SA against LT (Sheriff Court Civil) [2026] SCPER 15 (04 November 2025)

[ Home ] [ Databases ] [ World Law ] [ Multidatabase Search ] [ Help ] [ Feedback ] [

DONATE ] Scottish Sheriff Court Decisions You are here:

BAILII >> Databases >> Scottish Sheriff Court Decisions >> SA against LT (Sheriff Court Civil) [2026] SCPER 15 (04 November 2025) URL: https://www.bailii.org/scot/cases/ScotSC/2026/2026scper15.html Cite as: [2026] SCPER 15 [ New search ] [ Printable PDF version ] [ Help ]

SHERIFFDOM OF TAYSIDE CENTRAL AND FIFE [2026] SC PER 15 PER-F53-23

JUDGMENT OF SHERIFF ALISON MCKAY in the cause SA Pursuer against LT Defender Pursuer: Barbour, Counsel; Thorntons Law LLP Defender: Davidson, Counsel; Kym Samson Family Law Perth 4 November 2025 The sheriff, having resumed consideration of the cause, finds the following facts admitted or proved: Introduction 1. The pursuer is Sxxxxx Axxxxx. He resides at xxxxx xxxxx xxxxx.

2. The pursuer is from Pakistan.

3. The defender is Lxxxxx Txxxxx. She resides within the jurisdiction of Perth Sheriff Court.

4. The defender is from Scotland.

5. The parties met around December 2010. They began residing together in or about September 2014.

6. The couple were first married in Dundee in 2014 following a discussion with an Imam and a blessing.

7. The parties were later legally married on 11 April 2018.

8. When the parties married in 2018 the pursuer's immigration status was not permanent in the UK.

9. There are two children of the marriage, namely Axxxxx (hereinafter referred to as "A"), born 6 July 2015, and Bxxxxx (hereinafter referred to as "B"), born 4 June 2017.

10. The parties separated in or around March 2021. Background 11. During the course of the relationship the parties resided in xxxxx in a property owned by the defender's father.

12. Following A's birth the defender returned to work.

13. The pursuer was not in employment at that point because he did not have a visa and was not entitled to work.

14. After the children were born the defender would have preferred to be a "stay at home mother", but this was not possible due to the fact that the pursuer was unable to work at that time due to visa restrictions.

15. When the defender returned to work the pursuer remained at home, taking care of A.

16. During the parties' relationship the defender was frequently in employment. Sometimes she worked part time and at other times she worked full time.

17. At some point during the parties' relationship the pursuer became eligible to work in the UK. Thereafter he was likewise frequently in employment. On occasions the pursuer worked anti-social hours.

18. Throughout the parties' relationship there was no particular consistency in the parties' respective working patterns. Sometimes the pursuer was in employment and the defender was not, and vice versa.

19. Following B's birth he and A had different sleeping patterns.

20. The parties frequently slept in different rooms, with the defender often having care of, and responsibility for B and the pursuer often having care of, and responsibility for A overnight.

21. The parties' sleeping arrangements, and the sleeping arrangements for the children, depended to some extent on whether the pursuer was working late at night, or returning home early in the morning. At those times the pursuer slept apart from both the defender and the children to ensure he did not wake the boys when he left or returned to the family home.

22. After the second lockdown the pursuer lost his job and the defender returned to work. The pursuer looked after the boys two days each week.

23. On occasions both parties were in employment at the same time. They did not work the same hours so that one of them was always available to care for the boys.

24. When not in nursery or school the children were cared for by one or other or both of their parents, depending on the changing work commitments of the parties at any given time.

25. Whilst the parties resided together the pursuer was actively involved in the day to day care of the boys. This included feeding and bathing them, putting them to bed and undertaking family activities, with and without the defender present.

26. The pursuer often took the boys to nursery and school, and met up with friends. He was involved with another local father in running a Gaelic nursery in xxxxx.

27. During the parties' relationship the boys were generally happy and comfortable in the care of their father.

28. The pursuer was significantly involved in the care and upbringing of the children whilst the parties resided together. He played a major role in their lives.

29. During the parties' relationship they regularly communicated by text messages and WhatsApp messages, even when they were both in the same house. Their messages comprised a mixture of affection and intimacy and daily exchanges of information, mainly involving mundane matters in relation to the family home and their children.

30. On or about 13 October 2020 the pursuer was caring for both boys whilst the defender was at work. Whilst caring for the boys the pursuer slapped B on the face. B sustained a significant injury to his left cheek.

31. Whilst at work on 13 October 2020 the defender received a number of messages from the pursuer in the following terms: "Hes got a mark on his left cheek"; "I am really really sorry. I feel the most worst person at the moment"; "I think it was a hard slap"; and "I don't mean to do that....".

32. When the defender returned home B had a large red mark on his left cheek. B told the defender his father had hit him. The pursuer told the defender he had hit B, but did not mean to do so.

33. The defender took a photograph of B's injury (production number 6/3/1/3).

34. The defender asked the pursuer to leave the home and sleep in the car, which he did. The following day the pursuer left for work and the defender took the boys to stay at her father's address in xxxxx.

35. The red mark remained on B's face for a number of days. The defender took further photographs of B's face on 16 October 2020 (production number 6/3/1/2) and 17 October 2020 (production number 6/3/1/1). Both photographs clearly portray a residual red mark on B's cheek.

36. In or around October 2020 the pursuer threatened to commit suicide. He specifically threatened that if the defender did not return to the family home he would kill himself. The defender returned to the family home with the boys.

37. Thereafter both parties continued to work and to share responsibility for caring for their sons until they separated.

38. Following the assault upon B the pursuer was regularly alone with the boys. He had care of them within the family home and took them to school and nursery as before.

39. The parties separated in March 2021, at the instigation of the defender. The pursuer moved out of the family home at the defender's request and moved to shared accommodation in xxxxx.

40. The defender was later allocated refuge accommodation by Women's Aid and moved out of her father's property in xxxxx. She has since been allocated permanent accommodation for herself and the boys. The pursuer does not know where the defender and his sons now reside. Current arrangements for the boys 41. The children reside with the defender.

42. Since the parties' separation the defender has been the primary carer for the children.

43. The boys moved school in or about August 2022, and have since moved schools again. The pursuer does not know the school which the boys now attend. Contact 44. After the parties' separation the pursuer had regular contact with the children every week. The contact visits between the pursuer and the boys took place in public at appropriate family type venues and activities.

45. The defender or her father were present during contact visits. The pursuer was not alone with the boys during these visits.

46. These contact arrangements were in place from May 2021 until July 2022.

47. The boys also had video call contact with the pursuer.

48. The children initially wanted to exercise contact with the pursuer.

49. On 14 November 2021 the defender's father wrote a letter in support of the pursuer's immigration status (production number 5/2/1). In his letter he stated the boys were fond of their father and enjoyed his company.

50. On 28 November 2021 the defender wrote a letter in support of the pursuer's immigration status (production number 5/2/2). In her letter the defender stated the boys loved their father and looked forward to seeing him each Saturday or Sunday.

51. At some point in 2022 the defender gave a statement to the police in which she made a number of allegations regarding the pursuer's conduct towards herself and the children.

52. In or around July 2022 the police advised the defender not to have any further direct contact with the pursuer.

53. The defender stopped the pursuer's contact with the children in July 2022.

54. After July 2022 the pursuer's agents wrote to the defender at her father's address and then by way of email requesting contact with the children. The defender's agent replied that the defender had no proposals for contact.

55. After July 2022 the pursuer also proposed contact at the contact centre in Perth. The defender refused to agree to this proposal.

56. On or about 12 August 2022 the pursuer was arrested and interviewed by police.

57. On or about 30 November 2022 the defender received an email from DC Cxxxxx Mxxxxx of Police Scotland Domestic Abuse Investigation Unit advising her the pursuer had been charged with a contravention of Section 1 of the Domestic Abuse (Scotland) Act 2018 and reported to the procurator fiscal (production number 6/4/1).

58. To date no criminal proceedings have commenced against the pursuer in connection with the defender's allegations against him. The pursuer 59. The pursuer is Sxxxxx Axxxxx. He resides xxxxx.

60. The pursuer resides in a shared home which he shares with four other people.

61. The pursuer's accommodation is not suitable for him to exercise contact with the boys there.

62. The pursuer is not currently in employment.

63. The pursuer was born in Pakistan. His immigration application has not yet been determined.

64. The pursuer's family continue to reside in Pakistan. The pursuer maintains regular contact with his family by telephone.

65. The pursuer misses his children. He seeks contact with them.

66. The pursuer is prepared to exercise contact with his sons at any location, and subject to any conditions determined by the court.

67. The pursuer is Muslim. When he resided in family with the defender and the boys the family celebrated Easter and Christmas. The pursuer wishes the boys to understand both their parents' different cultures. The defender 68. The defender resides at an undisclosed address within the sheriffdom with the parties' children. She is currently employed as a school co-ordinator.

69. The defender is not religious.

70. The defender's mental health has been poor since her mother died when she was 19 years old.

71. After the birth of A the defender again felt low and unwell. She consulted with her GP and was diagnosed as suffering from general anxiety.

72. Prior to the parties' separation the defender reported to her GP she was struggling with her mental health and was referred to a counsellor. She met with a counsellor, Dr Cxxxxx, in relation to anxiety and relationship problems. Dr Cxxxxx is a retired GP. He did not have access to the defender's medical records during his consultations with the defender and provided assistance to her on the basis of her own self-reporting.

73. On 6 November 2020 the defender reported to Dr Cxxxxx she was frightened by the pursuer's behaviour. She reported he had smacked one of the boys on the bottom, leaving marks. She was frightened for her children and visibly distressed.

74. At that time the defender reported thoughts of self-harm, which she had not acted upon. She also consulted her GP and was prescribed sedative medication.

75. On 11 November 2020 the defender and Dr Cxxxxx spoke by telephone. The pursuer was still residing in the family home, and the defender expressed her intention to leave the property with the boys in order to stay with her father in xxxxx.

76. Dr Cxxxxx formed the opinion that the defender was experiencing catastrophizing thinking. Catastrophizing is a cognitive distortion which occurs when a person is emotionally aroused. It is a stress response where a person imagines the worst possible scenario in order to prepare for it. It is not a permanent state of mind but can be present or not depending on a person's emotional state. It can be indicative of poor mental health or may exacerbate existing mental health issues. In its broadest sense it is a coping mechanism.

77. On 17 November 2020 the defender met again with Dr Cxxxxx. By this time the defender had returned to the family home and the pursuer was residing with the defender's father.

78. On 1 December 2020 the defender again met Dr Cxxxxx. She reported she and the pursuer were no longer residing together. There was a significant improvement in the defender's mood.

79. By 1 March 2021 the defender had allowed the pursuer to return to the family home because he had nowhere else to stay. She consulted on that date with Dr Cxxxxx who noted that she appeared to be stressed.

80. On 21 May 2021 the defender telephoned Dr Cxxxxx in tears. She was anxious and reported she was scared the pursuer would abduct the boys. She feared he would remove the boys and take them to Pakistan. She reported the pursuer took the boys to the park at weekends and she stayed in the car in order to observe him. She was unable to leave the pursuer alone with the boys, or to relax.

81. Also on 21 May 2021 the defender disclosed to Dr Cxxxxx that the pursuer had sexually assaulted her in January 2020 and that he had slapped the child A on the face in October 2020. She advised she had taken a photo of a mark left upon the child's face.

82. On 23 August 2022 Dr Cxxxxx noted the defender reported she had been seeing another counsellor and had been diagnosed with Post-Traumatic Stress Disorder. Dr Cxxxxx did not make this diagnosis, but it came as no surprise to him given the defender's presentation.

83. Post-Traumatic Stress Disorder can be caused by a variety of experiences, both recent and some time ago. PTSD symptoms may be triggered by specific incidents or more general experiences. In some people the symptoms may last for a few months, and in other cases for a year or years. Symptoms may be hyper-vigilance, worries regarding perceived danger and memories or triggers. Dr Cxxxxx identified and observed the defender suffering from all these symptoms.

84. Dr Cxxxxx is qualified to make a diagnosis of PTSD. He has not formally diagnosed the defender as suffering from PTSD but agrees with the diagnosis reported to him by the defender.

85. In addition to meeting with Dr Cxxxxx the defender was referred by her GP to Yxxxxx Pxxxxx, a cognitive behaviour therapist.

86. The defender consulted with Ms Pxxxxx on eight occasions between August 2022 and October 2023. The defender engaged well during these sessions. She made disclosures in relation to the pursuer having been violent towards the children and stated they did not wish to see their father. She was terrified at the thought the pursuer would abduct the children.

87. During her meetings with Ms Pxxxxx the defender presented as anxious and showed evident signs of distress. The focus of the meetings were to help her manage the symptoms of Post-Traumatic Stress Disorder.

88. The defender was referred to the Rape and Sexual Abuse Centre in Perth by Women's Aid in May 2021. She was allocated a support worker, Cxxxxx Jxxxxx.

89. Subsequent to the parties' separation the defender saw a counsellor at Women's Aid every week and a support worker at RASAC. She has also had support from Barnardos, as well as from Ms Pxxxxx and Dr Cxxxxx.

90. During sessions with her support worker the defender described coercive control and sexual abuse during her relationship with the pursuer, and disclosed multiple rapes. The defender was overwhelmed emotionally, and on some occasions was visibly shaking. She was frequently upset and crying.

91. The defender attended for appointments with Ms Jxxxxx after the parties' separation whilst contact between the pursuer and the boys was ongoing. The defender reported she was too scared to leave the children alone with the pursuer. She was afraid the pursuer would abduct the boys. Ms Jxxxxx provided support so that the defender could cope with these visits.

92. When the pursuer had contact with the boys following the parties' separation the defender found it very difficult and distressing. She needed support to cope with these visits. In arranging for these visits to take place the defender put the needs of her children before her own, to the detriment of her own mental health.

93. The defender's mental health is much improved since immediately following the parties' separation. She is not currently receiving professional assistance in this regard.

94. The defender's mental health renders her unable to have any form of contact with the pursuer. She would not feel safe in the company of the pursuer. She is unable to communicate with him directly.

95. The defender is convinced the pursuer will harm her children. She is convinced his behaviour towards the boys places them at risk.

96. The defender is also convinced the pursuer will try to abduct the boys from her care and take them to Pakistan. She moved address during these proceedings when her address was inadvertently disclosed to the pursuer. The boys 97. The boys are happy in the care of the defender. She has permanent accommodation for the boys and herself. The boys moved school again in 2024 and have settled well into their new school. They still see their old friends.

98. The boys' father is Pakistani and Muslim.

99. The boys' mother is Scottish and non-religious. Both boys have Muslim forenames. Child A 100. A is 10 years old. He is in good health. He has recently been prescribed medication to assist him with toileting at night, to good effect. He enjoys school and gymnastics.

101. A disclosed to the deputy head teacher at his previous school that the pursuer had smacked his bottom.

102. At A's previous school there were concerns regarding his behaviour and his eating. He was described as a nervous child and referred to play therapy.

103. A was also referred by school to Children Experiencing Domestic Abuse Recovery Services (hereinafter referred to as "CEDAR").

104. CEDAR is a therapeutic evidence-based 12 week domestic abuse recovery programme. Work is undertaken in groups, with mothers and children attending separately, but in parallel. The programme covers themes to help children understand what has happened in their families and gives them opportunities if they wish to talk about it. The themes covered include emotional and physical safety, loss and change, emotional literacy and understanding the differences between anger and abuse.

105. A was referred to CEDAR in March 2022 and attended group work sessions until June 2022. During group sessions A showed signs of dysregulation at times. He made no disclosures regarding his home life in this group work.

106. A was also referred for one to one work with Mxxxxx Dxxxxx, a Children and Young People's Support Worker at Perthshire Women's Aid.

107. Prior to meeting with A, Ms Dxxxxx met with the defender and obtained information from staff at the CEDAR project.

108. During meetings with Ms Dxxxxx A regularly spoke about the pursuer. He made reference to the pursuer fighting, hitting and shouting in the family home. He expressed that he did not wish to see the pursuer. He reported the pursuer had slapped him on the face when he was a baby and said that he hated him. He said he remembered the incident, rather than having been told about it. He showed Ms Dxxxxx how the pursuer had slapped him.

109. Ms Dxxxxx last met with A in March 2023, after which she referred the defender and the boys to Barnardo's for family support.

110. There are no current concerns regarding A's behaviour or emotional wellbeing. He is settled at his new school and happy in the care of the defender. Child B 111. B is 8 years old. He has been referred for additional support at school, but no formal diagnosis has been made as yet. He receives sensory sessions from Autism Support and has a support worker.

112. B has made no disclosures in school regarding the pursuer's conduct towards him.

113. B has been referred to educational psychology because he fidgets a lot and struggles to pay attention in class. He is on the waiting list for CAMHS (Child and Adolescent Mental Health Services).

114. B is getting on well at his new school. He is a happy, confident child and he has made new friends. He receives sensory support, which he enjoys . Views of the boys 115. A provided his views to the court in April 2023. He completed a Form F9 with the assistance of a teacher at school. A said he only wanted to live with the defender and he did not wish to see the pursuer. He added he did not wish his father to make decisions about him.

116. In June 2023 both boys met with a child welfare reporter. A told the child welfare reporter he wanted to live with his mother and that he did not wish to see his father. B also said he did not wish to see his father. Both boys used derogatory and inappropriate language when discussing the pursuer.

117. A told the child welfare reporter he had nightmares in his old home. He was unable to tell her what these were about. The defender is aware of these nightmares and discussed them with A directly. The child did not mention the pursuer featuring in these nightmares.

118. In June 2023 the child welfare reporter explored indirect contact with both boys. At that time A was adamant that if the pursuer wrote to him he would simply rip up the card.

119. The boys met again with the child welfare reporter in September 2024.

120. A told the child welfare reporter he did not want to be around the pursuer. He was not scared of him, but described him as being "really bossy" when he had lived in family.

121. A also told the child welfare reporter he remembered that when his father had hit him, he had not been allowed to come to the house. He said that on the second time his father had hit him he had to go to his grandfather's house.

122. A told the child welfare reporter the defender would not like him spending time with the pursuer because "it wouldn't be safe". He talked about an occasion when his mother had to run over when they were near a river and his father was holding B too close to the current. He could not say whether he remembered that happening or whether his mother had told him about the incident.

123. A reported he was now known as "Axxxxx Txxxxx". He liked that because the longer name was "kind of annoying". He could not remember whose idea it had been to shorten his name.

124. In September 2024 A told the child welfare reporter that receiving cards or letters from his father would neither be a bad thing or a good thing.

125. In September 2024 B was in a Primary 2/3 class at school. He also spoke with the child welfare reporter.

126. B referred to the pursuer as "Sxxxxx". He reported that once he had gone to grandad's and "Sxxxxx" had slapped him on the cheek. It had hurt a lot. He said he would not feel good about seeing the pursuer. He thought the pursuer would be mean to him. He also reported his mother would not feel good about it.

127. B told the child welfare reporter his full name was xxxxx xxxxx xxxxx.

128. At the end of their meeting B told the child welfare reporter the pursuer had previously risked their lives (meaning himself and A) and described him putting their hands in river water which was really deep. He said he could remember this, rather than anyone having told him about it.

FINDS IN FACT AND LAW 1. It is not in the best interests of the children to have direct contact with the pursuer.

2. It is not in the best interests of the children to have indirect contact with the pursuer.

3. During the parties' relationship the pursuer assaulted the child B.

4. It is necessary to protect both boys from abuse, or the risk of abuse, at the hands of the pursuer.

5. The pursuer is willing to exercise contact with his sons subject to any conditions deemed appropriate, including supervision.

6. In pursuance of any form of contact between the boys and the pursuer it would be necessary for the parties to co-operate with one another.

7. The defender is unable to communicate with the pursuer, whether directly or indirectly.

8. The defender is unable to promote, facilitate or supervise contact between the pursuer and the boys.

9. The defender is the primary carer for the boys.

10. It would not be in the best interests of the boys for the defender's mental health to deteriorate.

11. It is not better for the children that orders are made regulating the arrangements for their care and upbringing.

12. It is not necessary for the court to make any order in relation to the arrangements for the ongoing care and upbringing of the children.

13. The pursuer holds parental responsibilities and parental rights in relation to the children.

14. The defender holds parental responsibilities and parental rights in relation to the children.

15. Since the parties' separation in March 2021 the pursuer has been unable to exercise his parental responsibilities in relation to the boys.

16. Since the parties' separation the pursuer's exercise of his parental rights has been curtailed by the defender.

17. Between the parties' separation in March 2021 and July 2022 the pursuer exercised contact with the boys by agreement with the defender.

18. Contact between the pursuer and the boys was stopped by the defender in July 2022.

19. Since July 2022 the pursuer has been unable to exercise the parental right of contact with the parties' children.

20. The defender and the children have moved address since July 2022.

21. The children have moved school since July 2022.

22. The pursuer does not know where the defender and the children reside.

23. The pursuer does not know where the children attend school.

24. The defender has prevented the pursuer exercising his parental responsibilities or parental rights in relation to the children since July 2022.

25. During the parties' relationship the pursuer assaulted the child B to his injury on one occasion.

26. At the time of the assault upon B the pursuer expressed remorse that the child had sustained an injury whilst in his care.

27. It is not proportionate for the pursuer to be deprived of parental rights and responsibilities in relation to the children.

28. It is not in the best interests of the children for their surname to be altered.

THEREFORE

SUSTAINS the pursuer's second, third, fourth and fifth pleas-in-law and the defender's first plea-in-law;

REPELS the pursuer's first plea-in-law and the defender's second, third, fourth and fifth pleas-in-law and ordains the sheriff clerk to assign a hearing in respect of the expenses of the action.

NOTE Procedural history [1] Both parties were represented by counsel. The pursuer was represented by Ms Barbour and the defender by Ms Davidson. [2] This case has an unfortunate procedural history which requires some explanation. [3] The action was first warranted on 21 February 2023. No interim orders have been made in respect of the arrangements for the care and upbringing of the children since then. [4] Following sundry procedure and substantial amendment a proof was initially assigned for February 2024, but was discharged to allow the pursuer's legal aid application to be determined. The court was advised that due to a change in his financial circumstances the pursuer was no longer able to fund this action privately. [5] A further diet of proof was assigned for 9 April 2024, but discharged on joint motion. [6] A third diet of proof was assigned for 8 July 2024. In light of the serious criminal allegations made against the pursuer the defender was afforded special measures as a vulnerable witness and ordained to lead at proof. Evidence commenced but was not concluded. A second date for evidence was identified on 12 July 2024. [7] On 12 July 2024 the pursuer lodged a seventh inventory of productions which comprised a large folder of messages exchanged between the parties throughout their relationship. Having heard counsel for both parties I allowed the inventory to be

lodged late, but adjourned the diet of proof to enable the defender to provide full instructions in respect of the contents. [8] I also identified that further diets for proof were not available until August and September. I therefore appointed the child welfare reporter to obtain the up to date views of the children. [9] On 5 August 2024 I discharged the next diet of proof on joint motion. At that point counsel for the defender indicated the defender was no longer insisting upon her craves for residence and interdict. [10] By this time the decision of the Sheriff Appeal Court in the case of L-v-D [2024] SAC (Civ) 28 had been issued, and the question of whether allegations of rape in the context of a family action could be described as "non-judiciable" was referred to the Inner House. [11] After some discussion counsel invited me to continue the action to ascertain when the appeal was likely to be heard, and the decision in respect of same. I fully appreciate this was a highly unsatisfactory situation given the defender's evidence had still not been heard in full. However, having initially continued the action to await the decision of the Inner House, I later felt compelled to discharge further proof diets on 23 and 24 September 2024 because the Inner House decision was not available. [12] I heard further evidence on 24 February, on 14, 15 and 16 April and on 7 and 25

July 2025. [13] At the conclusion of evidence I appointed parties to lodge written submissions. [14] A hearing on the submissions lodged was not required. [15] I made avizandum on 9 September 2025. Evidence [16] The parties themselves gave oral evidence. [17] On behalf of the pursuer the court was furnished with affidavit evidence from Mxxxxx Ixxxxx, Cxxxxx Mxxxxx and Axxxxx Pxxxxx. These witnesses were all friends of the pursuer and spoke to seeing him with the parties' children during the parties' relationship. [18] Counsel for the defender had no cross-examination for these witnesses, but pointed out in her written submissions that their evidence was somewhat dated, all affidavits having been sworn in March 2024. [19] On behalf of the defender the court was furnished with affidavit evidence from Yxxxxx Pxxxxx, a cognitive behavioural therapist who the defender consulted in 2022. Counsel for the pursuer had no cross-examination for this witness and she did not require to give evidence in person. [20] The defender also called a number of witnesses, each of whom adopted affidavits sworn in advance and were submitted to cross-examination namely - · Dr Axxxxx Cxxxxx, retired GP and counsellor consulted by the defender; · Mxxxxx Dxxxxx, Children and Young Person's Support worker at Perthshire's Women's Aid; · Jxxxxx Mxxxxx, Depute head teacher within Perth and Kinross

Council; · Cxxxxx Jxxxxx, Operations Manager at Rape and Sexual Abuse Centre (RASAC), Perth; · Kxxxxx Bxxxxx, Team Leader at the Children and Young People Services and the CEDAR project within Women's Aid, Perth; and · Jxxxxx Oxxxxx, a friend of the defender and former work colleague. [21] Both parties lodged a number of productions which were referred to during the course of the evidence. [22] In addition a joint minute of admissions (number 40 of process) was entered into agreeing some basic facts in relation to the chronology of the parties' relationship. Witnesses [23] Clearly this is a difficult and sensitive case. [24] Regrettably, a great deal of the evidence led before me was focussed not upon the best interests and welfare of the parties' children but upon the particularly serious allegations of criminal conduct made by the defender against the pursuer and the defender's mental health. Parties [25] Both parties gave evidence on their own behalf over a number of days. [26] Assessment of the evidence of the parties themselves is not at all assisted by the fact that at first blush it is hard to believe the parties were actually describing the same relationship. In fact, I have found it impossible to reconcile their respective accounts of the relationship between them. [27] For his part the pursuer described, at least on one hand, an idyllic relationship punctuated by love

and respect. [28] At the same time the pursuer described the defender as the controlling force within the relationship, intent upon pursuing her career whilst he remained at home and was the primary carer of the children. He suggested she had made all the decisions within the relationship, and he had simply gone along with them. He suggested the defender had been the controlling force in the relationship, whilst he had been compliant with her wishes. [29] The defender, on the other hand, described an abusive and sexually violent relationship. She alleged the pursuer had assaulted not only her, but both the parties' children. She was adamant that notwithstanding she was frequently at work, she was the primary carer for the children when the parties resided together. She refused to acknowledge any caring role on the part of the pursuer at all, insisting that he was essentially unable to care for the boys without ongoing direction and instruction from her. [30] Against this background the seventh inventory of productions for the pursuer included screenshots of messages sent between the parties between June 2016 and 15 March 2021. Whilst these appeared to be a selection of messages, rather than every message sent between the parties during that period of time, the messages as a whole suggested to me a couple who were at times loving and affectionate towards one another, whilst at

other times sending instructions or requests seeking assistance from the other in the way one might expect from busy parents of two young boys. [31] It seems to me that the truth of the parties' relationship lies somewhere between their two perspectives, but in the absence of other evidence it is impossible for me to make findings in fact in this regard. [32] It is difficult to assess either of the parties as particularly credible or reliable, since neither was prepared to make appropriate concessions in cross-examination, even when faced with contemporaneous screenshots of messages which suggested they should do so. [33] I have no doubt the defender would have preferred not to work and to be at home with the boys all the time, but that was not possible for financial reasons. [34] I am satisfied that when the defender was at work the pursuer was the primary carer for the boys, and further that he did not require the high level of direction or intervention suggested by the defender. This is borne out by the pursuer's witnesses who regularly saw him with sole care of the children, and who noted that the boys appeared to be happy and comfortable in his care at those times. [35] Inevitably the defender's allegation of serious criminal conduct on the part of the pursuer was a central theme of evidence in this case. [36] It will be noted that the proof was adjourned following the

defender's evidence-in- chief to await the decision of the Inner House in SN v JN [2024] CSIH 33 on 17 October 2024. [37] Prior to becoming aware of the outstanding appeal this court had directed that in light of the serious criminal allegation made against the pursuer the defender should lead at proof. [38] It was recognised by the parties that the allegation of rape was significant and, if established, brought into play the abuse provisions of section 11(7A-E) of the Children (Scotland) Act 1995. The allegations made by the defender were germane to these proceedings and it could not be said that the allegations were irrelevant to the issues before the court. [39] Vulnerable witness measures were considered and put in place in order to protect the defender, and specific arrangements regarding the set up of the court room throughout the proceedings were made in order to proceed as carefully and sensitively as possible. [40] The defender gave evidence regarding specific allegations, including multiple rapes and also evidence of more general abusive behaviour, towards both herself and towards the parties' children. [41] I fully accept that the defender was emotional when she gave her evidence, but I do not accept the submission made on her behalf that this itself renders her evidence credible and reliable. [42] In particular, the defender alleged that the pursuer raped her

immediately following A's birth, when she still had stitches to her vaginal area. [43] On record, it is averred that whilst the defender required to consult her GP because the stitches were torn, she did not disclose the pursuer's conduct. [44] On the contrary, in her own evidence the defender said she told her GP she had not consented to sexual intercourse and suggested her GP had made a flippant remark along the lines of "men will be men". I find this part of the defender's evidence frankly incredible. [45] I note in passing that the defender's medical records were neither produced by the defender, nor requested by the pursuer. This also means that whilst I have been able to make a finding in fact regarding the defender's diagnosis of PTSD, I have made no finding in fact regarding the basis for this diagnosis having been made. [46] I find it impossible to reconcile the defender's account of systematic physical and sexual abuse at the hands of the pursuer throughout much of the parties` relationship with the large volume of affectionate messages exchanged contemporaneously between the parties. [47] These messages also included exchanges involving a level of sexual innuendo initiated by the defender to the pursuer, which in my view renders the defender's evidence in relation to sexual abuse at the hands of the pursuer unreliable. [48] In particular, whilst the defender insisted

that the nature of the parties' relationship changed after the first alleged incident of rape immediately following A's birth, the tone of messages between the parties appears to continue throughout their relationship. [49] In all these circumstances I have been unable to make any findings in fact in relation to sexual violence as alleged by the defender. [50] In a similar vein the defender alleged that the pursuer assaulted her on various occasions. One of these occasions involved the pursuer allegedly pushing the defender into a door frame, as a result of which the defender sustained bruising to her upper arm. [51] I was directed to a photograph of this bruising (process number 5/5/1) as evidence of the injury sustained by the defender, together with a contemporaneous message from the pursuer to the defender in which he used the word "sorry". [52] Counsel for the defender invited me to treat the message sent by the pursuer as an apology for his assault upon the defender. [53] The difficulty in this regard is firstly, that the pursuer's message contained no context for the apology, and secondly that the defender's response involved an emoji ordinarily used to signify "hearty laughter", which is not a response which might be expected in relation to an apology for an assault. [54] Accordingly, I have also been unable to make any findings in fact in relation to the allegations of

physical violence made by the defender. [55] Further, I find it difficult to reconcile the defender's serious allegations with her decision to write a letter in support of the pursuer's visa application following the parties' separation. [56] It will be noted I have made findings in fact in relation to the events of 13 October 2020. [57] I am satisfied that the pursuer slapped B. He sent a message to the defender confirming this. [58] The pursuer gave evidence regarding playing a "spinney monster" game with the boys and suggested he had struck B accidentally, but I found his evidence incredible in this regard, particularly given his own contemporaneous messages sent to the defender in apology. [59] I did not accept the pursuer's suggestion that B sustained an injury by accident, nor that he was concerned about how the defender would react to him playing roughly with the children. The terms of the pursuer's own message to the defender are clear and unambiguous. [60] I suspect the pursuer did not intend to cause the child an injury, but I am absolutely satisfied he did, as a matter of fact, slap the child. [61] I note Dr Cxxxxx made reference to the defender alleging the pursuer had assaulted A rather than B, and also to the child being smacked "on the bum" rather than on the cheek. [62] In cross-examination the defender conceded she deliberately provided Dr Cxxxxx with incorrect

information because she was frightened he would report the assault to the authorities if she told the truth. She went on to say she did not want Dr Cxxxxx to make a report regarding the pursuer's conduct because his visa was always in question and she did not want him to be taken away from the children. Given the context of the current dispute between the parties and the very serious allegations made by the defender against the pursuer, this passage of the defender's evidence does nothing to assist her credibility and reliability. [63] On the basis of the evidence led before me I have been unable to make any further findings in fact regarding the alleged assaults upon the children by the pursuer. [64] I note A made a disclosure at school regarding the pursuer smacking his bottom, but I do not recall the defender making reference to such an incident. [65] I note A's referral to play therapy was not made as a result of this disclosure and that A made no further disclosures during group sessions at CEDAR. [66] Whilst A made a disclosure to Ms Dxxxxx regarding having been slapped in the face when he was a baby, this seems to be remarkably similar to the incident involving B. I also note that A's discussions with the child welfare reporter appear to be somewhat muddled in this regard. [67] I note B made no disclosures in school, and that his referral for support was not based upon

child protection concerns. [68] The defender's evidence as a whole was somewhat undermined by her failure to make any concessions in cross-examination, even when faced with information which suggested her stated position was demonstratively incorrect. [69] I have already dealt with the care arrangements for the boys. [70] In addition, the defender gave evidence to the effect that following the pursuer's assault upon B and the pursuer's return to the family home, he at no point thereafter had sole care of the parties' children. [71] The defender was taken to a number of messages exchanged between the parties which indicated her position must be incorrect and yet she refused, for whatever reason, to accept this and insisted that the messages referred to did not reflect the true position. [72] I did not accept the defender's version of events in this regard and found her failure to acknowledge the clear terms of the messages somewhat troubling. [73] Again, I note the terms of the letters provided to the Home Office by the defender and her father in support of the pursuer's visa application completely fly in the face of the evidence given by the defender at proof. [74] For his part, the pursuer's allegations of controlling behaviour on the part of the defender appear to me to have been made purely as a response to the allegations made against him, and a clear attempt to discredit

the defender. Again, the detailed messages exchanged between the parties during their relationship do not in any way support the pursuer's position. [75] Having heard many days of evidence from both parties, it is understandable that much of the evidence before me related to allegations made by one against the other, but regrettable that a focus upon the boys themselves was somewhat lost. [76] In particular, the defender's craves in relation to parental rights and responsibilities and a specific issues order in relation to the boys' surname appear to have been nothing more than an afterthought in response to the pursuer's request for contact with his sons. The defender's craves were not examined in evidence to any great extent at all. [77] In general terms it is clear both parties love the boys and want what is best for them. [78] I have formed the impression that the parties each had different parenting styles, with the defender being more cautious and risk-averse whilst the pursuer was more involved in general "rough and tumble" activities of the sort one might expect where young boys are concerned. This was particularly evident from the evidence given by both in relation to the contact which took place following the parties' separation, and the boys' recollection of events at this time. Mxxxxx Ixxxxx [79] Mr Ixxxxx is a friend of the pursuer and has known him for over 10

years. He was supportive of the pursuer's request to have contact with the boys and indicated he had previously seen the boys in the company of their father on a regular basis. He described the pursuer as a loving and caring parent and opined the boys appeared to have a loving relationship with him. [80] I accepted Mr Ixxxxx's evidence but was unable to place much weight upon it because his evidence was mainly historical. Cxxxxx Mxxxxx [81] Ms Mxxxxx is also a friend of the pursuer and has known him since 2017. They have children of the same age. She too previously saw the boys in the company of their father on a regular basis. She described the pursuer as having a gentle approach with the boys. She described him having a good father-son relationship with the boys and reported they always ran straight to him at the end of nursery or playgroups when the pursuer picked them up. She is aware of the allegations made against the pursuer but does not believe them. [82] Again, I accepted Ms Mxxxxx's evidence but was unable to place much weight upon it due to the passage of time since she had last seen the children. Axxxxx Pxxxxx [83] Mr Pxxxxx is a pupil support assistant at xxxxx xxxxx within the Primary School. He described himself as a friend of both parties. He met the pursuer 4 or 5 years ago because their children attended the same play group, and then attended a childcare

course at college with the pursuer. [84] He described the parties as a close family and he was surprised to hear about their separation. He described the pursuer's parenting style as calm and relaxed and indicated he had never heard him raise his voice or shout at the boys, or even get frustrated. He opined the pursuer is a loving parent and had a close relationship with the boys. He was comfortable leaving his own children in the pursuer's care. [85] Again, whilst I accepted Mr Pxxxxx's evidence completely I note his affidavit was not specific regarding when he had last seen the pursuer with the boys. Yxxxxx Pxxxxx [86] Ms Pxxxxx is a qualified cognitive behavioural therapist who provided support to the defender following a referral by the defender's GP. She swore an affidavit on 21 June 2024 regarding her involvement with the defender. Counsel for the pursuer had no cross- examination for this witness and accordingly I accepted her evidence entirely. [87] I have, however, been able to make only limited findings in fact on the basis of her evidence since she had no contact with the pursuer or the parties' children. Information detailed in her affidavit was largely based upon disclosures made to her by the defender and whilst she made reference to the defender managing symptoms of Post-Traumatic Stress Disorder, it is not clear whether it was Ms Pxxxxx who made this diagnosis,

nor the basis upon which the diagnosis may have been made. Dr Cxxxxx [88] Dr Cxxxxx gave evidence in his capacity as a professional counsellor who had provided treatment to the defender. He was a straightforward witness who did his best to explain any medical terminology used by him or others. He was absolutely clear about what he could tell the court from his own evidence, and was able to separate that from information provided to him by the defender. I found him to be credible, reliable and insightful and I accepted his evidence entirely. Mxxxxx Dxxxxx [89] Ms Dxxxxx is a Children and Young People's Support Worker at Women's Aid. She provided one to one support to A following his referral to the CEDAR project by school. She swore an affidavit dated 8 July 2024 providing an outline of her involvement with the child A. She was clear in cross-examination that her involvement with the defender was only to facilitate the child's referral to her, and that she did not discuss the family dynamics with the defender. She confirmed the defender had her own support worker. [90] I am satisfied Ms Dxxxxx's evidence was based on the therapeutic work she carried out with A directly and that her evidence was not influenced by her necessary incidental contact with the defender. I found her to be a credible and reliable witness. Jxxxxx Mxxxxx [91] Mr Mxxxxx is the deputy Head Teacher at a

school in Perth and Kinross previously attended by the boys. His evidence largely centred around the fact that he assisted A in completion of the Form F9 before the court, and that A made a separate disclosure to him of having been assaulted by the pursuer. [92] The witness did not investigate the allegation, but followed appropriate child protection procedures. [93] He has never met the pursuer. [94] Mr Mxxxxx provided a clear report of his involvement with both children and I accepted his evidence. Cxxxxx Jxxxxx [95] Ms Jxxxxx is employed at the Rape and Sexual Abuse Centre in Perth. She was assigned as the defender's therapeutic support worker following a referral from the Rape and Sexual Abuse Centre. She first met with the defender in 2021 and continued to do so until the date of proof. She swore an affidavit dated 4 April 2024 outlining her involvement with the defender and detailing disclosure made to her by the defender. [96] In cross-examination Ms Jxxxxx confirmed that whilst she did not doubt information provided to her by the defender, she had never met the pursuer and was unaware of his position in relation to the allegations made against him by the defender. Kxxxxx Bxxxxx [97] Ms Bxxxxx is a team leader at the Children and Young People Services and at Children Experiencing Domestic Abuse Recovery Services within Women's Aid, Perth. She worked with the child A in

2022 and provided an affidavit outlining the nature of the CEDAR group project and A's attendance. [98] In cross-examination she was clearly able to identify information she provided from her own knowledge and information identified from the records kept by others. Her evidence was limited by the fact that A did not open up during the group work offered to him, hence the offer of further 1:1 support. [99] Ms Bxxxxx proceeded on the basis that mothers generally would not report something which had not in fact happened, but conceded her involvement was for a limited period and that she was supervising the person undertaking 1:1 work rather than undertaking this work herself. Jxxxxx Oxxxxx [100] Mr Oxxxxx is a former colleague and close friend of the defender. He signed an affidavit dated 9 April 2024 outlining his concerns regarding the defender's deteriorating mental health whilst living in family with the pursuer. [101] In cross-examination he confirmed he had never met the pursuer and that he saw himself as a friend in whom the defender could confide and trust. To some extent his evidence was limited since he essentially relayed information provided to him by the defender. [102] I found him to be a credible and reliable witness, and I accepted his evidence insofar as he witnessed a deterioration in the defender's demeanour over a period of time and was able to do so due to his

daily and regular interaction with her. What he could not assist with, however, was the reason for this deterioration. Submissions [103] At the conclusion of evidence I appointed parties to lodge written submissions and assigned a hearing on submissions. [104] Detailed and lengthy written submissions were lodged as requested and I am obliged to both counsel for their efforts in this regard. I did not feel it necessary for either party to address the court further, and this enabled me to discharge the hearing. [105] In support of her written submissions Ms Barbour invited me to have regard to the following authorities ­ 1.

NJDB v JEG (2012) SC (UKSC) 293 2. White v White 2001 SC 689 3. Chapter 9, Pages 295 ­ 342, Wilkinson & Norrie, The Law of Parent and Child in Scotland, 3rd Edition, 2013 4. B v Scottish Ministers (2010) SC 472 5. J v M (2016) SC 835 6. AB v CD (2024) SC KDY 2 . [106] For the defender Ms Davidson likewise invited me to have regard to the reported cases of White v White and J v M (above) and also to - 1. Strand Lobben v Norway Application No. 37283/13 (2020) 70 EHRR 14 2. M v K 2015 SLT 469 3. A v A [2021] SCGLW 018 at para 67 4. Blance v Blance 1978 S. L. T. 74 5. Sanderson v McManus 1997 SC (HL) 55 6. MT v TD 2001 S. C. 337 at para 58 Discussion [107] In this case the pursuer seeks an order for contact and opposes the orders sought by the defender. [108] Following the evidence, the pursuer lodged a Minute of Amendment (number 38 of process) which was not opposed by the defender. The effect of the Minute of Amendment was simply to seek to amend the wording of the crave for contact with the children. [109] Counsel for the pursuer proposed that in the event I was satisfied in principle that contact with the pursuer was in the best interests of the boys, I should assign a hearing to enable the court to hear further submissions and to further consider the best arrangement which could be put in place to give effect to such a determination. [110] The defender opposes the pursuer's

crave for contact and seeks craves of her own. [111] The defender's first crave is for a residence order in respect of the boys but the defender no longer insists upon this crave since she is unwilling to furnish the court with affidavits outlining the current arrangements for the care and upbringing of the children, including disclosure of her current address to the pursuer. I understand that during the course of these proceedings the defender's address was previously disclosed to the pursuer inadvertently, and she and the boys moved address as a result. [112] The defender also no longer insists upon her second crave, in terms of which she seeks an interdict prohibiting the pursuer from removing the children from her care and control. For what it is worth I consider this entirely appropriate, given there is no evidence suggesting the pursuer has ever attempted, or threatened, to remove the boys from her care. [113] The defender's third crave seeks a specific issue order to the effect that the surname of the boys is altered from "xxxxx xxxxx" to "xxxxx". [114] The defender also seeks an order depriving the pursuer of his parental rights and responsibilities in respect of each of the children. [115] Counsel were not in dispute regarding the law applicable in this case. [116] The issue between parties, inevitably, concerned the assessment or interpretation of the evidence

led. [117] Serious allegations of criminal conduct are made in this case. It was not in dispute that the standard of proof in relation to an allegation of criminal conduct made in civil proceedings is the balance of probabilities. [118] Further, the nature of the allegation may be such as to call for evidence of quality and weight, and for that evidence to be carefully examined and scrutinised ( B v Scottish Ministers ). [119] Section 11 of the 1995 Act contains the relevant provisions which are applicable when the court requires to make an order in relation to the exercise of parental rights or responsibilities. [120] The court has wide powers under section 11 to make orders as it thinks fit in relation to parental rights and responsibilities, including the power to regulate the arrangements for the care and upbringing of a child. [121] Section 11(7)(a) of the 1995 Act dictates that when the court is considering whether or not to make an order relating to parental responsibilities or parental rights, the court shall regard the welfare of the child as its paramount consideration. [122] In so far as practicable, taking into account the child's age and maturity, the court should give the child concerned an opportunity to express a view in relation to the orders sought. If the child does express a view the court should have regard to any views expressed by the child. [123] In

addition, the court shall 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. [124] In the circumstances of this case the terms of subsection (7B) are also invoked, and the court also requires to have regard to the particular matters mentioned therein. [125] Those "particular matters" are: "(a) the need to protect the child from ­ any abuse; or 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 (d) the effect any abuse, or the risk of any abuse, might have on the carrying out of responsibilities in connection with the welfare of the child, by a person who has...those responsibilities." [126] For the purposes of this case section 11(7C) defines "abuse" as including violence. [127] Under section 11(7D), the court must also consider whether it would be appropriate to make an order, where in pursuance of that order two or more relevant persons would have to co-operate with one another as respects matters affecting the child. Contact [128] In this case the court requires to consider whether or not a contact

order should be made in favour of the pursuer in relation to one, or other or both of his sons. [129] In opposition to the pursuer's crave for contact the defender has made a number of serious allegations, and I have dealt with these above. [130] I have been unable, on the basis of the evidence before me and for the reasons stated above, to make any findings in fact in relation to many of the defender's allegations. [131] I have, however, found it established that the pursuer slapped B in October 2020. [132] This finding invokes the terms of section 11(7B) since it involves an incident of "abuse" in the form of violence which affects, or may affect, the child. [133] Ordinarily a single incident of this type might not be expected to lead to a refusal of all contact between parent and child in the future. [134] This court has considerable experience of cases where there are concerns regarding, for example, minor incidents which bring into question a parent's suitability to exercise contact with a child, or an ability to care for a child even for short periods of time. In such cases contact often takes place within the confines of contact centres, which are an invaluable resource and provide both supervision and support where necessary. [135] In this case, however, there are further obstacles which the pursuer requires to overcome if he is to satisfy the court that it is in the

best interests of his sons for the court to find him entitled to contact with them, in any shape or form. [136] The first difficulty is the views of the boys themselves. The views of both boys have been obtained. Neither child has expressed a wish to have contact with the pursuer. In light of the ages of the boys this is not a determinative factor, although I note that the views of A have been consistent since first obtained in 2023. [137] The more fundamental difficulty is the terms of section 11(7D) which requires me, when considering making such an order, to have regard to the fact that the parties would have to co-operate with one another in the event an order of contact was made in favour of the pursuer. [138] For whatever reason (and in the absence of medical records being produced I have been unable to make a finding in fact regarding any specific reason) the defender suffers from significant difficulties in relation to her mental health. She has experienced general anxiety since she was 19 years old. She has an established diagnosis of PTSD. [139] During the proof the defender had the benefit of vulnerable witness measures. The proof took place in a relatively small court room, and consistently in the same court room in order that the defender knew what to expect at each calling of the action. [140] At each and every hearing arrangements were made for the pursuer to

enter the court first and to be hidden from the defender by a screen. The defender entered the court second, in the company of an authorised supporter. [141] Despite these measures the defender was demonstrably upset throughout, often to the point of tears. On occasions it was necessary to have a break in proceedings to enable her to recover her composure. [142] I should say I am aware the pursuer was also visibly distressed on occasion, particularly when it was suggested by the defender that the parties' son B was conceived as a result of rape. However, the pursuer also indicated he would have no difficulty with any measures the court might see fit to put in place in order to re-establish his relationship with the parties' sons. [143] The defender alleges a pattern of violent sexual behaviour involving unwanted and, on occasions forcible sexual contact by the pursuer including rape. Whilst I have been unable to make findings in fact in this regard there is no doubt that the pursuer is absolutely convinced that her relationship with the pursuer was physically abusive and sexually violent. [144] If contact between the pursuer and the boys was recommenced it would not, as a matter of fact, be possible for the defender to participate in any meaningful way. [145] The defender is unable to communicate with the pursuer, whether directly or indirectly. [146] She is unable to supervise

contact between the pursuer and the boys. She previously tried to do so, and I have found in fact that her mental health has improved since contact between the boys and the pursuer was brought to an end. [147] In these circumstances, it is simply not possible for me to require the defender to participate in any form of contact handover, even if this were able to take place at a contact centre or in another public place. [148] It is notable I heard no evidence from the defender's family, or any other third party who may or may not be able to assist. The pursuer led no evidence at all in this regard, and made no such proposals in his own evidence. [149] In any event, even if a third party was able to assist in practical arrangements for contact this would not, in my view, enable me to make the order sought by the pursuer. [150] In light of the defender's mental health and her catastrophic thinking pattern, there is no measure of supervision or monitoring which could be put in place in order to facilitate contact between the pursuer and the boys which would provide the defender with reassurance regarding their safety and wellbeing. [151] Undoubtedly, any award of contact made in favour of the pursuer would be detrimental to the defender's mental health. She would be continuously worried about the boys, and anxious about their safety. She would be scared all the time. [152] The

defender's metal health has improved greatly since the parties' separation. The introduction of contact between the pursuer and the boys would have a significant and detrimental impact upon the defender's mental health, which would inevitably impact upon her ability to care for the boys. [153] It should be remembered that the defender is the primary carer for the parties' sons. The pursuer was not at all critical of her ability to take care of the boys. It is in the best interests of the boys that the defender is able to maintain her mental health to enable her to continue to do so. [154] I recognise that refusing contact between a parent and child is a "serious step" which requires "exceptional circumstances" ( J v M 2016 SC 835 ). [155] I have nonetheless reached the conclusion that it is not in the best interests of the boys to have contact with the pursuer. [156] In reaching this conclusion I take account of the case of J v M 2016 835. I agree that one parent should not be given a veto over contact, but I am satisfied that is not the case here. [157] In this case it cannot be said that the defender is intractably opposed to contact, or has tried to veto contact. On the contrary, the defender herself initially agreed to facilitate contact between the pursuer and the boys. Further, she personally supervised contact for a period of time. [158] Having regard to her own view of

the pursuer and his alleged conduct, one might have expected the defender not to allow any contact to take place unless it was ordered by the court. She did not do so. Instead, she personally supervised contact until she concluded she either should not or could not continue to do so. [159] I agree with counsel for the defender that the pursuer has failed to satisfy the evidential burden upon him. [160] Much of the evidence led on behalf of the pursuer concentrated upon his previous relationship with the boys and the level of care undertaken by him when the parties resided together. [161] Whilst this is understandable, no evidence was led suggesting that reinstatement of contact between the children and their father would be in the best interests of the children. [162] In particular, no evidence was led regarding how any contact sought by the pursuer would ­ or even could ­ operate or how it would be facilitated. Parental rights and responsibilities [163] The defender seeks an order depriving the pursuer of his parental responsibilities and his parental rights in relation to the parties' children. [164] In her written submissions counsel for the defender submitted that if the court was satisfied that the abuse alleged by the defender against herself and the children had taken place then the court should deprive the pursuer of his parental responsibilities and his parental

rights, and further grant an order allowing for the children's surname to be changed. [165] It will be seen from the limited findings in fact made that I am not so satisfied. Counsel for the defender submitted that in this event I should suspend the pursuer's parental responsibilities and parental rights. [166] In this regard, I was referred to an unreported decision made at Kirkcaldy by my brother sheriff, Sheriff Reid ( AB v CD ), where the court was not persuaded to remove the parental rights and responsibilities of a child's father but suspended same. [167] In AB v CD court orders were made regulating the arrangements for the care and upbringing of the parties' child in 2017. A residence order was granted in favour of the child's mother. In 2018 serious criminal allegations were made against the child's father and at that time a further court order provided that he should have no contact with the child. The father was later convicted of sexual offences against the child's mother and her two daughters. He was sentenced to 4 years' imprisonment and an extended period of supervision for 2 years. He was due to be released from custody and indicated he sought contact with his son upon his release from custody. The child knew his father was in custody, but not the reason for this. [168] The circumstances in this case are somewhat different. [169] I appreciate no residence order

has been sought or granted in favour of the defender, and accordingly there is no court order regulating the arrangements for the care and upbringing of the children in this case. [170] Nonetheless, there is no doubt that a status quo has emerged since July 2022, namely that the boys reside with the defender and have no contact with the pursuer. [171] The pursuer has not been convicted of an offence. [172] I have found it established on the balance of probabilities that the pursuer slapped the child B on a solitary occasion in 2020. [173] In my view a single incident of this type would not necessarily preclude future contact between parent and child, subject to appropriate arrangements being put in place to ensure that contact took place in a manner which was in the best interests of the child concerned. [174] The pursuer holds parental rights and parental responsibilities in relation to both the boys. [175] As a matter of fact the pursuer has not exercised either his parental rights or his parental responsibilities since contact was brought to an end in July 2022. [176] The pursuer has been prevented by the defender's actions from exercising either parental rights or parental responsibilities in relation to the boys since July 2022. [177] That, in my view, is not a proper basis upon which to deprive him from doing so. [178] When the defender stopped contact between the pursuer

and the boys the pursuer's solicitors sought the reintroduction of contact. [179] At that time, as at proof, the pursuer expressed a willingness to exercise contact with the boys under supervision or other conditions which might be sought by the defender. [180] The pursuer was thereafter arrested by the police and interviewed. He has continued to seek contact with his sons by virtue of raising this action. [181] In this case, no evidence was led before me to suggest that either of the children knows, or understands, that the pursuer does in fact have parental rights and responsibilities in relation to them. [182] The child A commented in a Form F9 that he would not like the pursuer to "make decisions about him". The Form F9 was completed in 2023 when the child was 8 years old. In my experience many parents find it difficult to understand the concept of parental rights and responsibilities, far less an eight year old child. [183] I appreciate B has not volunteered any views in relation to parental rights and responsibilities, but again, given his age, I would not expect him to understand this legal concept. [184] In practice, from the point of view of the children, they reside with the defender. They are aware they used to live in family with the pursuer. They are aware that when their parents first separated they used to see the pursuer on a regular basis, in the company

of their mother. They know that they have moved home and have changed schools since then. They know that these decisions are made by adults, and nothing more. [185] As stated by Sheriff Reid, a decision to remove parental rights and responsibilities is an interference with the rights of both parent and child under Article 8 of the European Convention on Human Rights. [186] I am invited to interfere with the pursuer's Article 8 rights. [187] Any such interference must be in pursuit of a legitimate aim and must be "necessary in a democratic society". [188] Securing the best interests of a child is a legitimate aim, but in my view is not justified in this case given the very limited findings in fact I have been able to make regarding the pursuer's conduct towards the defender and the boys. [189] In my view such an interference is not proportionate in this case, having regard to the existing status quo. Specific issue order [190] The defender also seeks a specific issue order to the effect that the boys' surname should be changed from "xxxxx xxxxx" to "xxxxx". [191] She suggested in evidence that the boys have asked for their names to be changed. Her evidence was to the effect that because the boys use the pursuer's first given name as part of their surname they are repeatedly having to use his name, and they do not like that. [192] The defender's evidence in this regard was not

borne out by the information provided by the child welfare reporter. A told her that he already uses the name "xxxxx" and B told the child welfare reporter his full name without comment. [193] The written submissions lodged on behalf of both parties do not dwell to any great extent upon this crave, but counsel for the pursuer did touch briefly upon the fact that the boys have two cultures and two heritages. [194] Counsel for the defender submitted that the court had independent evidence of the views held by the children in relation to their surname. In fact, as I have indicated above, this evidence was to the effect that A in fact no longer uses his father's surname, whilst B told the child welfare reporter his full name without difficulty or comment. [195] Counsel for the defender further submitted it was in the best interests of the children, having suffered abuse by the pursuer, that they do not continue to have a connection with him by way of his surname. [196] I consider this is an over-simplification of the position, not only in light of the limited findings in fact I have been able to make regarding abuse, but more significantly in light of the fact that the boys are of mixed heritage. [197] I have found in fact that the boys' father is Pakistani and Muslim, and that their mother is Scottish and non-religious. [198] Furthermore, I note that both boys have forenames which

are of Muslim origin. [199] The evidence led before me did not examine what, if anything, the boys make of their mixed heritage, but it is within judicial knowledge in the context of adoption proceedings that it is important for children to know where they come from. [200] In these circumstances, I am not satisfied it is in the best interests of the children that their surnames are altered, notwithstanding this court has no power to insist upon the defender or the boys using their double-barrelled surnames if they do not wish to do so. Decision [201] For the reasons given I shall pronounce an interlocutor dismissing the craves insisted upon by both parties. Expenses [202] The written submissions lodged do not touch upon the issue of expenses and I will assign a hearing in that regard. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII URL: https://www.bailii.org/scot/cases/ScotSC/2026/2026scper15.html