P.a.d. V. A.a.b.
| Jurisdiction | Scotland |
| Judge | Sheriff Malcolm Garden |
| Court | Sheriff Court |
| Date | 02 March 2011 |
| Docket Number | F341/07 |
| Published date | 16 March 2011 |
SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT ABERDEEN
F341/07
| INTERLOCUTOR | ||
| in causa | ||
| PAD | ||
| Pursuer and Minuter | ||
| against | ||
| AAB | ||
| Defender and Respondent _________________________ |
Act: Buchan
Alt: Barclay
ABERDEEN, 2 March 2011.
The Sheriff, having resumed consideration of the cause, finds the following facts admitted or proved.
1) The pursuer and minuter is PAD, aged 29, who is employed as a postman. The pursuer resides in Aberdeen.
2) The defender and respondent is AAB, aged 25, a housewife. The defender formerly resided in Aberdeen but now resides in Greenock.
3) The parties are respectively the father and mother of child RAD, currently aged four, and born at Aberdeen on 23 March 2006.
4) The parties are not married.
5) Both parties have parental rights and responsibilities, the pursuer deriving those from a registered agreement, registered on 9 August 2006.
6) There is no formal order regulating the residence of RAD. From birth, the child has resided with the defender. Following upon the parties' separation in August 2006 the said child continued to reside with the defender. The pursuer's contact with the said child is regulated by interlocutor of this court dated 27 December 2007. Said interlocutor provides for residential contact on a four weekly cycle in week one from Friday to Monday with one additional overnight day during the week, week two providing overnight contact on Friday and Sunday nights and one further night during the week, week three repeating week one and week four for one night during the week. There is also provision for holiday contact and alternating contact on Christmas Day and RAD's birthday.
7) Parties regard this arrangement as being a shared care arrangement.
8) The defender moved to Greenock in July 2010. Since that time parties have adjusted the contact arrangements by agreement.
9) The pursuer's full-time employment as a postman involves him in working certain weekends and from early morning. As a result, to accommodate contact with the child, he has required to rely to a major extent, on assistance from his mother, KD. The child sleeps at the pursuer's mother's house on around half of occasions when attending for contact with the pursuer.
10) By agreement between the parties the child was enrolled at Walker Road Nursery School. It was agreed that whichever party had the child overnight on any particular day would take the child to the nursery.
11) The pursuer was largely assisted in this task by his mother, KD. His record at getting the child to nursery is excellent.
12) For a variety of reasons, the defender's record in facilitating the attendance of the child at nursery is poor. The child now resides in Greenock and when there attends Overton Nursery. The defender's record of facilitating the child's attendance at that nursery has also been poor.
13) When on contact visits in Aberdeen the child has continued to attend at Walker Road Nursery. The pursuer's record of facilitating his attendance there has remained excellent.
14) Both parties have accepted advice that RAD requires speech therapy. The pursuer and his mother, KD, instigated appropriate arrangements. A number of appointments for speech therapy were missed, mainly when RAD was in the care of the defender. There were difficulties regarding intimation and arrangements for said appointments. The defender did not make it a priority to ensure that the child attended such appointments.
15) Joint minute number 24 of process is an agreement between the parties that each undertake to ensure that the child attends nursery school and medical appointments including speech therapy and to keep one another informed of medical and educational developments.
16) Following upon the parties' separation, they held regular meetings with one another to discuss the care and upbringing of RAD. Said meetings ceased at the instigation of the defender as she considered that the pursuer sought to misuse the meetings as a platform for reconciliation. Parties continued to discuss care arrangements for RAD on occasions when they met, principally at contact changeover times.
17) The defender complained to the pursuer that she believed that he, on occasions, allowed the child excessive quantities of juice drinks. She advised him of one occasion when she had refused to allow the child a drink before eating his breakfast. She asked that he exercised control over the number of drinks he allowed the child.
18) This situation was elevated by the pursuer and his mother, KD, to a complaint to the social work department, complaining that the defender withheld fluids from the child. Said complaint was not warranted.
19) The defender's property in Aberdeen included a steep staircase. The child's bedroom was upstairs. The defender had a stair gate which fitted the frame of the child's bedroom door but did not fit across the top of the stairs. The defender permitted the child to play alone in his bedroom fitting the stair gate across his door to prevent his exiting from the bedroom and falling on the steep stairs. On these occasions, the defender would monitor the child's activities and check him on a regular basis. The time periods involved were not unreasonable. The defender advised the pursuer at one point that she followed this practice. This followed from an isolated incident when the child had smeared faeces from his nappy on the wall of his bedroom. The defender had discovered this when checking and had appropriately cleaned the child and the bedroom.
20) This incident was elevated by the defender and his mother, KD, to a complaint to the social work department, claiming that the defender locked the child behind a stair gate in his bedroom for long periods of time. This complaint was not warranted.
21) The defender advised the pursuer that on one occasion she had smacked the child. The pursuer and his mother do not smack the child. Smacking is not a form of behaviour control recommended by social workers. The defender does not use smacking to an unreasonable extent, her limited use thereof does not constitute abuse of the child nor is it to the detriment of his welfare.
22) The pursuer and his mother, KD, initially made a complaint to the child's health visitor concerning the issues of nursery attendance, smacking, an allegation that the child was not kept clean or appropriately dressed, withholding of fluids and shutting the child away for long periods of time. They were advised that if they remained concerned they should report their concerns to the social work department.
23) Over four months after raising their concerns with the health visitor, the pursuer and his mother, KD, attended at the social work offices to make a complaint against the defender and her care of the said child focussing on the same issues. Social work undertook an investigation and were satisfied that the defender's level of care was satisfactory.
24) The pursuer's mother, KD, is the dominant figure within her family. She takes a major and leading role in the care of RAD when he is with the pursuer for contact periods.
25) The present arrangements for care of RAD are unsatisfactory due to the number and level of different surroundings and carers involved. The requirement for the pursuer's mother to take a major and leading role during contact periods is not satisfactory. In any event they are now rendered unworkable by the defender's moving outwith Aberdeen and the child's age whereby, in particular, he will shortly require to attend one primary school.
26) In the event that the child were to reside with the pursuer, he would require to either reduce his employment to part-time working, which he will be able to do, or to cease work altogether. By doing so, he would reduce the number of hours during which the child would be in the sole care of his mother, KD, or other family members. He would however, continue to rely on their assistance and would continue to be strongly influenced by his mother, KD.
27) The defender is now married and is expecting her third child shortly. Her husband is in employment as a kitchen porter. She is not in employment.
28) In the event that residence of RAD remains with the defender he will reside in a family unit. The defender has a support network comprising her husband's extended family. Her parents-in-law live close to their address. The defender and her husband have stable accommodation although they may require larger accommodation in the medium term. The defender does not have a dominant outside influence.
29) Both parties are able to provide the child with a satisfactory level of physical care.
30) The defender is better able to provide the child with a satisfactory level of emotional care and a family environment.
Finds in Fact and in Law
1) That the present arrangement is not in the best interests of the welfare of RAD.
2) It is in the best interests of the welfare of RAD that he reside with the defender and that an order for residence be made in her favour.
3) It is in the best interests of the welfare of the child that he should maintain contact with the pursuer and that an order for contact be made in favour of the pursuer.
4) In the circumstances, it is better that such orders be made rather than no order being made.
5) There is no requirement for the granting of Interdict.
Accordingly, sustains defender's pleas-in-law 1, 3 and 4 and repels defender's pleas-in-law 2 and 5; sustains pursuer's plea-in-law 4 and repels pursuer's pleas-in-law 1, 2 and 3; Dismisses pursuer's craves 1,2 and 6 and defender's crave 2;
and therefore
(1) Recalls the contact order set out in interlocutor dated 27 December 2007;
(2) Makes a residence order in terms of section 11(2)(c) of the Children (Scotland) Act 1995 providing that the said child, RAD, born 23 March 2006, shall live with the defender, AAB,
(3) Makes a contact order in terms of section 11(2)(d) of...
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