Scottish Sheriff Court Decisions

Judgement

of

Sheriff Philip Mann

In causa

SAN

PURSUER and MINUTER

Against

KJN

DEFENDER

Act: Miss Robertson, Solicitor, Messrs Anderson and Goodlad, Solicitors, Lerwick

Alt: Mr Garden, Solicitor, Messrs Kinnear and Falconer, Solicitors, Stonehaven

Lerwick, December 2013

The sheriff, having resumed consideration of the cause,

Finds the following facts to be admitted or proved:

1. The pursuer and minuter (hereafter referred to as "the pursuer") and the defender are the parents of PWN born 25 October 2002, and ELN born 15 June 2005.
2. There is no contact order in force in respect of the children.
3. At the last child welfare hearing before these proceedings, which took place on 2 July 2010, the sheriff refused to make a contact order in favour of the defender.
4. Since the parties' separation, the children have had their principal residence with the

pursuer.

5. Since the last child welfare hearing on 2 July 2010, the pursuer has married her then fiancé and the children continue to reside with the pursuer and her husband.
6. The children are happy and well settled with the pursuer and their stepfather.
7. ELN last had contact with the defender in February 2010. This was on a non-residential basis
8. PWN last had contact with the defender in July 2009. This was on a residential basis.
9. The defender used to telephone the pursuer at about 5pm every Sunday to speak with the children.
10. The children have not spoken with the defender on the telephone since September 2008.
11. Such telephone calls ceased in December 2011, since when the defender has not attempted to contact the children by way of telephone.
12. The defender previously wrote letters to the children.
13. The defender has not written any such letters to the children since 2011.
14. The defender sent birthday and Christmas cards to the children in 2012, containing money.
15. The defender has no involvement in the day to day lives of the children.
16. When the defender telephoned by agreement at 5pm every Sunday, he was often informed by the pursuer that the children did not wish to speak to the defender, or that they were busy.
17. The pursuer requested the defender, in or about December 2012, not to telephone the children again. The defender complied with this request.
18. The defender decided to write to the children in place of these telephone calls.
19. The defender has sent the children birthday and Christmas cards and gifts since separating from the pursuer in 2007.
20. The defender never received any acknowledgement either from the pursuer or the children that they have received these gifts.
21. The defender has not informed the pursuer or the children as to his address.
22. The pursuer, at all times, had the defender's mobile telephone number.
23. The defender is required to be offshore and out of the country for periods of time in the course of his employment.
24. The defender has made regular maintenance payments to provide for the children since the parties separated.
25. The defender opened a Bank Account for behoof of the children in order that the defender and his extended family could deposit money therein.
26. The pursuer's Solicitor wrote to the defender's Solicitor on 20 December 2011, requesting his consent to the children's surname being changed.
27. The defender did not respond to such a request until 23 January 2013.
28. The defender has refused to consent to the children's change of name.
29. The children have no desire at present to have contact with their father.
30. The defender accepts that the children have no desire to have contact with him. He now refrains from attempting to have contact with them.
31. The defender has exercised his parental right to seek information about the children directly from their schools and from their doctors. The manner of the defender's approach to ELN's medical consultant resulted in a strained relationship between that consultant and the pursuer.
32. The fact that the children's surnames are different from the pursuer's surname has caused inconvenience at airports and the like during travel abroad.
33. The pursuer has no wish for the children to be adopted by her husband.
34. The pursuer does not wish to close the door on any relationship that the children might want to forge with the defender in the future.
35. Should the children wish to have contact with the defender in the future the pursuer will facilitate it.

Finds in fact and law:

1. Both parties have parental rights and responsibilities in respect of the children.
2. It is in the best interests of the children that the possibility of future contact with the defender remains open.
3. It is not in the best interests of the children that the defender's parental rights and responsibilities in respect of them be extinguished.
4. It is in the best interests of the children that the parental rights and responsibilities in respect of them vested in the parties be regulated by the court.
5. It is not in the best interests of the children that the pursuer be given the right unilaterally to change their surnames.
6. It is not better for the children that the orders sought by the pursuer should be made than that no such orders should be made at all.
7. It is better for the children that orders regulating the parental rights and responsibilities in respect of them vested in the parties be made ex proprio motu than that no such orders be made at all.

Therefore, Repels the pleas in law for the pursuer and Sustains the pleas in law for the defender; Thereafter, ex proprio motu:

A. Interdicts the defender, in the absence of the written agreement of the pursuer, from seeking any information about the children PWN born 25 October 2002, and ELN born 15 June 2005 by approaching the schools attended by the children or health professionals responsible for the medical care and treatment of the children or either of them.

B. Interdicts the defender, in the absence of the written agreement of the pursuer, from initiating or attempting to initiate direct contact of any kind between himself and the children PWN born 25 October 2002, and ELN born 15 June 2005 or either of them.

C. Ordains the defender, if he wishes to obtain information about the children, to make a request for such information to the pursuer on no more than one occasion in any period of twelve months, including in such request an address to which such information can be sent.

D. Ordains the pursuer upon receipt of such request from the defender to cause copies of the children's latest school report cards to be sent to him and to give him brief confirmation as to the health of the children and a note of any significant changes thereto.

E. Ordains the pursuer to inform the defender of any critical health issue arising in respect of the children or either of them as soon as reasonably practicable after it arises.

F. Ordains the parties to keep each other informed from time to time of an appropriate means of making contact.

Finds no expenses due to or by either party.

 

 

Sheriff Philip Mann

Note

1. Introduction

1.1 The parties to this action are the parents of two children, a boy aged 11 and a girl aged 8. The parties were married but are now divorced. Following a child welfare hearing on 2 July 2010 the sheriff refused to grant a contact order in favour of the defender. Since the parties separated the children have continued to reside with the pursuer. She has remarried and the children are happy and settled in their new family unit. The defender did attempt to maintain direct contact with the children but these attempts effectively failed for reasons that I consider to be largely irrelevant to the decisions I am now asked to make. There is currently no contact of any kind between the defender and the children.

1.2 In this action, which was initiated by minute in the original divorce process, the pursuer seeks an order extinguishing the defender's whole parental rights and responsibilities in respect of the children. Alternatively, she seeks an order extinguishing the defender's right and responsibility to provide the children with names as she wishes to be able to change the surname of the children to that of her husband, the children's stepfather.

2. The Proof

2.1 At a proof on 10 June 2013 I heard evidence from the pursuer and her sister-in-law. I also heard evidence from the defender and his mother. A large part of the evidence dealt with the historical reasons for the breakdown of contact between the children and the defender. I regard that as being largely irrelevant for present purposes since the question of contact is not in issue. Nothing of significance turns on questions of credibility and reliability.

2.2 The important facts to emerge from the evidence are:

2.2.1. The children are happy and settled with the pursuer and her husband.

2.2.2. There is no contact between the children and the defender at present.

2.2.3. The children have no desire at present to have contact with the defender.

2.2.4. The defender accepts that the children have no desire to have contact with him. He now refrains from attempting to have contact with them.

2.2.5. The defender has exercised his parental right to seek information about the children directly from their schools and from their doctors. The manner of the defender's approach to his daughter's medical consultant resulted in a strained relationship between that consultant and the pursuer.

2.2.6. The fact that the children's surnames are different from the pursuer's surname has caused inconvenience at airports and the like during travel abroad.

2.2.7. The pursuer has no wish for the children to be adopted by her husband.

2.2.8 The pursuer does not wish to close the door on any relationship that the children might want to forge with the defender in the future.

2.2.9. Should the children wish to have contact with the defender in the future the pursuer will facilitate it.

2.3 It is against the foregoing facts, which I understood to be essentially agreed, that the pursuer seeks the orders craved in her minute.

3. The Views of the Children

3.1 The views of both children were obtained through service of the forms F9 and, in PWN's case, through the assistance of his grandmother and her partner. I disclosed the children's views to parties. I took them into consideration but I do not repeat them here. They were generally negative towards the defender and generally supportive of the pursuer's craves, although it is clear that the younger child misunderstood the issue about the name.

4. Submissions

4.1 I requested parties to provide their submissions in writing and they duly obliged, for which I am grateful. They are lodged in process. I hope that I do no disservice to the careful written submissions of both parties if I say that I have not found it necessary to carry out an in-depth analysis of the law in order to decide the issues in this case. That is not to say that I have not had regard to what the parties had to say in their submissions or that I have not considered the case law to which I was referred. But, it is common ground, I think, that in making any decision in the matters before me I require to regard the welfare of the children as the paramount consideration; that I must have regard to the views of the children if they wish to express them; and that I should not make an order unless it would be better for the children that the order be made than that none should be made at all. I think that the test I have to apply could be expressed as being "looking to all the material available to me what is in the best interests of the children having regard to their welfare as the paramount consideration?" Following the case of White v White 2001 SC 689, I approach the issues on that basis and not on the basis that there is any formal onus on either party to prove one thing or another.

5. Discussion and Decision

5.1 I think that the pursuer's crave for the extinction of the defender's parental rights and responsibilities can be dealt with shortly. A very striking feature of the pursuer's position is that she maintains that she will facilitate contact between the children and their father in the future if that is what the children wish. She regards the possibility of her husband adopting the children as being a step too far. The pursuer thus regards future contact between the children and the defender as being a possibility. I cannot conceive that it would be conducive to the welfare of the children were they to seek contact with the defender to be rebuffed on the basis that he has no responsibility towards them. That alone is sufficient to persuade me that it would be wrong to extinguish the defender's parental rights and responsibilities.

5.2 It is not a sufficient reason for the defender's parental rights and responsibilities to be extinguished simply to say, as the pursuer does on record, that the defender has no involvement in the day to day lives of the children; that the only way of contacting the defender is through his solicitor; and that the defender having parental rights and responsibilities causes uncertainty for the pursuer and the children for the future. Life is full of uncertainties. But what is certain, if the pursuer is to be taken at face value, is that the door for future contact between the children and their father must remain open.

5.3 The de facto position is that the defender does not seek to have contact with the children. Whatever criticisms it may have been possible to make of the defender in the past, about which I express no view, it cannot be said that that is other than a responsible attitude now.

5.4 Although uncertainty about the future is not, in my view, a sufficient reason to extinguish the defender's parental rights and responsibilities that is not to say that the question of uncertainty should not be addressed. It is possible that the defender will seek to exercise his parental rights and responsibilities by approaching the children's schools or health professionals. It is clear from the evidence that one cause of conflict and upset was the approach made by the defender to the consultant in charge of his daughter's medical care. I can envisage that such approaches in the future might cause difficulties that are best avoided, having regard to the welfare of the children as being the paramount consideration. Equally, I can envisage that difficulties could arise in the future were the defender to make direct approaches to the children's schools.

5.5 With these considerations in mind I sought further submissions from the parties on the possibility of my making orders ex proprio motu to address these concerns in the event that I decided not to extinguish the defender's parental rights and responsibilities. What I had in mind was that the pursuer would be obliged to ensure that the defender should receive updated information about the children at least once a year and that the defender would be interdicted from contacting doctors and schools except in the event that the pursuer neglected to provide the information. I heard further submissions on this on 29 October 2013. I think that it is fair to say that Mr Garden for the defender was not entirely happy about the prospect of ex proprio motu orders along the lines suggested. That said, whilst maintaining that it would be wrong and inappropriate to interdict the defender from exercising a right which he enjoys, he did not oppose the notion were matters to proceed on the basis of the defender giving a suitable undertaking to the court. He suggested that the defender should be given information about unauthorised absences from school within one week and intimation of attendance at any medical establishment with the reasons for that attendance and an indication of diagnosis and prognosis. Miss Robertson for the pursuer was against the interdict proposal because she thought that an interdict would be difficult to police. She was likewise not attracted to the idea of an undertaking from the defender. She insisted upon the pursuer's craves.

5.6 Having further reflected on the matter, I remain of the view that it is not in the best interests of the children that the defender's parental rights and responsibilities be extinguished but that it is, nonetheless, in their best interests that they be regulated. Mr Garden's submissions in relation to interdict fail to take account of section 11(2)(f) of the Children (Scotland) Act 1995 which specifically provides for "an interdict prohibiting the taking of any step of a kind specified in the interdict in the fulfillment of parental responsibilities or the exercise of parental rights relating to a child .....". I do think, on reflection, that an interdict conditional on the pursuer doing certain things could cause difficulties and I have come to the view that it is better simply to interdict the defender unconditionally. In that way it will be clear to him what it is that he is to refrain from doing.

5.7 Equally, I remain of the view that it would contribute to the welfare of the children that the defender have regular information about them so that he will at least have some meaningful knowledge of them in the event that they decide to seek him out in the future. I am of the view that what the defender sought at the hearing on 29 October 2013 is too restrictive on the pursuer on a day to day basis. I think it sufficient that the defender have, in essence, an annual report together with notification of any critical medical issues that may arise as and when arising. If the defender wishes to be given an "annual report" it is only right that he should make a request for it and that he should supply an address to which such information can be sent.

5.8 As to the possibility of future contact between the children and the defender, having regard to the views expressed by the children I think that it could be very unsettling for the children, and thus damaging to their welfare, were the defender to seek to make unsolicited contact directly with them. For that reason I consider that it is appropriate to interdict him from doing so. I can see no real prejudice to the defender. Nothing will change on a day to day basis. It simply means, on the basis of the interdict as framed, that if the defender thinks that circumstances have changed such that it would be appropriate for there to be contact between him and the children he will have to seek the agreement of the pursuer, whichfailing he will have to refer the matter to the court. And, of course, the interdict will not stand in the way of the children, or the pursuer on their behalf, initiating contact between them and the defender.

5.9 I have sought to reflect all of the foregoing in the interlocutor that I have pronounced. It has been pronounced on the basis of the very wide powers given to me by section 11(2) of the Act, "the court may make such order as it thinks fit" and section 11(3)(b) of the Act, "that although no application for an order has been made, the court (even if it declines to make any other order) considers it should make such an order".

5.10 I have considered the case of AY v MM 2013 WL 4411274. In that case, reversing the sheriff at first instance, Sheriff Principal Dunlop said that a court should be hesitant about making an order that is against the wishes of all the parties unless there were compelling reasons for doing so. That case can be distinguished from the present case. In that case, the sheriff at first instance removed rights and responsibilities. In this case I am not removing them. Rather, I am restricting them whilst leaving it open to parties to agree, if they can, a better way to proceed. In any event, given Mr Garden's stance at the hearing on 29 October 2013 I do not think that it can be said, as it was possible to say in AY v MM, that the orders I have pronounced ex proprio motu are entirely against the wishes of all parties.

5.11 In pronouncing the interlocutor I have paid conscious heed to the terms of section 11(7) of the Act. I have also had regard to section 11(7D)(b) of the Act. The cooperation that will be required between the parties as a result of my interlocutor should not present any problem to either of them if they truly have the welfare of their children at heart. In my view, the level of cooperation required is not much to ask, having regard to the welfare of the children being the paramount consideration. In so far as the parental rights and responsibilities of the parties are curtailed by my interlocutor I think that it is a small, but necessary, price to pay in the circumstances of this case to secure the welfare of the children in what is a difficult situation. Both parties will be subject to court orders the breach of which could have significant consequences for them. There need be no consequences if they comply. Again, compliance with the orders is, in my view, a small price to pay to secure the welfare of the children. There is nothing to stop the parties agreeing to different arrangements if they think that there is a better way of resolving the issues between them. Who knows what might be achieved for the benefit of the children were the parties to set their differences aside and have a rational and civil dialogue.

5.12 As regards the issue of the children's names I consider that the difficulties highlighted in the pleadings and in the evidence amount to no more than inconvenience. I gratefully adopt the views expressed by Sheriff A L Stewart, QC in the case of M v C 2002 S.L.T. (Sheriff Court) 82. In that case he said "There may be situations where there are overwhelming reasons why a child's name should be changed despite the objections of one parent. However, such cases must be exceptional................ There are really no overwhelming reasons why M's surname should be changed. It is, for better or worse, not unusual nowadays for a child to be a member of a family the surname of some of whose members is not the same as his or her own. I cannot accept that a child is likely to be embarrassed or traumatised by such an event". I accept Mr Garden's submission to the effect that there is nothing in the material put before me to indicate that there is an overwhelming reason as to why the surnames of the children in this case should be changed. For these reasons I have declined to grant the orders sought by the pursuer in that regard.

6. Expenses

6.1 At the hearing on 29 October 2013 I sought parties' submissions on the question of expenses. Parties were agreed that whatever the outcome there should be no award of expenses either way. I have reflected this in the interlocutor.