of stimulating and exciting adventures. Important as establishing a good bond with father is, there is much more to bringing up a child than that . When presented with an account of behaviour by S which offended the sensibilities of the C's, G was dismissive in explaining away with a shrug that they were of a different generation and had different standards. While he said he opposed swearing and the use of derogatory remarks he offered no explanation for the uttering by S of remarks which clearly disclosed derogatory attitude and language. He justified the behaviour by describing S as a chancer and a boy that pushes boundaries. While pushing boundaries is to be expected of a lively 3 year old referring to "big fat Nan" in the presence of Nan is certainly pushing boundaries but the use of these words is unlikely to be self generated by a 3 year old and much more likely to be repeating words that he has heard. I did not get the impression that G fully understood that for a child to be derogatory of one of his primary carers could undermine the security of that child and I did not get the impression that he even understood that there was a contradiction between his assertion that he never used derogatory terms and the narration of what the child had said.

GK's dismissal of the C's complaints about the behaviour of S on his return from contact visits discloses what seems to me to be quite a limited insight. There was specific reference to S being encouraged to refer to and to touch what were called "boobies". There was specific reference to being allowed to urinate in the garden. There was specific reference to the child having sought to justify "peeing on granddad". The C's expressed disapproval of such words and actions and corrected the child. G dismisses the concerns by referring to a generation gap. While exposure to different standards is not necessarily harmful to a child, the allowance of certain kinds of behaviour can indicate an attitude to society in general, and may engender an approach to other people which might not be of benefit to a child in later life. That is a factor the court can take into account when looking at the best interests of the child was on a short and long-term basis.

For differing reasons therefore the judgement of both L and G is not reliable in decisions as to what course of action would be in the best interests of S. The criticism levelled at the capacity of the C's to exercise parental responsibilities is notional rather than practical and real. They are both capable. They are hugely experienced and their concern and capacity to put the interests of S ahead of their own interests patent. The issue as presented by G is that S, who has only known RC and PC as his main carers, should be replaced by G and L simply because G is the father. I do not find that argument in the slightest persuasive. That approach it appears to me does not put the child's interests first. I found there were elements of G's responses which suggested that he was more concerned with obtaining what he referred to as the moral and legal rights of S rather than making an insightful decision that would be in the best interests long and short-term of S.

Article 8 of the ECHR provides:-

1. Everyone has the right to respect for his private and family life his house and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ..... for the protection of the rights and freedoms of others.

"The mutual enjoyment by parent and child of each other company constitutes a fundamental element of family life". cf W v UK. 1988 10 EHRR 29@ s.-59.

In my view that does not override the duty of the court in any proceedings affecting the welfare of a child to treat the child's interest as of primary concern and if that conflicts with what a parent demands in the exercise of his parental rights then the parent rights do not prevail.

This is a difficult balance. I have come to the clear conclusion that if there were to be a change in the status quo it would not be achieved as seamlessly as the second defender has suggested. I am not persuaded that he has the insight to be able to deal with the difficulties which might arise when the three year old realises that he is no longer being looked after by the two persons that he has come to regard as his primary nurturers. S does not regard them as either "mum" or "dad" but they are the persons upon whom he is wholly dependent.

There is the patent rehabilitation of his mother L. She is beginning to be able to establish a relationship where she can be seen as a trustworthy figure not just by the child but by those caring primarily for the child at present, his grandparents. The child has already demonstrated signs of having had his trust in mother undermined. It is in my view an important consideration that mother should continue to re-establish herself in the child's mind as a figure of love and trust. I do not think that would be allowed to happen if the child were to be in the care of father. I think L's fears are well founded that she will be marginalised and ridiculed and G would seek to integrate S entirely into his new family. I do not share the perception of the Social Workers who commented that G was in a stable relationship and able and willing to look after his child. Given the history of his relationships, their development, the huge age differential of his current relationship I would not be prepared to characterise it as a stable relationship until some more years had passed. It is too much of a risk to put S into a new family which might not continue to be a family. Accordingly I am firmly of the view that S's best interests in the short term remain with the C's. The longer term is a more difficult issue but a lot depends on factors that are difficult to predict. The first is the recovery of L and the second is whether G can establish and maintain a long-term stable relationship. The C's are well aware that in the longer term they may relinquish their parental responsibilities in favour of the one or other parent and in the light of the evidence that I have heard I would undoubtedly prefer their judgement to that of any other witness that appeared before me.

I turn now to the question of contact. S is coming up to a crucial stage in learning behavioural patterns and attitudes to other people. I found PC's assessment of G's behaviour entirely consistent with my own observations of G in the witness box. The focus of all parties attention was residence. The decision on residence dictates the primary source of influence on S. It seems to me that it is preferable for parties to reconsider the issues of contact once the primary source of contention has been resolved. The issue of degree of influence and resolution of conflicting influences is a real one and I think it preferable for parties to address me further on that issue at a later stage.