Two recent judgements show how family sheriffs take difficult decisions to resolve family disputes.
In Edinburgh, Sheriff Holligan grappled in MRG v MD with a disagreement about whether two children should use their father’s surname, as on their birth certificates and passports, or their mother’s surname, which is being used in her house and at the doctor and their nursery.
The children’s mother, who is the main carer, registered statutory declarations in the Books of Council and Session that they should be known under her surname. The children’s father, who has regular contact with them, uses his surname for them when the girls are with him. The children, aged 5 and 3, are known by their first names on a day-to-day basis and have little awareness of this dispute.
After discussing various aspects of the use of surnames in Scots Law and stating that he did not regard the registration or the statutory declaration to be determinative, the sheriff recommended that the children should use both surnames, the father’s followed by that of the mother. This Solomonic judgement will no doubt be used to help settle future such disagreements, unless superseded by a decision in a higher Scottish court.
In Glasgow, the other Scottish court with specialist family sheriffs, Sheriff Anwar has issued a note in Patrick v Patrick. This case concerned a father’s request to have contact with his children following a bitter and acrimonious dispute between the parents. The sheriff concluded after hearing 11 days of proof that it was in the best interests of the children to have a relationship with their father and granted him indirect contact. She did not consider it to be in the children’s best interests for there to be a detailed written assessment of the issues raised in the case, as this risked undermining their sense of identity and self-worth.
At a further hearing regarding the arrangements for contact, it was agreed that the father would undertake the Triple P parenting course, that a psychologist would work with the children to assist them to develop a relationship with their father, that both parents would work with family therapists and then take part in mediation.
A clinical psychologist Dr Khan had reported to court on the entrenched views of two of the children that they didn’t wish to see their father. Following the sheriff’s decision in favour of contact, Dr Khan was asked to communicate this decision to the children and help them understand why the court had not heeded their wishes. Sheriff Anwar wrote a letter to children to be used by Dr Khan to explain why she made this decision, and the text of the letter is included in Sheriff Anwar’s note about the case.
The Sheriff’s decison to write a letter of explanation to the children raised much interest in the press and has been widely discussed within Scottish Family court circles. It follows two recent examples of English family judges writing letters to children. Some sheriffs have expressed alarm that they will now be expected to include letters to children in all of their family cases, but this is only likley to be needed to inform children when a decision cuts across their wishes.
It is important that Scottish judges work hard to find better ways to obtain the views of children in such cases. But it is also important that these views are considered alongside all the other circumstances, in order to decide whether it is still in their best interests to retain contact with both parents.
Families Need Fathers Scotland welcomes this move by Sheriff Anwar to follow up her decision with various measures including the children’s letter in order to try and make it easier for the whole family to move on from a high conflict court case and learn from past mistakes.
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