KB against EL and LJ (Sheriff Court Civil) [2025] SCPHD 18 (18 March 2025)

SHERIFFDOM OF GRAMPIAN HIGHLANDS AND ISLANDS AT PETERHEAD

[2025] SC PHD 18

PHD-F49-21

JUDGMENT OF SHERIFF ROBERT McDONALD

in the cause

Pursuer

against

Defender

and

LJ, Curator ad litem

Third Party Minuter

Peterhead, 18 March 2025

The sheriff, having resumed consideration of the cause, Finds in Fact.

The parties are husband and wife and were married at Phuket, Thailand on 12 March

2013.

There are two children of the marriage, NABA, born in New York on 18 September

2013 and ABA, born in London on 1 February 2017.

The parties met in or about 2007 through their work. They both worked for the same

software company at that time.

When the parties met, the pursuer lived in England and the defender lived in New

York, United States of America.

The parties were simply friends at first but later formed a relationship when the

defender came to London on business.

After a few years the defender decided that she wished to form a relationship with

the pursuer where they lived together with a family.

Around Christmas 2012, the defender came to England for around a month to be

with the pursuer and the parties then went to Israel to meet the defender's parents.

After returning from Israel, the defender discovered that she was pregnant with the

parties' first child.

After returning from Israel, the defender returned to the United States and the

pursuer remained in England.

10)

The parties decided to get married. The defender took immigration advice as the

result of which the parties decided to get married in Thailand as aforesaid.

11)

In relation to the parties' trip to Thailand for their marriage, the pursuer told the

defender that he had a problem with his credit card and that the defender would require to

pay for both parties' tickets to travel to Thailand.

12)

After the birth of the parties' first child, the defender went to Israel to live with their

son. It was her understanding that the parties had agreed that the pursuer would get a

stable job in England and bring her and the child over to live with him there.

13)

The pursuer first saw the parties' first son in September 2014 when he visited the

defender in Israel.

14)

In or about September 2015, the defender came to England and the parties then lived

together as man and wife.

15)

The parties lived together as man and wife on and off until they finally separated

in September 2019.

16)

During the period the parties lived together the pursuer acted in an abusive and

controlling manner towards the defender. He assaulted her, humiliated her, swore at her

and called her derogatory names.

17)

As a result of the pursuer's abusive and controlling behaviour towards her, the

defender separated from the pursuer in or about May 2016.

18)

The parties reconciled in 2016 after the defender discovered that she was pregnant

with the parties' second child. She discovered this around half way through the term of the

pregnancy.

19)

The parties again separated in 2018 due to the pursuer's abusive behaviour towards

the defender.

20)

On 4 October 20218, the defender obtained a non-molestation order against the

pursuer from the Central Family Court in London. The pursuer breached this order.

21)

The parties reconciled in or about April 2019 and lived together again as man and

wife from then until around September 2019 when they again separated. The parties have

not lived together as man and wife since then.

22)

From sometime in 2018 until the parties separated in September 2019, they lived

together in a rented house in Dulwich Village, London.

23)

When the parties lived together in London the defender attended to the day-to-day

care of the children.

24)

When the parties lived together in London, the pursuer sometimes attended to the

children in the morning before he left for work and on some occasions played with them or

read to them in the evenings when he returned from work.

25)

When the parties lived together, the pursuer displayed a careless attitude to child

safety. He refused to lock cabinets containing harmful substances. He opposed the

defender taking the elder child to hospital to be checked after he was found to have opened

a bottle of bleach and he opposed the locking of windows to prevent the children climbing

or falling out of the windows.

26)

During the time the parties lived together, the pursuer acted in an abusive and

controlling behaviour towards the defender on a number of occasions including the

following.

27)

When the defender first came to live with the pursuer in England he forced her to

give him all of the cash that she had obtained from selling second-hand toys and clothes and

he made her take out a loan in Israel forcing her to transfer around £6,000 to him.

28)

During the time the parties lived together, the pursuer was generally in employment

and the defender was not. During this period the pursuer allowed rent arrears to accrue in

respect of the family's accommodation. The defender was then required to settle their rent

arrears of around £10,000 out of her savings to avoid their family being evicted.

29)

In or about January 2016, the parties had an argument at Blackfriars Station, London

during the course of which the pursuer called the defender a "fucking bitch" in the presence

of the parties' elder child. During the time the parties lived together the pursuer swore at

the defender in front of one or both children on several other occasions.

30)

On one occasion, because she had failed to clean up some milk spilled by the

children in the kitchen, the pursuer came up to the bedroom where the defender was

sleeping, pulled the duvet off her, grabbed the mattress, shook her off it, squeezed her

within the mattress and jumped up and down on the mattress while she was underneath

causing the defender to scream and be afraid.

31)

In or about February 2018 after the parties had returned from a holiday in

Mozambique, the parties had an argument about the money required for the defender's visa.

Following this argument, the defender was asleep on the couch with one of the children

sleeping on top of her. She awoke to find the pursuer sexually assaulting her.

32)

When the parties separated in September 2019, the defender left the family home in

Dulwich Village taking the children with her. At that time she told the pursuer that she was

taking them on holiday with her.

33)

After leaving the pursuer, the defender initially took the children to Edinburgh

where she made arrangements for her and the children to be accommodated at the Women's

Refuge in Aberdeen. She remained at the Women's Refuge in Aberdeen until May 2020 or

thereabouts.

34)

In May 2020, the defender moved with the children to a house in the village of

Boddam, Aberdeenshire where both children were ultimately enrolled in the local primary

school.

35)

In or about January 2024, the defender relocated with the children to a house in

Aberdeen where they continued to reside at the date of proof. This house is owned by the

defender. At the close of this proof the children were attending school in Aberdeen.

36)

The children have displayed a number of problems during the parties' separation.

37)

During 2022, the elder child collapsed on several occasions and complained of chest

pains. He was taken to hospital but no physical cause could be found to explain his

symptoms.

38)

The defender took the children to stay with her in a hotel in Aviemore to bring in

New Year 2023. On New Year's Eve the elder child collapsed and was taken to hospital in

Inverness. No physical cause could be found for his collapse.

39)

The elder child also displayed behavioural problems. He started refusing to go to

school and started running away from school.

40)

On one occasion when the defender took the other child's Xbox games console away

from him he threatened her with a knife. The defender locked herself in her car and called

the police for assistance.

41)

By the date of proof the elder child seemed to be improving and was back at school

on a half day basis.

42)

The younger child has also displayed behavioural problems following the parties'

separation. He has called the defender a "fucking bitch". He asked the defender if she was

his real mum.

43)

The younger child has also been aggressive towards the defender and has threatened

to kill her.

44)

The defender has struggled to cope with the children's challenging behaviours. She

has asked for assistance from several agencies including social work at Aberdeen City

Council.

45)

Social workers have therefore become involved with the defender and the children.

The defender and social work have, from time to time, disagreed on how best to address the

children's challenging behaviours.

46)

As at the close of this proof, the defender had no intention to remove the children

from the jurisdiction of the Scottish Courts for the foreseeable future.

47)

The pursuer has not seen the children in person since the parties separated

in September 2019.

48)

After the parties separated, the defender refused to disclose her address to the

pursuer but she facilitated video and telephone contact between the pursuer and the

children on a regular basis.

49)

The pursuer has not always taken advantage of the video or telephone contact made

available to him.

50)

By interlocutor dated 27 September 2022, the court made an interim order allowing

the pursuer to have video contact with the children every Friday at 7 pm for 30 minutes.

51)

During the course of the video contact in terms of the court's interlocutor dated

27 September 2022, the pursuer made inappropriate remarks to the children. He stated that

their mother was trying to stop him seeing them and that he was doing his best to get them

back together again. He undermined the defender's care of the children by stating "you will

soon not have to deal with that dreadful person called mum".

52)

The quality of the video contact with the children was often poor, the children

talking between themselves and there being little interaction with the pursuer.

53)

During video contact with the children in terms of said court order, he asked them to

click on an internet link which he had sent to them to allow them to download software so

that he could contact them direct without involving the defender.

54)

He repeatedly told the children during video contact that they were black rather than

of mixed race. His insistence on this point confused and upset the children and led to an

argument with the elder child who thereafter refused to speak to him.

55)

On one occasion while on a video call for the purpose of exercising said contact,

while the pursuer thought he was unobserved he stated "I hate this fucking bitch".

56)

In or about February 2024, the pursuer missed his video contact with the children

two weeks in a row. On one of these occasions he had emailed the defender to say that he

had an emergency. On both of the occasions when he missed these contacts he had been out

having a meal and drinks with his work colleagues.

57)

The pursuer has refused to allow the defender to have the younger child tested for

ADHD.

58)

The pursuer does not have a good relationship with the children.

59)

The pursuer has repeatedly refused to engage in supervised contact at a child contact

centre.

60)

Neither of the parties' children wish to live with the pursuer. The younger child has

stated that he wished a reduction in video contact. The elder child has refused video contact

since June 2023.

Finds in Fact and in Law

The standard of care provided by the defender to the children is good enough.

Having regard to the welfare of the children as the court's paramount consideration,

it is better for the children that an order be made that the children reside with the defender

than that none should be made at all.

Having regard to the welfare of the children as the court's paramount consideration,

it is better for the children that no order should be made for them to have direct contact,

video contact or telephone contact with the pursuer at present.

It is unnecessary to interdict the defender from removing the children from outwith

the jurisdiction of the court.

It is necessary to interdict the pursuer from removing the parties' children from the

defender.

THEREFORE

Repels the pursuer's pleas-in-law.

Upholds the defender's pleas-in-law 1 and makes an order whereby the parties'

children are to reside with the defender.

Upholds the defender's second plea-in-law.

Upholds the defender's plea-in-law 9 in part to the extent of granting interdict

against the pursuer or anyone acting on his behalf from removing the parties' children from

the defender's care.

Repels the defender's remaining pleas-in-law.

Authorises the sheriff clerk to release the defender's passports and the children's

passports to the defender.

Finds no expenses due to or by either party.

NOTE:

Introduction

[1]

In this case the pursuer is the father of the parties' children who seeks an order that

the children reside with him, failing which, he seeks an order for residential contact with the

children. He also craves interdict against the defender from removing the children from the

jurisdiction of the court.

[2]

The defender seeks an order that the children reside with her and an interdict against

removing the children from her care.

[3]

The parties have craved a number of other orders which I shall return to later. The

main issue in dispute between the parties is whether the children should reside with the

pursuer or the defender and if a residence order is made in favour of the defender, what

contact should take place between the pursuer and the children.

Legal background

[4]

The starting point is, of course, Section 11 of the Children (Scotland) Act 1995. In this

case the relevant parts of Section 11 are as follows:

11.-- Court orders relating to parental responsibilities etc.

(1) In the relevant circumstances in proceedings in the Court of Session or sheriff

court, whether those proceedings are or are not independent of any other action, an

order may be made under this subsection in relation to--

(a) parental responsibilities;

(b) parental rights;

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

[...]

(2) The court may make such order under subsection (1) above as it thinks fit; and

without prejudice to the generality of that subsection may in particular so make any

of the following orders--

(a) an order depriving a person of some or all of his parental responsibilities or

parental rights in relation to a child;

(b) an order--

(i) imposing upon a person (provided he is at least sixteen years of age or is a parent

of the child) such responsibilities; and

(ii) giving that person such rights;

(i) with whom; or

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

periods,

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

a "residence order" );

(d) an order regulating the arrangements for maintaining personal relations and

direct contact between a child under that age and a person with whom the child is

not, or will not be, living (any such order being known as a "contact order" );

(e) an order regulating any specific question which has arisen, or may arise, in

connection with any of the matters mentioned in paragraphs (a) to (d) of

subsection (1) of this section (any such order being known as a "specific issue order" );

(f) an interdict prohibiting the taking of any step of a kind specified in the interdict

in the fulfillment of parental responsibilities or the exercise of parental rights relating

to a child or in the administration of a child's property;

(g) an order appointing a judicial factor to manage a child's property or remitting the

matter to the Accountant of Court to report on suitable arrangements for the future

management of the property; or

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

(2A) An order doing any of the things mentioned in subsection (2) is to be regarded

as an order in relation to at least one of the matters mentioned in subsection (1).

(3) The relevant circumstances mentioned in subsection (1) above are--

(a) that application for an order under that subsection is made by a person who--

(i) not having, and never having had, parental responsibilities or parental rights in

relation to the child, claims an interest;

(ii) has parental responsibilities or parental rights in relation to the child;

[ ...]

(aa) that application for a contact order is made with the leave of the court by a

person whose parental responsibilities or parental rights in relation to the child were

extinguished on the making of an adoption order;

(ab) that application for an order under subsection (1) above [... ]

is made by a

person who has had, but for a reason other than is mentioned in subsection (4)

below, no longer has, parental responsibilities or parental rights in relation to the

child;

(b) that although no [application for an order under subsection (1) above

has been

made, the court (even if it declines to make any other order) considers it should

make such an order.

(4) The reasons referred to in subsection [(3)(ab)

above are that the parental

responsibilities or parental rights have been--

(a) extinguished on the making of an adoption order;[ or

[

of the

(parental orders: supplementary provision)

on the making

of a parental order under

of that Act

[

(5) In subsection (3)(a) [ and (ab)

above "person" includes (without prejudice to

the generality of that subsection) the child concerned; but it does not include a local

authority.

(6) In [subsections (3)(aa) and (4)

above-- [

"adoption order" has the meaning given by

of the

(7) Subject to subsection (8) below, in considering whether or not to make an order

under subsection (1) above and what order to make, the court--

(a) shall regard the welfare of the child concerned as its paramount consideration

and shall not make any such order unless it considers that it would be better for the

child that the order be made than that none should be made at all; and

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

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

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

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

[

(7A) In carrying out the duties imposed by subsection (7)(a) above, the court shall

have regard in particular to the matters mentioned in subsection (7B) below.

(7B) Those matters are--

(a) the need to protect the child from--

(i) any abuse; or

(ii) the risk of any abuse,

which affects, or might affect, the child;

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

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

(ii) who might carry out such abuse,

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

(d) the effect any abuse, or the risk of any abuse, might have on the carrying out of

responsibilities in connection with the welfare of the child by a person who has (or,

by virtue of an order under subsection (1), would have) those responsibilities.

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

"abuse" includes--

(a) violence, harassment, threatening conduct and any other conduct giving rise, or

likely to give rise, to physical or mental injury, fear, alarm or distress;

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

"conduct" includes--

(a) speech; and

(b) presence in a specified place or area.

(7D) Where--

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

(b) in pursuance of the order two or more relevant persons would have to co-operate

with one another as respects matters affecting the child,

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

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

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

(b) where a parent of the child does not have parental responsibilities or parental

rights in respect of the child, a parent of the child.

Procedural background

[5]

The pursuer raised this action with warrant of citation being granted on 14 May 2021.

At that time the pursuer was represented by a solicitor and at the same time, at a hearing

before service, the court granted an interim interdict preventing the defender or anyone on

her behalf from removing the parties' children outwith the jurisdiction of the court.

[6]

On 19 May 2021 at a hearing after service, the court continued the interim interdict

previously granted and ordered the defender to lodge in court the original birth certificates

of the children, the original marriage certificate and the children's passports. An interim

interdict was granted against the pursuer removing the children from the defender's care.

[7]

The defender entered appearance in the action and represented herself throughout

the proceedings.

[8]

At a Child Welfare Hearing on 8 June 2021, the defender ordered a child welfare

report from SM, solicitor.

[9]

SM delivered her child welfare report to the court on 8 September 2021. She

concluded that there was insufficient evidence to establish that the parties' children would

be physically and emotionally safe if contact was granted in favour of the pursuer. She

recommended that a psychologist be instructed to obtain an independent assessment of the

pursuer's parenting capacity and his ability to meet the children's current and future needs.

[10]

On 23 November 2021, a Continued Options Hearing was discharged to allow the

pursuer's solicitor an opportunity to source a psychologist to prepare a report as

recommended by the child welfare reporter.

[11]

On 1 February 2022, the parties confirmed to the court that they had agreed to the

appointment of Dr EE, consultant psychologist to prepare a report in respect of the pursuer

as recommended by the child welfare reporter.

[12]

On 15 March 2022, the court granted an interim residence order in favour of the

defender and relaxed the interim interdict previously granted so that the defender could

remove the children from the jurisdiction of the court for the purposes of a single trip to

Israel to allow the defender to arrange end of life care for her mother.

[13]

On 21 March 2022, the sheriff refused the pursuer leave to appeal the court's

interlocutor dated 15 March 2022 and substituted AM, forensic psychologist as the

psychologist to be instructed to carry out the psychological assessment of the pursuer as

aforesaid.

[14]

On 25 March 2022, the pursuer appealed the sheriff's interlocutor dated 15 March

2022 to the Sheriff Appeal Court.

[15]

On 28 March 2022, the Sheriff Appeal Court allowed the pursuer's appeal to the

extent of finding the procedure adopted by the court to be flawed but upheld the substance

of the sheriff's interlocutor dated 15 March 2022 allowing the defender to take the children

with her to Israel for a single visit.

[16]

On 23 July 2022, AM lodged her psychological report. She concluded, among other

things, that the pursuer had not given appropriate thought to the needs of his children and

how he could meet these needs in real terms. She also concluded that the pursuer's

negativity to the defender was such that it was difficult to see how he could prioritise the

needs of the children around contact.

[17]

On 27 September 2022, an interim contact order was made allowing the pursuer

video contact with the children every Friday for 30 minutes.

[18]

On 16 December 2022, the Record was closed and a proof was fixed. A Case

Management Hearing was fixed for 10 February 2023.

[19]

On 10 February 2023, a diet of proof was fixed for 14 and 15 June 2023 (subsequently

changed to 15 and 16 June 2023).

[20]

On 10 March 2023, LJ was appointed as a curator ad litem to the parties' children.

[21]

On 19 May 2023, the curator ad litem was sisted as a party to the action and the diet of

proof was discharged.

[22]

On 30 May 2023, the pursuer's solicitor withdrew from acting and a peremptory diet

was fixed for 13 June 2023.

[23]

On 13 June 2023, the case was continued to 11 August 2023 and on that date the

pursuer indicated that he wished to proceed to proof without legal representation. From

this point onwards both parties were unrepresented in this action. LJ, whose role as curator

ad litem had up until then been funded through the pursuer's legal aid certificate, advised

that due to her concern for the children she was willing to continue in her role as curator ad

litem on a pro bono basis.

[24]

The proof, in this case, commenced on 2 November 2023 and thereafter called for

proof on nine further occasions with submissions being heard on 18 September 2024.

[25]

It should be noted that the evidence in this case did not take up nine full court days.

On several occasions the time was lost due to problems with the court's electronic

equipment. A considerable amount of time was also lost by other civil business requiring to

be dealt with before the proof could commence.

The Evidence

[26]

The only witnesses in the case were the pursuer, his brother and the defender.

[27]

It was the pursuer's position at proof that the defender was not providing adequate

care for the children and that she was attempting to shift responsibility for the children's

problems away from herself by attempting to discredit the pursuer with false allegations of

abuse and domestic violence. He maintained that the defender intended to move with the

children to the United States of America. He submitted that he was in full-time

employment, that he still lived in the former matrimonial home and that he was willing and

able to provide the children with a stable home environment. He stated that he had

previously had a very close relationship with the children.

[28]

The pursuer was asked on more than one occasion during the course of the proof

whether, in the event that I decided that the children should continue to reside with their

mother, he would agree that direct contact could take place at least at first on a supervised

basis at a contact centre. The pursuer refused to countenance this.

[29]

The defender's position was that it was in the best interests of the children that they

continue to reside with her. She stated that the pursuer had acted in an abusive and

controlling manner towards her, almost from the outset and throughout the course of their

relationship. She stated that she had separated from him for a time when they were both

living together in London and that she had finally left London with the pursuer and the

children to escape the pursuer's abusive and controlling behaviour. After finally separating

from him she eventually set up a home for her and the children in Boddam, Aberdeenshire

and thereafter in Aberdeen City. She accepted that the children were displaying

behavioural problems but that she was trying her best to seek medical and social work

assistance for this. She was opposed to the pursuer having direct contact or further video

contact with the children but should the court consider it appropriate for contact to take

place she was of the view that it should be supervised and constituted in a way that met the

children's needs.

[30]

The curator ad litem had concerns about the children and in her written submissions

stated that in her view it was not in the interests of the children for any residence order to be

made in this case. She also asked the court to consider whether there should be a referral to

the children's reporter in terms of Section 67(2) of the Children's Hearings (Scotland) Act

2011. So far as contact was concerned, she suggested that supervised video contact with the

pursuer for 30 minutes each week would be appropriate but that no pressure should be

placed on the elder child to participate in such contact against his wishes. At the hearing on

submissions, the curator ad litem accepted that it was probably unrealistic for the court to

make no order for residence.

[31]

In reaching a decision in this case, I've had to come to a view on the evidence led

before me in relation to a number of different factors and I will try and address these in turn.

Domestic abuse

[32]

It was the defender's position that the pursuer had subjected her to domestic abuse

and coercive control almost from the start of their relationship.

[33]

They met in 2007 through work as they both worked for the same software company.

They carried on a long distance relationship for several years. She was living in New York

when they met and was divorced. They were simply friends at first but she later came to

London on business and an intimate relationship started between them. After a few years

the defender stated that she wanted them to have a real relationship with a family. The

pursuer said he didn't want to come to the United States so she decided to come to England.

She came over to see the pursuer in 2012 for a month as she had been laid off work that

summer. She said that she came over to spend Christmas in England and she and the

pursuer then went to Israel to meet her parents. She said that she and the pursuer were

talking about getting married at this time.

[34]

The defender had to leave the United Kingdom after coming back from the parties'

trip to Israel. She found out she was pregnant and having taken immigration advice the

parties decided to get married outwith the UK. They therefore got married in Thailand.

However, when they were going on their wedding trip, the pursuer said he had a problem

with his credit card and she had to pay for the tickets.

[35]

She said that when she had to leave the United Kingdom she expected that he would

follow soon after but he did not. When she was pregnant, she asked if he would pay for her

12 week scan. He refused stating that he did not think that it was necessary.

[36]

After giving birth to the parties' eldest child she went to Israel with the baby. She

said he was working by then but not supporting her financially. She said that she had to

chase him up for paperwork for their child. She said that they had agreed that he would try

and get a stable job and then bring her over to England to live. He came to Israel to see the

child for his first birthday and this was in fact the first time he ever saw his eldest son. He

then went back to England and she stayed in Israel for another year with the child. She

stated that it had been necessary for her to go to court for a share of property owned by her

and her previous husband and she did not consider it to be a coincidence that the pursuer

finally got organised with a visa for her to come to England to live around the same time as

she had settled the sale of the property which she had owned with her previous husband.

[37]

She came to England to live with the pursuer in or about 2015. A month of two after

they started living together in England he asked her to transfer money from her bank

account in Israel to him. He also demanded access to her bank account in England and went

to the bank with her for this purpose.

[38]

She called the police when he continued to demand money from her. She felt the

police were unhelpful and they said that she should give him a few hundred pounds. He

forced her to give him £6,000 in total.

[39]

She was offered a job while they were living in London but he refused to even

discuss with her the possibility of paying £650 per month for childcare and accordingly she

was unable to take the job.

[40]

She said that from November 2015 or thereabouts their relationship deteriorated

further. She said he was refusing to communicate with her. He would get upset at her over

small things, for example, if she didn't place cups upside down. She said that on one

occasion the pursuer defecated in the bathroom while she was in the same room having a

bath and she found this extremely humiliating. She said that they had a problem with mice

in the house which caused a smell. He blamed the smell on her accusing her of not taking

showers. At one point he bought her an electric toothbrush and made her keep using it until

her gums were bleeding.

[41]

In or about January 2016 he accused her of stealing £5 when he gave her money to

buy an Oyster card. This led to the scene at Blackfriars Station in London where he insisted

in trying to get a history of the Oyster card account and called her a "fucking bitch" in the

presence of the elder child. He abandoned her at the station with no money and no means

of getting home. She contacted social services for help and they put her in a bed and

breakfast accommodation overnight. She said that their eldest son cried all night in the bed

and breakfast accommodation and she decided to go back home to live with the pursuer.

[42]

Due to his behaviour towards her she separated from him in May 2016. She then

discovered she was pregnant with their second child and decided to reconcile with him.

However, after they got together again his behaviour towards her continued to be abusive

and controlling.

[43]

When he discovered she was pregnant with their second child, he became more

attentive towards her but he also forced her to do things she didn't want to do. He forced

her to ride a bike even although she told him it caused her pain. He told her she was getting

fat and gave her a hula hoop to lose weight. When she was 8 months pregnant he sent her a

video about keeping in shape and called her "a fat cow". She then arranged for her mother

to come over from Israel to help her. He stopped having sex with her. The baby was

overdue and the midwife suggested that they have sex but he refused.

[44]

She gave birth to their second child by caesarean section and as a result had a

number of stitches. When he visited the hospital with the eldest child he allowed the child

to jump on her notwithstanding her stitches. When she got out of hospital she struggled to

walk for a few weeks but he still insisted they go to the supermarket together and he loaded

heavy bags on to her to carry.

[45]

She said that he then lost his job and from that point his behaviour got worse. He

threw things and smashed a Moses basket. On one occasion he was trying to charge a tablet

in one of the children's beds. She felt that it was unsafe and took the charging plug and

extension cable away. He disagreed with her in this respect and in anger smashed up a

wardrobe. She said that, dressed only in her bathrobe, she went to her neighbour's for help

and the matter was reported to the police.

[46]

Social services were involved with the family at this time and they suggested that the

parties go on holiday together. She said he decided to take her to Mozambique but she

didn't feel safe there. She said that she was sexually assaulted by men while she was there

and was reduced to tears. He insisted in travelling everywhere by bus but wouldn't buy a

separate ticket for the children so that they had to sit on their parent's laps. The journey

took several hours and she said that she almost lost consciousness due to the heat and

cramped conditions in the bus. While they were in Mozambique the eldest child got a very

high fever. The pursuer had refused to get malaria vaccinations for the children before

travelling to Mozambique. When they returned to England the defender was advised to

check for malaria but he said there was no need.

[47]

After the parties came back from Mozambique they had an argument about having

to pay for her visa. After this argument she became tired and lay down on the couch with

one of the children to sleep. He woke her up from sleep and tried to make her have sex with

him. She said it felt like being raped. He accused her of making false allegations and that he

would report her to the police to get her deported. She became very upset and having called

her mother for advice she called the police. The police came to the house and charged the

pursuer with sexual assault. Accordingly, they again separated for a time. However, he

started pressuring her to retract the statement which she had given to the police and she

ended up giving into him on this and resumed living with him.

[48]

When they separated she had applied for child maintenance. The child maintenance

services then claimed around £1,000 from the pursuer. When the parties got back together

he forced her to tell the child maintenance service to drop the claim. He held the `phone for

her to speak to the child maintenance service and punched the wall next to her to compel

her compliance.

[49]

He forced her to go on bike rides with him. He got very angry with her when she got

tired and forced her to cycle all the way to Hampton Court. At one point when she fell off

her bike he just left her behind.

[50]

Around this time when they had got back together it was her understanding he was

going to try and help with the rent arrears which had accrued. However, he did nothing

about this and they almost got evicted. She said that she had to then pay around £10,000 out

of her emergency savings to settle the arrears. Having done this he then pushed her to pay

other bills.

[51]

She said that she was frightened of him and that he slapped her in front of the

children. She said that at one point he slapped her across the face with a bundle of school

papers.

[52]

By the summer of 2019 he was getting more physical towards her. She said he

assaulted in ways that were meant to look like an accident. For example, he would

"accidentally" spill hot water on to her.

[53]

One day around this time the children made a mess at breakfast and some milk was

spilled. She had been up all night and was very tired so she went upstairs to have a nap

without clearing up the mess. He came up to the bedroom where she was resting and

ridiculed her. He took the duvet off her, shook her off the mattress. He then put the

mattress on top of her and squeezed her within the mattress and jumped on top of the

mattress. She was extremely frightened by this and was screaming.

[54]

Following this incident she made the decision to leave him for good and in or

about September 2019 she said that she was taking the children away with her for a holiday.

She did not, however, return and they have not lived together since.

[55]

It was the pursuer's position that he had never acted in an abusive manner towards

the defender. He said that he was always running around to try and make her happy while

she just lay on the couch. He said that when he asked her about something, for example,

taking the rubbish out, she started screaming and shouting at him. He said that every time

she shouted at him he left the house to avoid confrontation. He denied that he had ever laid

a finger on the defender.

[56]

There was therefore a clear conflict in the evidence of the parties in this respect.

[57]

I found the evidence of the defender credible and reliable in this connection. While

she was often stressed and agitated while giving evidence, that evidence was consistent

within itself and was supported by a number of documents. The defender had lodged

copies of messages between her and the pursuer. In one of these messages he appeared to

confirm that he had assaulted the defender, admitted that he was wrong but that he was

very frustrated. He also seemed to justify his actions by explaining that she was testing him

as a man. In these messages he also appeared to blame the defender for the incident

occurring.

[58]

The defender also led evidence in respect of a number of police incident reports

which supported her contention that the pursuer's abusive behaviour had caused her to seek

assistance from the police. She also led evidence of messages which she had sent to the

pursuer's brother advising him of the pursuer's behaviour towards her.

[59]

The defender also gave evidence that the pursuer repeatedly called her names and in

particular called her a "fucking bitch". The defender also led in evidence a recording she

had made of the defender on a video contact session when the pursuer was unaware that he

was being recorded, when he stated "I hate the fucking bitch". This seemed to me to lend

credence to the defender's assertion that he frequently called her names and made

derogatory remarks about her.

[60]

In cross-examination, the pursuer, despite having stated on more than one occasion,

that he had never, ever abused the pursuer, then admitted that he had verbally abused her

at Blackfriars Station in London and admitted that at that time he had called her a "fucking

bitch" in front of their eldest child. He also admitted that during an argument with the

defender about the charging cable, he became angry and hit a wardrobe. He seemed

oblivious of how inappropriate it was for him to be acting in this way in the presence of

their eldest son.

[61]

The defender also put to him in cross-examination a police report dated 13 March

2016 which disclosed that she had called the police following an incident when the pursuer

had come home drunk. Despite the pursuer previously having stated that he had never

come home drunk, then shifted his position, admitted that he had come home drunk on this

occasion and stated this must have been the only time he ever came home drunk.

[62]

The defender also put to him in cross-examination a police report dated 14 October

2018 which referred to the defender calling the police to complain that the pursuer had

breached a non-molestation order by calling at the family home. The report states that the

police found the pursuer within the property and arrested him. The pursuer, in cross-

examination, admitted that he had breached his court order at that time.

[63]

In cross-examination, the pursuer admitted that he had tried to get the defender on

the line to the child maintenance service to confirm why he was unable to pay the amount

they were claiming. She asked him if he admitted smashing the wall at this time. He replied

that he was not a hundred per cent sure if he did but had he done so he only did it once.

[64]

In the light of this evidence, I could not find the pursuer credible or reliable in his

denials that he had never subjected the defender to coercive control and domestic abuse.

Pursuer's care of and relationship with the children

[65]

It was the pursuer's position that he had a close relationship with the children. He

said that in the period before the final separation, it was his habit to get up at 6 am to give

the children breakfast and get them bathed and ready before he left for work. He said that

on return from work he would take them to the park and that at the weekend he would take

them to different parks. The defender's evidence in this respect is that sometimes he got up

in the morning to feed the children and sometimes he took them to the park but he did not

do this all of the time. In general, as indicated elsewhere in this judgment, I did not find the

pursuer to be a credible or reliable witness and in relation to this particular matter I

preferred the evidence of the defender.

[66]

The pursuer's brother gave evidence that he had seen the children interact with both

parents and he was of the opinion that the pursuer had a strong connection with the

children. It was difficult for me to see how the pursuer's brother could have come to this

opinion. Throughout the time the parties lived together with the children the pursuer's

brother was living in North America. He did not actually say how often he had seen the

pursuer with the children although he did mention that he had seen them when the parties

brought the children to Ghana for a visit. I formed the impression that the pursuer's brother

had very little first-hand knowledge of the pursuer's relationship with the children. The

main thrust of the evidence given by the pursuer's brother was that although the defender

had, as she had stated, messaged him on a number of occasions, he did not consider that she

was genuinely reaching out to him for advice and assistance in dealing with the pursuer's

behaviour but rather she was manufacturing and constructing a false case against the

pursuer. I did not find the evidence of the pursuer's brother credible or reliable. The tone of

the exchange of messages between him and the defender gave no hint that he was anything

but sympathetic to the defender, albeit that he was very reluctant to speak out against his

brother. I formed the view that the evidence given by the pursuer's brother was fatally

tainted by his obvious desire to try and assist the pursuer.

[67]

I also considered it is instructive to consider how much time the pursuer actually

spent living with the children. In this connection it has to be noted that neither party gave a

very clear timeline in respect of their relationship but from the evidence I think the position

is as follows. He did not see the eldest child at all until his first birthday. He did not live

with him until the parties started living together in September 2015. The parties then parted

for around 3 or 4 months in May 2016. They were living together again by the end of 2016

but they then separated for a time following the defender reporting the pursuer to the police

in or about March 2018. They had obviously not reconciled by the time the defender

reported him to the police for breach of the non-molestation order in October 2018. They

then lived together with the children for at least part of 2019 until the final separation

in September 2019. It is clear from this that the pursuer only spent a limited amount of time

living in the same household as the children prior to the parties' separation in 2019.

[68]

The pursuer has had no direct face-to-face contact with the children since September

2019. He has had contact by video conference since that time and by the start of the proof he

had obtained an order to see the children by video contact every Friday. The defender led

evidence of recordings she had made of the video contact between the pursuer and the

children. These video recordings did not indicate that the video contact was a very positive

experience for the children. These videos showed little interaction with the pursuer.

[69]

The video recording lodged by the defender also showed that the pursuer was using

the video contact to undermine the defender's relationship with the children. During one

video contact in 2023, he told the youngest child that they needed to get out of Boddam

because it was a terrible place. During video contact he tried to get the children to install

software so that he could contact them without having to go through the defender. On one

occasion during video contact he stated that "you will soon not have to deal with that

person called mum".

[70]

He repeatedly stated to the children that they should consider themselves as black

and denied their mixed race heritage. The elder child was particularly upset by this and in

June 2023 as a result of the pursuer's attitude in this respect, the elder child told the pursuer

he did not want to speak to him and by the close of the proof had not spoken to him since.

[71]

On one occasion a video contact took place shortly after the defender's father had

died. During the contact the youngest child wanted to speak about his recently deceased

grandfather. The pursuer bluntly refused to talk to him about his grandfather.

The pursuer's position on parenting and contact

[72]

The pursuer's primary position is that although he has not had in-person contact

with the children for more than 5 years, the children should move to London to live with

him. It is his position that the defender is not able to properly care for the children. He

made a number of allegations about the way the defender was looking after the children.

He claimed that the defender had caused the eldest child a lot of issues and that she had no

control over the children. He claimed that they had no structure in their lives and he

accused her of failing to ensure that the children did their homework. While there can be no

doubt that the defender is having issues with the care of the children, many of the pursuer's

criticisms were not supported by any evidence.

[73]

I found it interesting to note that when asked how he would envisage contact with

the defender if the children came to live with him in London, he responded by saying that

he didn't think there should be any restriction on her contact with them. Then almost

without pause, went on to state that when they found out the defender was pregnant with

their first child he decided "to do the right thing" and marry her. This comment seemed to

me to be very out of place and when this comment is taken with the defender's evidence as

to how the defender was responsible for it taking around 2 years after their wedding for the

parties to start living together suggested to me that from the outset the pursuer was not very

committed to his relationship with the defender.

[74]

The pursuer justified his crave for interdict by stating that he had objected to the

children being taken to Israel to live with the defender because they would be put on the

outskirts and would be the first people to die. He objected to her taking the children to live

with her in the United States as she wouldn't be able to work and there were no state

benefits in that country. The pursuer's comments in this respect made no sense to me

whatsoever. His views did not appear to be based on any solid evidence. He also appeared

to overlook the fact that the defender had previously worked in the United States and that

she had in fact been working for most of the time she had lived in Scotland.

[75]

Throughout his evidence the pursuer displayed a worrying attitude towards women.

He criticised the role of the curator ad litem appointed by the court. He accused her of being

biased in favour of the defender, that the curator was not interested in what was best for the

children and was only interested in preventing him seeing the children. He suggested that it

was a case of women sticking together. He then went on to say that no woman would

willingly raise two sons on her own and that he would be unable on his own to support two

daughters effectively. In cross-examination, he repeated that two boys needed to have a

man around and he later expanded on this.

[76]

He stated that, in his view, the defender did not have the capacity or capability to

raise the boys while he did. He pointed out that the boys would be physically stronger than

the defender but that he would be able to give them the right direction. He said that the

defender didn't teach them respect. This evidence caused me some concern as it seemed to

imply that he would use physical force or the threat of physical force to control the children.

My concern at his attitude towards the children was reinforced when he was cross-examined

by the curator ad item who asked him if he had given consideration to what the children

might want. He replied, "The reason the children have parents is because children don't

really know what they want". He said, if they wanted something it was for him to decide.

He was then asked if the children were happy with their mother did he still think it was

better for them to be with him. His reply was that "This was all they knew and anyway they

don't have to speak to their mother at home as she spends all of her time in her room". He

was asked if he thought the children respected him. His reply was that his job was to

provide for their needs and what they thought for the moment is not important.

[77]

On several occasions throughout his evidence he confirmed that he had been offered

supervised in-person contact with the children at a contact centre and that he had refused

this. He stated that if he agreed to supervise contact he would be telling the children that

there was something wrong with them. He said that he had previously taken care of his

children perfectly well and that he didn't need supervision. He said that supervised contact

was a system for children who have been abused and that this was not a problem in the

present case. He appeared to have no understanding as to why it might be in the best

interests of the children for direct in-person contact to be supervised, least at first after a gap

in such contact for more than 5 years. He seemed unable to understand that in the

circumstances the children might need the security and reassurance of contact in a

supervised environment.

[78]

When he was cross-examined by the defender he conceded that he had missed the

last two sessions of video contact and that he had emailed the defender to explain that he

had an emergency. He then went on to explain that he had missed contact because he had

just started a new job and that he had been team bonding with his colleagues on both

occasions. He admitted that on these occasions he had in fact been out having a meal and a

few drinks with his colleagues. When asked why he had not requested contact at a different

time, he stated that since the appointment of the curator ad litem he had not been able to

have any meaningful conversations with the children.

[79]

Throughout his evidence the pursuer seemed unable to prioritise the needs of his

children over his animosity towards the defender. It was put to him that his attitude was

having an adverse effect on the children. He didn't reply to this question but responded by

saying that the defender was using this domestic violence accusation and that he had run

around trying to make her happy while she just simply lay on the couch. He admitted that

after the parties had separated he had sent her an email stating that he was not going to

contribute anything to the boys' care, that he was not going to give any necessary parental

approvals and that he would intentionally not provide anything for the children. In this

connection he agreed that he had refused to let the younger boy be assessed for ADHD. The

reason which he gave for this was his opinion that it was the environment provided by the

defender that was causing the problem.

[80]

In cross-examination, he stated that his solicitor had told him that his goal should be

to see the children but that he told her that contact wasn't good enough, he needed

residency. This seemed to me to show that his motivation in seeking residency was not

what was in the best interests of the children but rather his own sense of entitlement to have

the children living with him. This seemed to be confirmed by the statement in his written

submissions to the effect that "I am their father, I have the right to provide for my children".

The pursuer's attitude to reports ordered by the court

[81]

In his evidence-in-chief, the pursuer spent a lot of time attacking the various court

order reports lodged in process throughout these proceedings. He attacked not just the

findings of the reports but, to some extent, the reporters themselves.

[82]

A child welfare report was lodged on 8 September 2021. The reporter concluded that

it was in the best interests of the children to reside with the defender but that there was

insufficient evidence available to the reporter to enable her to express a view on the contact

by the pursuer. The reporter therefore recommended an independent assessment of the

pursuer's parenting capacity by a psychologist. The pursuer did not accept findings of this

child welfare report and challenged some of the statements made by the reporter. The

reporter had made reference to information provided by a social worker in England and the

pursuer, in his evidence-in-chief used this part of the report to launch an attack on that

social worker.

[83]

On the recommendation of the child welfare reporter, a parenting assessment was

carried out by a consultant forensic psychologist and a report lodged on 29 July 2022. The

report concluded by stating that the pursuer "presents as an angry man who is quite

immature and egocentric himself and has not given appropriate thought to the needs of his

children whether material or emotional and how he could meet these needs in real terms.

His negativity towards EL is such that it is difficult to see how he could prioritise the needs

of the children around the matter of contact or how he would promote a positive image of

their mother to them. (He) did not speak about his children in ways that might be expected

of a loving father which, in itself, is a significant concern".

[84]

In respect of the psychologist's report, the pursuer began by attacking the reporter's

integrity and he falsely accused her of lying. He then started to attempt to suggest that the

report had not been carried out in a competent manner. I pointed out to him that he had not

lodged any expert report questioning the reporter's competence nor did he intend to lead

evidence from any such expert. I therefore refused to let him give evidence on that point.

His summation of this report was that it was "dubious".

[85]

The curator ad litem provided a report dated 21 September 2023. As referred to

above, the pursuer accused the curator ad litem of being biased and that she and the

defender were simply women sticking together. This accusation is entirely without

foundation. Although the report presents a negative view of the pursuer, and expresses

concern for the welfare of the children if the pursuer were to have additional contact I find it

difficult to see how the curator ad litem could reasonably be regarded as biased in favour of

the defender. The report, seems to me, to have been well focussed on the welfare of the

children and is very critical of both parents not just the pursuer. Indeed, the curator ad litem

concluded her report by stating "I am very concerned for the emotional welfare of both boys

but also believe there is a real risk that their interests maybe submerged amongst mutual

antipathy and competing interest of their parents".

The defender's care of the children

[86]

The children have continuously been in the care of the defender since the parties

separated. She and the children moved to Boddam around May 2000. She said that before

moving there the local school had looked good and it seemed to her to be a safe and good

place for her and the children to recuperate from their experiences in London. She obtained

employment in 2023. She obtained a job in Aberdeen where her working hours were able to

fit round childcare. Her landlord in Boddam served a notice to quit on the basis that he

wished to sell the house which she had been renting. She then managed to find a suitable

school for the children in Aberdeen and she bought a house in Aberdeen near the school and

her own place of work. It is clear from the defender's evidence and from the various

reports, including a report from social work provided on 7 June 2024, that the defender has

provided a comfortable home for the children, that she has obtained employment to provide

for their physical needs, that she has made efforts to engage the children in various activities

and made arrangements for them to socialise with their peers.

[87]

There are, however, a number of areas of concern which have arisen while the

children have been in the sole care of the defender. While there were problems while the

children were living in Boddam and instances of the defender struggling to cope with them.

The defender finds it difficult to impose discipline or otherwise regulate the boys'

behaviours and she seems, at times, unable or unwilling to do so. The boys' behaviour and

the defender's apparent inability to control them was referred to in the report dated

8 September 2021 by the child welfare reporter, in the curator's reports dated 21 September

2023 and supplementary report dated 2 May and 10 June 2024 and also referred to in the

social work reports dated 8 May and 7 June 2024. The defender has expressed fear for her

own safety on several occasions. She also referred to the boys' destructive behaviour within

the home and has sought assistance from the NSPCC, Women's Aid, the police and social

work.

[88]

The behaviour of both children appears to have deteriorated significantly since they

left Boddam. The elder child started running away from school and was only attending

school intermittently. At the conclusion of the proof, the elder child had only just started

going back to school after a long gap and that was only on a half day basis.

[89]

The defender gave evidence that the problems with the elder child were such that

she had to call the police on several occasions. She gave evidence that on one occasion the

elder child had threatened her with a knife when she took away his Xbox games console.

[90]

The defender also admitted in evidence that she was experiencing problems with the

youngest child. She said that he had been swearing at her and calling her a "fucking bitch".

The defender recognised that there was a problem and that it was for this reason that she

had wanted to have the younger child assessed for ADHD.

[91]

It cannot be said that the defender has coped very well with the children's disruptive

behaviours. She accepted that she had threatened suicide at one point during 2024 when the

DWP had refused her application for funding assistance in respect of the elder child. She

took medical advice following this and is now taking anti-depressant medication. She has,

however, as indicated above sought help with the children although she does not appear to

always follow the advice given to her.

[92]

Having heard the evidence of the defender, I agree with the submissions of the

curator ad litem that she has unrealistic expectations of outside agencies in what they can

provide by way of practical support. This had led to conflict with certain social workers and

the defender has reacted by accusing professionals of anti-Semitism. She gave evidence that

she was asked by social work if she ever took drink or drugs. She took great offence to that

question which I considered to be one that social workers were bound to ask if they were

doing their job properly. She seems to have unjustifiably taken this question as an

accusation of drug or alcohol abuse. I formed the view that the defender was not good at

taking advice from professionals if their assessment or proposals for a way forward did not

coincide with their own opinions.

Views of the children

[93]

Both children were interviewed by the curator ad litem at school on 18 September

2023. At that time the elder child said he was happy living with his mother and that he did

not wish to live with his father. Although at that time he was refusing to speak to his father

he did not find the prospect of direct in-person contact appealing. He said that for video

contact he would prefer this only to be once or twice per month. He also said that he had no

strong memory of living with his father and when asked about the current contact

arrangements he spoke spontaneously about the way his father speaks to or about his

mother when she is in the room.

[94]

The younger child said that he was happy living with his mother and displayed no

enthusiasm when the prospect of living with his father was suggested, even for a holiday.

He said that he would prefer less contact and that he would prefer that video contact only

took place once per month. He had no memory of living with his father and indicated that

he did not like it when his father was rude to his mother if she came into view during video

contact.

Decision

[95]

In reaching my decision I must, in terms of Section 11(7) of the Act, regard the

welfare of the children as the paramount consideration and having regard to that I do not

consider it is in the best interests of the children for the court to make either a residence or a

contact order in favour of the pursuer. There are several reasons why such orders would

not be in the children's best interests and dealing firstly with the pursuer's crave for

residence these are as follow:-

As referred to above, I have found that the pursuer subjected the defender to

domestic abuse and coercive control. In terms of Section 11(7B) of the Act, I must

have regard to the need to protect the children from any abuse or risk of abuse. I

consider that in view of his past conduct and his comments on how he would control

the behaviour of the children if I were to make a residence order in favour of the

pursuer I would be failing in my duty to these children in this respect.

In terms of Section 7(b) of the Act, I must have regard to the children's

wishes. Both children have clearly stated that they did not wish to live with their

father.

The children do not have a strong relationship with their father. They have

not lived in the same household as him for over 5 years and have no real memory of

living with him.

In terms of Section 7D where two or more relevant persons would have to co-

operate with one another as respects matters affecting the children I must consider

whether it's appropriate to make the order. Despite his protestations to the contrary,

I do not believe that if the children were to reside with the pursuer he would co-

operate with the defender in facilitating contact. I do not think that he would act in a

way that would encourage the children to have a good relationship with their

mother. Although the pursuer has said that he would encourage and facilitate a

contact it is clear from the evidence that he has a deep seated hatred of the defender

and that he treats her with the utmost contempt.

I have serious doubts about the pursuer's commitment to the children and his

capacity to meet their emotional needs. Had he been able to prioritise the children's

needs he would have recognised that supervised contact was the appropriate way

for him to have face-to-face contact with the boys and to develop his relationship

with them. He placed his own ill-informed views on supervised contact above his

children's needs. Furthermore, the views and attitudes displayed by the pursuer

towards parenting and towards the role of women are not conducive to the

children's healthy, emotional development and sense of identity. I have formed the

view that the pursuer's attempt to obtain a residence order is motivated by his view

that he is the children's father is entitled to have residence and by his hostility

towards the defender.

[96]

So far as contact with the pursuer is concerned, the addition to the factors outlined

above in relation to his crave for residence, I would add the following reasons why I do not

consider it is in the children's best interests to make a contact order in this case.

The video contact which has taken place has been of very poor quality with

little engagement between the pursuer and the children.

During video contact, the pursuer has been rude and hostile both towards the

defender if present in the room or about her when he is speaking to the children.

This is likely to be damaging for the children's emotional development and their

relationship with their mother. I thought it was most telling that when the younger

child swore at his mother he referred to her as a "fucking bitch" which from the

evidence seemed to be a favourite term of abuse used by the pursuer towards the

defender.

The pursuer cannot be trusted to observe an order of the court. He admitted

to breaking a court order while the parties were living together in England and on

more than one occasion has tried to persuade the children to download software so

that he could contact the children without having to go through the defender. This

seemed to me to suggest that he was attempting to subvert the court's order in

relation to contact.

He has shown little commitment to contact as evidenced by his missing three

contacts in a row so that he could go out eating and drinking with his work

colleagues.

While it would normally be in the best interests of children to have a

relationship with their father, in view of the way the pursuer has behaved any future

contact whether by video or in person would require to be supervised. The pursuer

has made it quite clear that he would not agree to this and therefore unless and until

he changes his attitude towards supervised contact I do not think that it is in the best

interests of the children for a contact order to be made.

[97]

I also have to consider whether it is in the best interests of the children for me to

make a residence order in favour of the defender. As indicated above in the written

submissions, the curator ad litem put forward the view that I should not make a residence

order in favour of either party here and that I should consider making a referral to the

children's reporter. I do not consider it is necessary for me to make a referral to the

children's reporter. I considered that her care at present was good enough notwithstanding

the problems and her shortcomings. Furthermore the defender has, herself, made contact

with social work and at the close of proof social work were still actively involved with the

defender and the children. These social workers are well placed on an ongoing basis to

judge the nature and extent of the defender's care of the children, her co-operation with

them whether a referral might ultimately be necessary. Again, as indicated above, the

curator ad litem had by the time of the hearing on submissions changed her position to the

extent that she conceded that it would be in the children's best interests for an order to be

made in favour of one parent or the other than that no order at all should be made.

[98]

I have a number of reasons why I consider it in the best interests of the children that

a residence order be made in favour of the defender rather than that no order at all should

be made here.

As a matter of fact the children have been living with the defender since the

parties separated. The defender has provided a good standard of accommodation

for them and provided for their day-to-day needs in respect of food, clothing etc.

These aspects of their life are well settled.

This ongoing litigation has a detrimental effect on the defender and the

children to the extent that the defender appears to live in a state of high anxiety

about the future and the outcome of this litigation. It is clear to me that this court

action is diverting the defender's attention away from the difficult task of dealing

with the boys' challenging behaviours and I am of the view that it is in the best

interests of the children that a residence order is made so that the defender and the

children can have the benefit of this element of stability in their lives.

Notwithstanding the defender's shortcomings in dealing with the children's

challenging behaviours, I am of the opinion that her care of the children at the

moment is good enough for it to be in the best interests of the children to make a

residence order in her favour. On the evidence heard at the proof, I did not consider

that the children were likely to suffer unnecessarily or that their health or

development was likely to be seriously impaired due to a lack of parental care on the

part of the defender. The defender is very aware of the children's problems and

while she has disagreed with professionals on a number of respects, as at the date of

the proof she was still actively engaging with social work and looking for outside

assistance with the boys' behavioural problems.

[99]

The pursuer has craved an interdict to prevent the defender removing the children

from outwith the jurisdiction of the court. I do not see any necessity for such an interdict.

The defender gave evidence that she has no plans to move herself and the children away

from Aberdeen for the foreseeable future. I accepted her evidence in that respect. I do not

think there are any reasonable grounds for suspecting that she intends to move herself and

the children to the United States or Israel in the foreseeable future. The existence of the

present interim interdict prevents the defender taking holidays outwith the sheriffdom

without the pursuer's consent or without the permission of the court. The pursuer has

consistently blocked or obstructed the defender's holiday plans for no good reason and this

restriction on the defender's life with the children should be removed. By interlocutors

dated 19th May 2021 and 8th June 2021 the defender was ordered to lodge the children's

passports and her own passports with the sheriff clerk. I do not consider there is any longer

a need for that measure and I am therefore authorising the sheriff clerk to release these

passports to the defender.

[100]

The defender has craved an interdict against the pursuer removing the children from

her care. In view of the pursuer having previously breached or attempting to breach

previous orders of court, I consider that her fear is a reasonable one and that he may well

take matters into his own hands. I am therefore granting an interdict in this respect. Her

crave for interdict includes a reference to the pursuer approaching within 5 miles of the

house in Boddam. I am not granting decree in terms of this part of the crave as this is no

longer of any relevance.

[101]

As far as expenses are concerned, it would not be normal practice to make an award

of expenses in an action of this kind and I can see no reason to depart from that normal

course of action. I am therefore making a finding of no expenses due to or by either party.

[102]

I should mention that the defender has a total of 10 craves as can be seen from the

Closed Record. In crave 4, the defender seeks to interdict the pursuer from applying for

passports for the parties' children as there is no evidence to suggest that this is now

necessary.

[103]

In crave 5, the defender seeks an interdict against the pursuer having contact with

the children. Again, such an interdict does not seem to be necessary in the circumstances.

[104]

In crave 6, the defender has sought an order allowing her to renew the children's

passports on her own where two parent's signature is required. I have no evidence that this

is necessary at the present time and the same comment would apply to the defender's

crave 7 which also deals with renewal of the children's passports.

[105]

In craves 8 and 10, the defender seeks decree for payment of certain out-of-pocket

expenses and damages against the pursuer. There was no evidence nor any basis in law for

such claims.

[106]

In crave 9, the defender has craved an order for expenses and I have dealt with that

above.

[107]

I think it is important to remind parties that I was not asked to make any orders

which would have the effect of depriving the pursuer of his parental rights and

responsibilities other than those relating to residence and contact. I therefore agree with the

submission made by the curator ad litem that arrangements should be made to enable the

pursuer to be kept informed of the boys' educational progress and health and to enable him

to contribute information which may be relevant to any health assessments which may be

arranged in respect of either or both children. There is no order in place which prevents him

making enquiries in relation to the progress of the children at school. Furthermore he is

entitled to be consulted prior to the defender making any major changes to the children's

lifestyle such as taking them to live outwith the United Kingdom.

[108]

Finally, I would like to thank the curator ad litem for her invaluable assistance in this

case. I found her to be completely unbiased, very even handed and that she acted at all

times with the best interests of the children in mind.

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	Scottish Sheriff Court Decisions
You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> KB against EL and LJ (Sheriff Court Civil) [2025] SCPHD 18 (18 March 2025) URL: http://www.bailii.org/scot/cases/ScotSC/2025/2025scphd18.html Cite as: [2025] SCPHD 18

Scottish Sheriff Court Decisions