| AIRDRIE SHERIFF COURT |
| Sheriff Principal B A Lockhart | F320/11 JUDGMENT OF SHERIFF PRINCIPAL B A LOCKHART in causa STEPHEN BLACKWOOD Pursuer and Appellant against KARYN ELAINE McCRIMMON Defender and Respondent |
Act: Ms N Seeman, Solicitor, Glasgow
Alt: Ms J Donnelly, Solicitor, Glasgow
AIRDRIE: 15 August 2012
The Sheriff Principal, having resumed consideration of the cause refuses the appeal and adheres to the Sheriff's interlocutor of 19 June 2012 complained of; reserves the question of expenses in respect of the appeal and appoints parties to be heard thereon on a date to be afterwards fixed.
NOTE:
Background to the appeal
1. On 19 June 2012 the Sheriff granted a Specific Issue Order in favour of the defender in terms of section 11(2)(e) of the Children (Scotland) Act 1995 enabling the defender to enrol the child Taylor Mary Jennifer Jane Blackwood born 24 August 2006, of whom the parties are the parents at Sunnyside Primary School. He recalled the interim order made on 12 August 2011 enabling the pursuer to enrol the child at Kildrum Primary School.
2. After sundry procedure the Sheriff discharged the diet of proof fixed for 27 March 2012 and assigned a Child Welfare Hearing for 19 June 2012. On 27 March 2012 the Sheriff interviewed the child. He also arranged to personally visit Kildrum Primary School and Sunnyside Primary School.
3. The Sheriff records the information he had obtained from these activities as follows;-
"I had visited Taylor at her school in Cumbernauld and had an opportunity of visiting the school and being taken on a tour of it by the headmistress. I had also a chance to speak to her.
Thereafter, because the detailed visit to the school in Cumbernauld had not been anticipated (I merely thought that I was attending at the school in order to speak to Taylor but the head teacher was anxious that I should see all the facilities in the school), the Sheriff Clerk wrote to both parties and with their consent I thereafter visited Sunnyside Primary School, Ruchazie. This was the alternative school to which Taylor would go if she was going to stay with her mother (the defender) as opposed to the pursuer (her father).
During my visit to Kildrum Primary School on 27 March I had the opportunity to speak to Taylor and I formed the impression that she was a delightful, intelligent and chatty little girl who was clearly very fond of both her parents.
She gets on well with Lisa (her father's fiancée) and with Tam (who is her mother's boyfriend and the father of the child her mother gave birth to in May). Taylor, in March expressed to me a wish that the child should be a sister and she was anxious to help her mum with her new sibling.
It was obvious to me that Taylor is a happy and well balanced child who enjoys seeing both parents. I noted that she appeared to get on well with Ann Clowes (the childminder) and with Ann Clowes' daughter who goes to a different local school. She explained to me that the current arrangement for her was to go to the childminder in the morning and return there after school until her father has finished work. At her father's house she has her own room with "lots of toys".
Taylor has a particular interest in dancing and is very enthusiastic about it. She does this with her cousin in Glasgow when she is with her mother. At her mother's house she told me that her room is going to have a bed with drawers under it so that she can keep her things there and that when the new baby arrives the baby will sleep with her mum and Tam but she hopes that it will soon be able to be in the same room as herself.
She explained to me that in order to go to Glasgow to stay with her mother she goes by taxi or public transport and that this is fine as far as she is concerned.
She enjoys visiting her grandparents as well as the parents of Tam and Lisa. She likes having more than two sets of grandparents.
When I asked her about her best friend at school at Cumbernauld she explained that this was a girl who did not live near her. It became apparent that Taylor was a child who would make friends very easily and while her best friend at school might not live near her in Cumbernauld this would not prevent her making and keeping plenty of friends wherever she was.
In a further conversation which I had with Mrs Lindsay (Head teacher at Kildrum) she confirmed that in her opinion Taylor was a bright child who made friends very easily. Mrs Lindsay emphasised that both the pursuer and the defender were co-operative and involved in Taylor's school progress and she indicated that Taylor was doing exceptionally well at school and was liked both by the staff and other pupils.
In the course of viewing Kildrum Primary School I saw that it was a happy progressive school which had won awards for healthy food. It had a number of facilities including a greenhouse and small garden area to allow the children to grow vegetables and flowers.
On 30 May I visited Sunnyside School and spoke to the head teacher there, Mrs Kennedy. She remembered Taylor when she had visited the school with her mother and also described her as a happy, bright child. She particularly indicated to me that her impression of Taylor was that she was a child who would settle anywhere ("if you put her on the moon she would find friends"). Sunnyside School also has a greenhouse and other facilities and like Kildrum struck me as a good school with a positive outlook."
4. The Sheriff then continued:-
"I explained the position to the parties on 19 June and told them my impression of both schools and that I was clear that Taylor loved both her parents and enjoyed their company and that she was anxious to see as much as possible of both of them.
The parties at the appeal before me confirmed that, in court on 19 June 2012, the Sheriff had advised them of the information which I have set out in paragraph 3 hereof.
5. Before the Sheriff it was the submission of the pursuer that the child should live with him during the week and attend Kildrum Primary School. It was the submission of the defender that the child should live with her during the week and go to Sunnyside Primary School. The Sheriff invited each parent and their solicitors to indicate to him the reasons why they considered it would be better if he allowed Taylor to live with them during the week and go to the local school. The Sheriff records the submissions which he received as follows:-
The defender explained to me that in her view there would be more contact with her family if Taylor stayed with her. There would be no need to have a childminder and Taylor would be able to see her maternal grandparents and Tam's parents who lived only three minutes away, together with her uncle and cousins.
The defender emphasised to me that she had deliberately chosen Sunnyside School as it was better than the school closest to where she lived and having visited Sunnyside and the area around it I am prepared to accept that there are advantages in Sunnyside compared with Avenue End School which is probably closer to where the defender lives.
The defender emphasised that she would be able to take Taylor to school and talk to her about the school and her life there whereas if she continued to stay with her father she would continue to have to go to a childminder.
In relation to dancing the defender explained that there were classes on Wednesdays and Mondays at Avenue End School and Ruchazie Church on Thursdays and that she (the defender) had a friend called Natalie whose daughter also attended Sunnyside and went to the dancing class.
The defender in conclusion indicated that she felt it was in Taylor's best interests to live with her during the week and to have very generous contact with the pursuer at weekends when he was not working and when he could devote his whole attention to Taylor and Taylor could have the pleasure of enjoying his company then.
The pursuer argued that things could not improve with a change. He queried whether a change might cause problems and suggested that there were no grounds for changing the present position whereby Taylor stayed with him. He explained that he saw Taylor until 7.30 a.m. and that she then had a settled routine whereby she went to Ann's house and was taken to Kildrum Primary for 9.00 a.m. Ann then collected Taylor at the end of school and the pursuer went to Ann's house between 4.00 p.m. and 5.00 p.m. depending on when he had finished work (he is self employed in the building trade) and thereafter Taylor returned to his house.
He emphasised that he sometimes finished earlier or started the day later and this gave him more chance to see Taylor and spend time with her.
The pursuer explained that he did not work at weekends. He worked with his father which allowed Taylor to see her grandparents regularly. His mother did shift work with Strathclyde Police and accordingly was available to collect Taylor from school on occasions.
He emphasised that his parents only live five minutes away and that he could see no basis for changing the current position. In relation to contact he accepted that it was important that Taylor saw as much of her mother as possible and confirmed that agreement could be reached in relation to sharing holiday periods. The defender could have contact mid-week on a Wednesday and that on a Friday the defender could collect Taylor and have her stay with her until the Sunday at 5.00 p.m. except for every fourth week when Taylor returned to him at 10.00 a.m. on the Sunday.
The pursuer explained to me that he had arranged for Taylor to go to a jazz and hip hop dance class on Thursdays in Broadwood Stadium and that this was due to start in August. He pointed out that his fiancée Lisa's niece would also be attending the class and that Taylor knew her.
In addition he reminded me that Taylor was registered with a General Practitioner and Dentist in Cumbernauld, that his parents had vehicles and lived a short distance away and could help out at any time and that he and Lisa were marrying on 16 July and that there therefore would be a settled home for Taylor.
The pursuer referred to the school reports which Taylor had. They were in his words "great" and there is no doubt that Taylor was doing well at Kildrum.
The pursuer summarised his position in the phrase "if it is not broken don't fix it" and asked me to allow Taylor to continue to remain at Kildrum and with him during the week and to spend most of the weekends with her mother.
6. The Sheriff then records that following a protracted discussion between all parties and himself as to how the matter should best be dealt with, he listed with the help of the parties nine points which he felt required to be considered in deciding which was best for Taylor. He records that parties were agreed that the nine points summarise correctly the issues and allowed both parties to comment on each point. The Sheriff then records as follows:-
The first point related to which school Taylor would be better at. I explained that I was satisfied that both were good schools, both had forward looking head teachers and that I could not see any grounds for arguing that one school was better than the other. Parties accepted that as I had visited and toured both schools and had spoken with Mrs Lindsay and Mrs Kennedy I was able to form that view.
The second point related to the opportunities which Taylor would have of seeing the parent who she did not stay with during the school week. In relation to this Mr Blackwood accepted that because he did not work at weekends there would be an advantage in him having contact during the weekend when he could devote his attention and love to Taylor and spend extended time with her.
The third point related to the time and difficulty in Taylor attending the respective schools. Based on where the defender is living (and the home which she hopes to move to in July) it could be argued that it is easier for Taylor to get to Kildrum as there is a shorter distance between the childminder and Kildrum than the house in Ruchazie and Sunnyside School. Both are however within walking distance.
The fourth point related to whether it was appropriate and better for Taylor to stay with a childminder rather than be taken to school by her mum. I consider that it is better for Taylor to be taken to school by her mum but this is not a major point as it is clear that Taylor is happy with the childminder arrangements. Ann Clowes had built up a good relationship with Taylor but there never can be the special bond which exists between a mother and child, furthermore the childminder has her own daughter's interest to consider.
The fifth point relates to Taylor's interest in dancing. It is clear that both parents have given consideration to this and whether Taylor attends the hip hop jazz dancing at Broadwood with Lisa's niece or whether she attends one of the dancing classes available at Ruchazie with the child who she will be going to school at Sunnyside with and who she already knows does not seem to me to matter greatly. It cannot be emphasised sufficiently that Taylor is a child who will mix with anybody easily and listening to the description of the various dancing classes I could not find a factor which justified preferring one side rather than the other.
The next point related to the fact that Taylor is currently registered with a GP and Dentist in Cumbernauld. I do not believe that this is a fundamental issue. The defender is already registered herself with a General Practitioner and Dentist and there would be no problem at all in Taylor being registered with the same practitioners.
The next point related to Taylor's friends. As I have indicated the impression which I formed that Taylor is a child who will make friends easily was confirmed by both head teachers. Taylor's best friend at Kildrum is not somebody she particularly sees out of school and she appears to have plenty of friends both in Cumbernauld and in Ruchazie. Whether she is staying during the week in Cumbernauld or Ruchazie she will be at the other place during weekends and I am satisfied that her friendships will be maintained no matter which school she attends and where she goes at weekends.
The eighth point related to the relative accommodation which was available. At present it is fair to state that the accommodation available with the pursuer is better than the accommodation currently available with the defender. The defender however is due to move to larger accommodation in July which will not interfere with the distance that Taylor would require to travel to go to Sunnyside and would leave her as close to the relatives and friends she has in Ruchazie as is the position at present. I therefore was unable to find a basis for suggesting that the accommodation available to Taylor whether it is in Cumbernauld or Ruchazie from July onwards should be a major factor in my decision.
The ninth point which the parties asked me to consider related to how settled Taylor was. The pursuer emphasised that Taylor was happy and settled in Cumbernauld and suggested that there was no basis for changing that. The defender contended that Taylor was a child who would adapt to whichever home she stayed in and that she would have the advantage of helping her mum with the new baby and of the defender's direct involvement during the week including taking her to and from school. This was an element which was not currently available in relation to the pursuer because he was working during the week.
7. Having recorded that situation, the Sheriff then concluded;-
As I have indicated I am entirely satisfied having met Taylor and having listened to two experienced head teachers that Taylor is a child who will adapt anywhere. I do not think there is any evidence to suggest that she would not be perfectly settled if she moved to Ruchazie and I equally accept that she would be perfectly happy if I allowed the status quo to remain.
I advised parties of my thinking in relation to this matter as expressed above and indicated that it appeared to me that the one fundamental difference which remained was the fact that if Taylor continued to stay in Cumbernauld she would only be involved with her father first thing in the morning and when he returned from work and collected her from the childminder. If however Taylor was at Ruchazie during the week then on the basis that the pursuer did not work at the weekend he would be able throughout the weekend to give Taylor the attention and love which the child was seeking.
I therefore indicated to the parties that I considered that it was in Taylor's best interest to stay with her mother in Ruchazie and be able to spend large portions of the weekend with her father when he was free from work.
8. Having set out his view to the parties, the Sheriff records that they asked time to consider the view had expressed and the court adjourned. He then records:-
"The parties then asked for time to consider the view I had expressed and on returning to court I was told by both sides that they did not wish me to make any order in relation to contact or holidays arrangements. The parties had reached an agreement whereby Taylor would live with her mother during the week. She would spend the whole weekends with her father. Agreement had also been reached in relation to holidays. As I indicated in my handwritten note I was happy that this had taken place because it confirmed to me that both parents were anxious to work together in Taylor's best interests.
Put shortly having given this matter considerable consideration and having the benefit of seeing both schools, spoken at length with Taylor and with the head teachers of both schools and then considered the points made by both sides, I concluded that it was better for Taylor to have as much time as possible with her father at weekends thereby allowing her the involvement with a father who clearly loves her deeply at a time when he can devote his attention to her. This arrangement had the additional advantage that Taylor could live with her mum during the week when her mum did not have to go out to work and could take Taylor to school. It also had the benefit of Taylor being involved in helping her mother with her new half brother throughout the week."
The Sheriff then concludes:-
"I was asked to make a Specific Order in relation to the school so that the situation was clarified and this I did. I am therefore puzzled by the pursuer's decision to appeal this matter as I had understood that he agreed with my view that by allowing him contact every weekend for the whole weekend I was in effect giving him more time with his daughter which was in accordance with what Taylor wanted and was in her best interests."
NOTE OF APPEAL
9. Pursuer lodged a Note of Appeal on 3 July 2012 to the effect that in granting the Specific Issue Order in favour of the defender the Sheriff had exercised his discretion in a wholly unreasonable manner. He sets out six matters which he claims were not given appropriate attention by the Sheriff in reaching his decision.
10. At the appeal hearing before me on 10 August 2012 I was asked to adjourn the appeal as sanction for the employment of counsel for the pursuer had only just been sanctioned by the Legal Aid Board and the counsel of choice was not available that day. I noted that the appeal hearings had already been fixed for 30 July 2012 and 3 August 2012 but owing to my own disposition required to be adjourned. The new school term began the following week. I took the view the interests of justice demanded that the question of the school which the child should attend in the forthcoming term should be decided forthwith. I accordingly refused the motion to adjourn. Solicitor for the pursuer and appellant had submitted written submissions and she confirmed that she was in a position to proceed. As I said to the appellant personally at the end of the appeal hearing, his case was presented fully and very professionally by his solicitor. I indicated to him that he should rest content that he had not been put at any disadvantage by the absence of counsel. I understood clearly all the submissions which were made on his behalf.
SUBMISSIONS FOR THE PURSUER AND APPELLANT
11. Solicitor for the pursuer and appellant submitted that the Sheriff's Note did not correctly narrate his client's position. When the Sheriff gave his view of the matter after hearing submissions on the nine issues which had been identified, which I have recorded at paragraph 7 hereof. The pursuer was of the view that the Sheriff had decided to grant a Specific Issue Order in favour of the defender as he had indicated that it was in her best interests that she resided with the defender during the week. It was only on that basis that he instructed his solicitor to indicate that he had agreed that Taylor should live with her mother during the week and spend the whole weekends with the pursuer. However, he remained of the view that this was not in the child's interests. The interim Specific Issue Order in his favour in respect of Kildrum Primary School should remain in place and the defender's application for a Specific Issue Order in respect of Sunnyside Primary School should be refused.
12. Solicitor for the defender and respondent submitted that it was clear, from a reading of the Sheriff's Note, that the pursuer had a change of heart since the court hearing on 19 June 2012. The Sheriff had set out clearly compelling reasons for the manner in which he exercised his discretion and I should not entertain this appeal.
13. I took the view that it was in the interests of Justice that the appellant be allowed to present his appeal and his solicitor proceeded to do so.
14. I think the most appropriate way of incorporating into this Note the submissions which were made on behalf of the pursuer and appellant is to attach to this note the Note of Appeal and the written submissions which were lodged on his behalf. This I have done.
"
SUBMISSIONS FOR THE DEFENDER AND RESPONDENT
15. Detailed written submissions were lodged on behalf of the defender and respondent and these are also attached and incorporated into this Note.
DECISION
16. The decision which is appealed is a discretionary one. The law is clearly set out in Macphail on Sheriff Court Practice at paragraph 18.111 where the learned author stated;-
"The underlying rationale of the appellate court's restrictive approach to the review of discretionary decisions is that it is of the essence of the judicial discretion that on the same material different minds may reach widely different decisions, any one of which may reasonably be thought to be the best and any one of which, therefore a judge may make without being held to be wrong. The appellate court may intervene if it is satisfied that the judge did not exercise his discretion at all; or that in exercising it he misdirected himself in law; or misunderstood or misused the evidence or the material facts before him, or took into account an irrelevant consideration; or failed to take into account some relevant consideration; or if his conclusion is such that, there were no erroneous assumption of law or fact can be identified, he must have exercised his discretion wrongly. Expressions which have been judicially employed to describe such a conclusion include "completely" or "plainly" wrong; "wholly unwarranted"; "manifestly inequitable";"unreasonable"; "unjudicial".
17. The issue before me is to whether the Sheriff's decision in this case can be thus described. The Sheriff in a handwritten note attached to his interlocutor of 19 June 2012 states;-
"This was a very difficult case because both parents love Taylor and she each of them. I visited both schools and spoke with Taylor who is a bright intelligent and friendly child. For the reasons which I explained to the parties I decided it was in Taylor's best interests that she spent weekends with her father and consequentially weekdays with her mother and her half brother.
Thereafter parties asked me NOT to make an order in relation to the times and extent of contact, including holiday contact as they were able to agree this. Such mutual cooperation is in Taylor's best interests."
18. I have set out in paragraphs 7 and 8 hereof the essence of the Sheriff's decision and his reasons for it. I deal with the grounds of appeal as follows;-
(1) In granting the Specific Issue Order in favour of the defender, the Sheriff exercised his discretion in a wholly unreasonable manner in that he failed to take into account the following factors:-
(a) The child...is settled and content at her present school, namely Kildrum Primary, Cumbernauld.
In my opinion the Sheriff did not fail to take into account this issue. He visited both schools and spoke to the head mistresses of both schools. It was clear to him that the child was settled at her present school. At page four of his note the Sheriff records;_
"In a further conversation which I had with Mrs Lindsay (Head teacher at Kildrum) she confirmed that in her opinion Taylor was a bright child who made friends easily. Mrs Lindsay emphasised that both purser and defender were co-operative and involved in Taylor's school progress and she indicated that Taylor was doing exceptionally well at school and was liked by staff and other pupils"
The Sheriff also visited Sunnyside School and concluded at page twelve:-
"As I have indicated I am entirely satisfied, having met Taylor and having listened to two experienced head teachers that Taylor is a child who will adapt anywhere. I do not think there is any evidence to suggest that she would not be perfectly settled if she moved to Ruchazie and I equally accept that she would be perfectly happy if I allowed the status quo to remain."
(b) Location of School
It was said that the child's present school was a five minute walk from the pursuer's house, where as Sunnyside Primary was a twenty five minute walk. It is clear from page nine of his note (third point) the Sheriff did consider this aspect. He says;-
"based on where the defender is living (and the home in which he hopes to move to in July) it could be argued that it is easier for Taylor to get to Kildrum as there is a shorter distance between the childminder and Kildrum than the house in Ruchazie and Sunnyside Primary School. Both are however within walking distance."
(c) The Pursuer has the child in a settled routine Monday to Friday and is involved in every aspect of her care before and after school.
The Sheriff acknowledges this. In page six the Sheriff states that he was informed by the pursuer that he saw Taylor until 7.30 am when he left for work and he took her to the childminder's house who took her to school for 9 am. He observes that the child went to the childminders house between 4 pm and 5 pm depending on when he finished work after school finished. This aspect was taken into account by the Sheriff.
(d) The pursuer provided a settled home for the child at the accommodation which was formerly shared by the parties during their relationship.
Following the breakdown in the parties' relationship the defender has resided in several different properties and has confirmed her intention to move again. Historically the defender had moved out of the matrimonial home. However for over one year she had been in her current house with a new partner and recently a young child. It was accepted by both parties that each had 31/2 days shared between them and there was no complaint about the standard of care by either party. It was suggested historical moves were irrelevant. The important point for me is that the Sheriff did consider the present position.
(e) The Sheriff in reaching his decision considered it was preferable for the child to spend time with the pursuer at weekends when he is not working and as such can devote his full time and attention to the child.
It was said the Sheriff failed to take into account the time and attention afforded to the child by the pursuer at present Monday to Friday, giving his extensive involvement with her both prior to and after school. The Sheriff did clearly consider this matter in his decision. His decision was on the basis that quality time with the pursuer would be better achieved at weekends when he would have uninterrupted access to the child from Friday evening until Sunday evening. The Sheriff deals with this at page 12 as follows;-
"I advised parties of my thinking in relation to this matter and indicated that it appeared to me that the one fundamental difference which remained was the fact that if Taylor continued to stay in Cumbernauld she would only be involved with her father first thing in the morning and when he returned from work and collected her from the childminder. If however Taylor was at Ruchazie during the week then on the basis that the pursuer did not work at the weekend he would be able throughout the weekend to give Taylor the attention and love which the child was seeking, I therefore indicated the parties that I considered it was in Taylor's best interests to stay with her mother in Ruchazie and be able to spend large portions of the weekend with her father when he was free from work"
In my opinion there can be no doubt that the Sheriff did take into account the current time and attention afforded to the child by the pursuer but he considered that the new arrangement would give more quality time for the child to be with her father and this would be in the child's best interests.
(f) There was a failure to take into account the present level of contentment of the child. She is presently happy and settled in her present routine.
The Sheriff clearly did take this into account. In particular he states:-
"I do not think there is any evidence to suggest that she would not be perfectly settled if she moved to Ruchazie and I equally accept that she would be perfectly happy if I allowed the status quo to remain."
19. I have regard to the Sheriff's detailed description of the current position, the two schools which he visited and what the child told him. I also take into account what the defender and the pursuer both stated to the Sheriff. All these issues are set out in the Sheriff's Note and I have referred to them in paragraphs 3 to 8 hereof. It is my opinion that the Sheriff did not fail to take into account any of the factors identified on behalf of the pursuer and in particular the nine points in his judgement, which I recorded in paragraphs 6 hereof. The Sheriff's decision indicates an anxious and clear review of the issues involved.
20.
(2) The Sheriff did not have material before him to justify the decision. No evidence led from parties or their respective witnesses.
The Sheriff has power to grant final orders at a child welfare hearing. He has an obligation to address actions involving children and to try to secure an expeditious outcome. The pursuer was not offering to prove any additional relevant facts in dispute at proof regarding the child's current circumstances, her schooling and her welfare other than those taken account of by the Sheriff. There was no factual dispute in relation to relevant matters currently having a bearing on the child care arrangements and the child's welfare. The pursuer was not denied the right to put forward relevant facts. He engaged in the process of identifying the relevant factors; he addressed the Sheriff and gave his views; he did not ask to lead other evidence and did not object to the procedure being followed by the Sheriff. He was allowed full participation in the hearing and was represented. I am quite clear that there has been no breach of the pursuer's article six rights.
21.
3) The criticism of the final statement by the Sheriff;" by allowing him contact every weekend for the whole weekend I was in effect giving him more time with his daughter which was in accordance with what Taylor wanted and it was in her best interests."
It was suggested that, if there was evidence from Taylor that that was what she wanted, it should have been put by the Sheriff to parties. However, at the hearing parties agreed that what the Sheriff relayed to them about his meeting with Taylor was as set out in paragraphs 3 and 4 hereof. In particular the Sheriff states at page four;-
"I explained the position to the parties on 19 June 2012 and told them my impressions of both schools and that I was clear that Taylor loved both her parents and enjoyed their company and that she was anxious to see as much as possible of both of them."
It is my view that, in the final sentence of his Note, the Sheriff is confirming that in taking the course he did, he was giving Taylor what she wanted, namely what is recorded in paragraph 4 of my note, to see her father as much as possible and that the Sheriff thought the course he taking was in Taylor's best interests. In my view it is not possible to take from the last sentence of the Sheriff's Note the interpretation that Taylor wanted to stay with her father at weekends and she thought this was in her best interests. I am not prepared to accept that interpretation or the suggestion that it could be said that the Sheriff withheld information that he had been given by Taylor.
22. .
(4) Summarising the nine points, there was no reference to Taylor's views.
Again it is quite clear in my view, from reading the Sheriff's Note, that Taylor gave no view as to the times at which she wished to stay with her two parents. It would be quite improper for the Sheriff to ask a six year old such a question and he does not record that he did. In my view there is no substance in this ground of appeal.
23.
(5) The reference by the Sheriff to the mother child bond
It is clear from the Sheriff's reference to this that "special bond which exists between a child and a mother, could not be the same as that between the relationship between a childminder and a child." It is not proper to interpret the Sheriff's words in any way as comparing contact with her father as apposed to her mother.
24. In my view the appeal cannot succeed. It has not been demonstrated that the Sheriff exercised his discretion unreasonably. Indeed, he has gone out of his way to decide this case on what he considers to be the best interests of the child. He had a general discussion with the child. He visited the two schools in question and interviewed the head mistresses. He sought and received submissions directly from the pursuer and the defender to indicate to him the reasons why they considered it would be better if he allowed Taylor to live with them during the week and go to the local school. He took into account what was said. He then identified with the assistance of parties, the nine points which he felt required to be considered in deciding what was best for Taylor. Parties were agreed that the nine points summarised correctly the issues in the case. He allowed both parties to comment on each point.
25. He then indicated to parties that he considered in all the circumstances that it was in Taylor's best interests to stay with her mother in Ruchazie and be able to spend large portions of the weekend with her father when he was free from work. Although the pursuer did not accept that conclusion, on the basis that it was to be put into effect, he agreed to co-operate.
26. Although one interpretation of the Sheriff's judgement was to the effect that the pursuer had agreed the disposal proposed by the Sheriff, I considered it in the interests of justice that the pursuer be allowed to present his appeal. He has done so. I have carefully considered all that was said on his behalf by his solicitor. However I cannot conclude that the Sheriff erred in the exercise of his discretion.
27. I was not addressed on the question of expenses and a diet for a hearing on expenses shall be assigned in due course.