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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McG v. McG [2006] ScotCS CSOH_122 (08 August 2006) URL: https://www.bailii.org/scot/cases/ScotCS/2006/CSOH_122.html Cite as: [2006] ScotCS CSOH_122, [2006] CSOH 122 |
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OUTER HOUSE, COURT OF SESSION [2006] CSOH 122 |
|
F32/05 |
OPINION OF LORD McEWAN in the cause McG Pursuer; against McG Defender: ________________ |
Pursuer:
Mundy; Balfour & Manson, WS
Defender: Ms Dowdall;
Mathieson Ritch,
[2] The evidence divided fairly easily into chapters viz the breakup of the marriage in July 2004 and a subsequent arrangement for joint caring; the disappearance of the mother and the children in November 2004; the resumption of contact in May 2005 and events following the first diet of proof in April 2006. Most of the facts were either agreed or not seriously disputed. The father and SQ gave evidence, as did the mother and WM. There were affidavits from two grandparents (somewhat dated now) and a school teacher and a very comprehensive report from Miss Stirling, the Court Reporter.
[3] I
found it established from the evidence of both the father and mother that the
marriage became unhappy in 2004. The
reason for this was not clear and was not explored in any detail. In July 2004, the mother left the matrimonial
home in Wallyford and did not return.
She left the children with the father.
I find that at this time she was already associating with WM. Two weeks after she left the father, the mother
wrote the letter No 6/4 of Process. He
found it in his home. I need not narrate
the letter here. Part of it is averred
on the Record. Suffice to say that it is
fulsome in praise of the father as a parent.
The mother said she had written it two weeks after the separation and
when she was very unhappy. It must have
been a bitter blow for the father to receive it, whatever it said. As the summer went on, the parties split
their time with the children. During the
week, the father would have them two days one week, three the next and the
mother the same. Weekends were taken
alternately. The mother was living with
her parents in Wallyford and their home is only five minutes walk from the
father's. For a time, this arrangement
worked well. The father then met SQ whom
he had known many years before. She had
been married and divorced and had recently returned from
[4] It is convenient here to look at what is averred on Record in Condescendence 3.1 and 3.2. It is said that some of the difficulties in the marriage were related to the need to discipline the child C. The system of discipline (which resulted from a medical referral and which endures to this day) was described by the father as a two warning regime and then if C continued to misbehave; he was made to sit on the stairs as a "time out". It may seem strange and unusual but it appears to work. It is my impression from his evidence that the father took this discipline more seriously than the mother, but I doubt that it really contributed in any way to the end of the marriage. That was probably due to the appearance of another man in the mother's life.
[5] This
uneasy arrangement with the children continued until November 2004. I held it proved (evidence of the father,
mother and WM) that at some point WM lived with the mother at her parents'
house in Wallyford. His presence
exacerbated an already difficult situation.
The Record (Article 3.4) avers that on
[6] On
[7] On the Monday, the father took T and C to their grandparents. He never saw them again for six months, and in spite of his many efforts, the mother refused to say where they and she were. From her own evidence, I hold that she planned all of this. What happened thereafter is not disputed and I take from the mother's own evidence.
[8] WM
was unemployed. He and the mother were
living in homeless accommodation in Port Seton.
After school on Monday 22 November, the mother took the children to
[9] What
then happened is even more extraordinary.
The father said that he had to report his wife and the children as
missing. He made inquiry of the school
in case their records had been requested.
In March 2005, the father received notice of an action of divorce raised
by the mother in
[10] On 21 April, the father enrolled for contact and Lord Brodie
heard the motion. A Reporter was
appointed and I have read and considered her very full report. Moving slightly ahead, a detailed residential
contact order was made by Lord Hodge on 30 June effectively for alternate
weekends. The father, however, had to
collect and redeliver the children at a neutral point in
[11] However, before contact was regularised, the father was allowed
to see the children on
[12] Before returning to contact, there is another matter which I should note, as it was not disputed. It concerns the matrimonial home in Wallyford. By 2005, the pursuer and SQ were living together there. The house had to be sold and the pursuer wanted to sell it to the Local Authority who would have allowed him to remain as a tenant. The defender would not agree to that and as a result the house was sold on the open market late in 2005. This had two consequences. The pursuer and SQ became homeless and had to live in temporary accommodation until their present house was built. They were only able to move there in March 2006. The other consequence is that there remains a sum of money which both parties will eventually have to share. There exists, unsurprisingly, a dispute about it.
[13] I now resume consideration of contact. It has to be appreciated that the only
communication the parties have with each other is through solicitors. This is depressing and leads to continual
problems over dates of residential contact and other necessary
arrangements. Late in the day, both
acknowledged that they would have to seek the help of the mediation
services. The burden of the contact
arrangement fell on the father and he is to be commended for making the
arrangement work. There were
problems. At times traffic was heavy and
he might run late. I hold it established
that he kept the mother informed about this.
I also accept the father when he said that there were some cold and
hostile exchanges at Govan Cross, especially when WM was present. I am sure the children were aware of
this. While the mother did not frustrate
contact, she did very little actively to encourage anything beyond what the
court allowed. That was the situation
faced by me at the first diet of proof in April 2006. I indicated that I was not content with the
existing arrangement having heard the evidence I have just described. For example, the pursuer said that he often
returned the children to
[14] On four occasions contact has happened. Since all of these are recent events there are no averments on Record as to what happened. I only heard from the parties SQ and WM. The evidence was conflicting and it would have helped to have had an independent view. Witnesses who could have been called were not. I suspect that any difficulties were more apparent than real and the ongoing hostile exchanges soon forgotten. On 5 May, contact took place. I am prepared to accept that when the children were handed over in a kind of "no man's land" at the end of a vennel that voices were raised. The pursuer and SQ said WM was there and swore and issued threats. The defender and WM denied it. I have no independent corroboration and can form no view. It is something and nothing. There was contact on 19 May but again the pursuer had to do all the driving. The defender said her car had broken down. On 2 June, there was an alleged incident with the defender's father involving the Wallyford Gala day and a problem with what shoes T was to wear at the Gala. Once more a number of independent people must have heard and witnessed events but were not called. Again it is something and nothing. That night the baby R. was born. On 16 June, contact was successful. I hold it proved that the defender refused the pursuer contact to C on his birthday. The father was, however, allowed to phone his son.
[15] There is one final matter over contact which needs mentioned as it is illustrative of the attitude of the parties, especially the defender. During the continued proof in July, it became apparent that the defender and the children were living in Wallyford at her parents' home. The father was not offered any contact by the mother. I insisted that some contact take place and this happened without difficulty on Thursday 7 July.
[16] I now move to consider the accommodation each party can offer and the respective merits of Wallyford over Crookston. The defender's home is recently built. It is in a cul de sac. There are three bedrooms and each child has their own bedroom. It has a secure rear garden. Both children have friends of their own age in the area. The defender and WM spend time with the children and share cooking, cleaning, playing with and reading to the children. They are taken to parties and a nearby park. They also have a new extended family. WM has a mother and sisters who have children. Obviously, when the defender takes the children to her parents in Wallyford, they see her sister and brother and cousins. The girl T, has started brownies and dancing classes. WM has a child, G, (now 12 years old) from a former relationship, whom he brought up. He has contact with her regularly.
[17] Something should be said here about the suggestion made by the pursuer that the children have been in betting shops and public houses. The pursuer blames WM for this. However, the source of this belief is chance comments made by the children. For example, C is alleged to have been somewhere where there were televisions showing horses. I attach little importance to the alleged remarks of the children to either party. Such remarks are hearsay, uncorroborated and cannot be cross‑examined. At best, they are unreliable. Also, it is well known especially in cases like this that children can be "coached" to pass on the opinion of a parent or to say what the other party does not want to hear. At other times, children of that age can simply have a vivid imagination. In this case, I do not accept what the pursuer has said. I am certain that it stems from his intense dislike of WM. I believed the defender and WM who said that the children have only been on licensed premises when all were there for a meal. C has, it was accepted, been in a snooker hall when he may coincidentally have seen horse racing on TV.
[18] The accommodation in Wallyford is comparable but in some ways less satisfactory. The pursuer's house is newly built and is in a safe environment. There are three bedrooms. The pursuer and SQ share one with the baby R. M sleeps in another one. When contact takes place, T shares with M and at present C has his own room. When R is old enough, he will also have that room. Should the children go to Wallyford, the sleeping arrangements on a permanent basis would be cramped as the children grow up. I have no doubt they work well at contact time.
[19] I accept that the playing and social facilities in Wallyford are good. C and T would be closer to most of their extended family. The pursuer strongly emphasised this in his evidence, yet the proof disclosed at least two unfortunate features. He is estranged from his own father and has some ongoing problem with one of his sisters.
[20] What of education? The children have not been to school in Wallyford since they left. However, the evidence shows that there is a perfectly good primary school there and I do not doubt that they would both settle there (see 6/18 of Process). At present they go to a primary school and nursery in Glasgow (see Nos 6/13, 6/15 and 6/20 and 6/21 of Process; also 7/8, 7/1 and 7/5). It is clear that both children are doing well at school. Something was made about school absences. They do appear to be significant but in the context of a disrupted family and the problems of contact, I do not think it is demonstrated that they are excessive or causing any problem with ongoing education.
[21] There was a short hearing on evidence and the arguments of the parties may be summarised thus.
[22] Mr Mundy moved me to grant a residence order and then put the
case out By Order for a further hearing on contact. He suggested, and I agree, that both children
are too young to be interviewed. Counsel
took me to the Children (
[24] The mother had been the main carer of the children since birth. Although her parents lived in Wallyford, the father now had no happy relationship with them as evinced by the Gala day episode. Both parties were at fault over contact, largely due to an unwillingness or inability to communicate. Summer contact had been resolved. The children should suffer no further avoidable disruption. The mother should not be punished for any past misdemeanours. That would be to penalise the children and conduct an experiment on them. Residence to the pursuer should be refused, and the court should regulate contact with or without mediation.
[25] What then is to be done? In my view, much of the evidence relating to the present is fairly evenly balanced. For example, I am sure schooling and general amenity comes out even between Glasgow and Wallyford. Neither the pursuer nor WM are working at present, although both indicated that they intend to do so when matters settle down. It is a matter of great concern that the parties do not communicate in a way which is to the benefit of the children. Children apart, and having seen them both in the witness box, I suspect that there is something very deep seated wrong with their relationship. The matter was not investigated in this process, and I can only hope things will improve. The various estrangements within Wallyford are unhelpful at the present time.
[26] I do not think I can or should attach great importance to past
events or the problems of contact. In
this latter respect, I am sure there have been faults on both sides. As I have stated earlier, I have only heard
conflicting accounts from both sides and without some independent witness, it
is almost impossible to make sensible findings on credibility. It is quite clear that other people witnessed
some of the events spoken about but were not called. I can only hope that the contact ongoing as
this opinion is being written will work; and I will review it later this
summer.
[27] Something was said about the Report No 16 of Process. It is an excellent report and I compliment
Miss Stirling. It is quite true that she
found the defender untruthful in part but the same could be said of the
pursuer. The report is now dated and,
for that reason alone, it cannot be decisive for present purposes. What is decisive, in my opinion, is the home
environment. The defender, for all her
faults, has been the principal carer of the children since birth. They are well looked after and are thriving. They appear to be fond of WM and he of
them. Their schooling is satisfactory. They do have better accommodation in Glasgow,
each with their own bedroom. The
defender intends to stay in
[28] On the other hand, if they were to move to Wallyford, they would
have less accommodation and T would have to share a bedroom. Also, they would be growing up in a new
family to which they would be unused. SQ
was a good witness, but I think caring for four children is not a burden she
should be asked to bear at this time, especially if the pursuer went back to
work. It is my opinion that it is in the
best interests of T and C to grow up together and remain where they are in
[29] I will accordingly refuse the first conclusion of the summons
and find it unnecessary to deal with the second and fourth conclusions. I will repel the pursuer's first, third and
fifth pleas-in-law. I will sustain the
first, third and fifth pleas-in-law for the defender. Quoad
ultra I will put the case out By Order on a date to be fixed for further
discussion on contact and disposal of the remaining pleas-in-law.