Livingston sheriff finds father seeking contact order had sexually assaulted child, with action later dismissed

About this case:

• Citation:
  [2025] SC LIV 87
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff Susan A Craig

The pursuer, the child’s father ABC, raised an action in the sheriff court against DEF, with whom he was in a relationship until August 2020, seeking contact with his child. A preliminary proof was assigned in respect of the question of whether the pursuer had, at any time, acted in a sexually inappropriate manner towards the child. In the interests of anonymity, the child was referred to with neutral pronouns and the body part assaulted was referred to as Y or X, the latter being the child’s word for that part.

The case was heard by Sheriff Susan Craig at Livingston Sheriff Court, with Aitken, advocate, appearing for the pursuer and Barbour, advocate, for the defender.

Deep-rooted fear

Prior to their separation, the parties cohabited at the defender’s home along with the child and the defender’s older child DC. In August 2020, the child told the defender that the pursuer had touched them in a sexual way by touching their “X”. The defender challenged the pursuer, by saying words to the effect of “What they [the child] have just told me better not be fucking true” but did not specifically mention sexual touching. The pursuer replied, “I never touched [them]” and afterwards was told to leave.

Contact between the pursuer and the child was initially agreed on the condition that it was supervised by the pursuer’s adult child PC. However, during a contact visit in March 2021 the pursuer again touched the child in a sexual manner. The defender told the pursuer there was to be no further contact. Sheriff court proceedings were raised in January 2021, with the action having a lengthy procedural history due to the attempts to establish interim contact.

A child welfare reporter appointed by the court, Mr Johnstone, reported that contact did not appear to be positive for the child and they had a deep-rooted fear and anxiety that only manifested around the time of attending the contact centre. Interim contact was suspended in March 2023 pending further orders of court.

By 2024 the parties’ common position was that the action could not progress, one way or the other, until the court resolved the question of whether the sexual assaults had in fact occurred. As the child could not be called to speak to the matter, determination of the question turned on issues of credibility and reliability, in respect of the parties themselves, their older children DC and PC who were called as witnesses, and the defender’s parent DP and friend DF.

Nothing unlikely or improbable

Evaluating the evidence led, Sheriff Craig said in her judgment: “There was ample credible evidence supporting the defender’s evidence, including that of her older child, DC, who was present in the house in August 2020. They spoke of the defender being in the kitchen preparing breakfast when the pursuer and the child were upstairs. They said that the defender went upstairs to get the child dressed, but then shouted to them, asking that they to take the child downstairs, which they did. DC spoke of hearing a commotion and shouting coming from upstairs, describing it as an argument between the pursuer and defender.”

She added: “All that evidence was consistent with the defender’s position that the child disclosed they had been sexually assaulted by the pursuer. It was also consistent with the evidence that it was that, rather than anything else, which brought their relationship to an end. Each of those witnesses said there were no particular difficulties in the relationship prior to the allegations but that, once made, the relationship ended immediately.”

In contrast, the sheriff said of the pursuer’s evidence: “The pursuer said the allegations were malicious and made up by the defender as a ruse to end their relationship. However, he was unable to explain why she would do that instead of just telling him to leave. He accepted she could have ‘put him out’ at any stage and did not require an excuse. The pursuer agreed he had his own accommodation, they were not married, and, other than the child, there were no particular ties that would have been difficult to cut. He could not explain why, if they had not been made, the defender would go to such elaborate lengths to make up the allegations, nor why the child would repeat them to others.”

She went on to say: “There was nothing inherently unlikely or improbable about those allegations. The pursuer had access to the child on both occasions. On the first occasion it was agreed the child was in the family bed with the pursuer while the defender was downstairs organising breakfast. On the second occasion they were at the pursuer’s home. While contact was supposed to be supervised, for the reasons given I reject PC’s evidence on that matter. There was instead evidence from others that the child told them the pursuer had touched them sexually during that contact.”

Sheriff Craig concluded: “Much was made in submissions to the effect that the defender was manipulating the child and it was that, rather than any abuse, that caused the child’s reluctance to attend contact. I did not accept that analysis was consistent with the body of evidence. There may have been some embellishment of the evidence, on both sides, but that did not take away from the core issues – was the defender lying about the child telling her they had been abused by the pursuer and had he, in fact, done so? For the reasons given I was satisfied, on the balance of probabilities, the defender was not lying and, further, the pursuer did, in fact, sexually abuse the child.”

Following this judgment, the case was ordered to call again on the procedure roll on 19 November 2025. However, a joint minute was lodged by the parties prior to the calling with the result that the action was dismissed.