NF against AF (Court of Session)

Factual and Procedural Background

This opinion concerns a case remitted from the Sheriff Court at Edinburgh involving parental orders regarding two daughters of the parties' relationship. The parties were in a relationship from 2000 and married in 2014. The children, anonymized as Mary and Anne, were born in 2008 and 2011 respectively. A Curator ad litem was appointed to represent the interests of the children. Mary has since turned 16, removing the court's jurisdiction to make orders concerning her.

The pursuer sought a residence order for Anne to live with him, or failing that, a contact order. The defender sought a specific issue order permitting her to remove Anne from the UK for up to 21 days annually without requiring the pursuer's consent. The case proceeded to proof, with extensive evidence considered concerning the parties' relationship, allegations of abuse, and the children's welfare.

Legal Issues Presented

1. Whether the court should grant a residence order for Anne to live with the pursuer.
2. Whether the court should grant a contact order between the pursuer and Anne.
3. Whether the defender should be granted a specific issue order permitting removal of Anne from the UK for holidays without the pursuer's consent.
4. How the court should apply the welfare principle under section 11(7) of the Children (Scotland) Act 1995 in light of allegations and evidence presented.
5. The relevance and impact of possession and knowledge of illicit materials found in the family home on the parties and children’s welfare.

Arguments of the Parties

Pursuer's Arguments

• The pursuer denied possession of illicit materials and any abuse or inappropriate parenting.
• He alleged the defender alienated the children from him through false and malicious accusations and controlling their perceptions.
• He relied on expert evidence to assert that the defender’s conduct constituted emotional abuse and that the children had been harmed by being led to believe false narratives about him.
• The pursuer invited the court to find the defender's evidence incredible and lacking independent support.
• He submitted the court had a duty to remove the children from an abusive environment and sought a residence order for Anne.
• He rejected indirect (letterbox) contact as unrealistic under the circumstances.

Defender's Arguments

• The defender maintained that evidence relating to her knowledge of the illicit materials was irrelevant and denied prior knowledge.
• She asserted the illicit materials were the pursuer's, supported by forensic evidence including creation dates and device usage.
• The defender contended her actions after discovering the illicit materials were justified as a protective mother.
• She denied allegations of abuse by the pursuer and argued there was insufficient evidence to support such claims.
• The defender opposed contact between the pursuer and Anne and sought only the specific issue order allowing her to remove Anne from the UK for holidays.
• She emphasized the children's views opposing contact and the court’s obligation to respect those views.

Curator ad litem's Arguments

• The curator ad litem did not take sides but focused solely on the children's welfare.
• She highlighted the defender’s conduct as emotional abuse causing alienation of the pursuer from the children.
• She acknowledged the children were doing well socially and developmentally despite the harm caused.
• The curator ad litem supported indirect contact between the pursuer and Anne but recognized practical difficulties.
• She supported the defender’s specific issue order for removal of Anne from the UK for holidays to avoid repeated litigation.
• She submitted that the children had a right to know the court’s findings and that correcting their misapprehensions was in their best interests.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully considered the evidence from both parties, expert reports, and the submissions of the curator ad litem. It applied the legal framework under the Children (Scotland) Act 1995, particularly section 11(7), which mandates that the welfare of the child is the paramount consideration and requires the court to make orders only if better for the child than no order.

The court found both parties had historical awareness of illicit materials connected to a joint television programme project, rejecting their explanations about discovery and knowledge. The defender’s claim of no prior knowledge was not accepted due to circumstances including the unsecured nature of the materials, the defender’s extensive examination of the discs, and destruction of evidence post-trial.

The court concluded that the defender knowingly made false and escalating allegations of abuse against the pursuer, including sexual abuse, which were unsupported by social work records, police statements, and forensic medical examinations. This conduct was found to constitute direct emotional abuse of the children through alienation from the pursuer.

Despite the harm caused by the defender’s conduct, the court acknowledged the children’s current well-being and close relationship with the defender. The court noted the children’s genuine expressed views opposing contact with the pursuer, influenced by the defender and each other, particularly Anne’s fear based on information rather than experience.

Expert evidence indicated that forcing contact or changing residence would cause greater harm to Anne, with the status quo being the least harmful option. The court recognized the complexity beyond the pursuer’s proposed binary options and adhered strictly to the statutory welfare test, concluding that making a residence or contact order in favor of the pursuer would not be better for Anne than making no order.

The court accepted the curator ad litem’s and expert’s view that the children should be informed of the court’s findings to correct any misapprehensions, despite the potential risks to trust in the defender. The court found it necessary for the children’s welfare that the truth be communicated appropriately.

Accordingly, the court granted the defender’s specific issue order permitting removal of Anne from the UK for holidays without pursuer’s consent, to avoid repeated litigation and adverse impact on Anne’s interests, and made no other orders.

Holding and Implications

The court GRANTED the specific issue order sought by the defender allowing removal of Anne from the UK for up to 21 days annually without requiring the pursuer’s consent.

The court REFUSED the pursuer’s application for a residence order and any contact orders in respect of Anne, and made no orders concerning Mary, who is now over 16 and outside the court’s jurisdiction.

The decision reflects a strict application of the welfare principle under the Children (Scotland) Act 1995, prioritizing the children’s current well-being and views over the pursuer’s requests. The court rejected false allegations and found emotional abuse by the defender but concluded that changing the children’s circumstances would cause greater harm. The children are to be informed of the court’s findings to address misapprehensions, supporting their welfare.

No new legal precedent was established; the ruling applies established principles to the complex facts of the case.