05/03/06
Note by Counsel
for the pursuer
in causa
MR X Pursuer
against
MISS X Defender
The pursuer has raised an action in Glasgow Sheriff Court in
which he seeks, relevant
to his son, aged five years:
A Residence Order.
A Contact Order.
This matter is important in that it involves the future well
being of a child. Of course,
all Residence / Contact actions involve the welfare of the child
involved, to some
degree or other.
Sometimes, it may be, depending upon the decision made by the
court, a child will be
a little better off if the decision goes one way and a little
worse off if the decision goes
the other way.
In my view, based on the evidence presently available, this
case is towards the
extreme end of the spectrum.
In my opinion, there is reason to believe, given
the evidence, that the child will
be very much better off, if the pursuer is successful and in
very real trouble if the
decision of the court goes the other way.
I cannot remember making a value judgement such as the above
and putting in an
Opinion.
I would only do so in a case involving the welfare of a child
and would never do so
lightly.
I have been fooled before but, in my view, the pursuer in this
case is a 'sensible
bloke' and the allegations he makes appear to me to be measured
(in the main),
credible and well founded.
In my experience, some social work departments take
a 'dim view' of articulate and
non-pliant parties being involved in 'their' cases. I am concerned
that this is such a
case.
In these circumstances, when such potential circumstances arise,
there is benefit in
having the distance between client and legal adviser that the
instruction of counsel
allows. I refer below to objectivity. It is easier, in my view,
for counsel to maintain
objectivity than for a solicitor who is more directly involved
with the client. I do not
say a solicitor cannot maintain objectivity only that it is
easier, given the way our
legal system works, for counsel to do so. In this case, this
truism (?) is more likely to
be pertinent.
I have not rehearsed the history of allegations and counter-allegations
in this case. I
understand the Board is aware of these.
In my opinion the relevant 'facts' in this case are far more
numerous and complicated
than in all but a few such cases and involve matters of some
considerable moment
besides the primary and predominant issue, the welfare of the
child.
Running parallel with the question, what will the 'end' of
this case be, is the question
of the 'means' to that end.
It is, in my view, vital that this case goes to court and is
resolved as soon as possible.
To achieve this the pleadings will have to be quickly and carefully
couched and the
line of evidence clearly identified, to ensure the case is efficiently
presented and time
and expense minimised. In my view, in my experience, the most
efficient way to deal
with a case such as this is for solicitor and counsel to work
together to prepare and
present the case to the court.
There is reason to believe, in this case, that the pursuer
is up against not only the
defender but also authorities that have taken the side of the
defender.
Put bluntly, in my opinion, there is in this case,
reason to believe that the social work
Authorities have not conducted themselves with the objectivity
the pursuer and his son
have a right to expect. Put even more bluntly,
in my opinion, there is reason to believe
that these said authorities have decided that the child's interests
would be best served
by the child remaining with the defender mother (under their
aegis).
If it turns out there is, in my opinion, 'nothing to' his concerns,
then the pursuer will
be told this clearly and immediately.
There are two main areas of concern:
The defender's 'neglect' of her child
The defender's 'abuse'" of the child (including the defender
allowing her
mother to abuse the child). (See below.)
I refer to the photographs showing injuries to child x . The
frequency of these injuries
and their appearance is potentially vital evidence of violence
directed at this child.
Expert evidence will be necessary anent these injuries and other
matters.
Having read the papers and consulted with the pursuer it would
be reasonable to
expect that there will be what will purport to be independent
evidence to the contrary,
in favour of the defender. If this is correct, 'difficulties
with the social work
department', will not be a side issue but vital.' I
am surprised, given the evidence
available, that the social work department have not, to date,
taken more stringent steps
to protect child x. (I understand there is reason to believe
that physical abuse is
continuing. )
1
Medical evidence involved:
Regarding the day-to-day General Practitioner care of the child.
I have some GP records; these show more than twenty 'Did Not
Attends'.
A question arose concerning child xs 'Speech & Language'
- he was
discharged from care in this connection because of 'non attendence,
To avoid, or at least, minimise inconvenience to medical witnesses,
some
considerable 'front loading' will be required in this case,
that is, dealing with what
can be dealt with outside of court Minutes of Agreement &c.
Specification needed anent the social work records
and, perhaps, the records of the
police who have been involved in this case. (This
will be a matter for the discretion of
the court. The main concern in this connection is speed.)
The pursuer has alleged (in letters to the relevant Chief Constable
and to the Minister
of Justice) that his son's case has been mishandled.
The pursuer has, I understand, had allegations made
against him concerning his
treatment of his child, although no charges were levelled against
him and no
opportunity provided to him to defend himself,
this has resulted in his losing his career.
The pursuer has made allegations of 'dishonesty and professional
incompetence'
against various named employees of the social work department.
The pursuer's position is that he has been the subject of several
serious assaults upon
him at the hands of the defender and that the defender 'was
brought up around
violence and believes it is a normal part of a relationship.'
Of course, this is only
indirectly relevant. The issue is the welfare of the child.
There is, however, reason to believe that,
The defender's mother, the alleged primary abuser of child x,
has a history
of mental illness - 'violent mental breakdown'.
The defender has a long standing history of violence (both as
regards the
pursuer and others).
The pursuer has no such record.
I agree with the quotation attributed the pursuer's
MSP, in a letter from the Board,
that this case is 'complex and disturbing' and note that it
is said this statement was not
elaborated upon.
The complexity involved is, in my view, self-evident (evidence
of phone calls and
text messages, for example). The pursuer's dealings with the
defender and the
authorities that have allegedly taken her part are complex in
the extreme. (The danger
in such cases is that the welfare of the child is lost sight
of. The structural differences
in the way counsel and solicitors can work make it easier for
counsel to 'keep an eye
on the ball'. I do not suggest a solicitor cannot do this only
that it is easier for
counsel. )
The 'disturbing' matter is the possibility; I put it
no higher, that the social work
department has allowed its objectivity to be diluted. If there
is truth in this allegation,
and, as the Board says, the pursuer appears to have recovered
documents which
support the pursuer's position in this connection, then, not
only would what has
happened in this case have a significant detrimental effect
upon the welfare of the
child, but would have a significant potential consequences of
a wider nature,
that is, for other children.
There is much to be quickly marshalled in this case. The facts
are, in my view,
numerous and complex and the law potentially problematical,
much will depend on
the part, if any, the conduct of the authorities has to play
in this case.
The court will, of course, make the final decision, based on
the evidence. The 'trick'
will be to get the relevant evidence before the court quickly,
in the interests of the
child, and in a form that will allow the court to make a properly
informed
judgement, in the interests of child x.
I have no hesitation in stating my opinion that complexities,
legal and factual, justify
the instruction of junior counsel, and that this would be the
most efficient way to run
this case to a conclusion. In my opinion, the alternative would
be a false economy.
Advocates' Library
Parliament House
Edinburgh
EH 1 1RF
05/03/06
The following is from the Father who
is fighting for justice for his son, why does he have to loose
his career and a good part of his life because the authorities
will not do the job they paid to do.
You will note the complaints that i have made to both the police
and social
work. these complaints have now spanned two and a haf years
and have
resulted in nothing but buck passing and the harshest of treatment
for
myself.
You will note the missed doctor's appointments 23 in total ,there
were also
missed kidney scans spanning 18mnths and I quote from the hospital
letters
We were unable to complete all of the required investigations
as my son did
not attend for follow up. Dr
17/06/04
given his clinic attendance history, I am not hopeful that
he will attend
further appointments. Dr
. 14/03/05
My littleboy has had 10 teeth removed having missed an operation
to prevent
this for over one year
Not to mention the 9 nursery statements that social work tried
to hide from
me ,when my son made statements revealing the abuse that he
is enduring
under both his mother's and grans care.
These statements are harrowing to state the least.
I have written to Peter Peacock Social work minister
on more than 18
occasions and he has never responded or even acknowledged my
letters.
it is amazing how no-one even ,when I have such a weight of
evidence is
prepared to repair this sorry situation.
