Scottish Sheriff Court Decisions

SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT LERWICK

Judgement

Of

Sheriff Philip Mann

in causa F10/12

SW

Against

SG

Lerwick October 2012

The Sheriff, having resumed consideration of the cause and having noted that the Options Hearing fixed for 15 May 2012 did not proceed and was not formally discharged although a Child Welfare Hearing proceeded on that day, ex proprio motu, having regard to the terms of Ordinary Cause Rule 9.2(1A) and for the avoidance of doubt, Directs that the cause shall be disposed of as if an Options Hearing had never been fixed; Thereafter Finds the following facts admitted or proved:

1. The parties, SW and SG, are the father and mother respectively of CW, a girl who was born on 16 October 2007 in Kirkwall.

2. At the time of CW's birth the parties were living together in Kirkwall. The parties are not, and never have been, married to one another.

3. Both parties have parental rights and responsibilities in terms of the Children (Scotland) Act 1995 in respect of CW.

4. The parties lived together in family with CW in Kirkwall until January 2010 when they separated. At that time the defender left the family home with CW and moved to live in Shetland where her mother also lived.

5. The separation came about as a result of difficulties in the parties' relationship, which was volatile and characterised by occasional violence by the pursuer towards the defender. The final difficulty prior to the separation involved the pursuer's failure to pick the defender up from her work and his failure to return timeously to the family home following New Year celebrations on 1 January 2010.

6. The defender's departure from the family home was encouraged by her mother who was visiting at the time.

7. During the period when the parties cohabited they shared the responsibility of caring for CW, although the defender was CW's primary carer. Both parties had, and have, a close and loving bond with CW.

8. During the period when the parties cohabited they both abused alcohol and controlled substances, namely drugs. The pursuer stopped using drugs, apart from cannabis, after the birth of the child. The defender used drugs, including cocaine, until at least February 2012. Neither party currently uses controlled drugs

9. Shortly after the defender's move to Shetland with CW the pursuer gave up his job in Orkney and also moved to live in Shetland. Both parties and CW currently live in Shetland within the jurisdiction of this court.

10. Following the pursuer's move to Shetland the parties resumed cohabitation and attempted to reconcile. Despite their efforts, which included attendance at mediation, reconciliation proved to be impossible. The parties finally separated in May 2010.

11. Following the separation and whilst CW was resident with the defender, the pursuer had contact, both residential and non residential, with CW on a regular and frequent basis.

12. The pursuer has formed a new relationship with JH. They are engaged to be married. They live in family with their young son who was born on 4 January 2012. CW currently resides with the pursuer and JH following the interlocutor of this court dated 15 May 2012 which granted an interim residence order in the pursuer's favour.

13. All along, when CW has not been resident with the defender, there has been constant and regular contact between CW and the defender, although the defender has missed some contact when she has been on the Scottish mainland visiting her father and his wife.

14 CW is well looked after in the care of the pursuer and JH. The pursuer is currently unemployed but JH is capable of looking after CW whilst the pursuer is at work in the event that he finds employment.

15. In January 2012 the defender was arrested and charged with a contravention of the Misuse of Drugs Act 1971. On 27 January 2012 she appeared in court on petition and was granted bail. This matter has not yet been resolved.

16. On the evening of 17 March 2012 the defender left CW in the care of LH, the brother of her friend GH. Her friend also left her own young daughter in the care of her brother. The defender and her friend went out drinking. They stayed out all night. The defender did not leave her contact details with the babysitter. The babysitter did not know exactly when the defender intended to return to pick up CW. She had not returned by the next morning. That morning, the babysitter was unable to cope with looking after CW and GH's daughter. He was unable to contact the defender. He contacted the pursuer who collected CW from his care. When the defender attended to pick up CW she had already been picked up by the pursuer. The defender called the police and contacted the Social Work department. CW was eventually returned to the care of the defender.

17. On 20 April 2012 the defender and her friend GH entertained two men in the defender's house. CW and GH's daughter were there. The defender and one of the men retired to bed together to have sex. They had both removed their clothing and left it in the living room before doing so. CW was asleep in the same bed as the defender and the man. The defender's friend shared a bed in another room with her own daughter. She was awakened in the morning by CW who was confused about the presence of a man in her mother's bed. The defender's friend removed CW from the defender's house. The defender awoke later that day to discover that CW was not there. This incident was reported to the police and to the social work department. Following an investigation, no action was taken by either of these authorities. CW was confused but she did not suffer any lasting harm as a result of this incident.

18. The pursuer provides consistently good care for CW. The defender is capable of providing good care for CW but she is not consistent in that regard. The defender acts irresponsibly in relation to the care and welfare of CW. The matter referred to in finding in fact 15, if the defender is guilty, and the matters referred to in findings in fact 16 and 17 are examples of the defender's inconsistency and irresponsible behaviour.

19. Both parties have accommodation which is suitable for the care of CW.

20. It is in the best interests of CW that she reside with the pursuer. It is in CW's best interests that she have regular and frequent contact, both residential and non residential, with the defender.

21. The defender's father and his wife reside on the Scottish mainland. The defender has recently re-established a relationship with her father and now has a good relationship with him and his wife. It would be likely to inure to CW's benefit were she to have contact, along with the defender, with the defender's father and his wife.

Finds in Fact and Law:-

1. Having regard to the welfare of CW as the paramount consideration it is better that an order under section 11 of the Children (Scotland) Act 1995 be made than that none should be made at all.

2. CW is not of sufficient age or maturity to express a view on whether or not the court should make an order under section 11 of the Children (Scotland) Act 1995 and what order the court should make.

Therefore, Sustains the first plea in law for the pursuer and Orders that the child CW shall reside with the pursuer; Sustains the seventh plea in law for the defender and Orders that CW shall have contact with the defender on a residential basis on three weekends out of every four weekends from 4:00pm on the Friday until 6:00pm on the Sunday together with further periods of contact, including residential holiday contact (which periods of holiday contact, for the avoidance of doubt, may be spent outwith the Shetland Islands), the exact details of all of which contact shall be agreed between the parties; Repels the parties' remaining pleas in law and for the avoidance of doubt Recalls the interim interdict pronounced on 6 February 2012; Reserves the question of expenses and appoints parties to be heard thereon within the Sheriff Court House, King Erik Street, Lerwick on 30 October 2012 at 10:00am, unless prior to that date the parties shall have lodged a joint minute agreeing that question, in which event the court shall pronounce a further and final interlocutor in chambers.

 

 

 

Sheriff Philip Mann

 

Note/

Note

1. Introduction

1.1 This is an action concerning residence and contact in respect of a five year old girl, CW, of whom the pursuer, SW, is the father and the defender, SG, is the mother. Both parties have parental rights and responsibilities in respect of CW.

1.2 The action is brought in terms of section 11 of the Children (Scotland) Act 1995. Parties' agents are familiar with the terms of section 11 and so I do not set them out here.

1.3 After sundry procedure, including several child welfare hearings at which interim orders were made, the case was set down for an evidential child welfare hearing which took place over four consecutive days commencing on 31 July 2012.

1.4 In the end of the day the matters in dispute between the parties are the question with whom should CW reside and the question whether or not the defender should be interdicted from removing CW from the care of the pursuer or furth of Shetland. Unusually and quite refreshingly, both parties accept that the other party is capable of looking after CW and accept that the other should have regular and frequent contact with CW in the event that a residence order is not made in his or her favour.

2. The Evidence

2.1 In the course of the proof I heard evidence from both parties and also from the following witnesses:-

·         DS and VS, both social workers in the employment of Shetland Islands Council

·         GH, the defender's friend

·         JH, the pursuer's fiancée and partner

·         LH, GH's brother

·         JM, a drugs worker employed by Community Alcohol and Drugs Services Shetland

·         CG, the defender's father

·         JC, the defender's step-mother

·         JG, the defender's aunt

2.2 In addition to the oral evidence various documents were referred to by witnesses and I have had the benefit of social work reports prepared for earlier child welfare hearings at which interim orders were made. I have had regard to the social work reports in making my decision, largely as a check on the conclusions that I have come to myself having heard the oral evidence led at the proof. They support the orders I have made.

2.3 As regards the other documentary evidence, agents may be at odds as to the extent to which it has actually become evidence by being spoken to by witnesses and thus as to the extent to which I am entitled to take it into account. I can safely say that no part of the other documentary evidence specifically brought to my attention during the proof causes me to doubt that the decisions I have come to on the basis of the oral evidence are justified as being in the best interests of CW having regard to her welfare as my paramount consideration. I have not revisited the other documentary evidence in the course of preparing this judgement.

2.4 Various affidavits were lodged at earlier stages in this action. Affidavit evidence has its place in child welfare hearings where interim orders are pronounced but in my view very little weight can be attached to such evidence when making final orders after an evidential hearing. By its nature affidavit evidence is not subject to cross examination and where, as in this case, it is hotly disputed I think it unsafe to place any reliance on it when determining what final orders to make. I have therefore disregarded the affidavit evidence. In any event, there was sufficient oral evidence led at the hearing to enable me to come to a decision.

2.5 I do not propose to summarise the evidence here but I refer to it in section 4 hereafter in so far as it is necessary to do so to explain my decisions. I am satisfied that I have sufficient information to enable me to make final orders as regards residence and contact in the knowledge that the oral evidence was recorded by shorthand writer and that it will thus be available for scrutiny in the event of an appeal.

3. Submissions

3.1 At my request agents have submitted full written submissions which I have found to be very helpful and for which I am grateful. Agents have confirmed that they are content to rely on their written submissions. There is nothing arising from them which I need to clarify and I have therefore proceeded in the absence of oral submissions. This has saved the significant expense which would have been incurred by convening a further hearing in this Island court.

3.2 I do not intend to summarise parties' submissions here. The written submissions are in process. They were exchanged between the agents prior to being lodged.

4. Discussion and Decision

4.1 Section 11(7)(a) of the Children (Scotland) Act 1995 requires me to have regard to the welfare of CW as my paramount consideration and I have proceeded on that basis. By that same subsection I am not to make an order unless I consider that it would be better for the child that an order be made than that none should be made at all. Section 11(7)(b) of the Act requires me to have regard to any views expressed by CW. I am satisfied that CW is not of sufficient age or maturity to express a view on the matters before me and for that reason I have not given her an opportunity to do so.

4.2 The evidence led at the hearing demonstrated that some of the evidence given by the pursuer by way of affidavit at previous child welfare hearings was incorrect. He accepted this in the course of his oral evidence. He had clearly been prepared to rely too heavily on rumour and innuendo which turned out not to be true. In a situation where the pursuer was genuinely concerned as to the welfare of his daughter this is perhaps understandable. But, in any event, as previously indicated I have disregarded the affidavit evidence.

4.3 Despite what I say in paragraph 4.2, I found the pursuer to be credible and reliable in the evidence that he gave orally in the course of the hearing as to his ability, assisted by his partner, to properly care for CW whilst resident with him. I accepted from the evidence in general that the pursuer does in fact properly care for CW whilst she is resident with him. The defender accepts that the pursuer is capable of providing a safe and loving home for CW. There was no evidence led to the contrary. Although the pursuer's partner overstated her experience in child care I am, nonetheless, satisfied that she is capable of caring for CW along with her own baby whilst the pursuer is at work if he finds employment.

4.4 Findings in fact 15, 16 and 17 must count heavily against the defender in an assessment as to what is best for CW having regard to her welfare as the paramount consideration. These findings do not rely to any significant extent on evidence given by the pursuer and so the question of his credibility and reliability does not arise in relation thereto.

4.5 I did not believe the defender's version of the events referred to in findings in fact 17 and preferred that put forward by GH. GH gave clear and convincing evidence that after having been woken in the morning by CW she went to the bedroom where she observed the defender and the man sleeping in bed together. She deponed that she had then gone to the living room where she observed the defender's clothing and the man's clothing strewn on the floor. I infer from that that the defender and the man went to bed, where CW happened to be asleep, to have sex. However, I should make it clear that there was no evidence to suggest that CW was awake during such activity or that she was aware that such activity was taking, or had taken, place. Although she was confused by it, there is no evidence to suggest that CW suffered any lasting harm as a result of this event. I assume that this must have influenced the police and the social work department in deciding not to pursue the matter.

4.6 There was one matter in respect of which the pursuer's evidence was directly and pointedly contradicted by the evidence put forward on behalf of the defender. This was in relation to the pursuer's claim that he had smoked cannabis with the defender's aunt, JG. The manner in which both the pursuer and JG gave their evidence was convincing but since I do not regard that particular matter of history as being of any great relevance to the present situation I have not found it necessary to come to a concluded view as to who should be believed and I have not agonised over it. Had the particular matter been crucial to my decision I suspect that I would have proceeded on the basis that I was unable to decide between the two and that the pursuer had thus failed to prove that particular point.

4.7 Despite findings in fact 15, 16 and 17, I accept from the evidence in general that the defender has the ability to care properly for CW whilst CW is in her care. I am certain that the pursuer does not seriously think otherwise. It is clear from the evidence that both parties have a close and loving bond with CW. It is also clear that whereas the pursuer does, in fact, consistently provide a proper level of care for CW, the defender does not. On occasions, as I have found in findings in fact 15, 16 and 17, the defender has not lived up to the standard that she is capable of because she has preferred to satisfy her own needs in priority to those of CW.

4.8 Neither party has any greater right to a residence order than the other. The matter must be determined on the basis that CW's welfare is the paramount consideration. In the end of the day it comes down to a question of risk. Whilst no-one can ever predict with certainty what the future holds for anyone, I am satisfied on the evidence that the pursuer will always put the welfare of CW at the top of the list of his priorities. I am not satisfied that the defender will always do so.

4.9 The defender put the welfare of CW at risk by having CW in her bed when she was there in the company of a man in what I infer was a sexual situation. On that occasion she did not arise from bed the next day until a time by which, as she must have known, CW would have been awake for some considerable time. It is true that she knew that her friend was to be staying the night but according to her own evidence her friend had passed out during the evening as a result of over indulgence in drink. Having accepted the evidence that the defender and the man were in bed together asleep in the morning I do not accept the defender's evidence that she awoke and heard the children speaking to the man and that she therefore went back to sleep. Even if that were accepted I can hardly accept it as being responsible behaviour. One is, I think, entitled to wonder who the defender thought was to be capably looking after CW whilst she, the defender, slept during the morning.

4.10 There is little, if any, factual dispute about the incident referred to in finding in fact 16. The defender left CW in the care of a babysitter without making sure that the babysitter could contact her and without making definite arrangements with the babysitter as to when she would return to resume the care of CW. As a result, when it turned out that the babysitter was incapable of attending to CW's needs in the situation which developed the babysitter had no option but to contact the pursuer to resolve matters. The defender could not have anticipated that the babysitter would use his initiative in that way and clearly she did not expect him to do so since it was clear that she was angered by the pursuer's involvement. The incident demonstrates that the defender can be irresponsible when it comes to CW's care.

4.11 There is no dispute that the defender is facing prosecution on solemn procedure for a contravention of the Misuse of Drugs Act 1971. The defender having been charged and having appeared in court on petition it is, in my experience, probable that she will be indicted. I have dealt with a number of such prosecutions in my time on the bench and I know that there must be a significant risk that the defender will receive a custodial sentence if she is convicted whether upon her own admission or after trial by jury. In that event the defender would be unable to care for CW during her incarceration. To now return CW to her care risks further disruption and upheaval for CW. Having regard to CW's welfare as the paramount consideration it is far better, in my view, that CW is left in the care of the pursuer where there is every likelihood that she will receive consistent care and attention. However, CW's welfare also demands that she have regular and frequent contact with the defender.

4.12 Parties are in agreement that it is better that an order be made than that none be made at all. I agree with that. For all of the foregoing reasons I have determined that it is in CW's best interests that she be resident with the pursuer but that she should have regular and frequent contact with the defender. I have provided accordingly.

4.13 I now turn to the pursuer's crave for interdict. Having seen and heard the defender give evidence, I am convinced that, in general, the defender has the best interests of CW at heart although she does not always demonstrate that that is the case. She accepts that CW will be well looked after in the care of the pursuer. I think it unlikely that the defender would contemplate disrupting CW's life and putting her welfare at risk by removing her from the pursuer's care. Therefore, if she were to take CW away from Shetland that would be on a temporary basis whilst she is exercising the contact which is provided for in my interlocutor.

4.14 I had the advantage of seeing and hearing the defender's father and his wife give evidence. I think that it would be accepted by anyone without the need for proof that, generally, children will benefit from contact with their extended families, unless there is something compelling to indicate otherwise. I see no reason why it should be any different as regards CW and her maternal grandfather and his wife. I see no reason why the defender should not be allowed to take CW to visit them. The interdict sought by the pursuer would prevent the defender doing so or would, at least, put the defender in the position of having to seek the pursuer's permission before doing so. I consider that that would be an unfair and unnecessary obstacle in the way of the defender in deciding how to spend her time with CW during her contact periods.

4.15 Having made the foregoing decisions as regards residence and contact I need not consider, in determining the pursuer's crave for interdict, to what extent I should be influenced by the defender's plans for her own future whether on Shetland or elsewhere and whether alone or in a relationship. That is a matter entirely for her so long as she does not act contrary to the orders that I have made. Accordingly, I have not troubled to draw any inferences from the evidence as to the defender's trips to the mainland and as to how these might have been funded. I should say, however, that I did not find it surprising that the defender sought solace from visiting her father and his wife on the Scottish mainland during what must have been a very distressing time for her following the grant of the interim residence order in favour of the pursuer.

4.16 For all of the foregoing reasons I have determined not to grant the interdict sought by the pursuer. I have also recalled the interim interdict for the avoidance of doubt.

5. Expenses

5.1 I have not had any submissions on the question of expenses and I have thus reserved that matter. I have set down a hearing but if parties can agree in advance they should lodge a joint minute, in which event I will make a further and final interlocutor in chambers to dispose of the matter. That would save significant expense.