Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 49
F18/11	OPINION OF J BECKETT QC (Sitting as a Temporary Judge) in the cause MS(AP) Pursuer; against LJ(AP) Defender: ­­­­­­­­­­­­­­­­­________________

Pursuer: Stirling; Mowat, Hall, Dick

Defenders: Wylie; Balfour&Manson

2 March 2012

Introduction

[1] Having heard the proof in this case over six days in December 2011 and February 2012, I gave my decision at a hearing By Order on 2 March 2012 and awarded the pursuer the parental right of contact and made a contact order subject to a condition of supervision. I made a residence order in favour of the defender and recalled an order of interim interdict which had been made on the pursuer's motion on 18 February 2011. I refused the other orders which were sought. I now give my reasons.

[2] The parties are the unmarried parents of NJ, born on 9 April 2010. NJ lives with her mother, the defender, in the south west of Scotland. The pursuer, who lives in Ipswich, has had no direct contact with NJ since 31 May 2010. The pursuer sought certain orders under the Children (Scotland) Act 1995, 'the 1995 Act,' and interdict against the removal of NJ from the United Kingdom by the defender. The defender opposed the granting of those orders and sought a residence order and interdict against removal of NJ from the United Kingdom by the pursuer.

[3] The defender alleged in her pleadings that the pursuer had behaved in ways which suggest that it would not be safe for him to be allowed any direct contact with his daughter. In particular, the defender alleged that the pursuer committed crimes of violence against JG, the son of the pursuer's former wife TL, and against TL as well. Those allegations were denied by the pursuer and evidence was led by the defender directed to proving that that conduct occurred.

Facts which were not in dispute

[4] The following uncontroversial facts were established from the pleadings, a joint minute of agreement, and evidence which was not challenged:

4.1. The pursuer MS, born 23 July 1974, is of Iranian origin. He obtained British citizenship in 2007 having been granted leave to remain in September 2005.

4.2 The defender LJ was born in Scotland on 14 October 1977.

4.3 The pursuer married TL on 30 June 2001. Their marriage ended in divorce on 5 June 2008.

4.4 TL already had a son, JG, by a different partner, when she married the pursuer. JG was born on 9 October 1994.

4.5 The pursuer and defender met in Ipswich in 2008 and began a relationship.

4.6 By early 2009 they had decided to have a baby together and the pursuer fell pregnant in the summer of that year.

4.7 In November 2009 they moved into a rented house in Ipswich where they intended to bring up their baby.

4.8 On 1 March 2010, whilst on maternity leave, the defender went to stay with her parents in Scotland so that she would be supported towards the end of her pregnancy by her mother AJ.

4.9 The pursuer came to Scotland and stayed with the defender and her family on or about 1 April 2010.

4.10 Their baby NJ was born in Scotland on 9 April 2010 by Caesarean section. The pursuer was present at the birth. The defender's mother AJ was at hospital with the parties but was not in the birth room when the procedure was carried out.

4.11 The defender and NJ were discharged from hospital on 14 April 2010.

4.12 The pursuer left his partner's home on 15 April 2010 to return to Ipswich.

4.13 On 16 April 2010 the defender registered the birth in Scotland. She gave the name NMSJ, the S being the surname of the pursuer and the J being the surname of the defender. She did not make a declaration in relation to the father. No father's name was entered in the register.

4.14 On or about 1 May 2010 the defender, and baby, moved back to the home she shared with the pursuer in Ipswich.

4.15 On or about 21 May 2010, the pursuer found an extract birth certificate which he had not seen previously containing the details described in paragraph 4.13.

4.16 On or about 22 May the defender left the pursuer and was driven back to Scotland by her father and brother.

4.17 The pursuer visited NJ in Scotland on or about 30 May 2010 and saw NJ briefly that evening and then for a few hours the next day.

4.18 The pursuer last had direct contact with NJ on 31 May 2010.

4.19 The defender was made redundant from her job in Ipswich on 30 June 2010.

4.20 On 9 June 2010 the pursuer applied to Ipswich County Court for a "Prohibited Steps Order" intended to prevent the defender from moving permanently to Scotland with NJ. On 25 June 2010 he made further application for contact and parental responsibility. No orders were made. The defender had taken steps in Scotland in June or July 2010 towards applying for a residence order and for interdict against the removal of NJ from the United Kingdom but that could not be progressed because of the concurrent proceedings in Ipswich.

4.21 Ipswich County Court ordered investigation and a report was prepared by Heloise Dove, Family Court Adviser, of CAFCASS (Children and Family Court Advisory and Support Service), dated 18 November 2010. The pursuer told Ms Dove that he wished the defender to be forced to return to England to live with their daughter in closer proximity to him to facilitate contact. He said that "he would be neither able nor willing to travel to Scotland."

4.22 As a result of telephone discussions with the defender between 21 October and 16 November 2010, Ms Dove reported that:

"Miss J was very clear in her discussion with me that it was her intention to bring her daughter up in Scotland, where she had the practical and emotional support of her family and where she considered her home to be."

4.23 On 3 December 2010, on the motion of the defender LJ, Ipswich County Court found that it had no jurisdiction.

4.24 By 7 December 2010, the defender had noted interest in a teaching position at Konkuk University, South Korea. Having been offered that position on 27 January 2011, she signed a one year contract to commence on 1 March 2011. She obtained a visa valid from 4 February 2011.

4.25 The defender did not inform the pursuer that she was intending to move with NJ to South Korea for a year

4.26 On 18 February 2011 interim interdict was granted at the Court of Session against the defender or anyone on her behalf removing NJ from the United Kingdom without the prior approval of the court. On 25 February 2011, the court declined to recall the interim interdict in hoc statu.

4.27 In a letter of 8 August 2011, agents for the defender offered agents for the pursuer that the defender would facilitate indirect "letterbox" contact four times per year. It was suggested that if he wished to make gifts to NJ the pursuer could transfer funds to her child trust fund account.

4.28 On 22 August the defender expressed interest in a "Teaching English as a Foreign Language" position in Oman indicating that she would be available from 30 November 2011. She withdrew her interest on 12 October 2011 citing family matters which prevented her from leaving the United Kingdom.

4.29 In a letter of 4 November 2011 agents for the defender confirmed to agents for the pursuer receipt of a gift and card sent on 20 October. Enclosed was a reasonably detailed "Summary of NJ progress" written by the defender and photographs of NJ taken at 3 months, 5 months, 6 months, 8 months, 12 months and 14 months.

4.30 NJ is healthy, well cared for, developing normally and has suffered no significant medical problems.

The evidence

[5] For the pursuer, evidence was given by the pursuer MS; Dr Saima Latif, a psychologist who had prepared a report for the pursuer, No. 6/35 of process; Alireza Farschy and Farideh Yasbolaghi, who were mutual friends of the parties. Further facts were proved in a joint minute. For the defender, evidence was given by TL, JG, the defender LJ, and her mother AJ.

The evidence of TL and JG

[6] TL gave evidence by live television link from Ipswich Crown Court. She is 42 years old and was married to the pursuer from 2001 until 2008 having met him in November 2000. She gave her occupation as a domestic violence outreach worker. She had prepared an affidavit, No. 7/22 of process. She said that the pursuer was emotionally abusive to her during their honeymoon. Once they returned home and he learned that their marriage would not prevent him being deported, he became angry and he would pace up and down, clench his fists and hit out at objects. He would verbally put her down and insult her son. He would kick and punch their car when she was in it. After about six months of marriage he began to assault her, initially by pushing her, and then by punching her. This continued throughout their marriage. He was sexually coercive and he raped her.

[7] In 2003 when they were due to go to "Air Raid Shelter Day" at her son (JG)'s school, the pursuer tried to punch her while she was holding JG. He missed and hit JG causing his lip and nose to bleed. TL did not contact the police on this occasion as she was scared of the pursuer. When the pursuer threw a pan of hot cooking oil in the direction of her and JG a few weeks later, she again chose not to call the police because she was scared of what he would do and she thought that the police would take no action as they never took action when she did call them. She attributed police inaction to the pursuer being a smooth talker and it being known to the police that she had mental health problems. She accepted that she had failed to take adequate steps to protect JG.

[8] The defender had contacted her having seen a message about the pursuer posted on his Facebook page in about June 2010. In response to learning about the pursuer and NJ, her son JG had said "that baby needs to be protected". She learned from him that he had been subjected to physical and verbal abuse from the pursuer.

[9] TL was shown No. 6/8 of process, a transcript of eight text messages prepared by the pursuer from messages stored in his mobile phone. The messages seemed reasonably friendly in tone. It was suggested to her that she had sent these messages to the pursuer between June and October 2008. TL responded that some of the messages had been sent in 2007 and some were fabricated. She assumed that the pursuer must have got information from her sister to allow him to make up the content, some of which did fit in with TL's circumstances.

[10] In cross‑examination, it was effectively demonstrated that TL had lied in her affidavit and that this lie had underlain the Vulnerable Witness application which had been made on her behalf in so far as she had suggested that she had moved from an address known to the pursuer. TL was very reluctant to say anything which might confirm her present address and became somewhat hysterical, but she did, perhaps without intending to, effectively reveal that she is still at the same address where she had lived at the time of her divorce.

[11] It was demonstrated, and the witness had to accept, that the pursuer had divorced her on the grounds of her unreasonable behaviour. She said that she had wanted to accept the divorce to remove the pursuer from her life. Nevertheless she maintained that she had sent a letter to the court explaining that all of the allegations made by the pursuer in his application for divorce were false. This was not explored in detail but a certificate from Ipswich County Court, No. 6/17 of process, narrates that:

"...the petitioner[the pursuer MS] has sufficiently proved the contents of the petition and is entitled to a decree of divorce on the grounds that the marriage has irretrievably broken down, the facts found proved being the respondent's unreasonable behaviour."

[12] TL maintained that she had telephoned the police on numerous occasions in response to the pursuer assaulting and abusing her during their marriage. The pursuer would tell the police that she was mentally unwell so that the police would frequently offer her no assistance. Many of her calls and complaints to the police were not even recorded she said. Her mother thought that she had called the police on at least twenty-two occasions. TL said that she had found out from Victim Care, a victim's organisation, that only two of her calls had been logged but she had in fact called the police on numerous occasions. She later said that the pursuer was a groomer, he had control of her and that was why she had not called the police. By the time that suggestion was made, the witness had more than once insisted that she had telephoned the police repeatedly.

[13] On being shown No. 6/26 of process, police records, TL confirmed that she had called the police on 22 August 2005 when she wanted the pursuer to leave as she had found out about an affair. He had become angry and she was afraid that things would escalate as they had done before. It was demonstrated that there was a record of an incident involving damage to property with a hammer on 6 April 2007. It narrates that an officer reported that he attended a domestic incident at 16:54 "whereby 11 yr old son witnessed offence", and that the pursuer was found in the house and detained on suspicion of affray/criminal damage and cautioned in the early hours of 7 April. A summary of the incident is recorded in the following terms:

"Argument has ensued between husband (MS) and wife (TL) concerning allegations that MS was having an affair with another woman. TL refused to allow husband access to her car. The[n] MS subsequently ran upstairs in rage and began damaging doors with a hammer. He continued in his rage as he came downstairs damaged another internal door and smashed two doubled glazed windows. Upon arrival the I/P was very distressed outside the house with her son."

[14] Police records showed that on 1 July 2010, TL had reported historical domestic abuse at the hands of the pursuer and that her son JG had disclosed that he had also been abused by him. At least in part the context appears to be that her recent contact with the defender and the pursuer had made her afraid that the pursuer might harm her. She was advised to call the police should anything happen. TL repeated her explanation that her son JG had heard her on the telephone to the defender, and when he realised that the defender had a baby, he had said that baby needed to be protected. He said "Alright mum, M [the pursuer] abused me as well." JG wanted to speak directly to the defender. TL thought by this time he had already told his school about what had happened to him.

[15] The terms of her affidavit, at paragraph 9, were put to her, where she had described an incident on "Air Raid Shelter Day" in 2003 when the pursuer had struck JG in the face, cutting his lip and nose, whilst trying to hit her. Page 60 of No. 6/26 of process was also put to her. The computerised police record had it noted that by 18 July 2010, in the context of a report of alleged harassment by the pursuer, apparently prompted by her contact with the defender, TL had reported abuse disclosed by her son which was recorded in this way:

"AS A RESULT OF THE CONVERSATION WITH LJ INFMT STATES

THAT HER SON J

G AGED 16 DOB 19.10.1994 HAS DISCLOSED BOTH TO

SCHOOL AND HIS MOTHER HOW MUCH

ABUSE HE HAS BEEN SUBJECT TO BY MS.

INFMT WAS NOT AWARE OF THE RANGE OF ABUSE

MS BEAT JG

2001/2 MS CUT HIS LIP

.

JG KEPT HIMSELF COVERED SO THAT HIS MOTHER COULD NOT SEE THE BRUISES.

.

THROWN HOT OIL

.

TRIED TO STRANGLE HIM"

Whilst Ms Stirling put this as an inconsistency with the evidence given in court, I was not immediately convinced that it was. It might even be seen to be consistent, because on one reading, the notes suggest that TL was aware of some abuse of her son but not the full extent and range of it. However, given the limitations of the record and the absence of a witness to speak to what was actually said, I have drawn no conclusion one way or the other.

JG

[16] JG is the son of TL and is aged 17 and studying for A levels at sixth form college. His evidence in chief began with him adopting his affidavit, No.7/23 of process. He confirmed that he had been attending counselling sessions at school with Stella Hanson as recorded in No. 7/24 of process.

[17] He explained that there was an occasion when his mother had been on the telephone to the defender who was enquiring as to their experience of life with the pursuer. JG wanted to speak to the defender but his mother would not allow him to. He wanted the defender to know what had happened to him and the clear implication was that this was so that she could ensure the safety of her baby.

[18] In his affidavit, JG narrated that he recalled that he was six or seven years old when his mother started her relationship with the pursuer. The pursuer would look after him when his mother was at work and they got on well. When JG was nine or ten years old and the pursuer got permanent leave to remain in the United Kingdom, his behaviour changed. He would become angry over trivial things and would shout and swear and hit out at household objects. Thereafter if JG's mother was out, the pursuer would require him to stay in his room and not come out until she came home. In about 2004, when they were getting ready to leave to go to a show at school for "Air Raid Shelter Day", the pursuer and TL were arguing and the pursuer became angrier and JG thought he was going to hit her. JG stood in front of his mother to protect her and she cuddled him at which point the pursuer lunged at her with his fist hitting JG on the nose and lip causing him to bleed.

[19] A few weeks later, during an argument, the pursuer picked up a pan of hot fat from the cooker and threw it at JG and TL, missing both of them.

[20] After the pursuer started working in 2005 or 2006, if they were in the car and there was an argument, the pursuer would punch and kick the car and walk off. This happened regularly.

[21] From 2006 onwards, if he became angry, the pursuer would push JG and grab him by his arms. Later on he would hit him on the arms, back, head and chest. On one occasion in 2005 or 2006 when JG had come home straight from school and the pursuer had fruitlessly gone to pick him up from after school club, the pursuer became so angry that he briefly put his hands around JG's throat. When he was angry as a result of arguing with TL, the pursuer would call him offensive names such as "someone else's bastard child."

[22] On the day when TL and the pursuer split up in 2007, they argued over the car and the house. The pursuer said that if he could not have the house neither could she. The pursuer went into a rage and JG and his mother hid in the bathroom. The pursuer forced the door open. The pursuer picked up a hammer and ran down the stairs, breaking things with it. The pursuer swung at JG with the hammer as they tried to leave the house. He appeared to make for TL with the hammer until JG told him to stop. The pursuer went on a rampage smashing up the downstairs of the house prompting a neighbour to call the police.

[23] JG had not told his mother at the time about what the pursuer was doing as he did not want to add to his mother's problems.

[24] JG had twice heard the pursuer and TL arguing about what would happen if they had a baby. The pursuer said that if they split up, he would have the baby.

[25] In cross‑examination, JG had put to him No 7/24 of process in which Stella Hanson had reproduced her notes taken at counselling sessions at his school between 27 November 2009 and 1 April 2011. It was demonstrated that his present recollection of who he was referring to as his father in the first meeting was probably wrong. Attempts were made to persuade the witness that the notes suggested that he had been involved in drinking to excess, involved in drug taking and dealing and other delinquent behaviour. The notes did not appear to me to have the effect contended for to any great extent, and the witness denied what was being put and offered his explanations.

[26] The note for 2 July 2010 recorded JG as saying that his mother was down, and he knew that the pursuer was with another woman who was pregnant and that he knew that his mother had advised the other woman to stay away from the pursuer "due to his domestic violence". He said that he and his mother had been in danger from him. It is recorded that he said that the police had installed a panic button in the family home. In his evidence he explained that the police had intended to install a panic button at one time but had then decided not to.

[27] On 10 September JG was recorded as having said that he had told his mother of physical abuse which he had suffered at the hands of the pursuer. In cross‑examination he said that he had not told his mother before 2 July but he had told her by 10 September 2010. The notes recorded that he said that his mother was upset and totally unaware of the abuse and he had kept it from her due to her ill health. He said his mother had told the police about his disclosure. The pursuer had beaten him and he was horrible. Ms Hanson had noted that this was the first time he had said that he had been abused and he gave the impression that it was not a one off incident.

[28] JG explained that whilst he had told Ms Hanson that he now felt safe that the pursuer was out of his life in October 2010, that was not true, he had said that to keep her happy. He acknowledged that occasionally he would tell his mother things to keep her happy.

[29] JG confirmed that his mother had been present when the pursuer had hit him in the face on "Air Raid Shelter Day." What he had said about the hot cooking oil incident was correct. His whole account was correct and he had not dreamed up what he had said in his affidavit and in court. When it was put to him that he had made up his account that the pursuer had abused him, he replied that had he done so he would have wasted two years of his life going to stress counselling and there were better things that he could have been doing. He rejected the suggestion that he had made up his evidence to please his mother or because she had told him to.

Pursuer

[30] The pursuer originates from Iran and is 37 years old. He lives in Ipswich and works in the field of electrical engineering, with particular responsibilities for safety, for which he has some qualifications.

[31] After he and the defender got together in Ipswich in 2008, he was always supportive of her. Soon after they met she was living with him in his flat most of the time. In 2009 she became pregnant, which they had both planned and they were both happy about it. Together they rented a house which they moved into. They envisaged that they would live there with their baby. They went to a pre‑natal scan together and knew that they would have a daughter. It was agreed that her first name would be N. The couple did not discuss what surname their baby daughter would have, but the pursuer assumed that it would be his name.

[32] The pursuer noticed that the defender's family were not particularly supportive of her, which often caused her to be upset when her mother would not seem to have time to talk on the telephone. However this began to change in about December 2009 and the defender and her mother would speak for hours on the telephone. Up to this point, the couple had understood that the pursuer's mother would come over from Iran to help at the time of the birth. In December, the defender said that she wished to give birth in Scotland. The pursuer was not happy about this, because he thought that they should be together at that time, but he reluctantly accepted it and the defender moved to her parents' home in late February 2010. The pursuer went to stay with them about two days before NJ was born on 9 April. He was appreciative of the defender's parents allowing him to stay in their home.

[33] The pursuer was present during the birth and he was taking photographs at times which he had discussed with the defender. However, when he got his camera out the defender's mother had screamed at him and the defender was not happy but he assured the defender that he would not inappropriately take pictures of her body, he was more interested in photographs of the baby.

[34] After the birth he would fetch food for the defender and help to look after NJ. He would change her nappy and pick her up when she cried.

[35] The pursuer discovered that whilst the defender's father was still treating him well, AJ had changed her attitude completely and she was rude to him and started to order him about. In the event, he stayed only one night with mother and baby at AJ's home. They argued because he thought that the bedroom was too cold and the defender was worried that it was too hot with the heating on. At times that night he cuddled NJ close to him to keep her warm. The next morning they argued about whether the temperature had caused the defender to catch a cold causing AJ to run in and start screaming at him. He felt unwelcome and decided to leave and return to Ipswich where he was due to pick up a bigger vehicle from his employer in any event.

[36] He left on 15 April 2010 and returned to Ipswich and they kept in telephone contact which led to NJ and the defender being brought back to Ipswich by her father later that month.

[37] The pursuer intended that he, the defender and NJ would live together as a family. He started to come home early from work to help with the baby but he noticed that the defender would stay out for longer and longer with the baby and would spend more and more time on the telephone to her mother.

[38] On or about 21 May 2010, the pursuer found a copy of an abbreviated birth certificate giving the surname J for the baby. His name was not on the birth certificate. It was apparent that the birth had been registered on 16 April, the day after he had left Scotland.

[39] The pursuer became upset and confronted the defender but she responded that he had not told her he wanted his surname to be used for their child. He was so upset that he left home overnight and when he returned he found that the defender's father and brother were packing up her belongings. Mutual friends arrived and tried to persuade her to see sense and stay. The pursuer's brother made racially abusive comments about Iranian men being abusers. The two men discussed the situation and the pursuer reluctantly agreed that the defender could leave with baby NJ.

[40] Once the defender had left, they maintained some telephone contact and she invited him to visit her on about 1 June 2010 and asked him to take some of her and the baby's things to Scotland. When he was about twenty minutes drive away from their home, the defender's father spoke to him on the telephone and said that he did not want the pursuer in his house. The pursuer arrived late at night and saw the baby and the defender and he then slept in his car. In the morning he had held the baby and she had cried and he realised that she had recognised him and was missing him. Later that day, the defender had said that she did not want him to see NJ anymore and in response to that the pursuer got into his car and left. Prior to this there had been some discussion that he might have supervised contact with NJ. He had not seen NJ since that occasion.

[41] The pursuer kept up some telephone contact with the defender who told him that her mother thought that he had the hallmarks of an abusive partner. Despite this, the defender had invited him up to visit about two weeks later, but when he got there, he was told by her father that the defender was not there. AJ threatened him that her brother was a policeman and told him that he had to leave and that he was not going to see the baby or the defender.

[42] After this the pursuer was too frightened to seek to make arrangements with the defender to see NJ. His fear was compounded when he learned that TL was making false allegations against him.

[43] The pursuer initiated proceedings in Ipswich County Court with a view to obtaining an order which would require the defender to return to Ipswich with their baby. He sought a variety of orders from that court. He knew that the defender had spent a lot of time in her twenties living and working abroad in India, South Korea, Mexico and Columbia and he was worried that she would take NJ abroad with her. In the event the court in Ipswich, on the motion of the defender LJ, concluded that it lacked jurisdiction.

[44] The pursuer accepted that he had been late in acknowledging NJ's first birthday in 2011 as he had been in Iran at the time. He did send her a birthday card and a gift voucher for £100, which he had been given as a gift at the time of her birth. He had sent her a book and £200 a few months later. In November 2011 he had received a letter from a lawyer and some photographs which was the first news of NJ which he had had since June 2010.

[45] The pursuer said that he was happy to assist the defender and his daughter financially at any time but the defender had not asked for help. He would have been happy to contribute via the Child Support Agency (CSA), but he understood that the defender had withdrawn her application earlier in 2011 before a further claim was made by her about which he had been contacted by the CSA in December 2011.

[46] When asked why he wanted to be involved in the life of NJ, he replied that he was her father, he wanted to help her financially and emotionally and she needed him and he needed her. He could offer affection, love and guidance. He was an ambitious and self‑improving man who could pass these qualities onto his daughter. It was important that she should understand her Iranian cultural background. He had experience of being with a baby nephew in Iran and he is close to the children of a number of friends in Ipswich and he knew how to behave with babies and young children.

[47] Since NJ does not know him, he accepted that contact would need to take place through a supervisor whether a professional or a friend, at least initially until NJ got to know him. He is willing to pay for a contact service. He would accept contact taking place at the Iranian church in Glasgow where NJ is sometimes taken by her mother. With work commitments he could guarantee that he could see NJ once every three weeks and he might be able to do so every two weeks. He is not willing to have only indirect contact until NJ is 13 years old as the defender had proposed. If the court decided that he had behaved in a way which suggested he might be a danger to a child then he would accept that there would need to be stricter supervision of contact, but he would still want to have direct contact.

[48] The pursuer wants parental responsibilities and rights because as a father he should have such rights and they were taken away from him by deception. It would allow him to prevent NJ being taken out of the country. Two brains would be better than one when it came to making decisions about NJ's upbringing. He would encourage NJ to be ambitious and to have a career. He would make every effort to co-operate with the defender. He did not object to NJ continuing to live with the defender so long as it is in the United Kingdom. He gave an undertaking that he would not take her to Iran without permission. He does not intend to return to live there.

[49] The pursuer accepted that he encouraged the defender to eat protein rich foods when she was pregnant but not in the way she was asserting. He did not punch or kick walls or furniture or break things.

[50] He did not fly into a temper and tell the defender's father that he was a terrible father and that he should have disowned his daughter. At no time did he punch or kick the fridge at their home in Ipswich as the defender maintained.

[51] He had divorced TL on grounds of her unreasonable behaviour and decree became absolute in June 2008. She sent him amicable texts after that. He had his telephone on him in court with the text messages still in it, and he was content that it could be examined by lawyers for the defender if the integrity of his transcript was disputed.

[52] He accepted that on the last day before he split up with TL after years of being abused by her, he broke a few doors and windows and was cautioned by the police. He accepted that JG had witnessed him damaging the house.

[53] The pursuer denied that he had been violent to TL and JG. When asked by his counsel why TL would have lied about him, he said that she had made allegations against a number of men. She was angry that he had been unfaithful to her during their marriage. She was angry because she thought he had married her simply in order to get leave to remain and "it all goes together with LJ." This last comment was not expanded upon. When asked why JG would have lied he said that perhaps this was because JG was 13 when the pursuer left TL and she had told him that the pursuer had mistreated her and JG had simply repeated what he was told. The pursuer was asked if he had discovered a message posted on TL's "Facebook" page saying that he was sick for what he had done to her and her son. He answered "Yes she did, she didn't say 'to my son' she said 'you never apologised to me and to James.'"

[54] He had learned that the defender was planning to go to Korea accidentally. The defender's email account and password were set up in his laptop computer from when they had lived together and he had accidentally logged onto it and discovered that she was planning to go to Korea. He had not asked for contact when he sought interdict in February 2011 as his priority was to stop the defender leaving the country with NJ. When he first raised proceedings in England he thought that it was reasonable for the defender to come to live in Ipswich to facilitate contact as he had a job and she did not. That was the reason why he had told the author of the CAFCASS report that he would not come to Scotland to exercise contact. That was not his position now.

Dr Saima Latif

[55] Dr Latif is a chartered psychologist in private practice who has extensive experience of working with families and children and preparing reports and giving evidence in criminal and civil cases. She has experience of assessing people from "Black and Minority Ethnic" groups. On the instructions of the pursuer's agents, she had carried out a psychological assessment and prepared a report on the pursuer, No. 6/35 of process. She had interviewed the pursuer, carried out psychometric testing on him and observed him interacting with children whom he knew as he was a friend of their parents. The children were a boy aged two and a girl aged four. Dr Latif had observed the pursuer for one hour and whilst ideally she would want to observe two or three sessions over a period of time, the single session was valuable in itself. This observed contact with the children went well.

[56] Whilst the results of psychometric testing showed a slightly heightened score for paranoia/persecution, it was within normal limits and overall the pursuer showed emotional intelligence and flexibility in interpersonal relationships. He achieved acceptable average scores on a "parent awareness skills survey", albeit this was designed for children in the age range of 3-18 years. His scores suggested that he is "overall well-adjusted with no identified problems of personality, to include emotions and behaviours." The pursuer had not exhibited any elevated scores on relevant criteria on psychometric testing to suggest that he was prone to perpetrating acts of violence. His admitted conduct of taking a hammer to his previous marital home was suggestive of difficulty in controlling emotions and anger but Dr Latif was of the view that one such outburst in isolation would not raise particular concerns as to the accuracy of her psychometric testing of the pursuer.

[57] Whilst the pursuer had told her that the defender had suffered from clinical depression for a number of years, if that was not in fact true, that would not change her assessment.

[58] Dr Latif had interviewed the defender on the telephone and established a reasonable rapport with her. Dr Latif felt that to be taken to South Korea at this stage in her life would not be in NJ's best interests, particularly as she will have formed strong bonds with her grandparents with whom she lives.

[59] Dr Latif concluded that NJ would benefit from having the pursuer involved in her life and she considered that direct contact was particularly valuable. It was positive that the defender had taken steps to expose NJ to her paternal heritage, but that was not an adequate substitute for direct contact. It would be better to re‑establish direct contact sooner rather than later. If this was not done it may be contrary to her best interests. In any event, it is more likely to spur NJ to seek out her father if she is limited to indirect contact. Given how little time the pursuer had spent with his daughter, his potential role as a father could only be tested if contact was put into practice. However, she would anticipate that direct contact would enhance NJ's development and prevent her from feeling abandoned by her father.

[60] Dr Latif noted that the defender is unlikely to be cooperative with any court order if the allegations of TL and JG are held to be established by the court, but that she would be likely to be more cooperative if those allegations were rejected. This prompted Dr Latif to suggest that "the court may wish to consider placing an Order to increase cooperation between both parties and for the best interests and welfare of NJ."

Alireza Farschy

[61] Mr Farschy is an Iranian friend of the pursuer and he regularly met with the pursuer and defender as a couple when the defender was pregnant. Their relationship appeared to be a good one and the pursuer was considerate towards the defender, ensuring that English was spoken so that she was not left out by everyone else speaking Farsi. When Mr Farschy and his wife had a new baby, the pursuer would help to look after their older child. The pursuer is very good with their children.

[62] When the defender returned to Ipswich with her new baby in May 2010, he saw the couple together. The pursuer was like a normal father, he would cuddle the baby, hug and kiss her and on one occasion he asked Mr Farschy to show him how to change a nappy.

[63] Mr Farschy had been at the home of the pursuer and defender when her father and brother were helping her to pack up to leave. He had sought to persuade the defender not to leave, but she had said that she was leaving but she would be back in a month or two. The defender's brother had made offensive comments about Iranian men, how they would mistreat women.

Farideh Yasbolahi

[64] Ms Yasbolaghi is an Iranian lady who was friends with both the defender, who had helped her with immigration problems, and the pursuer. She was not able to remember seeing any damage to the fridge in the parties' rented flat in Ipswich. She had not thought that the defender should leave and had tried to persuade her not to on 22 May 2010.

Affidavit of Susan Bell

[65] No. 6/34 of process was an affidavit of Susan Bell which it was agreed in the joint minute should be treated as her evidence, reserving questions of weight. She was the landlady of the house in Ipswich rented by the parties. She spoke highly of the pursuer's personal qualities and his potential as a father. She said that there was no evidence of any damage to property when the pursuer left and that no complaint had been made to her by neighbours about noise or arguing.

Stella Hanson

[66] Ms Hanson explained that she worked as a counsellor, particularly for people aged 14 - 17 and she had met with JG and No. 7/24 of process was a report which she had prepared from her notes. She adopted her report and was taken through it. She had been asked in November 2009 to see JG by the headmaster of his school after JG's mother had indicated that he was "having issues". She confirmed that JG considered himself to be his mother's carer. Whilst she had explored whether JG might be referred to Child and Adolescent Mental Health Services, this was when he was showing stress caused by revision for exams which had led to two outbursts in school. Although Ms Hanson offered some opinion evidence I have paid no regard to it as it was not established that she was qualified to give it. Miss Wylie accepted that it was not for Ms Hanson to opine on the question of JG's credibility and I have ignored evidence from her that she found JG to be credible.

Defender

[67] The defender is 31 years old and lives with her parents and daughter NJ in Ayrshire. She does not currently work and is a full time mother reliant on income support and help from her parents. She graduated with a Bsc in Health and Social Science in 2002. She worked in India as a "cross‑cultural consultant" and subsequently worked in South Korea in or after 2004, teaching English as a foreign language. She had also worked in Mexico in 2005 for a few weeks before receiving a full academic scholarship to study in South Korea for a Masters Degree programme in law, graduating in 2007. In May 2008 she began work for a refugee centre in Ipswich as an immigration adviser at caseworker level 3, having undergone several months of training. This entitled her to appear as an advocate in Asylum and Immigration Tribunals. She had been on maternity leave in June 2010, after the birth of NJ, when the organisation she worked for went into administration and all workers were made redundant.

[68] Since then she has looked for work teaching law or doing advocacy work in Scotland or teaching English as a foreign language. The only offer of work which she got was a "professorship", the term used in South Korea for the position of lecturer, teaching International and European Law at Konkuk University in South Korea. The duties would have been very light and this position would have worked well for a single parent. It was a one year contract. She had applied for that post in December 2010. She accepted that she had told the author of No. 6/4 of process, the CAFCASS report, in October or November 2010 that she intended to bring NJ up in Scotland. She had not lied, it was her intention for NJ to be brought up in Scotland, but she had also been looking for work and the prospect of a year's teaching in South Korea would refresh her CV. She had been sent an advertisement by a friend in South Korea in November or December 2010.

[69] The defender had an isolated episode of anxiety and depression about twelve years ago when sitting her final examinations at university and she had been anxious in 2009 as her workload increased. She had some counselling following that latter episode. She had seen a psychiatrist on one occasion when in hospital after the birth of NJ by Caesarean section. What the pursuer had said to Heloise Dove to the effect that she had suffered from clinical depression for a number of years was untrue.

[70] The pursuer and defender planned to have a child together and discussed marriage but that was not resolved. They rented a house in Ipswich and moved in together in November 2009.

[71] While she was pregnant her diet became a source of conflict in their relationship. The defender suffered sickness throughout her pregnancy. The pursuer was determined that she should eat a diet high in protein, even at times when fish or chicken or dairy products would make her sick. He was angry when she hired a cleaner as he insisted that it was for them to clean their house. He would rant and rave about her diet and her cooking. He smashed crockery and he left a dent in the side of the fridge by kicking it. He became more and more controlling and when she had to work long hours he would accuse her of secretly meeting men on the internet. When a midwife made a clerical error in relation to her due date and the date was changed, he accused her of lying in order to have an excuse to go earlier to stay with her mother. They argued about this on many occasions. When he had first met her parents he had insulted her mother's cooking and played on his computer in his room having said that he wanted to go to his room to rest. However, in the presence of their Iranian friends Farideh and Alireza he would behave impeccably.

[72] The pursuer did not want their baby to have a middle name. He wanted their baby to have the surname J, he did not want their baby to have his surname as it was associated with terrorism.

[73] After she went to Scotland to stay with her mother in March, the pursuer did not travel up as often as he had said he would. He did arrive on 2 April 2010, her due date. After a visit to the doctor, she had said that she would not tolerate being filmed or photographed giving birth. The pursuer had said that he wanted to film the birth because when their daughter was older, if she behaved badly, he wanted to show her how her mother had suffered to bring her into the world. This appalled the defender and her family.

[74] When she was in labour in hospital, the pursuer had produced his camera and began to take photographs but although she objected, she felt too tired to argue and let it happen but she was very upset as he knew what her wishes were. Whilst in hospital, there was an episode when he went into the toilet cubicle to talk on his telephone to someone in Farsi. When he came out he was agitated and said "she doesn't believe you have a baby, pinch the baby and make her cry," despite the fact that NJ was sleeping at the time. The pursuer said that he was speaking to his mother but the defender had not heard him speaking with his mother like that and there was no reason for her to disbelieve that a baby had been born. This caused her to suspect that he needed to prove to someone in Iran that there had been a live birth and that he had some sort of plan to take NJ to Iran. When she reflected on his insistence on taking photographs, and this incident, she contacted charities giving advice about abduction who had advised that this was concerning behaviour as negotiations for the sale of children can begin at a very early stage. No further specification of this was given and no expert witness or published material was adduced to bolster this proposition. The defender suspected that the pursuer may have been making some sort of deal in Iran in relation to NJ which would have seen him abduct her if he had got the chance.

[75] Once they were back at her mother's house the pursuer and defender argued about the temperature in the room where they slept with NJ. He ranted at her about this both during the night and in the morning. Her mother came in on hearing the noise of the argument and the pursuer rounded on her accusing her of interfering. The pursuer then put his bag in his van and drove off leaving the defender feeling devastated. She thought that he had engineered an argument as an excuse to leave that day, Thursday 15 April. She knew that he had to be back at work on Monday 19 April and that he was due to pick up a new van from work, but she did not see the rush for him to go so soon. She suspected that he wanted to go and pick up the new van and return with a view to taking her and NJ down with him to Ipswich on the Sunday before he returned to work. At one point he had admitted to her that that was why he was in a hurry to pick up the new van.

[76] On being shown health visitor notes for 20 April 2010, No. 7/34 of process she confirmed the accuracy of what was recorded there.

"Mood low as partner left early for Ipswich having some problems with relationship? Partner attempting to exert control and manipulate LJ. Parents supportive."

[77] The notes for 30 April recorded that she was well and moving back to Ipswich on 1 May with NJ. A note of 8 June recorded that they have returned to live with the pursuer's parents and,

"MS having no contact with NJ unless supervised. LJ plans to remain in Scotland."

[78] After he left, the pursuer pestered her to come down as soon as possible. She relented and returned to Ipswich on 1 May 2010. The pursuer did very little to help her with NJ, but he would come home early and stand over her and scrutinise how she was caring for the baby.

[79] She had registered the birth on 16 April 2010 in Scotland. She had given the baby two middle names, M and S, and she had not thought that she was going against the pursuer's wishes by giving the surname J. When she told him that she had given the middle name M he was furious and ordered her to leave the house. Again on 21 May they had had a major row when he found a copy of the birth certificate. This was the first time that they had discussed registering the birth. When he saw that the surname for the baby was J, the pursuer went into a terrible rage, saying she would be viewed as illegitimate and he said to her "take your baby and go". She telephoned her father to come and fetch her. The pursuer calmed down and said that he had wanted the baby to be known as J, but he had expected the baby to be registered in his name. The pursuer left.

[80] He returned the next day with Alireza when the defender was packing up to go. The pursuer and Alireza had tried to persuade her to stay. In order that she could get away more easily, she said that she was just leaving for a break, but because of his behaviour over the last three weeks, she knew already that she could not live with him.

[81] After she left, the pursuer would call her regularly and he alternated between cajoling and threatening her to return. When it was arranged that he would visit, her parents were unhappy at this and wanted him to stay in a hotel. The pursuer arrived at 11pm on 30 May when she was feeding NJ. He returned the next morning at 9am and stayed for a few hours. They discussed her finding accommodation in Ipswich and returning to work there and at this stage she had not said that he could not see NJ. She accepted that she had sent the text messages transcribed by the pursuer in No. 6/20 of process, and that she had used terms of endearment in four messages between 30 May and 12 June. She explained that she had felt conflicting emotions about the pursuer.

[82] The pursuer had been due to return later in June to visit, but in the interim the defender had seen that a woman, V, had posted on the pursuer's "Facebook" webpage a message saying "Leave T(L) and J(G) alone. You are sick." The defender knew that this was a reference to the pursuer's former wife. She got in touch with V and as a result of this TL telephoned the defender. TL had told her of six years of domestic violence and emotional abuse and described patterns of control about food and behaviour such as smashing crockery. TL told her of an incident when he went on the rampage about the house with a hammer when her son was present. TL told her of an occasion when the pursuer had tried to hit T while she was holding JG which caused JG to be struck. She mentioned an incident involving hot oil when JG was present.

[83] The defender was aware of the possibility that T could be seeking revenge in saying these things and she considered carefully what she was being told, but she was struck by the similarity with her own experience of the pursuer giving an initial impression of charm and liberal views, followed by similar patterns of control and then smashing crockery. She spoke to a lawyer and was advised not to meet with the pursuer. She left her mother's home and went to stay nearby knowing that he was coming to visit.

[84] The defender received legal papers in respect of an action which sought an order requiring her to return to Ipswich. There was no application for contact or parental responsibility at that stage. She and the pursuer corresponded for a while and she explained to him her position about needing to protect NJ. Once she told him about the incident with the hammer, he knew that the game was up and he was not in touch again until he sent her a triumphant text when interim interdict was granted in February 2011.

[85] She was in agreement with the pursuer that NJ should be brought up to be bilingual. Recognising the importance of connecting NJ to her father's cultural background, she has been taking NJ to an Iranian Church in Glasgow where NJ mixes with children who speak Farsi. In August 2011 the defender had offered to send photographs regularly and two-monthly letters as a form of indirect contact. She was willing to facilitate indirect contact between NJ and the pursuer's family. Once NJ is older, perhaps 13 or so, she would not prevent her being in contact with her father but it would need to be in a safe environment. Her concern about direct contact is that the pursuer had in the past placed a child in harm's way, and had been violent to a child, and had shown himself to be abusive, volatile and manipulative. She thinks that he wants to take NJ to Iran and that he would build up NJ's trust to allow him to do this. She fears that supervised contact would lead to unsupervised contact which would create risks concerning child safety and abduction. The pursuer had said to her that if things did not work out for him he would cut his losses and go back to Iran. The pursuer always wanted her to bottle feed NJ but the defender was in favour of breast‑feeding and continued with this into NJ's second year. She thought that the pursuer's preference was linked to his desire to take NJ to Iran, which would be easier to manage if she was bottle fed.

[86] Given the pursuer's behaviour to her and towards TL and JG, she did not think that it would be in NJ's interest for him to have parental responsibilities and rights. Even with visual internet contact via Skype, she had concerns about grooming. Letter box contact would be the safest arrangement.

[87] The granting of interim interdict had prevented her from going on holiday to Spain and from going to her brother's wedding in the USA as well as preventing her taking up the job in South Korea. She was anxious to work and it may be that her best prospect of finding work would be abroad.

[88] In cross-examination, the defender said that the pursuer's mother had given him £300 for NJ at her birth, but of this only £200 had been passed on as gifts. He had made no other effort to support NJ financially.

[89] A great deal of cross‑examination was designed to show that the defender had misrepresented her qualifications and academic achievements in job applications. The content of certain productions was extensively explored, including numbers 7/3, 7/7, 7/9 and 7/14 of process. Much of this could only be a matter of impression but, for what it is worth, I did not find that there was outright dishonesty in the defender's applications, but she had certainly given the most favourable, and sometimes inflated, impression of her qualifications and status and some of what she had written might be considered to verge on the misleading. I took that into account in assessing those parts of her evidence which were in dispute.

[90] The terms of No.7/10 of process, an affidavit of the defender dated 24 February 2011 and prepared in connection with an application for recall of interdict, was explored with her. It was suggested that the defender had sought to mislead the court about her qualifications and employment prospects. Having regard to all of the documents, I am not persuaded that she had. Ms Stirling kept putting an interpretation on various aspects of the affidavit which I did not agree with simply on reading the document, but particularly when regard was had to the evidence of the defender about the titles given to lecturers in South Korea and the terms of the various documents explored in evidence.

[91] In relation to her meetings with Heloise Dove of CAFCASS, the defender accepted that Ms Dove had narrated "She was very clear in her discussion that she intended to bring daughter up in Scotland..." The defender initially explained that this discussion had taken place in August 2010 when NJ was still very young and the defender needed the support of her mother and when asked if she had plans to take NJ out of the country she gave the honest answer "no." This was some months before the offer of a job in Korea came up by which time NJ was older and the job was a very good opportunity. This answer was somewhat undermined by the terms of the report suggesting that telephone discussions had taken place between Ms Dove and the defender between 21 October and 16 November 2010 and the application was made by 7 December 2010.

[92] The defender accepted that her current position is that, subject to the court so permitting, if she could not find work in the United Kingdom she would look for work abroad.

[93] The defender accepted that she has been told by the CSA that she will receive £412 per month from the pursuer from late February 2012. The CSA had had to effect an arrestment as the pursuer would not co-operate.

[94] When challenged as to why the pursuer would have said that he wanted his child to have the surname J, the defender said that this was because he was putting on an act of being a highly liberal and westernised person. She was asked about a passage in the report of Dr Latif in which she appeared to suggest that she had decided to register in the name J only because of the pursuer's controlling behaviour at that time and she had thought that she might change it later. Initially she said that this had been misunderstood by Dr Latif. However, she went on to explain that she took this approach as she felt that otherwise the pursuer would be given a mechanism with which to coercively control her, as he had begun to do in the latter stages of their relationship.

[95] The defender had been taken to register NJ's birth by her mother. She knew that she had another fourteen days in which she could have done this. She knew that she could have completed a statutory declaration under section 18 of the Registration of Births, Deaths and Marriages (Scotland) Act 1965. He was an abuser so far as she was concerned and she did not want him to have any control over NJ. She agreed however that if he had stayed another day she might have registered the birth with him as the father, it would have depended on how he behaved.

[96] If she was required to co-operate with the pursuer by the court granting parental responsibilities and rights the defender would comply, but she would find it a morally difficult position.

[97] She accepted that in a statement which she had made in the English proceedings on 12 September 2010 she had said that she knew that the police had only recorded two incidents relating to TL. She denied that she had colluded with TL to make false allegations against the pursuer. She believed what TL and her son had said, particularly in the light of her own experience of the pursuer. She accepted that she had texted TL to tell her what had happened when the interim interdict had been served on her in February 2011. The defender's view of the credibility and reliability of TL's and JG's accounts was not relevant to my consideration of that issue and played no part in my assessment of the credibility and reliability of TL and JG.

[98] The defender confirmed that she had not been in fear of the pursuer when they were together. She accepted that he had been affectionate towards NJ.

AJ
[99] AJ is the mother of the defender. She works for a charity as an advocacy worker, mainly for people with mental health issues. She supports the defender and NJ who live with her. The house where they live is clean and comfortable. NJ is a very healthy and happy child.

[100] When she first met the pursuer it was at a visit to her house at which time he offended her hospitality, but despite this, she had done her best to make him welcome. On his next visit at about Christmas 2009, by which time the defender was pregnant, he had come into the kitchen and announced that the baby would have the surname J. This had shocked her and her husband. The pursuer said that he did not want his child to carry "Muslim baggage", he wanted her to fit into this society.

[101] When he had come up for the birth, the defender had mentioned in the context of a discussion about her birth plan that there would be no filming of the birth. The pursuer then said that he wanted to. The defender confirmed that she would not tolerate this. Her father was horrified. When he was challenged about this, the pursuer said that if when his daughter was older she was naughty, he wanted to be able to show her the film to show what her mother had gone through to have her. They said to him that he could not do that at which point he shot forward and pointed his finger in her husband's face and made comments about his parenting of the defender. AJ was very worried by this behaviour. The pursuer did end up taking photographs at the birth despite AJ telling him that the defender had said that she was not agreeable to that.

[102] She found that the pursuer would behave well enough when her husband was around, but was rude to her if she was on her own with him.

[103] The defender stayed in hospital for five days after the birth and she had seen him trying to feed her yoghurt when she did not want it. AJ saw the pursuer come out of the ensuite bathroom in the hospital, sounding angry, and he ordered the defender to nip the baby, to do something to make her cry. When the defender refused, he said it was because his mother wanted to hear the baby over the telephone. Having spoken to his mother on the telephone on a number of occasions, AJ found this hard to believe.

[104] Once they were home with the baby she had heard the pursuer shouting at the defender about the room temperature and she heard him say something along the lines of "idiot, did you even go to school, it is freezing in here". This caused AJ to check a thermometer and establish that it was 18C which caused the pursuer to come towards her and shout at her, while the baby was in the room. She said to him that this was enough and then a few minutes later she saw him putting his bags in his car and he left.

[105] Not long afterwards her daughter went back to Ipswich and in a number of telephone calls she said that the pursuer was being abusive and then she got a call to say that the pursuer had ordered the defender out of the house and she was looking for a lift back to Scotland.

[106] At the time of a planned visit by the pursuer, the defender had found out from his ex‑wife something of what had gone on in that relationship and so arrangements were made for the defender not to be at home when the pursuer arrived. AJ said to the pursuer that her brother was a retired police officer and that they had found out what he had done in Ipswich. The pursuer did not ask what he was supposed to have done, he said "oh" and got back in his car. He said to her "I have been very rude to you. I am sorry and I don't suppose we will meet again. Goodbye."

[107] AJ said during her cross‑examination that she would assist by supervising contact but she would be very unhappy if contact took place without supervision. Her priority is that NJ is safe and she has concerns that the pursuer would take NJ to Iran given some of the things he had said and done. When it was obliquely put to her that she may not be telling the truth about certain parts of her evidence AJ, replied that she had told the truth in everything that she had said.

Submissions on the evidence
Pursuer

[108] Ms Stirling commended the evidence of the pursuer as having been given in a calm and measured fashion. I should find him to be credible and reliable in his denials of having assaulted TL and JG and more generally. Counsel submitted that I should find evidence from TL about what had gone on between the pursuer and her, and her son, to be both unreliable and incredible. She founded on a series of issues which she submitted fundamentally undermined any contentious evidence given by TL: the false impression given in her affidavit about her current whereabouts; TL's claim to have sought the assistance of the police on numerous occasions; the text messages which she had sent to the pursuer in 2008 did not readily fit in with her being afraid of him or of having suffered abuse at his hands; the pursuer having been unfaithful to TL, and having obtained a divorce on the grounds of her unreasonable behaviour, provided a motive for her to seek revenge; her use of words such as "groomer" to describe the pursuer demonstrated her hostility towards him; that she had found nothing good to say about the pursuer in her affidavit demonstrated bias; in her affidavit she had tailored her account to include almost every possible factor which would be adverse to contact; her account of the pursuer punching her when she was driving simply was not probable and the court should reject it as not credible. There were inconsistencies within the various accounts given by TL, including what she had said to the police and what she had said in her affidavit.

[109] There were inconsistencies between the evidence of JG and his mother: JG had said that he did not tell his mother about being abused until some time after 2 July and yet TL had made this known to the police on 1 July. The evidence which she had given about overhearing his mother talking to the pursuer on the telephone was not consistent with her version.

[110] For all of these reasons, and the other reasons which are contained in her written submissions, where it was in conflict, the court should reject TL's evidence and prefer the evidence of the pursuer.

[111] Counsel submitted that JG's demeanour suggested that he was uncomfortable giving evidence and he was guarded in his answers. He told people things to make them happy.

[112] His evidence that things went well until 2005 when the pursuer got leave to remain, was inconsistent with his evidence that he was assaulted in 2004. In his affidavit he said that TL was present during the cut lip and hot oil incidents which was contradicted by what he told Stella Hanson about his mother being unaware of his having been abused.

[113] His evidence about what he said, and why, to Stella Hanson on 2 July and 10 September was inconsistent with TL having told the police on 1 July that he had been abused.

[114] This was a troubled young man who had exhibited aggression at school, anger management problems and alcohol misuse. He had been involved in truanting, he had been the victim of an assault in Ipswich in 2011 and he had been the victim of racism. He had been referred to a service offering assistance to people affected by addictive behaviours and he had a friend who dealt in drugs. These considerations undermined his ability to give reliable evidence.

[115] He was very tied to his mother, he was her carer, he had serious problems, he had to support her and the timing of his disclosures may show a pattern linked to court proceedings which may support the suspicion that he was simply lying to support his mother.

[116] Turning to more general issues in the evidence, counsel submitted that on the question of the name of NJ, the pursuer was credible, reliable and straightforward whereas the defender's account was incredible. Counsel conceded that this may not be a matter of any real relevance.

[117] Counsel submitted that the defender had presented information to this court in her affidavit, and to Ipswich County Court via the CAFCASS report, which was misleading. Her CV and job applications contained inaccuracies which, given that those documents were relied on in these proceedings, raised issues about her credibility more generally. She was prepared to present a misleading impression to a court to get what she wants. For these reasons her evidence should be rejected where there was dispute between her evidence and that of the pursuer.

[118] Her account of the pursuer wanting to "nip the baby" at the hospital to prove that this was a live birth was fanciful and should be rejected.

[119] The performance of the defender in the witness box demonstrated that no one could control her and this contradicted her evidence that the pursuer had been controlling of her. The defender's specification of that did not go much further than her saying that they argued about the food she should eat when she was pregnant. It was the defender, not the pursuer, who had behaved badly over the registering of the birth and what she termed abuse was no more than him calling her to account for her actions.

[120] By declining to negotiate on the question of direct contact, the defender had not acted in the best interests of NJ. The money spent on this action by the pursuer could have been spent on NJ. The defender had withdrawn her application to the CSA at one stage.

[121] The basis of the pursuer's opposition to direct contact was that she deemed him dangerous on account of her accepting the evidence of TL; she was not afraid of supervised contact in itself, but feared that it would lead to unsupervised contact; unsupervised contact would involve a risk of abuse; she was worried about NJ being abducted to Iran; she sought the freedom to travel and find work abroad if she cannot find work in the United Kingdom. The answer to that last point was that she should come back to court for a specific issue order if that situation arose.

[122] Counsel submitted that AJ had demonstrated bias by declining to give a statement to the pursuer's agents. AJ was protective of the defender and had been influenced by what the defender had told her about the pursuer. These factors may undermine her reliability. A number of minor discrepancies between her evidence and that of the defender were pointed out. Ms Stirling submitted that there were also occasions where their evidence dove-tailed and the implication seemed to be that she had been influenced by the defender. AJ's evidence should be rejected where it was in conflict with the evidence of the pursuer.

[123] However, counsel submitted that it was important to note that AJ had said that she would help make the relationship between NJ and the pursuer work. She would drive her to contact and would be prepared to supervise.

Defender

[124] Miss Wylie invited me to prefer the evidence of AJ to that of the pursuer where there was dispute. She commended AJ as having given evidence in an open and down‑to‑earth manner. In important respects her evidence supported the defender and their evidence should be preferred to the pursuer's who gave a rather different account of the decline of his relationship with the defender.

[125] Whilst the defender had become very worked up during cross‑examination, this should be seen as a manifestation of her genuine concern and worry for the

well-being of her child. There was no reason not to accept her evidence as credible and reliable and to conclude that her fears were genuine and well-founded.

[126] The pursuer managed to give an account in which nothing was his fault. For example, his damaging their house with a hammer was provoked by TL's behaviour towards him; that he could not stay in Scotland after NJ's birth was because of AJ's treatment of him; that he paid no maintenance for NJ was the fault of the defender for leaving. This was a reason to doubt the truthfulness of his evidence.

[127] Counsel described TL as being a vulnerable woman with a child when she became involved with the pursuer. The defender had seen similarities in some of the behaviours described by TL with her own experience of the pursuer.

[128] TL was a woman who had mental health difficulties, but this was not a reason to reject her evidence. Whilst certain inaccuracies had been identified in the evidence of TL and JG, this was hardly redolent of a conspiracy to invent false allegations. In any event, the police record relating to 6 April 2007 provided support for evidence that the pursuer damaged the house with a hammer in the presence of a child. This all fitted in with other evidence from both the defender and AJ about the pursuer's temper and volatility. He himself accepted that he had stormed out on 15 April 2010 shortly after the birth of his daughter. At the very minimum there was evidence of a volatility which suggested that the pursuer presents a risk to NJ.

[129] The pursuer's own evidence that he had contacted TL about an unpaid telephone bill in 2010, which had led to the series of events which caused TL to be in contact with the defender, undermined the suggestion that the timing of events in 2010 was suggestive of a conspiracy against the pursuer of the sort suggested by Ms Stirling.

Submissions in law
Pursuer

[130] In her oral submissions, Ms Stirling began by referring me to the terms of the Children (Scotland) Act 1995 sections 1, 2, 3, 4 and 11 and the implications of those provisions in this case. I will briefly summarise her contentions.

[131] The law's working hypothesis is that it is normally in the best interests of a child to maintain contact and relations with a natural parent with whom the child is no longer living. White v White 2001 SC 689 per Lord President Rodger paras 14 - 17, Lord McCluskey paras 8-10. There is no onus on the pursuer. The responsibility is on the court to decide on the basis of the welfare and the interests of the child: White, Lord McCluskey para 10.

[132] The pursuer and NJ have family life in terms of article 8 of the European Convention on Human Rights and Fundamental Freedoms; Keegan v Ireland (1994) 18 EHRR 342, paras 44, 45. This was not disputed by Miss Wylie and I accepted this submission.

[133] An important factual consideration to be borne in mind was that had the pursuer remained in Scotland for another day the likelihood was that both parties would have registered the birth, identifying the pursuer as father and thus affording him parental responsibilities and rights.

[134] Where the existence of a family tie with a child has been established, the state must act in a manner calculated to enable that tie to be developed. Article 8 imposes on every state the obligation to aim at reuniting a natural parent with his child. Gorgulu v Germany
[2004] 1 FLR 894 para 45. The court should not focus simply on the imminent effects upon the child, but should consider the long term effects which a permanent separation might have on the child (Gorgulu para 46). Although there is a wide margin of appreciation in decisions about residence and taking a child into care, stricter scrutiny is required in respect of any further limitations, such as in relation to contact and residual rights: Gorgulu para 42, Principal Reporter v K 2011 SC (UKSC) 91 para 43. Cutting a child off from her roots can only be justified in very exceptional circumstances: Gorgulu paras 48-51.

[135] Even where domestic abuse is established, the court should consider the question of contact carefully. In re L (A Child)(Contact: Domestic Violence) [2001] Fam 260, pp273C-275E, 301C-E.

[136] Bearing in mind that the welfare of NJ is the paramount consideration, it should be recalled that according to his own evidence the pursuer has a lot to offer her. Dr Latif had also given important evidence of the benefits to NJ if she has direct contact with the pursuer and the disadvantages to her if she does not. The pursuer has no personality disorder. He offered an alternative perspective to the defender who was prepared to take her baby away from her wider family at the age of 10 months. He had demonstrated his commitment to his daughter by pursuing the matter of contact through the courts. He is sensitive to how it will need to be staged. He has a good job and is a male role model. An order for contact was necessary as the defender was not willing to agree to anything except limited indirect contact. NJ is too young to express a view.

[137] Counsel suggested that a simple contact order would be insufficient. Parental responsibilities and rights ought to be awarded as there would be benefit in co‑operation on significant issues in NJ's life such as schooling, hospital treatment and foreign holidays. This would not extend to the minutiae of daily life. There was no credible evidence that the pursuer's involvement in NJ's life would be harmful. Ms Stirling accepted that other than in relation to contact, at a practical level there would not currently be much content to parental responsibilities and rights. The residual responsibilities and rights may be of more importance in the future when the pursuer might help NJ find work and guide her in her career. An order of parental responsibilities and rights would temper the defender's intransigence. Even if the residual rights do not currently seem important, there would be no harm in granting them and to do so would be in NJ's best interest. If the allegations of TL and JG were established then contact would be the only element of parental responsibilities and rights which should be granted together with an order regulating contact.

[138] The pursuer would propose a staged re‑introduction of contact. The Iranian Church where the defender takes NJ would be a suitable venue. There is no requirement for supervision but the pursuer would accept facilitation by his being accompanied by a child care professional or a friend of the pursuer who has children. If the allegations of TL and JG were upheld, supervised contact should still be allowed.

[139] One option for the court to consider would be the making of an interim order for contact to monitor progress. Agents for the pursuer had recently gained sanction from SLAB for a child care professional Heather Drysdale to facilitate contact. She is a psychotherapist and has experience of adoption. She has consulting rooms in Glasgow and is prepared to supervise on Saturdays and Sundays. It may be appropriate before making any order of contact to put the case out By Order for a discussion of the nature of contact in the light of the court's findings. This was competent as could be seen from the approach taken by Lord Osborne in Perendes v Sim 1998 SLT 1383. That it was competent to make an interim order even after proof was vouched by the opinion of Lord Stewart in Soofi or Murtaza Petitioner, [2011] CSOH 214, according to counsel.

[140] If the allegations of TL and JG were not established, then it would be appropriate to grant at least the parental right to regulate residence to ensure that the pursuer had title and interest in any future proceedings. This might discourage the defender from doing something like moving to Shetland for example which would make contact much more difficult.

[141] Interdict was sought even if there should be a contact order in pursuance of a parental right and responsibility relating to contact, because the defender had plainly intended to take NJ to South Korea without the agreement, or even knowledge, of the pursuer. During the current proceedings it was apparent that she had been seeking to obtain employment in Oman. The effect of interdict on the pursuer would be minimal. It would not be onerous for her to have to return to this court for permission to take NJ abroad for specific and verifiable trips. The pursuer was seeking perpetual interdict to ensure that he can develop a relationship with NJ.

[142] On the minimum intervention principle, the defender's application for a residence order should be refused as unnecessary as it was not being challenged. The defender's application for interdict should be refused. There was no credible evidence that the defender would seek to take NJ abroad. It should be noted that the defender had not sought interim interdict in these proceedings. Interdict was unnecessary. The defender had offered and continued to offer an undertaking to the court not to remove NJ from the United Kingdom without the agreement of the defender.

Defender

[143] Miss Wylie submitted that it was undisputed that NJ is happy, settled and well-cared for. It could be anticipated that the awarding of parental responsibilities and rights to the pursuer would open up conflict, which would not be in NJ's interests. In these circumstances, it was better that no such order was made in favour of the pursuer.

[144] Given his volatility as disclosed in the evidence, and his controlling behaviour, the pursuer would be likely to act in a manner which was contrary to NJ's best interests. Given the anxieties that the defender would experience if there was direct contact, this would transmit itself to NJ to her detriment. Counsel did concede however, that it might be thought that properly supervised contact would allay the defender's concerns based on the pursuer's volatility and history of abuse. There would be a risk however of things being said in Farsi which a supervisor would be unlikely to understand. Indirect contact would, for now, be better. Further, the court could not make an order in relation to supervised contact without knowing precisely what it would entail and no such evidence had been put before the court. The defender's very real fear that the pursuer would take NJ to Iran, together with the way he had treated JG, the age of NJ and the reality that the pursuer is a stranger to her dictated that unsupervised conduct should not be contemplated.

[145] By granting a parental responsibility of contact under section 1(1) (c) or right of contact under section 2 (1) (c) of the 1995 Act, the court would be granting the pursuer a veto on any possibility of the defender finding work abroad, because of the effect of section 2(6). The personal fulfilment and salary which the defender would gain from employment were benefits which might thus be denied to NJ. The defender would have to seek the authority of the court by way of a specific issue order to allow her to move abroad, or even travel abroad on holiday with NJ. This would involve further litigation and would be so time consuming that it might effectively defeat any possibility of obtaining work abroad. However, if such an order were made, the pursuer would have a veto and the orders sought in conclusions 2-4 would be unnecessary. If contact was to be ordered, it would be better if it was a free standing contact order under section 11(2) (d) so that the pursuer would not have a veto over the movements of the pursuer. An advantage of indirect contact was that it could be exercised wherever in the world the defender and NJ were located.

[146] So far as the residence order sought by the defender were concerned, Miss Wylie's position was that if the court did not award the pursuer parental responsibilities and rights there would be no need for such an order. If the court imposed rights and responsibilities restricted to contact the order might not be said to be necessary but it would be helpful. If full responsibilities and rights were awarded, then an order for residence would be a necessity.

[147] Despite what the pursuer had said in court, and the undertaking he had offered, he is someone who has the contacts and the ability to take NJ to Iran. This was a real fear for the defender because there would be little prospect of her being able to secure the return of NJ. Until now, NJ, was a young baby and never away from her carer and that was why no interim interdict had been sought by the pursuer until now. If contact were awarded that would be a real change of circumstances which may justify the granting of the interdict sought.

[148] If the court was minded to make an interim contact order or contact order then the case should be put out by order for a discussion and the obtaining of up to date information as to how that would work.

Discussion of the evidence

[149] Both Ms Stirling and Miss Wylie presented written submissions which are with the process. I considered all of the evidence in the case and all of the submissions, written and oral, which were made about it.

[150] The principal evidential dispute in this case was between the evidence of TL and JG to the effect that they suffered abuse at the hands of the pursuer and the evidence of the pursuer to the effect that they did not.

[151] TL was subjected to a searching cross-examination. On the basis of that cross-examination I inferred that she did not tell the truth in her affidavit, and initially in her evidence, about her current whereabouts. She was reluctant to confirm her present whereabouts and so she never got to the point of offering an explanation for this, but it appeared to me that she hoped to maintain a fiction which would mean that the pursuer would not know where she currently lives. Nevertheless, it was apparent that she was not entirely truthful in her affidavit and that position was part of the basis on which special measures were granted. That dishonesty, however comprehensible, was a factor which I took into account in assessing the material parts of her testimony which are in dispute.

[152] Of more significance is that TL said in her evidence that in response to physical abuse inflicted on her by the pursuer during their marriage, she had telephoned the police numerous times, and her mother knew of at least twenty two occasions when TL had called the police in these circumstances. The witness herself accepted that only two such incidents were recorded by the police. Having regard to the joint minute; the police records and the explanation within them as to what material was looked for, which included telephone calls; the force policy contained in No. 6/21 of process, covered by paragraph 5 of the joint minute, and indeed the evidence of TL herself that she was told by Victim Care that the police had logged only two incidents involving her and the pursuer, I was satisfied that the pursuer was wrong when she said that there had been contact with the police on more than two occasions in the relevant circumstances. Whether that fell to be considered as undermining reliability or credibility, it was a rather stark contrast for which I did not identify an acceptable explanation.

[153] When TL was examined about the nature of her communications with the pursuer in 2008 by text messaging, I found her explanations to be defensive, implausible and erroneous. She tried to suggest that those messages which were genuine were sent in 2007. However, reference in the texts to someone who would seem to be the defender, satisfied me that these messages, if genuine as I accepted them to be, did indeed relate to 2008. TL was either profoundly unreliable about these matters, or she was seeking to give the court a rather false impression of the nature of her dealings with the pursuer in 2008.

[154] I also took account of the fact that decree for divorce was based on the unreasonable behaviour of TL, and not the pursuer. Whilst TL sought to offer an explanation for that designed to account for her being in the position of being abused but agreeing to the divorce on the grounds of her behaviour, I did not find it altogether convincing.

[155] Understandably, given the issues in the present case, TL was not examined in any great detail about the physical and sexual abuse which she said she suffered at the hands of the pursuer. He denied that she suffered any physical or sexual abuse from him. So far as the sexual matters are concerned, this subject was touched on so fleetingly that I was not able to be satisfied on the evidence which I heard that TL was sexually abused. The issue was not explored in sufficient depth to come to any firm conclusion on an issue which does not feature in the pleadings at all.

[156] So far as physical violence committed against her was concerned, I heard at least a little more about this. Whilst I recognised that it is not required as a matter of law in these proceedings, the difficulties with particular parts of her evidence which I have referred to, caused me to conclude that before I could accept those parts of her evidence which were disputed, I would require to find support from some other source. In these circumstances, I did not find it established that the pursuer assaulted her on any occasion other than that spoken of by JG on 'Air Raid Shelter Day'.

[157] The position was not necessarily the same with JG. It had not been established that he had lied or been mistaken about any of the matters which caused me concern in the evidence of his mother. There was a general attack on his reliability based on entries in Ms Hanson's report. It was also suggested that JG had lied in order to support or please his mother who had sought revenge on the pursuer for his infidelity during their marriage.

[158] Whilst examination in chief was limited in its scope, most of the material in JG's affidavit was explored in cross‑examination and I had the opportunity, albeit via a live television link, to observe JG's reaction to the various suggestions which were put to him. To my mind, JG was substantially credible and reliable in describing the rather extreme behaviour of the pursuer on what can be seen from the police records to have been 6 April 2007. The pursuer accepted that some sort of incident involving damage to property occurred on that occasion, but he sought to downplay its nature. It follows that JG's whole account is not a complete fabrication.

[159] Whilst he may have been wrong about some of the dates which he attributed to events, the sharp issue, given the denials of the pursuer, was whether JG was credible and reliable or had exaggerated or lied about other parts of his evidence. Whilst I gave careful consideration to that possibility, no convincing explanation was put before me as to why the witness would choose to lie about those matters. Furthermore, I detected no enthusiasm on the part of the witness for implicating the pursuer in his evidence nor undue reluctance. He impressed me as a teenage boy who was doing his best to tell the truth about matters which were difficult for him to talk about and which had occurred some years ago now.

[160] I considered carefully whether an apparent conflict between his evidence and what he told Ms Hanson is fatal to his account. She had noted:

"I asked JG if he had told anyone about his feelings and James said that he had now told his mother about the previous 'physical abuse' he had received at the hand of [the pursuer]. JG said his mother was upset and totally unaware of the abuse and that due to her ill health he had kept it from her."

On his account, the incident when his lip and nose were cut on "Air Raid Shelter Day" happened in the presence of his mother, as did the incident involving hot cooking oil. It would seem surprising then that he should be saying that his mother knew nothing of any abuse. However, he did not specify to Stella Hanson which episode of abuse he was talking about, and his evidence included reference to incidents which occurred in the absence of his mother. Having regard to other parts of Ms Hanson's evidence, I have the distinct impression that JG may have sought to shield his mother's parenting from scrutiny by outsiders. Dr Latif gave evidence that carers do not want other people to worry about them and will keep things to themselves. I did not find it difficult to accept that TL may have failed to take steps to protect JG for her own reasons.

[161] I accepted that there might discrepancies between the evidence of TL and JG about the circumstances, or at least the timing, in which he first disclosed abuse to her, but this 17 year old was giving evidence about events which had occurred years previously and the details of the circumstances of his telling his mother would not necessarily have been very important to him. I did not regard TL as offering a particularly reliable yardstick against which to judge the evidence of JG. For that reason, and having regard to the much greater interval of time, I did not regard any discrepancies as to the detail or the dates of incidents which they both observed to be fatally undermining of the evidence of JG. I found the explanation that he came to tell his mother about the extent of the abuse he had suffered at the hands of the pursuer when he learned that the pursuer's new partner was expecting, or had, a baby, to be comprehensible and credible.

[162] It was recorded by the police in notes dated 5 July 2010, No 6/26 of process at page 41, but which appear to relate to a meeting with TL on 1 July that:

"TL said ...he has disclosed to her that he used to hit him and shout at him and also once threatened to throw hot oil at him. She said that JG does not want anything to happen about all this and does not want to make a statement."

This hardly fits in with a scheme designed to wreak revenge on the pursuer in which TL was manipulating JG to give false evidence which JG was happy to do to please his mother. When the proposition was put to JG that he was giving evidence to please his mother, his response was that it had hardly made her happy. On Ms Stirling's hypothesis, JG should have told Stella Hanson on 2 July 2010 that he had been assaulted by the pursuer, but whilst he spoke of having been in danger from him on that occasion, he did not specify that he had been physically abused until 10 September 2010, after the school summer holiday. I am not persuaded that JG was doing anything other than trying his best to tell the truth and for the most part I accepted his evidence as both credible and reliable.

[163] The evidence of the pursuer in so far as it was in conflict with the evidence of JG did not cause me to reject the evidence of JG. I rejected the evidence of the pursuer where it was in conflict with JG. I did not find the pursuer to be a satisfactory witness in all of his evidence. Despite appearing to exhibit reason and sincerity during his evidence in chief, in cross‑examination he showed irritation at any suggestion that he may be wrong about anything. Where his evidence was in conflict with AJ, I had little difficulty in accepting the evidence of AJ who I found to be entirely straightforward, reasonable, credible and reliable. Whilst there was obviously a potential question of family loyalty, I did not find her to be a biased witness. She gave an explanation for not being available to give a statement to agents for the pursuer, she was too busy with a full time job and looking after her elderly husband and supporting her daughter with baby NJ. Her constructive views about making contact work, and offering to supervise it, were rather different to those of her daughter and suggested objectivity on AJ's part.

[164] In a number of respects the pursuer was shown to have given incomplete or misleading information where it suited him to create a particular impression. He was recorded to have told Dr Latif that the defender had suffered from clinical depression over a number of years when that was plainly not true. A further example was elicited from No. 6/16 of process by Ms Stirling, albeit for other purposes. The pursuer had completed his petition for divorce on the grounds that the marriage had broken down irretrievably because of unreasonable behaviour by TL and he offered the incident in April as his first specification of her unreasonable behaviour. His description of that event was in these terms:

"TL started to argue.... When I was going to take the car to go out she accused me of going out to cheat on her and started shouting and screaming and swearing at me. We ended up having a massive argument in front of J (my stepson) and that was the last day of us living together."

Given that the pursuer now accepts that he proceeded to set about the house with a hammer, this was a conspicuously incomplete account.

[165] I found some force in Miss Wylie's submission that the pursuer often sought to shift responsibility onto others and that did not enhance the quality of his evidence on matters which were in dispute. I did not believe his account of how he accidentally discovered an email sent by the pursuer to TL in 2011 and considered that he was seeking to dilute the adverse impression which might have arisen had he acknowledged that he was deliberately monitoring the pursuer's e-mails.

[166] By the time of the proof, the defender saw matters in a very uncompromising light. She was a difficult witness who did herself no favours with her tendency to make speeches in response to questions put in cross-examination. That did not necessarily mean that she was lacking in credibility or reliability on that account. She appeared to me to be determined to get her point across and anxious that she was not driven to give answers which did not give the full picture. I considered her evidence very carefully because she plainly had an incentive to give evidence supportive of her case, and she was shown to have been at least possibly misleading in her job applications, and thus willing to create a favourable impression when it suited her purposes. However, she was supported by the evidence of her mother AJ on a number of disputed matters and by circumstantial evidence in some other respects, notably evidence from JG and, on one occasion at least, the pursuer himself, that the pursuer damaged property when he lost his temper. I found that I could accept parts of her evidence which were in conflict with the evidence of the pursuer.

Conclusions on the evidence

[167] I accepted that on an occasion in 2003 or 2004, whilst he was arguing with TL, the pursuer struck JG in the face whilst he was being held by TL, causing JG to bleed. I accepted that in 2003 or 2004 in the course of an argument with TL the pursuer threw a pan containing hot cooking oil in the kitchen. I was not convinced that this was an assault. Although JG spoke of it being aimed at them, that could only be a matter of impression and it seemed to me that had the pursuer intended that the oil should hit JG and TL he could hardly have missed. I found it consistent with his propensity to lose his temper and damage things that he would throw a pan in temper without necessarily aiming it at someone. I accepted that there came a time when the pursuer wished to have little to do with JG and would send him to his room if the two of them were alone together. I accepted that there were a number of other occasions on which the pursuer assaulted JG by pushing and pulling him and on one occasion by briefly placing his hands on his throat. I accepted that the pursuer would kick and punch TL's car. I accepted that on 6 April 2007 the pursuer hit doors and smashed windows with a hammer at TL's house in the presence of JG.

[168] I accepted that the pursuer would seek to influence the diet of the defender during her pregnancy to an extent which could be considered to be controlling. I accepted that he was rude to AJ and that he shouted at her and made the aggressive gestures towards AJ's husband described above at paragraph [101] and the movement towards AJ described above in paragraph [104]. I accepted that he is prone to losing his temper and that he broke crockery and kicked furniture in the presence of the defender. I accepted that he used his camera during the defender's labour and the birth of NJ in hospital and that he persisted in spite of protests from AJ and knowing that the defender had previously expressed her objection to it. I accepted that whilst making a telephone call he asked the defender to make the baby cry for the benefit of someone on the other end of the telephone. I was not able to reach any conclusion as to who that person was and I was not able to conclude that it was someone with whom he had entered an arrangement concerning the future of NJ.

[169] I accepted the evidence of AJ that the pursuer said that he wished the baby to be known by the surname J. The defender also gave evidence to that effect. The pursuer denied saying this. His position was that he worked on an assumption that his surname would be given to NJ on registration. I did not accept it as credible, that where the couple were not married, and when they were living apart and in different parts of the United Kingdom, that the pursuer would have left this as an assumption.

Discussion - the orders sought

[170] I had regard to all of the respective written and oral submissions in so far as relating to the law and the orders sought.

[171] Given NJ's age, the obligation in section 11(7) (b) of the 1995 Act relating to the views of a child is not relevant in this case. Otherwise, section 11 requires that in considering whether to make certain orders the court shall regard the welfare of the child concerned as its paramount consideration and 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. The court must have regard to the need to protect the child from any abuse or risk of abuse which affects or might affect the child; the affect such abuse or risk of abuse might have on the child; the ability of a person who might carry out abuse which affects or might affect the child to care for or otherwise meet the needs of the child; the affect any abuse or risk of abuse might have on the carrying out of responsibilities in connection with the welfare of the child by a person who has parental responsibilities. Where the court is considering making an order under section 11(1) and in pursuance of the order two or more relevant persons (in this case the parties) would have to co‑operate with one another as respects matters affecting the child, the court must consider whether it would be appropriate to make the order.

[172] Ms Stirling had conceded that if findings were made of abusive behaviour by the pursuer on the basis of the evidence of TL and or JG, then the only parental right and responsibility which would then be appropriate would be contact.

[173] Notwithstanding what I found in relation to instances of violence being inflicted on JG at times when he would probably have been aged about 10-12, I did not consider those findings conclusively to rule out direct contact with the pursuer being in the best interests of NJ. The opinion of the Lord President in White provides a starting point for consideration of this issue.

"...the general principle which is to be deduced from the provision in para 7 (1) (c): that it is conducive to the welfare of children if their absent parents maintain personal relations and direct contact with them on a regular basis."

[174] NJ is a child who has a father who is able to work and to support himself. He is Iranian in origin and has a wider family. From him she would be able to gather an understanding of her family and cultural background, and whilst no doubt she could gain some such understanding in other ways, her father is an important source of information about, and a bridge to, that side of her heritage. I broadly accepted the evidence of Dr Latif as to the benefits for NJ in having direct contact and the disadvantages for her in not having such contact. Whilst I had to take into account the serious matter of the pursuer having been violent and abusive to JG, that conduct occurred a long time ago in very different circumstances. I also took account of his controlling and volatile behaviour towards the defender, and her parents, but do not consider that in combination these factors dictated that there should be no direct contact at all.

[175] There was no suggestion that the pursuer was ever violent to NJ or to her mother. The pursuer denied the totality of his conduct, and sought to downplay what happened in April 2007, but in relation to that incident he had at least recognised that he was wrong to behave as he did. JG was not the pursuer's son. He was a boy, probably of ten and older, when the abuse occurred. The pursuer was living with the emotionally volatile TL who acknowledged that she had suffered from mental illness during their time together. Their relationship, which cannot have been an easy one, was disintegrating. None of this is to excuse what the pursuer did, but it did seem relevant in assessing what risk there is of the pursuer physically abusing his own daughter NJ, who is not yet two years old, and with whom he will not be living. What risk there may be could be all but eliminated by ensuring that contact takes place under supervision. Miss Wylie came close to conceding as much as I have narrated at paragraph [144].

[176] On account of the way that matters developed, NJ has had no contact with her father since 31 May 2010. That is a very large gap to make up. In these particular circumstances, and where I was persuaded on the evidence that it was in the best interests of NJ that her father should play some part in her life, it was also in her best interests that direct contact should be allowed to develop over at least a significant period before it is interrupted. Notwithstanding the defender's wish to find work, abroad if necessary, and the benefits which may accrue to NJ if her mother is working and fulfilled, for now that must give way to the importance of NJ having a chance to establish a relationship with the father who has been absent from her life.

[177] For these reasons, I considered it to be in the best interests of NJ that the pursuer was awarded the parental responsibility of contact in terms of section 1(1) (c) and the parental right of contact in terms of section 2 (1) (c) of the 1995 Act. If there comes a stage where the defender considers there to be a particularly good reason why she should be allowed to take NJ with her to work abroad, then it will be open to her to seek a specific issue order under section 11 (2) (e) of the 1995 Act. That may seem slow and cumbersome to the defender, but the best interests of NJ will require to be examined carefully in the light of the circumstances then prevailing, no doubt informed by the history of how any relationship has developed between NJ and her father. I concluded that, in principle, the pursuer should be allowed supervised contact, and I put the case out By Order to allow parties to see if they could agree on the terms of a contact order, and if they could not, to allow them to address me. In the event, agreement was reached and an order for contact was made in accordance with that agreement.

[178] Having determined that the pursuer should have the parental responsibility and right of contact, it follows from the terms of section 2 (3) and (6) of the 1995 Act that it would not be lawful for the defender to remove NJ from the United Kingdom without the pursuer's consent. Given that she had made no attempt to remove NJ whilst there was an order of the court prohibiting her from doing so, and noting that she is a woman who regards herself as an officer of the court by reason of her legal work, I did not consider it appropriate to grant interdict.

[179] I was not persuaded that it would be in the best interests of NJ that her father should be awarded parental responsibilities under section 1 (1) (a), (b) or (d) or parental rights under section 2 (1) (a), (b) or (d) of the 1995 Act. NJ will be living with her mother. Whatever the rights and wrongs of the registration of the birth of NJ, the position now was that the pursuer had had no active involvement in the upbringing of NJ since she was about six weeks old. He had made no real effort to support her. Ms Stirling struggled to identify what real benefits there would be to NJ at this time in the pursuer having responsibilities or rights other than contact. I saw little prospect of the pursuer and defender being able to co‑operate over matters affecting NJ which I took into account for what it was worth. In the whole circumstances, I concluded that it was better that no such order was made. That was in line with what Ms Stirling had conceded would be appropriate should I find the allegations of JG to be true.

[180] Whilst there was a current acceptance that NJ should live with the defender, having regard to the whole history of the case and the likelihood of difficulties continuing between pursuer and defender, and the other orders which I made, I considered that it would be in NJ's best interests that the position of her residence was settled by the court by making the residence order sought by the defender. I concluded that it was better that that order was made than not.

[181] When it came to the question of the interdict sought by the defender, I noted that the pursuer had made no attempt to remove NJ from her mother let alone to take her out of the country. He had had almost two years to do so if that was his intention. No interdict or interim interdict had been in place to restrain him from doing so. In those circumstances, before I could have granted interdict I would have had to be satisfied that there was a reasonable ground for apprehending that the pursuer intends to commit a wrong; Inverurie Magistrates v Sorrie 1956 SC 175, opinion of the Lord Justice-Clerk at page 179.

[182] The argument was that the pursuer is Iranian, he still has family in Iran which is not a signatory to the Hague convention. The pursuer suspected that he may have made some arrangement in relation to NJ because he took photographs at the birth and because he wanted her to be made to cry whilst he was on the telephone speaking in Farsi. I could not, on that basis, and having regard to the whole circumstances, be satisfied that there were reasonable grounds for apprehending that the pursuer would abduct NJ and take her to Iran. The defender's conclusion for interdict was refused.

Decision

[183] For the foregoing reasons, I made the following orders.

[184] I imposed upon the defender the responsibility and gave him the right in relation to NJ to maintain personal relations and direct contact with her on a regular basis, in terms of sections 1(1)(c) and 2(1)(c) of the Children (Scotland) Act 1995 respectively.

[185] I made a contact order in respect of NJ and allowed direct supervised contact between NJ and the pursuer as follows:

1. Two periods of contact not exceeding two hours on each occasion on 14 and 28 April 2012 between 1pm and 3pm, said contact to be supervised by Heather Drysdale at her premises in Harmony, 575 Anniesland Road, Glasgow, G13 1UX, said contact to be preceded by two introductory meetings between the defender, the defender's mother, NJ and Mrs Drysdale on 10 March 2012 and 25 March 2012 between 1pm and 3pm on each occasion;

2. Commencing on 19 May 2012, for contact to take place every third Saturday at the Relationships Scotland (Family Mediation West) Contact Centre, 167 Ledard Road, Langside, Glasgow G42 9QU from 1pm until 3pm on each occasion, contact to be supervised;

[186] I made a residence order in respect of NJ and required that she continues to live with the defender with effect from 2 March 2011.

[187] I recalled the interim interdict granted on 18 February 2011 and quoad ultra refused the conclusions of the summons and defences and reserved all questions of expenses meantime.