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OUTER HOUSE, COURT OF SESSION
[2025] CSOH 13
F25/23
OPINION OF LORD STUART
In the cause
NF
Pursuer
against
AF
Defender
Pursuer: Party, Bain as lay representative
Defender: Bowan KC, Cartwright; MHD Law solicitors
Curator ad litem: Allison; Millard Law solicitors
5 February 2025
Introduction
[1]
In this action, remitted from the Sheriff Court at Edinburgh, the parties seek orders
in respect of their children. This opinion follows proof.
[2]
The parties entered into a relationship in 2000 and were married on 20 September
2014. There are two daughters of the parties' relationship. I will call them Mary and Anne
to make them real whilst respecting their anonymity. Mary was born on 17 June 2008. Anne
was born on 21 September 2011. In order to represent the interests of Mary and Anne, the
court appointed Ms Shewan Curator ad litem. Ms Shewan entered proceedings and
2
participated in the proof. Given that Mary has now turned 16, the court no longer has
power to make any orders sought in relation to her.
[3]
Following proof, the pursuer sought a residence order requiring Anne to reside with
him, which failing an order for direct contact between himself and Anne. The defender
sought a specific issue order allowing her to remove Anne from the UK for a period of up to
21 days in each calendar year without requiring to seek the pursuer's prior consent to that
removal.
[4]
Notwithstanding that, on the basis of the evidence and the productions to which I
was referred, I have reached my conclusion in relation to the respective orders sought
without any real hesitation, a considerable amount of the evidence led before me has caused
me some concern from the perspective of the best interests of Anne and Mary. That concern
is twofold. Firstly, Anne and Mary's understanding of their father's actions, both before and
after their parents separated might not be accurate and I consider it in their best interests to
understand the factual circumstances disclosed by the evidence led before me. Secondly, on
the basis of the evidence before me, there is a strong suggestion that the pursuer and his
relationships with Anne and Mary have suffered significantly and, again, I consider it in
Anne and Mary's best interests to know that. As was submitted by counsel for the curator ad
litem (the advocate I appointed to represent Anne and Mary's best interests in these
proceedings) after hearing the evidence in this case, Anne and Mary would benefit from
being disabused of any material misapprehensions they are under, particularly regarding
their father.
3
The relevant legal framework
[5]
The orders sought by the parties relate to parental responsibilities and rights and, as
such, are governed by the legal framework set out in the Children (Scotland) Act 1995
("1995 Act"). So far as relevant to my decision, the 1995 Act provides as follows:
"1.-- Parental responsibilities
(1)
Subject to Section 3(1)(b), and (d) and (3) of this Act, a parent has in relation to
his child the responsibility--
(a)
to safeguard and promote the child's health, development and welfare;
(b)
to provide, in a manner appropriate to the stage of development of the
child--
(i)
direction;
(ii)
guidance,
to the child;
(c)
if the child is not living with the parent, to maintain personal relations
and direct contact with the child on a regular basis; and
(d)
to act as the child's legal representative.
but only in so far as compliance with this Section is practicable and in the
interests of the child.
(2)
`Child' means for the purposes of--
(a)
Paragraphs (a), (b)(i), (c) and (d) of Subsection (1) above, a person under
the age of sixteen years;
...
2.-- Parental rights.
(1)
Subject to Section 3(1)(b), and (d) and (3) of this Act, a parent, in order to enable
him to fulfil his parental responsibilities in relation to his child, has the right--
(a)
to have the child living with him or otherwise to regulate the child's
residence;
(b)
to control, direct or guide, in a manner appropriate to the stage of
development of the child, the child's upbringing;
(c)
if the child is not living with him, to maintain personal relations and
direct contact with the child on a regular basis; and
(d)
to act as the child's legal representative.
(2)
Subject to Subsection (3) below, where two or more persons have a parental
right as respects a child, each of them may exercise that right without the
consent of the other or, as the case may be, of any of the others, unless any
decree or deed conferring the right, or regulating its exercise, otherwise
provides.
(3)
Without prejudice to any court order, no person shall be entitled to remove a
child habitually resident in Scotland from, or to retain any such child outwith,
the United Kingdom without the consent of a person described in
Subsection (6) below.
4
(4)
The rights mentioned in Paragraphs (a) to (d) of Subsection (1) above are in this
Act referred to as `parental rights'; and a parent, or any person acting on his
behalf, shall have title to sue, or to defend, in any proceedings as respects those
rights.
...
(6)
The description of a person referred to in Subsection (3) above is a person
(whether or not a parent of the child) who for the time being has and is
exercising in relation to him a right mentioned in Paragraph (a) or (c) of
Subsection (1) above; except that, where both the child's parents are persons so
described, the consent required for his removal or retention shall be that of
them both.
(7)
In this Section, `child' means a person under the age of sixteen years.
11.-- Court orders relating to parental responsibilities etc.
(1)
In the relevant circumstances in proceedings in the Court of Session ... an order
may be made under this subsection in relation to--
(a)
parental responsibilities;
(b)
parental rights;
...
(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--
...
(c)
an order regulating the arrangements as to--
(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');
...
(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--
...
(ii)
has parental responsibilities or parental rights in relation to the
child;
...
5
...
(5)
In subsection (3)(a) ... above `person' includes (without prejudice to the
generality of that subsection) the child concerned; but it does not include a
local authority.
...
(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;
(c)
the ability of a person--
(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
(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
(c)
domestic abuse;
`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--
6
(a)
a person having parental responsibilities or parental rights in respect of
the child; or
(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.
...
(10) Without prejudice to the generality of paragraph (b) of subsection (7) above, a
child twelve years of age or more shall be presumed to be of sufficient age and
maturity to form a view for the purposes both of that paragraph and of
subsection (9) above.
..."
[6]
As set out in section 11(7)(a), when considering whether or not to make an order
under section 11(1) and what order (if any) to make, the court 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. Further, section 11(7)(b) requires, so far as practicable, the court to give the
child an opportunity to express a view in relation to the orders sought and, if the child does
seek to express a view, have regard to that view.
[7]
In terms of judicial interpretation of section 11(7), in the case of NJDB v JEG
"When the court is requested to exercise its discretion to make an order under
section 11 of the 1995 Act, it is required, as I have explained, to regard the welfare of
the child as its paramount consideration, and it must not make any order unless it
considers that it would be better for the child that the order be made than that none
should be made at all: section 11(7)(a). The central issue in such a case is therefore
the effect of an order upon the welfare of the child. In carrying out the duties
imposed by section 11(7)(a), the court is required to have regard to a number of
specified matters, including the need to protect the child from any abuse (defined as
including any conduct likely to give rise to distress), and the need for the child's
parents to co-operate with one another: section 11(7A)-(7E). In addition to the
matters specified in the Act, the court will also require to consider any other matters
which bear directly upon the issues focused in section 11(7)(a), such as the child's
needs and any harm which the child is at risk of suffering. The court is also required
to have regard to the views of the child, so far as those may be ascertainable:
section 11(7)(b). Against that background, a judgment will most clearly address the
central issue in the case if it focuses directly upon the factors which are relevant to
the court's exercise of its discretion, rather than concentrating primarily upon the
myriad questions of fact which may be in dispute, many of which may be peripheral
7
to that central issue. It is of course essential that the court's findings on any relevant
matters of fact should be made clear, but that can be done within the ambit of a
judgment whose primary focus is upon the central issue, and which in consequence
demonstrates the nexus between that issue and the findings of fact."
[8]
In White v White 2001 SC 689, (a case referred to twice by Lord Reed in NJDB with
apparent approval) the Lord President (Rodger), with whom the other members of the First
Division agreed, in discussing the proper judicial approach to section 11(7)(a) said at
para [21]:
"The court must consider all the relevant material and decide what would be
conducive to the child's welfare. That is the paramount consideration. In carrying
out that exercise the court should have regard to the general principle that it is
conducive to a child's welfare to maintain personal relations and direct contact with
his absent parent. But the decision will depend on the facts of the particular case
and, if there is nothing in the relevant material on which the court, applying that
general principle, could properly take the view that it would be in the interests of the
child for the order to be granted, then the application must fail."
[9]
Counsel for the curator ad litem, also made reference in his submission to the
obligations on the court to act in a manner that is compatible with the respect for the family
life of both parents and their children under Article 8 of the European Convention on
Human Right ("the Convention") and the balancing of competing interests between parents
and children. In White v White, at paragraphs 24 and 25, the Lord President (Rodger) wrote:
"24 ... [T]he European Court has held that the obligations on a State may involve the
adoption of measures designed to secure respect for family life even in the sphere of
relations between individuals, including the provision of an adjudicatory and
enforcement machinery protecting individuals' rights. In all respects regard must be
had to the fair balance which has to be struck between the competing interests of the
individual and the community, including other concerned third parties. See Glaser v
United Kingdom, at para 63. More particularly, the obligation of the national
authorities to take measures to facilitate the non-custodial parent's contact with his
children after divorce is not absolute and any obligation to apply coercion must be
limited since the interests, as well as the rights and freedoms, of all concerned must
be taken into account. More particularly, the best interests of the child and his or her
rights under art 8 of the Convention must be considered. Where contacts with the
parent might appear to threaten those interests or interfere with those rights, it is for
the national authorities to strike a fair balance: Glaser , at para 66. In Elsholz v
Germany, the court had already observed (at para 50) that a fair balance must be
8
struck between the interests of the child and those of the parent and that `in doing so
particular importance must be attached to the best interests of the child which,
depending on their nature and seriousness, may override those of the parent. In
particular, the parent cannot be entitled under Article 8 of the Convention to have
such measures taken as would harm the child's health and development.'
25. These passages are sufficient to suggest that the structure of our law complies
with the requirements of art 8 since it respects family life and contains provisions
enshrined in legislation for balancing the competing interests of the various members
of the family. In making regard for the child's welfare the paramount
consideration, sec 11(7)(a) is in conformity with the approach laid down by the
European Court."
Accordingly, where the court, in making a decision under reference to section 11(7) of the
1995 Act, follows the guidance of the United Kingdom Supreme Court and Inner House of
the Court of Session cited above, it will correctly apply the test in section 11(7) of the
1995 Act and act in accordance with any competing interests of parents and children and
their respective rights to family life.
The relevant evidence
The pursuer
[10]
Throughout the principal part of this case and at proof the pursuer acted on his own
behalf. A Ms Bain was given permission by the court to act as the pursuer's lay
representative at proof. The pursuer had lodged an 80 page statement and some
204 productions. At the outset of his evidence in chief the pursuer adopted his statement.
The statement contained a considerable degree of detail, a reasonable amount of which was
supported directly or by reasonable inference, from productions referred to in the statement.
Some parts of the pursuer's statement were more material than others to the "live" issues at
proof. The first half of the statement addressed the parties' relationship prior to separation.
The pursuer sets out the early stages of the parties' relationship. He seeks to explain where
9
and over what the parties argued. He describes what he calls the defender's fears and "red
lines", beyond which the defender would accuse him of acting in an abusive or threatening
manner and as a result of which he incrementally lost his autonomy or ability to discuss
issues freely with the defender. The pursuer narrates at some length his involvement with
parenting Mary and Anne, stating, and giving examples in support of the fact, that he was
fully involved with both children and that his parenting style was more relaxed than the
defender's. The pursuer specifically acknowledges that the defender "was always a loving
parent committed to what she believed best for her children" and that she "was a committed
parent devoted to the children's education but [their] approaches were different." The
pursuer acknowledges that:
"right to the end of their relationship [the defender's] creativity in all kinds of ways
was one of her attributes that [he] enjoyed and cherished and often complemented to
friends with pride."
The parties' married on 20 September 2014. In around the summer of 2018 the parties
engaged in counselling. This involved a number of individual sessions with the same
counsellor before the parties had a joint session with the counsellor. The pursuer narrates
that it became clear to him at that joint session the defender had told the counsellor things
the defender knew to be false. This was the first time in the parties' relationship that the
defender had ever suggested in his presence important falsities about their relationship that
both she and he knew to be false. Thereafter the pursuer became concerned and attempted
to discuss with the defender her plans, suggesting that it would be better for the children if
they had a planned separation. On 2 February 2019 the pursuer departed on a business trip.
By email timed and dated 09.25am on 4 February 2019 the defender wrote to their
company's business manager requesting keys to the business premises (63/196 of process is a
copy of the email). At 09.21am on 5 February 2019 the defender sent a text message to the
10
pursuer asking what time he would be home and at 09.22am the pursuer replied, "Maybe 6-
7" (63/147 of process is a copy of these text messages). The pursuer arrived home shortly
after 6.00pm at which point the defender had vacated the house with the children. A lot of
the children's clothes and some of their favourite possessions had also been removed. The
pursuer and defender exchanged brief messages thereafter on that day. On 7 February 2019
the pursuer attended a school show in which Mary had a part. After the show Mary "ran
straight to me to receive my congratulations and shared extended hugs." That was the last
time the pursuer spoke to Mary. The pursuer states he could not imagine anything that the
defender could use against him, but he references two contemporaneous emails to friends
dated 6 and 7 February 2019 (63/154 and 63/147 of process) where he expresses concern that
the defender "will go hardcore", "play dirty" or be "uncompromising".
[11]
At around 09.00am on 8 February 2019 the police rang the pursuer's doorbell. After
a few hours of searching the pursuer's house the police arrested him, saying they had found
illicit pornographic materials (the "illicit materials"). Had the pursuer been remotely aware
that illicit materials were in the house, he would have urgently disposed of them. The
pursuer states that during his interview by the police, the police confirmed that they had
found disks containing indecent materials, that the defender had told them where to look
but that the defender had "gone out of her way" to assure the police that she had no reason
to suspect contact abuse. At interview the pursuer said that he had nothing to do with the
materials being downloaded or the disks being made and that he had not known they were
in the house. He had no interest in such materials. The pursuer declined to respond to a
question from the police whether he, the pursuer, was accusing the defender of planting the
materials. The pursuer felt he was acting in the best interest of the parties' children. The
pursuer's telephone was seized and examined by the police and returned to him having
11
been found to be "clean". The pursuer's trial in relation to possession of the illicit materials
was delayed, mostly due to Covid. During the delay the pursuer decluttered his house,
during which time he found a number of items that would be used at trial in his defence,
and which helped him being acquitted. The pursuer was tried in connection with the illicit
materials between 7 to 14 June 2021. He was acquitted by the jury. The defender had
testified at his trial. The defender gave evidence that she found the disks containing the
illicit materials by chance on 4 February 2019, when packing in preparation for leaving the
house with the children. At his trial the pursuer's defence made reference to two notebooks
containing "to-do" lists written in the defender's handwriting (see 63/155 and 63/156 of
process). These dated from 2010 and 2015. The pursuer's defence also referred to distinctive
overlaps between elements of the illicit materials and notes made by the defender (and to a
more limited extent himself) in connection with the defender's ideas for a television
programme project. The pursuer referred to various documentary productions,
including 63/157, 63/168 to 63/172. I infer from the pursuer's statement that the defender's
interest in her The Company project stopped in or around 2003.
[12]
The pursuer states that the defender had showed him images contained on CD or
DVD disks in or around late 2002. The purser was shown images on three separate
occasions. The images became increasingly severe on each occasion. On the third occasion
the defender showed the pursuer images from six to ten discs over a period of about an
hour, which included moving images of child pornography and child abuse. The pursuer
cried at times. He was horrified and distraught and protested that the images were illegal.
The defender's purpose was to determine whether the pursuer would be a risk to any
children they might have. The defender removed the disks from a black case like the one
found by the police on 8 February 2019. The defender told the pursuer she would destroy
12
the disks immediately. In 2015 the pursuer was disposing of various media when he found
a black CD/DVD case. Inside were disks he thought he recognised. The pursuer discussed
the disks with the defender. The defender told the pursuer that they were disks she had
made in around 2002 that she had forgotten to throw out. The pursuer states that he "never
saw the folder or disks again until the police showed [him] them on 8 February 2019."
[13]
The pursuer's statement contains reference to what was referred to at the proof as
"atypical sexual practices". A number of productions are referred to, for example 63/159
to 63/167. From the pursuer's statement these references appear to relate to the period prior
to the children's birth. I do not consider them to be materially relevant to the issues before
me and, accordingly, I do not narrate what is said about them further.
[14]
The pursuer's statement also addresses allegations made against him regarding his
behaviour towards the children, including allegations of sexual abuse of his daughters.
I will return to these when I discuss the source of the allegations and the potential
ramifications of the allegations. At this stage it is sufficient to state that there is no credible
evidence of the pursuer ever being involved with any sexual abuse, or indeed any abuse, in
connection with his children.
[15]
The pursuer's statement goes on to discuss the defender's baseless reports to the
police, the defender entering, without the pursuer's permission or notification to the
pursuer, the house in which the pursuer was then living, the defender seeking to influence
the children against him, including giving the children inappropriate and false information,
coaching the children and the defender blaming the pursuer for adverse events in the
defender's life (and thereby the children's lives), all under reference to a significant number
of productions lodged in support. Again, whilst the matters raised by the pursuer in
connection with these issues are, I accept, unquestionably matters of considerable
13
importance and relevance to the pursuer insofar as his own experiences and might well have
relevance elsewhere in my assessment of this case, insofar as relevant to my assessment of
the pursuer vis-a-vis the issues before me, this evidence is not material.
[16]
The pursuer states that prior to the parties' separation, he had a healthy relationship
with both Mary and Anne. In relation to contact between himself and the children after the
parties' separation, as set out above, the pursuer last spoke with Mary on 7 February 2019,
two days after the parties separated. The pursuer last saw Anne in June 2022 when he met
her at a café following Anne expressing a desire to see her father. The pursuer has had no
direct or limited indirect contact with either Mary or Anne and has been denied any
meaningful information or involvement in relation to all aspects of the lives of both children,
for many years.
[17]
The pursuer gave brief oral evidence in chief to supplement his statement. Beyond
reiterating matters covered in his statement, the pursuer described Mary as bright,
intelligent, playful, strong-minded and strong willed. He described Anne as being
emotionally intelligent, very loving, playful and sometimes naughty (which I interpreted as
being said with a degree of fondness). Anne's defining characteristic was in her social
relationships. Before separation, the pursuer enjoyed a fantastic, quite normal, loving and
enjoyable relationship with both children. In relation to the incident that was recorded in
some of the documentary materials and the defender's affidavit, the pursuer confirmed that
he had been working upstairs. The children and defender were downstairs. There was a
kerfuffle downstairs. The defender called his name. He went downstairs to the living room
where Mary was engaged in a physical altercation with the defender. Mary had lost her
self-control. Mary was around 5 or 6 at the time. The pursuer put his arm around Mary to
control her. The pursuer "manoeuvred" Mary upstairs and put - not threw - her on her bed.
14
The pursuer told Mary that she could come downstairs again once she had calmed down,
which Mary did after a short period. Mary subsequently apologised for her actions. The
pursuer also subsequently apologised to Mary. That was the only such time something like
that happened with Mary. The pursuer denied ever hitting Anne. In response to the
specific question put, the pursuer confirmed he had never hit Anne as asserted by the
defender.
[18]
In cross-examination by counsel for the defender, it was put to the pursuer, under
reference to the reports prepared by Dr MacKinlay (to which I return below), that any orders
for contact between the pursuer and Anne would be detrimental to her welfare. The
pursuer stated that he accepted that for reasons profoundly misguided both Dr MacKinlay
and the curator ad litem had reached that conclusion. The pursuer stated that whilst his
relationship with the defender might have completely broken down from the defender's
side, it had not from his side. The pursuer was not trying to hurt the defender. He would
like to engage in mediation with the defender. The pursuer denied being responsible for the
illicit materials. The pursuer confirmed that he did not initially tell the police that the illicit
materials were the defender's because he did not, at that time, know what was happening
and, subsequently, he wanted to protect the children and the defender. In relation to the
pursuer's position that the defender had showed him the illicit materials in 2002/2003 in
connection with the parties having children together, counsel for the defender put to the
pursuer that the letter from the Reproductive Medicine Service at Edinburgh Royal
Infirmary dated 15 August 2001 (7/14 of process), which narrated that "[the defender] is
keen to be pregnant", and the letter from the Edinburgh Fertility & Reproductive Endocrine
Centre, dated 16 December 2002 (7/13 of process), demonstrated that the pursuer's position
15
was a lie. The pursuer disagreed. Counsel for the defender put to the pursuer that he, the
pursuer, had inappropriately touched Anne. The pursuer denied the assertion.
[19]
In cross-examination by counsel for the curator ad litem, in connection with the
pursuer's evidence regarding the distinctive overlaps between elements of the illicit
materials and notes made by the defender in connection with the defender's ideas for a
television programme project, the pursuer confirmed that he was not suggesting that either
he, or the defender, had any personal interest in the practices depicted in the notes nor the
illicit materials. In response to counsel for the curator ad litem questions regarding the
appropriateness and practicality, from the perspective of Mary and Anne's welfare, of
orders requiring them, or at least Anne, to reside with the pursuer, the pursuer emphasised
that he wanted Mary and Anne to understand, as they had wrongly been led to believe, that
their father did not abuse them, is not a predator or a paedophile and that he did not want to
damage the relationship between them and their mother. The pursuer acknowledged that
such an approach involved substantial challenges. Regardless, it was in Mary and Anne's
best interests to rebuild their lives on a factually accurate basis. The pursuer was willing to
co-operate with the defender in the best interests of Mary and Anne. Direct contact between
Mary and Anne and the pursuer was not impossible.
[20]
The pursuer was briefly re-examined but none of the matters covered are material to
my decision.
[21]
The defender had prepared an affidavit, which she adopted in evidence. The
defender described the pursuer as a coercive controller. By 2017 the parties' relationship
had become incredibly toxic. During the last 2 years of their relationship the defender was
very concerned about the pursuer's relationship with Mary. He angrily shouted at her. He
would frog march her upstairs with her arm twisted behind her back. He would lecture her
16
for hours. He would threaten excessive punishments. After the defender left the family
home in 2019, Mary told the defender that the pursuer had forced her upstairs with his
hands around her throat or dragged her upstairs by the hair. The defender states that a
clinical psychologist who was counselling her and who had carried out a risk assessment
with the parties advised her that the pursuer was abusing her and that that abuse escalated
to Mary (I note the defender's productions do not appear to contain a production of any risk
assessment or such advice). The defender states that the pursuer also angrily shouted at
Anne. The pursuer's physical punishment of Anne was when she was naked. The defender
states that twice, in the defender's presence, the pursuer hit Anne on the vulva, seemingly
out of frustration. In relation to the illicit materials, the defender states that on 4 February
2019, when she was preparing to leave the family home she discovered computer discs of
indecent images of children. The defender also saw that there were folders named with
things that seemed to relate to bestiality. The defender telephoned a helpline on the
morning of 5 February 2019. They advised to get to safety and call the police from the place
of safety. The defender was traumatised by what she saw on the discs. Once the defender
had left the family home she reported the discs to Police Scotland. Mary and Anne were
interviewed by Police Scotland officers and social workers in March and May 2019.
Following the first interview Anne told the defender more about games where the pursuer
would seek to get Anne to remove his dressing gown to see his genitals, or where they
would touch each other's genitals. The defender states that Anne reported to the defender
that the pursuer had put his fingers in her anus and vagina. The defender reported these
further allegations to social workers. The defender states that on an occasion when Mary
was 3 years of age the defender witnessed the pursuer on a bed with Mary when Mary
touched the pursuer's erect penis. The defender states that on 5 February 2019 she reported
17
to Police Scotland what she had witnessed. The defender states that the pursuer's
allegations in relation to the defender showing the pursuer the illicit materials is a lie. The
parties actively started to try and conceive from April 2001, before the pursuer asserts the
defender showed him the illicit materials in around 2002/2003. Thereafter the defender's
affidavit addresses her care for the children since the parties' separation and makes
extensive reference to the SHANARRI principles of childcare, which the defender says she
implements with Mary and Anne. I do not consider it necessary to narrate what the
defender states in her affidavit in connection with her application of these principles.
[22]
The defender was cross examined on behalf of the pursuer. In relation to finding the
discs containing the illicit materials, the defender stated that she had had a discussion with
her mother between 11.00am and 4.00pm on 4 February. The defender told her mother she
was going to leave. The defender wanted to leave before the pursuer came back from his
business trip. The defender was getting important things together, including photographs
she had taken of the children. The defender went into the room she described as the
pursuer's office (a description of the room the pursuer did not agree with in his evidence).
There were lots of discs on the floor. As she bent down to look through them, she noticed a
black folder on the printer table. She immediately felt happy that these might be family
photographs they had lost. The defender found the discs at 6.00pm. She returned to the
discs at around 10.00pm, after the children had gone to bed. The discs had names on them
like "16" and "teens" and names of children, so the defender decided to look at them. The
defender became increasingly concerned by what she saw. She felt like she had been
punched in the stomach. The defender looked at the discs between 10.00pm and 6.00am.
She felt she had to keep going. She looked at 14 or 15 discs. The defender decided to take
photographs of the files on her laptop screen using a digital camera. The defender
18
subsequently tried to give the police the memory card from the camera. The defender stated
that the police told her not to give them the memory card but to email the photographs to
the police. The defender stated that she tried to email but she could not. The defender
stated that she called 101 and that she was told not to email and that the police would get
back to her but did not. The defender stated that she did not give the memory card to the
police and that she cut it up after the pursuer's trial, so no longer had it. The defender stated
that she thought the files were from before the parties' relationship. She told the police that
the files were dated 1997 and 2002. Ms Bain referred the defender to the defender's police
statement dated 5 February2019. The defender accepted, contrary to her evidence, there was
no mention of names of children in her police statement. Likewise, the defender accepted
there was no mention of file photographs nor mention of the defender being told to email
the photographs to the police. Likewise, the defender accepted that there was no mention of
her dating the photographs to 1997. Ms Bain then referred to paragraph 13 of the defender's
affidavit (narrated above), where the defender states that when Mary was 3, she, the
defender, witnessed Mary touching the pursuer's erect penis and that the defender had
reported this incident to the police when she gave her statement on 5 February 2019.
Ms Bain referred the defender to her police statement dated 5 February where there is no
reference to the incident involving Mary and, further, that the defender expressly stated,
"I have never been concerned about [the pursuer's] intentions, between him and our
children". The defender stated in response that she told the police about the incident
involving Mary, but the police did not write it down. Ms Bain pointed out to the defender
that the defender's affidavit did not record that, notwithstanding the defender had told the
police about the incident involving Mary, the police had failed to note this. Whilst Ms Bain
might not be familiar with police statements, I note the statement recorded that it was
19
signed [by the defender] by way of authentication. The defender conceded in evidence that
there were no documents before the court, by which I understood to mean productions or
affidavits other than the defender's, which supported the defender's assertions regarding
the pursuer's parenting behaviour in relation to the children, nor was there anyone the
defender could name that she might have told. Ms Bain next cross-examined the defender
in relation to the allegation contained in paragraph 6 of the defender's affidavit regarding
the defender witnessing the pursuer hitting Anne's vulva when Anne was a toddler. The
defender stated that she had told the police about this when giving her statement on
5 February 2019. Ms Bain questioned the defender on why the defender's statement of
5 February 2019 did not contain a reference to this allegation and the defender stated that
the police had dismissed the allegation under chastisement. The defender could not
remember whether she had reported the concern to the social work department (the
productions lodged in process from the social work department do not appear to contain a
report of this concern). The defender also accepted that there was no evidence from pre-
separation of the parties suggesting poor parenting by the pursuer.
[23]
In cross-examination by counsel for the curator ad litem, the defender accepted that on
8 March 2019 she reported previously unreported allegations against the pursuer because
the defender wanted the police to be aware of the new allegations before Mary's Joint
Investigative Interview. In relation to the reported allegation of the pursuer hitting Anne's
vulva, the defender accepted that, in addition to an absence of a reference to it in her police
statements, there was no reference either in the produced social work records. The defender
explained that she did not think she had ever been asked about it (I considered that to be an
odd answer because in the absence of any report to the police or social work department, it
would not be likely that either would know to ask about it). Counsel for the curator ad litem
20
referred to the defender's police statement dated 28 February 2019, in which the defender
made reference to the various video tapes on which she stated the pursuer had recorded
women without their knowledge, and questioned why the defender had not mentioned the
tapes to the police when she made her statement on 5 February 2019. The defender replied
that these tapes were not foremost in her mind. Leaving, the defender stated, was about
abuse and finding the illicit materials. Again, I found that an odd answer. In her statement
of 5 February 2019, the defender makes no allegations of abuse and expressly states that she
had no concerns regarding the pursuer and their children. The defender confirmed that she
had no prior knowledge of the illicit materials, that the illicit materials were not locked away
or hidden, that they were not password protected and that the only reason the defender was
able to view the illicit materials was because she had recently purchased a DVD drive. The
defender confirmed that 63/158 of process contained Amazon order details for the DVD
drive, that the DVD drive was ordered on 28 January 2019, was ordered through the
defender's private account, and was sent, marked "Private", to the parties' business address.
In relation to the family photographs the defender stated she was searching for when she
found the illicit materials, the defender confirmed that she did not find the family
photographs. Counsel for the curator ad litem next asked about the defender's evidence that
she had taken photographs of her laptop screen showing the file structures of the illicit
materials, which photographs were saved onto an SD card. The defender's evidence was
that she took the photographs because the pursuer might return to the house and destroy
the illicit materials. The defender confirmed that she had destroyed the SD after the
pursuer's trial in June 2021, some 2 years after the commencement of these civil proceedings,
in which the defender knew the pursuer was asserting that the illicit materials belonged to
the defender, as the pursuer had done at his trial. The defender sought to explain that she
21
did not think that the photographs saved onto the SD were relevant to these civil
proceedings. Nor did the defender explain why, given her concern that the pursuer might
destroy the illicit materials, she left the illicit materials in the house when leaving, rather
than handing the illicit materials to the police directly. Turning to the handwritten notes
lodged at 63/157 of process, in answer to questions from counsel for the curator ad litem, the
defender confirmed that the writing was her handwriting and that what was written by the
defender was consistent with the types of images shown in the illicit materials. Whilst the
defender accepted she had told Mary the reason the parties separated was because the
defender had found the images of "men having sex with children" (I note that, the defender
did not accept that the social work record of Mary's JII used the word paedophiles in
inverted commas), the defender did not accept that this information played a material part
in Mary's strong opposition to contact with the pursuer.
[24]
Under reference to 63/138 of process, counsel for the curator ad litem, confirmed with
the defender that Anne participated in her first JII on 12 March 2019, at which she is
recorded as having made no relevant disclosures, that the defender then reported to social
work that Anne made new, sexual, disclosures to her, the defender, after her JII on 12 March
and then further new, sexual, disclosures on 25 March 2019, a few days before Anne
participated in a second JII on 28 March 2019, but at which Anne is recorded as making
limited disclosures and none of an apparently sexual nature. The defender stated that
Anne's absence of relevant, sexual, disclosures was because Anne was embarrassed.
[25]
In relation to the direct contact between Anne and the pursuer at the café in
June 2020, the defender confirmed that she was unaware that the contact was to take place.
The defender confirmed that Dr MacKinlay reported to the defender that the contact went
well, and that Anne wanted to see her father again (I discuss the evidence of Dr MacKinlay,
22
including the reports prepared by Dr MacKinlay, in more detail below). The defender also
agreed with counsel for the curator ad litem that Anne's opinion on contact between the day
of the contact and one week later, when Anne had a further meeting with Dr MacKinlay was
"entirely different". The defender did not accept that one thing that had changed between
Anne's stated change of position was that the defender had given Anne information about
photographs the defender had found. The defender stated that Anne had been "ambushed"
(I presume the defender meant regarding seeing her father), that after the contact Anne
spoke to the defender and the defender knew Anne needed to "know what was going on".
The defender accepted she had told Anne that she had found photographs of naked children
and that the pursuer had been taken to jail as a result of the photographs. Contrary to what
Dr MacKinlay records Anne as telling Dr MacKinlay, the defender denied mentioning a
"box" to Anne or referring to handwriting on a box.
[26]
Counsel for the curator ad litem referred to Mary's statement to Dr MacKinlay that
Anne, when aged 10 or 11, had stated to Mary she had seen the pursuer viewing illegal
images (see paragraph 15 of Dr MacKinlay's report dated 8 November 2023, 85/16 of
process). The defender confirmed it was her position that Anne had also told her, the
defender, that she had seen the pursuer viewing illegal images. The defender then
elaborated that quite recently after Anne's second JII, Anne told the defender she had seen a
naked girl and a lady. Anne demonstrated their physical position as being "on all fours".
Anne also told the defender other things. This was in June 2021. Thereafter, the defender
stated that in July 2021, Anne told the defender that she saw a girl being raped by a much
older man. The defender stated that she was "shocked" that Anne knew what the word
raped meant and asked Anne what she meant by it. The defender also stated that her
mother (the children's grandmother) overheard Anne and Anne's cousin in the bath when
23
Anne said that you can get pregnant by sitting on your boyfriend's lap without pants on and
that she, Anne, saw this on her dad's computer. Counsel for the curator ad litem asked the
defender whether the defender had reported these further disclosures from July 2021 to the
social work department. The defender didn't think she reported them. In relation to Anne's
disclosures from June 2021 the defender stated that she did report these to the social work
department but that she could not recall to whom. Counsel for the curator ad litem referred
the defender to the documents produced by the social work department and lodged with the
court. Counsel asked the defender, and the defender accepted, that the social work records
contained no mention of these further disclosures by Anne, whether June or July 2021. The
defender also accepted that she had not mentioned these further disclosures in her own
affidavits nor were the disclosures referred to in the pleadings before the court on her
behalf.
[27]
Finally, the defender felt resentful and angry towards the pursuer. She disliked his
behaviour and was not favourably disposed towards the pursuer. Mary and Anne knew
that the defender did not want them to have contact with the pursuer. The defender
thought that she could not insulate the children from her own feelings if they were to have
contact with the pursuer. The parties had been unable to co-operate with decisions
regarding the children.
[28]
The defender was briefly re-examined. The defender stated that she had reported to
both the social work department and police Anne's further disclosures from June and
July 2021.
[29]
The defender also called Gavin Templeton in evidence. Mr Templeton had been
called as a witness for the Crown at the pursuer trial. Mr Templeton was a forensic police
officer and had examined certain computers and the discs seized by the police when they
24
searched the pursuer's house on 8 February 2019. As I understood the Crown's intentions in
calling Mr Templeton at the pursuer's trial, it was to seek to establish that the "creation
dates" of the discs containing the illicit materials pre-dated the parties' relationship and by
inference were in the possession of the pursuer. At trial a forensic expert, James Borwick,
was led on behalf of the pursuer. My understanding of the evidence of both Mr Templeton
and Mr Borwick, as recorded in the transcripts of the evidence at trial, is that dates
from 1993 and 1995 given by Mr Templeton for the "creation dates" associated with the
illicit materials was a misinterpretation by Mr Templeton. Put short, where images were
burned to discs, they would lose their creation dates and that their last modification dates
would often incorrectly appear or be interpreted as their creation date. A last modification
date could predate the actual burn date. Accordingly, the 1993 and 1995 creation dates
hypothesised by Mr Templeton were a misinterpretation, nor were they the dates that the
images were burned to the discs. Mr Templeton's evidence in relation to batch dates was,
for the same reason, undermined.
[30]
The pursuer objected to Mr Templeton being called as a witness at the proof before
me. Following discussions with the pursuer and counsel for the defender, I allowed Mr
Templeton to give evidence but restricted to the evidence that was elicited at the pursuer's
trial. Particularly, given the restriction on the scope of Mr Templeton's evidence, as I
understood it, Mr Templeton was called at the proof before me to address or "answer" the
criticisms made against him at trial, or to put it another way, have another bite at the cherry.
Mr Templeton adopted his statement. In his statement Mr Templeton appears to recast his
asserted creation dates as between 19/3/2001 and 8/7/2003. Mr Templeton had been asked to
comment on Mr Borwick's evidence from the pursuer's trial. Mr Templeton's short
paragraph addressing this question takes matters no further forward. Mr Templeton
25
thereafter referred to other matters discussed at the trial, including batch dates. Having
reviewed the transcripts of the evidence led at trial and Mr Templeton's statement, in my
judgment, matters have not been materially advanced. Indeed, it seems to me that the
creation dates - whatever this phrase is used to describe - now post-date the parties'
relationship and for reasons that I will come on to discuss, on that basis, I find this evidence
of little, and no material, evidential value.
[31]
The curator ad litem called Dr MacKinlay. Dr MacKinlay is a Chartered Clinical
Psychologist. The family courts are familiar with Dr MacKinlay, and I have no hesitation in
confirming that Dr MacKinlay's relevant expertise and experience qualify her to give the
skilled opinion evidence she has to assist the court in this case. Dr MacKinlay prepared
three reports. The first dated, 28 April 2022, is a psychological assessment regarding contact.
The second, dated 5 July 2022, addresses contact between Anne and the pursuer. The third,
dated 8 November 2023, updates Dr MacKinlay's first report given the passage of time.
Looked at holistically, Dr MacKinlay's reports, and her oral evidence, which I will come to
shortly, broadly address two issues. The first part is Dr MacKinlay's psychological assessment
of Mary and Anne (necessary to allow Dr MacKinlay to understand how Mary and Anne
have and are likely to respond or react to the question of contact with the pursuer). The
second is Dr MacKinlay's opinion regarding how Mary and Anne have and are likely to
respond or react to contact with the pursuer, offered to assist the court in understanding the
consequences, from a welfare perspective, of any orders the court might make. No party
raised any concern that Dr MacKinlay is not eminently qualified to undertake the first part
of her remit. Accordingly, it is not necessary for me to narrate that part of her evidence,
which I will therefore not do, again to respect Mary and Anne's privacy.
26
[32]
With those introductory observations, counsel for the curator ad litem, after inviting
Dr MacKinlay to adopt her three reports, which she did, confirmed with Dr MacKinlay that
her overall recommendation in this case was that there should be no direct contact between
Anne and the pursuer.
[33]
Counsel for the curator ad litem first asked Dr MacKinlay about the relevance of
possession or ownership of the illicit materials. Counsel hypothesised three possible
scenarios: (1) that only the pursuer had knowledge of the illicit materials, (2) that both the
pursuer and defender had knowledge of the illicit materials and (3) that only the defender
had knowledge of the illicit materials. In relation to hypothesis (1), if the court formed the
view that a risk to the children arose, there ought to be a risk assessment. Supervision of
any contact would be appropriate. A typically protective parent would not want
unsupervised contact, and some allowance should be given for the responses of such a
protective parent. In relation to hypothesis (2), if both the pursuer and defender had
knowledge of the illicit materials and the defender told the children that it was the pursuer
who had such knowledge, that could constitute direct emotional abuse of the children by the
defender. Under this hypothesis if the intention of the defender to bring the illicit materials
to the attention of the police was to alienate the pursuer, it could be emotionally and
psychologically abusive of the children. However, the children believe that the defender is
truthful. If that belief was undermined, it could remove the children's trust in the defender
and be undermining for the children. In relation to hypothesis (3), that the defender alone
had knowledge of the illicit materials, the conclusions under this hypothesis would be the
same as hypothesis (2).
[34]
Counsel next asked Dr MacKinlay about the effect on the children of repeated and
escalating allegations of physical abuse of them by the pursuer (albeit I note that the
27
allegations made latterly include allegations of a sexual nature). Dr MacKinlay's opinion
was that such actions could involve greater emotional abuse (bordering on sexual abuse) by
the defender of the children. If the children were repeatedly interviewed and
examined - falsely - that could be highly abusive and raise significant concerns about the
ability to parent safely. However, 5 years had passed, and any harm was not now sexual but
emotional.
[35]
Turning to questions regarding the children's views about contact with the pursuer,
a matter that Dr MacKinlay had canvassed directly with the children on a number of
occasions, Dr MacKinlay's opinion was that the views expressed by the children were
genuine and based on information given to them.
[36]
Although Mary is now over 16 years old and not subject to the jurisdiction of this
court on the question of contact with the pursuer, Mary was clear that she did not want
contact with the pursuer. Mary's views on contact were, however, relevant because they
influenced Anne's views on contact.
[37]
In relation to Anne, her views might be more variable. Her belief is that she is at risk
of harm. That view is not based on Anne's own experiences but on what she has been told
and the reactions of others. If Anne's belief was shown to be false and that she had been
misled into not seeing her father, this could cause Anne significant trauma and distress in
the future. If Anne lived in a household where contact with the pursuer was encouraged
and she was reassured about safety, Anne would enjoy contact with the pursuer. That
seemed unlikely given the defender's oral evidence.
[38]
At this point counsel discussed with Dr MacKinlay Anne's direct contact with the
pursuer at the café and the dispute that arose about Anne's response to the contact. Dr
MacKinlay's assessment of the contact was that it went well, and that Anne was keen to
28
extend the contact. Notwithstanding, when Dr MacKinlay contacted the defender to inform
and discuss with the defender about the meeting, the defender asserted that Anne's
description of what had happened did not match Dr MacKinlay's explanation and that Anne
reported the meeting was "awkward" and that she did not want to do it ever again. When
Dr MacKinlay spoke to Anne again about the meeting one week later, Anne said that she
"hated" the meeting and did not want to see the pursuer again. Anne said that since the
meeting with the pursuer the defender had told her that the pursuer had pictures of "naked
kids" in a "box", that the pursuer had been taken to "jail" as a result and that the pursuer is
a bad person. Dr MacKinlay was very clear in her evidence, she took contemporaneous
notes of the contact meeting and immediately after dictated everything. Anne's presentation
on the day of the contact meeting and one week later were entirely inconsistent with one
another. In Dr MacKinlay's opinion, what Anne described was evidence of direct and
harmful alienation by the defender.
[39]
Dr MacKinlay's opinion was that if Anne's household remained hostile to contact,
Anne would remain in a very difficult situation. If the position of her household did not
change, Anne's views on contact would not change. In this regard the maternal family had
huge power. They held all the cards. Anne viewed herself at risk from the pursuer but also
at risk from the defender if she did not act consistently with the defender's current
messaging. Whilst the loss of the pursuer was significant for Anne, the loss of the defender
and Mary would be more significant. The loss of the pursuer was a past loss; the loss of the
defender and Mary would be a future loss. Given the passage of time, any harm is not
sexual. Any emotional abuse is largely historical. Currently, both Anne and Mary appeared
happy. Both engaged with friends. Both appeared happy at home and at school. If the
court were to impose contact in that situation it would be distressing for Anne. Removing
29
Anne to the care of the pursuer would be very frightening for her and cause more harm. Dr
MacKinlay explained that from the perspective of Anne's welfare, the issue was what was
the least harmful. The status quo was the least harmful.
[40]
In relation to independent support for Anne, for example some form of therapeutic
input, Dr MacKinlay's opinion was that while it might be helpful for Anne, in the absence of
support from the defender and Mary, any effect of such input would be easily undone over
the course of the week, i.e. between therapeutic sessions.
[41]
Dr MacKinlay expressed the opinion that whilst it might be difficult to decide what
should or should not be shared with Mary and Anne about the circumstances of this case, it
would be appropriate for Mary and Anne to have an adult explain the court's findings to
them.
[42]
Ms Bain cross-examined Dr MacKinlay, but the evidence elicited went materially no
further than confirming Dr MacKinlay's evidence-in-chief. In cross-examination by counsel
for the defender, and under reference to the hypothesis put where the defender was
unaware of the illicit materials, Dr MacKinlay's opinion was that the defender's response
was reasonable or justified but nevertheless inappropriate. Dr MacKinlay used the
expression "justified alienation". However, once court proceedings had begun it would
have been inappropriate for the defender to share any further information with the children;
albeit one might have sympathy with the defender.
Submissions
The pursuer
[43]
The pursuer provided a written submission, which he adopted. The pursuer
submitted that he was not in possession of the illicit materials and that he has never abused
30
or inappropriately parented or harmed the children. The defender had alienated the
children from him, made false and malicious accusations against him, was in possession of
the illicit materials, sought to deny the pursuer contact with the children and has influenced
the children through a false narrative such that the children have expressed the view that
they do not want to have contact with the pursuer. The pursuer expressly referred to the
evidence of Dr MacKinlay to support the propositions that the defender has subjected the
children to purposeful and harmful alienation and subjected the children to abuse within the
meaning provided by the Children (Scotland) Act 1995 such that it is doubtful whether the
defender is able to recognise the truth and adapt her behaviour as is required in the
children's welfare interests. The pursuer invited the court to find the defender and the
defender's evidence incredible. Further, the defender led no independent evidence
supportive of the allegations made by her. The pursuer referred to Dr MacKinlay's opinion
that the defender held all the cards and submitted that there could be no real progress while
the children remained in the same household as the defender. The pursuer also submitted
that the court had a duty to remove children from an abusive home where abuse has
occurred or is likely to continue. That, the pursuer submitted, suggested that the children
should be removed from the defender's care. There appeared, it was submitted, two options
open namely that "his Lordship" (1) "accepts the defender's power to dictate her wishes to
the court ... and ignores his duty to protect the children from abuse" or (2) "removes the
children from the defender's care, and makes an order that she has limited (supervised)
contact with [Mary] (or [Anne]) pending further work." The pursuer referred to the
National Guidance for Child Protection in Scotland. The proposition of letterbox (indirect)
contact was "completely unrealistic". The children/Anne would not be encouraged or
allowed to enjoy it. The pursuer sought a residence order in respect of Anne.
31
[44]
Senior counsel for the defender adopted the written submission lodged on behalf of
the defender. The defender maintained her position that the evidence in relation to the illicit
materials was irrelevant. If relevant, there was no evidential basis that the defender had, on
the balance of probabilities, knowledge and control of the illicit materials. The pursuer's
evidence suggesting the contrary was false. Everything the defender did after finding the
illicit materials was justified as a mother seeking to protect her children. Under reference to
the case of West Lothian Council v MB 2017 SC (UKSC) 67, if sufficient evidence in relation to
knowledge of the illicit materials has been adduced, which the court accepts, the court
requires to make a finding. Mr Templeton's evidence was relevant. The illicit materials had
creation dates between 1995 and 2003. In addition, the creation dates being in "batches" and
the materials found on devices used primarily by the pursuer all suggested, on balance, that
the illicit materials were the pursuer's. The pursuer's explanation for him previously being
aware of the illicit materials was incredible. The defender's narrative was both credible and
reliable. The available evidence was not sufficient to allow the court to infer that the
defender was aware of the illicit materials prior to 4 February 2019. Senior counsel
acknowledged that Dr MacKinlay's evidence was that if the defender did know about the
illicit materials the defender's subsequent conduct would amount to alienation and
emotional abuse. Importantly, however, Dr MacKinlay's opinion was that any abuse was
historical and any change to the status quo would not be in the children's best interests. In
relation to Anne's contact with the pursuer at the café, senior counsel submitted that Dr
MacKinlay appeared to have failed to consider that Anne might have lied about what
happened when Anne went home after the contact. Senior counsel also acknowledged that
there was insufficient to permit a finding that Anne was sexually abused by the pursuer.
Irrespective of whether the court was with him on the issues of awareness of the illicit
32
materials and the defender's actions after 4 February 2019, the court should make the
specific issue order sought by the defender and, otherwise, make no order at all. Senior
counsel referred to section 11 of the 1995 Act. The defender opposed contact between the
pursuer and Anne, the court having no jurisdiction in relation to Mary once she obtained the
age of 16. Appropriate weight should be given to the children's views, both of whom
oppose contact.
The curator ad litem
[45]
Counsel for the curator ad litem tendered a written submission, which he adopted. At
the outset counsel emphasised three points. First, the curator ad litem had not and did not
take sides in these proceedings. Her interest lay firmly with the welfare of the children.
Second, the curator ad litem, in advancing the welfare of the children, sought to test the
evidence of both parties where relevant to that welfare. Third, in relation to the evidence
more broadly, where conclusions were clear, the curator ad litem would express a view but
where multiple inferences arose on the evidence, the curator ad litem sought not to invite a
conclusion but rather highlight those possible inferences. Counsel made it clear that the
curator ad litem approached the case on the basis that, all things being equal, it was in the
children's best interests to have a meaningful relationship with both parents. Further,
counsel acknowledged that the curator ad litem had played a more active role in the
examination of witnesses than might ordinarily be the case and did so in the unique
circumstances of this case in an effort to assist the court by eliciting evidence material to the
children's welfare to assist in resolving the factual dispute between the parties. Counsel
explained that the curator ad litem sought to restrict any expression of where the truth might
lie to those matters that were material to the children's welfare. I acknowledge the difficult
33
line that the curator and her counsel required to tread and record my gratitude to them for
their thoughtful and careful approach in assisting the court. Counsel set out a number of
propositions, which he thereafter expanded upon. On any factual matrix other than full
acceptance of that account, the defender's reports to the police were fabricated and
malicious. In making those reports, the defender caused the unjustified loss of each child's
relationship with the pursuer. Since 5 February 2019, the defender has engaged in conduct
that has either been calculated to destroy the relationship between the pursuer and the
children, or which has been for self-serving motivations with callous disregard for the
consequence of those relationships. The defender's conduct constitutes emotional abuse.
There is no evidence that the pursuer has ever sexually abused either child. The defender
knew, or ought reasonably to have known, this at all points from 28 February 2019 onwards
when she alleged to the contrary. Anne has been influenced by the defender and Mary to
believe that the pursuer is a danger to her. She will retain that belief whilst she remains
living with, or otherwise exposed to, the views of the defender and Mary. Any enforced
direct contact, or graduated steps to move towards direct contact, are bound to fail. A
change in residence would cause Anne significant distress and, likely, harm. The loss or
significant disruption of her relationship with the defender (and Mary), however
unsatisfactory the court considers the conduct of the defender to have been, would be
contrary to Anne's welfare. In relation to the illicit materials, counsel observed that the
defender's version of events might be viewed as involving an improbable concurrence of
circumstances, particularly when considered against other adminicles of evidence. Equally,
counsel observed that the pursuer's account in relation to the illicit materials involved an
(highly) unusual set of circumstances and one that involved at least a historical awareness of
the illicit materials. In relation to the defender's allegations of sexual abuse of the children
34
by the pursuer, counsel submitted that it was clear from the social work records that the
defender, from her second police statement given on 28 February 2019, knowingly made
repeated, escalating, false allegations, which led to the children each being unnecessarily
interviewed twice by police and social workers and each undergoing an unnecessary
forensic medical examination. That behaviour by the defender constituted serious
emotional abuse of both Mary and Anne. Further, if the court concludes that the defender
was previously aware of the illicit materials and that the defender told Mary and Anne that
the illicit materials were found in the (disputedly described) pursuer's office, asserting or
implying that the pursuer was a paedophile and that was the reason the defender and
children left the family home, this would also constitute emotional abuse. Further, either as
a by-product of her attempts to influence Mary or otherwise expressly stating to Mary, the
defender has caused Mary to falsely believe that the pursuer has sexually abused Anne (I
note here that senior counsel for the defender expressly acknowledged that there is no
evidence to support any assertion of sexual abuse of Anne by the pursuer). The effect of the
defender's behaviour is the complete destruction of the relations between the pursuer and
Mary and Anne. Turning to the children's present circumstances, counsel submitted that
notwithstanding the damage caused to both children, through both the loss of their
relationship with the pursuer and the defender's methods to bring about that loss of
relationship, the evidence available suggested the children were doing well in school,
socially and developmentally. There was no evidence to the contrary. Counsel expressly
rejected any notion of the defender being "rewarded" for her behaviour. Counsel
recognised that the children's primary attachment is to the defender with whom they have a
close relationship. Counsel submitted that the children's views in relation to contact with
the pursuer are recorded in the reports by Dr MacKinlay and Dr MacKinlay gave oral
35
evidence in relation to whether, and the likelihood of, such views changing. Mary was soon
to be - and in fact now is - 16. As such any orders in respect of Mary would be
pointless - and in fact are now incompetent. The evidence from Dr MacKinlay strongly
suggested that an order for direct contact between the pursuer and Anne would create an
unacceptable level of risk of harm for Anne with little or uncertain perceived benefit.
Indirect, one-way contact at a modest frequency from the pursuer to Anne would be in
Anne's best interest. The only order now sought by the defender, being the specific issue
order allowing the defender to take Anne out of the country for holidays, would be in
Anne's best interests and it would be better to make such an order than make no order at all.
No other orders should be made. Finally, in relation to communication of the court's
decision to Mary and Anne, the curator ad litem considered that Mary and Anne have a right
to know what decision the court has taken on the headline issues and that Mary and Anne
would benefit from being "disabused of any material misapprehensions they are under." To
fail to do so would allow any abuse to be perpetuated.
Decision and reasons
Illicit materials
[46]
Senior counsel for the defender maintained his objection that any evidence elicited
by either the pursuer or curator ad litem relating to any question of the defender's possession
of the illicit materials was irrelevant. I repel that objection. Whether the defender had any
awareness of the illicit materials prior to 4 February 2019 is relevant to a proper and
informed assessment of the defender's actions from her initial report of the illicit materials to
the police and afterwards, which, in turn, is relevant to the court reaching a proper and
informed judgment about the appropriateness of the orders sought by the pursuer. Further,
36
standing Lord Reed's judgment in NJDB, at paragraph 31 (cited above), and Dr MacKinlay's
evidence regarding potential abuse arising in connection with any knowledge on the part of
the defender and her actions, it is also relevant to a proper consideration of the test set out in
section 11(7) of the 1995 Act.
[47]
Having considered the evidence before the court, I reject as unlikely the explanations
advanced by both the pursuer and defender about the circumstances in which they became
aware of the illicit materials.
[48]
The pursuer's position was that in around late 2002/2003 the defender had, on three
separate occasions, shown him images contained on CD or DVD disks. The images became
increasing severe on each occasion and, on the third occasion, included showing the pursuer
six to ten discs containing very significant pornographic images over the course of about an
hour. The defender's purpose was, so submitted the pursuer, to determine whether the
pursuer would be a risk to any children they might have. The defender removed the disks
from a black case like the one found by the police on 8 February 2019. After the third
occasion the defender told the pursuer she would destroy the disks immediately. In 2015
the pursuer found a black CD/DVD case. Inside were disks he thought he recognised. The
pursuer discussed the disks with the defender. The defender told the pursuer that they
were disks she had made in around 2002 and that she had forgotten to throw them out. The
pursuer states that he "never saw the folder or disks again until the police showed [him]
them on 8 February 2019." I do not accept this explanation on the balance of probabilities.
I consider the process the pursuer asserts the defender undertook to satisfy herself that any
children she might have with the pursuer to be at risk to be inherently unlikely. Further, I
consider it unlikely that if the images were of the severity suggested and had the affect the
pursuer claims, the pursuer would have been prepared to look at the discs for an hour. The
37
pursuer considered the illicit materials illegal. Notwithstanding, and noting that the parties'
relationship at this stage was less than 2 years old, the pursuer chose to do nothing more
than ask the defender to destroy the images and thereafter did nothing further until 2015.
In my judgment, that is such a disproportionately inadequate response, especially given the
reported severity of the images, I consider it unlikely. The pursuer did not end the
relationship, report the existence of the materials, or destroy them himself. Further, against
that background, when he discovered the discs had not been destroyed as he thought, he
again did no more than seek an "assurance" from the defender that she would destroy them.
Again, standing the severity of the images, together with the fact that the parties would, by
then, have children in the house, I consider such a response unlikely. Finally, senior counsel
for the defender cross-examined the pursuer making reference to the letter from the
Reproductive Medicine Service at Edinburgh Royal Infirmary dated 15 August 2001
(64/14 of process), which narrated that "[the defender] is keen to be pregnant", and the letter
from the Edinburgh Fertility & Reproductive Endocrine Centre, dated 16 December 2002
(64/13 of process), suggesting that the letters demonstrated that the pursuer's position was a
lie. I do not accept that criticism. The pursuer dates the apparent showing of the materials
to him in later 2002. The first of the letters relied upon by senior counsel for the
defenders (64/14) is dated August 2001 and is addressed to the defender's GP, the GP having
referred the defender. The pursuer does not appear to have attended the referral. Whilst
the letter does record that the defender is keen to be pregnant, the letter does not necessarily
create the link sought to be relied upon. Conversely, the letter at 64/13 is dated
December 2002, is again addressed to the defender's GP but specifically notes that both the
defender and pursuer attended the referral. The inference senior counsel seeks to draw
regarding both the defender and pursuer actively involved in the defender conceiving might
38
legitimately be drawn here, however, the letter is dated slightly after the period the pursuer
alleges the defender showed him the illicit materials.
[49]
The defender's position is that she knew nothing of the illicit materials until she
found them by chance when looking for family photographs as part of her packing to leave
the pursuer. I do not accept that explanation. It requires me to accept that the discs were
left in insecure circumstances where they could be found by the defender or children. The
discs were not password protected. The discs/case were in open view, albeit for how long
appears unknown. The defender explained in evidence that she examined the discs for
many hours. The defender took photographs of file lists because she was concerned that
pursuer would return and destroy the discs. These photographs were stored on a SD card.
Given such concerns, it would have been open to the defender to immediately call the
police. The defender had texted pursuer at 09.21am on 5 February 2019 to confirm with him
his likely time of return. The defender had, only days before leaving the family home,
purchased a DVD drive, which she had sent to the parties' business address and marked
"private". That DVD drive appeared necessary for the defender to read and identify
materials on the discs. The defender sought to explain that she purchased the DVD drive so
that she could find some family photographs to take with her when she left but her own
evidence was that she did not find the family photographs. In relation to the SD card, the
defender stated that she had informed the police about the existence of the SD card and
photographs but following some discussion with the police, the police did not follow up and
secure the SD card from the defender. There appeared to be no independent evidence
before me to confirm this. The SD card did not feature at the pursuer's trial and the
defender in her evidence before me stated that she destroyed the SD card after the pursuer's
trial in June 2021 and some 2 years after this action had been raised. There was a material
39
degree of similarity between what the defender had written in her notebooks for her
television programme project and the illicit materials. The defender's notebooks also
contained "to do" lists and included on more than one occasion the task "hide discs". In
isolation, some of these factors might not suggest a compelling conclusion but drawing all of
these factors together, in my judgment, I reject the defender's explanation for her becoming
aware of the illicit materials.
[50]
In my judgment, on the basis of the evidence before me, and on the balance of
probabilities, I consider that both the pursuer and defender had a historical awareness of the
illicit materials. The similarities between the notes in connection with the parties' television
programme project and the illicit matters suggests a link. It was not disputed that both
parties were actively involved with discussing the themes for the proposed television
programmes project. That said, there is no evidence before me consistent with any
interaction by either party with the illicit materials after the time of around 2002/2003 and
the parties' television programme project and after the birth of Mary until the defender
reported them to the police at the time she left the pursuer. The conclusion I therefore draw,
on balance, is that when the defender reported the illicit materials to the police under the
explanation that she had no prior knowledge of them, she did so untruthfully.
[51]
Having reached that conclusion, it follows from the unchallenged expert evidence of
Dr MacKinlay, which I accept, the defender's actions in telling Mary and Anne that the
pursuer had sole possession of the illicit materials and by reporting the pursuer's possession
of the illicit materials to the police, which ultimately contributed to the alienation of the
pursuer from the children, constitutes direct emotional abuse of Mary and Anne by the
defender. In making that finding, I expressly acknowledge Dr MacKinlay's opinion that
should Mary and Anne conclude the defender has been untruthful to them, it might
40
undermine their trust in the defender and be undermining for them. That, on one view,
creates a "catch-22" situation. However, both Dr MacKinlay and the curator ad litem have
expressed the opinion that Mary and Anne ought, in the interests of their welfare, to be told
what the findings of the court are, whatever those findings are. I accept and agree with
those opinions.
Defender's allegations against pursuer
[52]
On 5 February 2019 the defender gave a statement to the police (85/4 of process). The
statement was authenticated by the defender. In the statement, in which the defender gives
details of finding the illicit materials, the defender states "[the pursuer] has never hit me or
the children.", and "I have never been concerned about [the pursuer's] interaction, between
him and our children."
[53]
On 28 February 2019 the defender gave a further statement to the police (85/5 of
process). This statement followed the defender returning to the family home to obtain
certain items. In her statement the defender reports that the pursuer is in possession of
around one hundred video tapes of surreptitious recordings of female guests at the parties'
house, that the pursuer has an interest in erotic hypnosis and that the defender is concerned
that the pursuer "is out on the hunt and these women are vulnerable." Notwithstanding
these concerns, the defender makes no suggestion that she or the children have been or are
at risk from the pursuer.
[54]
In relation to the social work records (lodged as 63/128-63/137 of process), the first
record, dated 4 March 2019 appears to be a "concern report" received by social work from
Police Scotland. The report records the defender's initial contact and statement from
5 February. The record then refers to the defender subsequently informing to police about
41
"non-recurrent voyeurism" by the pursuer - the matter recorded in the defender's statement
given to the police on 28 February - but also to "concerns the children may have experienced
sexual abuse/inappropriate sexualised behaviour from [the pursuer]", giving two examples,
one being an incident where she, the defender, had witnessed one of the parties' daughters
climb over the pursuer whilst on a bed dressed in an open bathrobe where the daughter
touched the pursuer's penis causing him to sustain an erection and the other where the
pursuer and daughters would play a game where the children would try dragging the
pursuer's bathrobe off him when he was naked underneath. The social work record
expressly records that no statement was taken regarding the latter allegation and goes on to
state:
"Although allegations by [the defender] cannot be discounted, [the defender] did not
account as to why she had not disclosed all this information ... when she initially
contacted the police. ... It was also noted that the information regarding the children
was not her first concern when providing this further information."
The record also records that the defender is keen for the police to interview both daughters
and that at that time neither child had disclosed any sexual abuse by the pursuer.
[55]
The next record is dated 8 March 2019. That record records the defender stated she
wanted to share further information. It records a recollection of the children being involved
in "tying up games". The defender reported a game, which she had disapproved of and in
which she had intervened directly, where the pursuer encouraged the children to try and
remove his dressing gown when he was naked underneath. The record confirms a
telephone conversation between social work and police, who confirmed they were aware of
the information. The police reported the outcome of their interview with Mary, who was
very intelligent, confident and clear in her recollection and who had no recollection of the
incident on the bed, or any particular games played with the pursuer as reported by the
42
defender. Whilst there were no concerns raised regarding Anne, given the nature of the
charges against the pursuer there was a rational for interviewing Anne. A further telephone
conversation took place with the defender when it was confirmed that no issues of concern
were raised by Mary. The defender reiterated an expectation of a follow up by the police in
connection with domestic and sexual abuse by the pursuer against her.
[56]
A further record dated 8 March 2019 records the outcome of an interview with Mary.
Mary reported that the defender had told her after they left the family home that she found
"something", that this was "paedophiles" and that there was something else but that the
defender could not tell Mary at the time. Mary could not remember any memories about
games involving dressing gowns. She could not recall any memories from when she was
three (which I understood to be a reference to the incident on the bed).
[57]
On 12 March 2019 an interview was conducted with Anne. It is recorded that the
interviewers tried to ask questions related to the allegations made by the defender, but Anne
was genuine and appeared to have no knowledge of these.
[58]
On 15 March 2019 there is a `review by manager' case record. This records the
defender's disclosure of the pursuer apparently grooming the children to touch his penis.
It records that both children have been interviewed and neither disclosed anything of
significance.
[59]
On 26 March 2019 it is recorded that the defender had contacted the police the night
before to advise that Anne had not been very forthcoming during her interview but had
since disclosed further sexual abuse perpetrated against her by the pursuer and that the
defender would like consideration to be given to a further interview of Anne.
[60]
A separate record dated 26 March 2019 records a discussion between social work and
the defender. The defender reports that the pursuer has been sending her pictures of naked
43
women, which the defender had saved. I note that these were not evidenced before me.
Social work confirm that Mary made no relevant disclosures during her interview, to which
the defender responds as surprising as some of the matters reported were recent. In relation
to Anne, the defender reported that Anne made further disclosures immediately following
her interview. The defender reported a game where Anne would try get the pursuer's
dressing gown off and told the defender that she could see the pursuer's "buttbutt",
meaning see him naked. A second game allegedly reported by Anne involved the pursuer
and Anne chasing each other when the pursuer was naked. The instructions for the game
were written down and hidden. This would happen when the defender was out or asleep
and would take place in the bedroom or living room. No instructions were evidenced
before me. The defender then alleged that on 25 March 2019 Anne made further disclosures.
These included that the pursuer and Anne would touch each other's "front bottom" and
"back bottom"; that Anne and the pursuer would put toilet paper on their fingers and touch
each other; that the pursuer had put his finger inside Anne's vagina when Anne was four
and that the defender had questioned Anne when the pursuer's "bum changed" and
whether there was ever any fluid and that Anne reported that the pursuer would sometimes
"pee and he'd go to the toilet". The defender alleged that Anne reported she had been told
to keep it a secret. The defender reported a history of vulval redness in relation to Anne.
She had attended the GP. Tests were undertaken that showed no signs of infection. Social
work updated the police following the defender's reported allegations and it was decided
that a further interview with Anne should be undertaken.
[61]
On 28 March 2019 the records record a note of Anne's second interview. At that
interview Anne reported playing the dressing gown game and the bum bum game. Anne
reported that she had told the defender about the bum bum game. Anne stated that she
44
would wear pants and the pursuer wore shorts. Anne described the game as a game of hide
and seek in pretend bushes in the attic.
[62]
The record of the second interview with Mary from 4 April 2019 records that Mary
reiterated that the defender had told her the pursuer was a paedophile and that the pursuer
had sent the defender four hundred photographs of naked women. No photographs were
put before me in evidence. The record notes by way of summary that Mary gave no account
that raises suspicion or indication of sexual abuse, that Mary does hold a negative view of
the pursuer, and that Mary has been given information about the pursuer's conduct.
[63]
The records contain a summary of events and discussions as at 4 April 2019. Given
the defender's report of vulval redness in relation to Anne, Anne underwent a forensic
medical examination (3 April 2019), which disclosed no evidence of abuse. The defender
had reported a vaginal discharge in relation to Mary and that Mary had "begun to open up"
and raised whether Mary should also have a forensic medical examination. Mary
underwent forensic medical examination on 8 May 2019. That examination showed no signs
of clinical disorder, illness or injuries or red flags for sexual abuse.
[64]
Finally, in her oral evidence, the defender alleged that Anne had disclosed to her in
June 2021 that she had seen the pursuer (previously) looking at images, including a
photograph of a naked girl and lady and showed the defender the position they were in,
being on all fours. Anne asked the defender "what does heat mean?" and when the
defender explained that it was heat from something, Anne said she saw a picture of a naked
woman with an elephant, with a speech bubble from the woman saying, "I'm on heat". The
defender went on to give oral evidence that in July 2021 Anne told the defender that she saw
a girl being raped by a much older man. The defender also gave evidence that the
defender's mother reported to the defender that she overheard Anne telling her cousin that
45
you could get pregnant by sitting on your boyfriend without pants on. When asked in
evidence, the defender said that she had not reported these incidents to social work but then
appeared to change her mind and stated that she had told social work but could not
remember who or when. The defender was aware that the pursuer had recovered social
work records and accepted that the records did not contain a reference to these subsequent
reports. The defender also accepted that there was no reference to these later disclosures in
the defender's pleadings or her affidavit.
[65]
Having considered the parties' affidavits, the relevant productions and heard the
parties' respective submissions, I draw a number of conclusions regarding this chapter of
evidence.
i.
On 5 February 2019, when the defender left the family home with the children and
reported the illicit materials to the police, the defender expressly stated to the police
that "[the pursuer] has never hit me or the children.", and "I have never been
concerned about [the pursuer's] interaction, between him and our children."
ii.
Thereafter, over the period of March to May 2019, the defender made a series of
increasingly more serious allegations regarding the pursuer's conduct towards
herself and the children, including allegations of penetrative sexual abuse of the
children by the pursuer.
iii.
Despite each child undergoing two joint investigative interviews and a forensic
medical examination, neither child at interview nor the forensic medical
examinations give any support for the defender's allegations. Moreover, despite
being specifically questioned on the issue of potential abuse, sexual or otherwise,
both children positively stated that they had no memories of any such behaviour.
46
iv.
When giving evidence in court the defender made further, new allegations that were
not mentioned in the defender's written case before the court or her sworn affidavit
and despite the defender's assertions that she had told social work about the new
allegations, there was no record of these new allegations in the social work records.
v.
In light of above conclusions, in my judgment, the defender has engaged in a course
of conduct where she has knowingly made false and increasingly serious allegations
against the pursuer concerning abuse of the children, including sexual abuse, and
deliberately misrepresented the children's medical symptoms in support of those
false allegations, all with the intention of alienating the pursuer from the children.
vi.
Notwithstanding the defender's statement to the police on 5 February 2019, when
she told the police "[the pursuer] has never hit me", the defender went on the make
various allegations that the pursuer had domestically abused her, including sexually
abusing her. There is no evidence to support these allegations.
Children's current circumstances
[66]
Dr MacKinlay and the curator ad litem, albeit from different perspectives, are the
independent persons responsible for investigating and bringing to the attention of the court
considerations relating to the welfare and best interests of children. Dr MacKinlay, through
her reports and evidence, and the curator ad litem, through her participation in these
proceedings, state that on the information available to them, the children are doing well in
school, socially and developmentally, and that there is no evidence before the court to the
contrary. The children's primary carer is the defender, and they appear to have a close
relationship with her.
47
Children's views
[67]
In relation to the children's views on contact, both children have expressed the view
to Dr MacKinlay that they do not want to have contact with the pursuer. In Dr MacKinlay's
opinion the views expressed by the children to Dr MacKinlay were genuine on the basis of
the information given to them. Mary is now over the age of 16 and the court has no
jurisdiction to make orders in respect of her. However, Mary's views of contact with the
pursuer are relevant because, as reported by Dr MacKinlay, Anne is influenced by Mary's
views and, accordingly Anne's views on contact with the pursuer are influenced by the
views Mary expresses about the pursuer. Anne believes that she is at risk from the pursuer.
In Dr MacKinlay's opinion, Anne's views are not based on her own experiences but on what
she has been told and the reactions of others. If Anne lived in a household where contact
with the pursuer was encouraged and she was reassured about her safety, Anne would
likely enjoy contact with the pursuer. If the household's hostility towards contact does not
change, Anne's resistance towards contact will not change. Whilst the loss of her
relationship with the pursuer was a significant factor for Anne, the threat of the loss of her
relationship with Mary and/or the defender would be of more significance.
Section 11 orders re Anne
[68]
As I have stated above, Mary is now 16 and, accordingly, the court has no
jurisdiction to make section 11 orders in respect of Mary.
[69]
In relation to Anne the pursuer seeks as residence order so that Anne resides with
him. In his submission, the pursuer argues that the children, or so far as the court has
jurisdiction to make orders, Anne, suffers harm whilst residing with the defender and that
no progress can be made when the children continue to do so. Accordingly, the court has a
48
duty to remove them, or at least Anne. The pursuer submits that there appears to be two
options available. The first is to accept the defender's power to dictate her wishes to achieve
her goals, which ignores the court's duty to protect the children from abuse. The second is
to remove the children from the defender's care and make an order for limited, supervised
contact in favour the defender. Whilst that submission might appear superficially attractive,
it proceeds upon a false dilemma fallacy and on a misunderstanding of the governing
legislation and fails to understand the whole evidence in the case. Section 11 of the 1995 Act
requires the court to regard the welfare of the children as the paramount consideration. It
does not focus primarily on the parties and any power either party might or might not have
to "dictate" their wishes. Further, section 11 requires that the court shall not make an 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. A consideration of the established evidence in this case highlights the
relevance and effect of this latter principle. I accept that the evidence in this case supports
the conclusion that the defender's actions have been abusive of the children and
consequently caused them harm, not least by alienating the pursuer from them but by also
leading them to believe that they have been abused by the pursuer. However, the evidence,
insofar as material and accepted by the court, highlights a more complex picture than the
pursuer's two options suggest. Dr MacKinlay acknowledged that the loss of the pursuer
was significant for Anne. However, Dr MacKinlay also expressed the opinion that the loss
of the defender and Mary would be more significant. Loss of her relationship with the
pursuer was the least-worst outcome for Anne. The loss of the pursuer was a past loss, the
loss of the defender and Mary would be a future loss. Given the passage of time, any abuse
at the hands of the defender is now largely historical. Anne appears happy. She has friends.
She appears happy at home and at school. In light of the established evidence, even
49
acknowledging the actions of and consequences for the parties, having regard to the welfare
of Anne as the paramount consideration, it cannot be properly concluded that making a
residence order in respect of Anne in favour of the pursuer would be better for Anne than
that none should be made at all. The court acknowledges the apparent harshness of that
outcome for the pursuer, but it is a consequence of legislation that places its paramount
consideration on the welfare of the child.
[70]
In the end, the pursuer did not seek an order for direct contact with Anne. Had he
done so however, I would have refused to make such an order. Standing the section 11 test
and a consideration of the established evidence before the court, I would have reached the
same conclusion as I did with regard to the residence order sought by the pursuer.
[71]
In his submission, the pursuer submitted that "the proposition of letterbox [indirect]
contact is completely unrealistic." Whilst residing with the defender and Mary, Anne would
not be encouraged to or allowed to enjoy any letters or cards. The pursuer did not move the
court to grant an order for indirect contact. Dr MacKinlay gave evidence that in her opinion
indirect contact between the pursuer and Anne should be supported albeit there should be
no obligation on Anne to reply. The curator ad litem submitted that indirect contact between
the pursuer and Anne would be in Anne's best interests. Regardless of the views expressed
by Dr MacKinlay and the curator ad litem, I consider there to be no benefit in making an
order that is not sought by either party and which is unlikely to be complied with, especially
in respect of an order for indirect contact between the pursuer and Anne that might create
an expectation on Anne's part only to be undermined.
[72]
The defender seeks no orders in relation to residence or contact. The defender does
seek a specific issue order allowing the defender to take Anne out with the UK to go on
holiday. The curator ad litem supports the granting of such an order because, standing
50
agreement between the parties to the contrary, absent such an order there is a risk that there
would have to be resort to litigation to obtain a relevant order on a holiday-by-holiday basis,
which would be adverse to Anne's interests. It would be better to make the specific issue
sought than to make no such order. Accordingly, I will make the specific issue sought by
the defender.
Communication of court's findings, decisions and reasons
[73]
The curator ad litem submitted that the children had a right to know what decision the
court had reached on the headline issues and why. The curator ad litem also submitted that
the children would benefit from being disabused of any material misapprehensions they
might have, particularly regarding the pursuer. She found support for that submission in
the opinion of Dr MacKinlay. Although I did not note the pursuer expressly requesting the
court take such a step, it seemed to me to be implicit in the "Propositions" contained in his
written submission that he wanted those propositions to be formally recognised by the
court.
[74]
The method by which the findings of the court could best be conveyed to the
children was through Dr MacKinlay undertaking this role. Dr MacKinlay confirmed in
evidence that she had previously undertaken such a role and would be prepared to
undertake the role in this case. In order to assist with the explanation of the court's findings,
for the reasons set out above, on the basis of the evidence I find established, I make the
following findings:
i.
Prior to 4 February 2019, both parties had an awareness of the illicit materials.
ii.
I do not accept the explanation given by the defender about how she became
aware of the illicit materials or why the illicit materials were in the family home.
51
iii.
I do not accept the explanation given by the pursuer about how he became aware
of the illicit materials or why the illicit materials were in the family home.
iv.
I consider, on the balance of probabilities, that the illicit materials have a
connection with the parties' television programme project and that both parties
had an awareness of the illicit material from that time.
v.
There is no evidence that either party actively viewed or otherwise engaged with
the illicit materials after Mary's birth and before the defender interacted with
them on 4 February 2019.
vi.
On 5 February 2019, when the defender left the family home with the children
and reported the illicit materials to the police, the defender expressly stated to the
police that "[the pursuer] has never hit me or the children.", and "I have never
been concerned about [the pursuer's] interaction, between him and our children."
vii.
Thereafter, over the period of March to May 2019, the defender made a series of
increasingly more serious allegations regarding the pursuer's conduct towards
herself and the children, including allegations of penetrative sexual abuse of the
children by the pursuer.
viii.
Despite each child undergoing two joint investigative interviews and a forensic
medical examination, neither child at interview nor the forensic medical
examinations give any support for the defender's allegations. Moreover, despite
being specifically questioned on the issue of potential abuse, sexual or otherwise,
both children positively stated that they had no memories of any such behaviour.
ix.
When giving evidence in court the defender made further, new allegations which
were not mentioned in the defender's written case before the court or her sworn
affidavit and despite the defender's assertions that she had told social work
52
about the new allegations, there was no record of these new allegations in the
social work records.
x.
In light of above conclusions, in my judgment, the defender has engaged in a
course of conduct where she has knowingly made false and increasingly serious
allegations against the pursuer concerning abuse of the children, including sexual
abuse, and deliberately misrepresented the children's medical symptoms in
support of those false allegations, all with the intention of alienating the pursuer
from the children.
xi.
Notwithstanding the defender's statement to the police on 5 February 2019, when
she told the police "[the pursuer] has never hit me", the defender went on the
make various allegations that the pursuer had domestically abused her, including
sexually abusing her. There is no evidence to support these allegations.
xii.
Irrespective of the above findings, both Mary and Anne are happy in their
current circumstances and are achieving. It is not in either child's best interests
to make orders that change either child's current circumstances, albeit Mary is no
longer subject to the jurisdiction of this court.
[75]
I will therefore grant the specific issue order sought by the defender and thereafter
make no further orders. I will have the case put out by order to be addressed on any other
matters arising.
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