Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 127
F45/11	OPINION OF LORD TYRE in the cause C A M Pursuer; against H E or M Defender: ________________

Pursuer: Clarke; Balfour & Manson LLP (for Stewarts Murdochs, Glasgow)

Defender: Malcolm; Allan McDougall

2 August 2012

Introduction

[1] The parties to this action for divorce were married at Denver, Colorado, United States, on 7 July 2000. There are two children of the marriage, namely O, born on 18 August 2002, and L, born on 22 January 2006, who where thus aged 9 and 6 at the date of the proof. Both children were born in Scotland.

[2] It is a matter of agreement that the parties separated on 28 October 2010 and have not lived together since. When the action came before the court for proof on 10 July 2012, the only contentious matters concerned the children of the marriage. In recognition of a need to resolve the children's schooling arrangements for the academic year 2012-13, I pronounced an interlocutor at the conclusion of the proof on 13 July and indicated that I would issue a written opinion as soon as possible thereafter.

Decree of divorce

[3] The pursuer seeks decree of divorce from the defender on the ground that the marriage has broken down irretrievably as established by the defender's adultery. I am satisfied on the evidence that the breakdown of the marriage has been established on this basis and I grant decree of divorce.

Financial provision

[4] The parties lodged a Minute of Agreement which resolved all financial matters outstanding between them. A joint minute was also lodged which dealt fully with the parties' respective financial conclusions, and I interponed authority to that joint minute.

Children

Orders sought by the parties

[5] Each of the parties seeks a residence order providing that the children of the marriage live with him/her. The pursuer has an alternative conclusion for a contact order providing for residential contact during inter alia alternate weekends. The defender seeks a specific issue order authorising her to remove the children from their current primary school in East Kilbride and to enrol them at a specified primary school in Dollar where she presently resides. The pursuer sought an order for interdict against the defender from removing or attempting to remove the children from their current school or enrolling or attempting to enrol them at any other primary school; an undertaking to this effect was given by the defender on 16 December 2011 until further order of the court. The pursuer also sought, and on 27 April 2011 was granted ex parte, an interim interdict preventing the defender from removing or attempting to remove the children from the jurisdiction of the court.

Circumstances prior to separation

[6] Prior to separation the parties lived together in the matrimonial home in East Kilbride, the title to the house being held in joint names. This is a four bedroomed detached house in which the children had resided for the whole of their lives prior to the parties' separation. The pursuer is an independent financial adviser who worked full time during the pre-separation period. At the time of O's birth the defender was employed by the Scottish Environmental Protection Agency and she returned to work part-time after O was born. After L's birth the defender did not return to work until December 2009, when she became a Weight Watchers leader, a position she continued to hold until about April 2011. The parties co-operated so that each was free to attend meetings and classes respectively on different evenings of the week. Both participated in care of the children. Since the children respectively attained school age, they have attended the H Primary School in East Kilbride.

Circumstances since separation

[7] Approximately a week after the parties separated, the defender moved out of the former matrimonial home with the children. They spent a week living in a flat in Ayr which belonged to the defender's parents and then moved into a two-bedroomed flat in a tower block in East Kilbride. This flat belongs to the defender, having been purchased as an investment some time ago with funds gifted by the defender's parents. For a time after separation there was co-operation between the parties regarding care of the children. Relations were amicable and the pursuer sometimes went to the flat to make dinner for the children in order to allow the defender to pursue her Weight Watchers commitments. The pursuer took the children to school on certain days and had them for weekends by agreement.

[8] Relations deteriorated between the parties in early February 2011 when the pursuer discovered, through certain things said by O, that the defender had entered into a relationship with a man, D, who subsequently moved into the defender's flat in East Kilbride. The pursuer was angry that he had not been informed by the defender about this person who appeared to have assumed a major role in the children's lives. From this time on any mutual trust which the parties had had dissipated. There was an incident in early February 2011 when the pursuer confiscated a mobile phone in the possession of L because it contained text messages sent by the defender to D which the pursuer considered (in my view, unreasonably) might be read by L as being of a sexual nature. The pursuer having refused to return the phone, D and the defender informed the police. All of this, in my view, was an over-reaction by the parties concerned. In about April 2011 the defender visited the former matrimonial home in the pursuer's absence to seek certain financial documents and discovered a box of pornographic material on the floor inside the pursuer's wardrobe. She stopped his contact with the children and the pursuer raised the present action with a view to having contact reinstated. An interim contact order was made on 27 May 2011 and the case was remitted to Mrs Margaret Hughes, Advocate, to report.

[9] Matters were understood by the reporter to be as above when she prepared her report which was lodged in August 2011. At the end of a lengthy and detailed report, the reporter recommended that the children's best interests would be served ad interim by residing with the defender and spending each of Tuesday and Wednesday evenings and alternate weekends with the pursuer. An interim contact order was made on 19 August 2011 granting the pursuer residential contact every week from 3 pm on Tuesday until 8 pm on Wednesday and every alternate weekend from 3 pm on Friday until 9 am on Monday, as well as unrestricted telephone contact. This order remains in force.

[10] By this time, however, and unknown to the reporter, the defender's personal circumstances were already changing. In July 2011, D moved out of the defender's flat and although they have since remained friendly they ceased then to be a couple. In August 2011 the defender made contact through an online dating agency with another man, B, with whom she began a relationship which continued at the time of the proof. B is divorced and has three children, all boys, aged 17, 15 and 8. In October 2011, the defender decided that she would wish to take her children on holiday to Legoland, accompanied by B and his children. However, as Legoland is in England this would constitute a breach of the interim interdict granted on 27 April 2011. The defender attempted unsuccessfully to obtain the pursuer's prior consent to the Legoland holiday but when it was not forthcoming she simply went ahead with the trip. This of itself did not cause difficulty, but what did cause trouble was that the defender had not informed the pursuer that she was now in a relationship with B and did not inform him that B was accompanying her to Legoland. Her stated reasons for not informing him were that she knew how he would react and that he would take the matter back to court again.

[11] B resided and continues to reside in Dollar. Towards the end of October 2011 the defender decided that she would wish to move to Dollar to live. She found suitable accommodation in a cottage in Dollar and moved there with the children on 2 November 2011. On 29 October she advised the pursuer by email of her address in Dollar and indicated that she would continue to drive the children to school in East Kilbride. At that time the proof in this action had been set down for January 2012 and the defender did not expect the travelling arrangement to have to endure beyond then. In the event, that diet of proof was discharged on 9 December 2011 on the pursuer's unopposed motion.

[12] The defender continues to reside in a 3-bedroomed cottage in Dollar. She is happy there and considers that the parties' children are also happy there. They get along well with B's children. During weekends when the defender has the children, B's younger children sometimes stay over. The defender considers that she and B have a lifelong commitment to one another although they have no plan to marry. In any event, she regards Dollar as a place where she would wish to remain for the foreseeable future. Evidence was led from Mrs Janice Gardiner, a friend of the defender, that the children are happy and settled in the house in Dollar and that they have a good relationship with B's children. The defender and B have made enquiries to confirm that places would be available in August 2012 for O and L at the local primary school in Dollar. The defender seeks a specific issue order authorising their removal from the H Primary School in East Kilbride and their enrolment at the school in Dollar. (I should note in passing that at the proof there was some evidence which might suggest that the defender had proceeded in breach of her undertaking to enrol the children at the school in Dollar. I am quite satisfied on the evidence of the defender and B that she has not done so; it may be that the evidence to the contrary arises out of a misunderstanding by the head teacher of the school in Dollar as to the purpose of the defender's visit to the school.) The defender currently works part time as an exercise instructor and also receives income from letting the flat in East Kilbride.

[13] The pursuer continues to reside in the former matrimonial home. He is not currently in a relationship. Shortly before the proof the company by whom he was employed entered administration and he lost his employment. At the time of the proof he had applied for employment with another company. The pursuer's father confirmed in evidence to the court that if the pursuer found himself unemployed he would be able to assist financially in order to allow the pursuer and the children to live in a house similar to the former matrimonial home.

[14] I should add that I heard evidence about a number of other matters that have caused friction or upset between the parties concerning the children since the date of separation. For the purposes of this opinion I do not find it necessary to explore these in detail. I would merely observe that it seems to me that these issues have arisen partly as a consequence of the parties' readiness to assume the worst regarding one another and partly as a result of lack of proper communication on both sides but especially by the pursuer. As none of these matters has influenced my reasoning as regards the making of orders in the best interests of the children, I need say no more about them.

Psychology Report

[15] A psychology report in respect of O and L was prepared by Dr Jack Boyle, Chartered Psychologist, on the instructions of the pursuer's agents. The report, dated 18 June 2012, was lodged as a production and Dr Boyle gave evidence at the proof. In order to prepare his report, Dr Boyle studied a number of relevant documents (including Mrs Hughes' report) and interviewed the pursuer, the defender, O, L, B, the head teacher of the H Primary School and the head teacher of the specified school in Dollar. Dr Boyle narrated that when O was asked with whom he lived, he replied "don't know... half with dad and half with mum" and stated that he was "ok with it". If there was to be no reconciliation what O said he would like was "keep it the way it is... but change school" and added "right now we're not staying anywhere". L reported comments made by the parties about one another and expressed a desire for "dad and mum to be friends".

[16] In his report Dr Boyle expressed views on seven features of the change process during and after divorce which impact on child welfare in the context of the present case. These views may be summarised as follows:

(i) Quality of the individual parenting of the parties: Both parties are capable and have delivered quality parenting. Both children are deeply attached to both parents and wish to continue their relationship with them.

(ii) Quality of co-operation between the parties: It is crucial for parents not to demonstrate their disagreements in front of the children and not to involve the children in the conduct of the dispute. The parties are capable of organising their relationship in such a way as to avoid involving the children in their quarrels but a fully co-operative post-separation arrangement has not yet been established.

(iii) Relationship between mother and child: A child's best interests are guaranteed by the maintenance of a warm, stable bond between the resident parent - usually the mother - and the child, and by the capacity of the mother to maintain her equilibrium post-divorce.

(iv) Economic status of the family: Although the present living arrangements in Dollar are more than adequate for the defender and for B, there is a question mark over future economic stability. This would become apparent if the defender's relationship with B did not endure and the family could find itself vulnerable economically. [I interject here that Dr Boyle's report was prepared before the pursuer's loss of employment introduced a further element of uncertainty into the family's economic status.]

(v) Impact of the new proposed family arrangements on the children's wellbeing: It is not possible to say how the relationships between the children and B and his children will evolve. The defender was perceived to have an unrealistic view of how the new family would operate as a unit, and a lack of awareness of the stress which negotiations among the children might have on her coping mechanisms.

(vi) Instability of multiple relationships: A series of short-lived relationships can be damaging to children. The fact that the defender had entered into relationships with D and B in quick succession was a worrying factor. She was perceived to have an idealised view of the new proposed family arrangements and to exaggerate the capacity of the children to cope smoothly with their relationship with B's children. There was a question mark over how her relationship with B would develop over time.

(vii) Relocation: Of all the stressors post-divorce, the one which has a measurable and large impact on children is relocation. Multiple relocations can be particularly stressful. Continuing to reside in a known environment confers significant benefits on children.

[17] Under reference to the foregoing issues, Dr Boyle made the following recommendations in relation to the matters upon which his opinion had been sought:

• Residence: The children are attached to both parents but have a primary and deeper attachment to their mother. This would indicate that their primary residence should be with her. Differential quality of parenting is not an issue but the advantage goes to the defender as the parent with the closest attachment relationship.
• Contact: If the defender is the resident parent, the pursuer can offer high quality individual input, providing a broader network of support and, if he makes the commitment, handling the post-divorce arrangements in an amicable and supportive way. Weekend contact would seem to be a good place to begin.
• Change of school: Relocating the children from their present school to a school in Dollar could be stressful and to their disadvantage, especially within the framework of a family structure that involves establishing a new step-family. This implied that the children should live with their mother in East Kilbride, ideally by allowing them to live together in the former matrimonial home. Failing access to the former marital home, an economically stable arrangement in East Kilbride would still be a preference. The children would have their main base in an environment they recognise; they would have the defender as the main attachment figure and easy access to the pursuer which would make for flexible contact.

[18] In his evidence to the court, Dr Boyle emphasised his view that the best interests of children of the ages of O and L were served by maintaining the status quo pre-separation so far as possible. Despite the fact that the children have been living with the defender in Dollar since November 2011, he regarded the status quo as being living, and attending school, in East Kilbride, where the children had friends and were familiar with the area. This would be the most reassuring scenario for them. If the defender was not willing to live in East Kilbride with the children, the next best solution would be for the children to live in East Kilbride with the pursuer and have residential contact with the defender. In that scenario it was essential for the pursuer to ensure that the children did not under any circumstances have access to pornographic material. Residence in East Kilbride with the pursuer constituted less of a risk to the children's wellbeing than residence in Dollar with the defender, especially having regard to her unrealistic perception of the integration of her family with B and his family. It was in the children's interests to remain at their current school; the best time for contact with their friends was while they were at school rather than trying to maintain friendships by means of after-school meetings. The current situation in Dollar, where the defender and B and, to some extent, their children lived between two houses was a high-risk one. Dr Boyle was not convinced that the decisions which have been taken by the defender were motivated by the children's best interests, as opposed to her own.

[19] Counsel for the defender made a number of criticisms of Dr Boyle's reasoning and conclusions. It was submitted that he had failed properly to consider the impact upon the children's wellbeing in the event that they were required to reside with the pursuer in East Kilbride rather than with their mother to whom they had the primary attachment. His conclusions failed to acknowledge that the status quo, far from being residence in East Kilbride, had for almost nine months been residence in Dollar. This could not reasonably be ignored. The benefits which were perceived to attach to residence in East Kilbride would be available to them in Dollar. A move back to East Kilbride with the defender would be a further move to a different home. Dr Boyle's recommendation did not take account of the economic and other uncertainties which would attend such a move. The report was unduly critical of the defender and unduly uncritical of the pursuer.

Statutory test

[20] It is common ground between the parties that the test which I must apply in deciding what orders, if any, to make is set out in section 11(7) of the Children (Scotland) Act 1995. The court must regard the welfare of the child concerned as its paramount consideration and is not to 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. It was not suggested by either party that I myself should afford an opportunity to either child to express their views to me, although in reaching my decision I have taken into account what Dr Boyle reported each of the children as having said to him.

Discussion

[21] Having heard the evidence of the parties and their supporting witnesses and having considered the report and oral evidence of Dr Boyle, I am satisfied that I should accept his recommendations. Treating the welfare of the children as the paramount consideration, as I must do, I accept his opinion that the factor which must be accorded the greatest weight in this case is the maintenance, so far as possible, of the status quo pre-separation, when the children resided and attended school in East Kilbride. Subject to that, I accept that the children should have their primary residence with the defender, being the parent with whom the children have a primary and deeper attachment, and that the parent with whom the children do not have their primary residence should have substantial contact including residential contact. In accepting Dr Boyle's recommendations I have for my part attached weight to three factors in particular:

• the benefits to the children at this time of maintaining their attachment to the area, and in particular the school, with which they are familiar, in which they have friends and where the exercise of flexible contact is facilitated;
• the potential risks created for the children by the shortness of the period of time during which they are being expected to adapt to new relationships with B and his children. I share Dr Boyle's concern that the defender has made an unduly optimistic assessment of their ability to cope with these new and complex relationships at a time when they are still coming to terms with their parents' separation. These concerns would be enhanced by their living at this time in close proximity to B and his children in Dollar;
• the risk at this time that the move by the defender and the children to reside in Dollar may not in the end turn out to be a long-term one, resulting in a situation of multiple relocation which I consider would not be in the children's best interests.

I would add that, in agreement with others who expressed a similar view, I do not consider that it is in the children's interests that they should require to travel from Dollar to East Kilbride on most days of the week in order to attend school.

[22] The criticisms made of Dr Boyle's reasoning and recommendations were explored with him in the course of his oral evidence to the court. I am satisfied that I should accept Dr Boyle's opinion that the proper comparison to make when assessing changes to the status quo is between the children's lives pre-separation and post-separation. It is therefore correct in my opinion to regard residence in East Kilbride as the status quo despite the fact that the children have spent much of the last eight months or so residing in Dollar. In a situation where the children will, on any outcome, be spending a substantial proportion of their time with each parent, I am not persuaded that Dr Boyle has placed too much emphasis on the desirability of residence in East Kilbride regardless of the place of residence of the defender. I acknowledge that there are uncertainties attached to a move back to East Kilbride and discuss these below.

[23] I wish to emphasise that in setting out above the three factors to which I have had particular regard I have in each case used the phrase "at this time". My assessment is obviously made in the light of the whole of the current circumstances including the ages of the children. As in any case concerning the welfare of children, it will be open to either party at any time in future to seek to persuade the court that the best interests of the children will be served by varying any order which I may make under reference to current circumstances. But for the time being I am satisfied that it would be in the children's best interests for them to reside and attend school in East Kilbride, having their primary residence with the defender and with substantial, including residential, contact with the pursuer.

[24] That, of course, is not the current situation and it would not presently be possible for me to make an order that would produce the outcome which I have concluded would be the most favourable. There is, as I have noted, further uncertainty arising out of the pursuer's current unemployed status. In these circumstances I have decided that I should make no order for the time being regarding the children's residence. Instead I have adjourned the case until 16 November 2012. This takes account inter alia of the fact that the lease of the cottage in Dollar occupied by the defender expires on 1 October 2012. On 16 November 2012 I would intend to make such order or orders, if any, as appear to me to be appropriate in the best interests of the children. Without committing myself to make any particular order, I have indicated to parties that if the defender is then resident in or in the vicinity of East Kilbride, I am presently minded to make a residence order in her favour and hear parties on the extent and details of contact by the pursuer. On the other hand, if the defender is not then resident in or in the vicinity of East Kilbride, but the pursuer is both resident in or in the vicinity of East Kilbride and able to provide suitable accommodation for the children, I am presently minded to make a residence order in his favour and hear parties on the extent and details of contact by the defender. In the course of her evidence the defender expressed a willingness to return to East Kilbride if that was what it took to retain the residence of the children, but she had concerns as to whether this was financially practicable. That remains to be seen, but the defender appeared to me to be a resourceful individual so far as making a living is concerned, and there was nothing in the evidence led at the proof to persuade me that she would not be able to find suitable accommodation in East Kilbride at a level of rental and other outgoings similar to that which she currently pays in respect of the cottage in Dollar. I should note that the pursuer has offered to let the former matrimonial home to the defender; given the acrimony in the parties' current relationship, I do not regard the defender's refusal of that offer as unreasonable.

[25] It is, however, necessary to make a decision now in relation to the children's schooling arrangements for the academic year which begins in August 2012. In order to give effect to the recommendations of Dr Boyle, which I accept, I consider it to be in the interests of both children that I should ex proprio motu make a specific issue order that they shall continue to attend the H Primary School in East Kilbride, until such time as their primary education is complete or until further order of the court, if earlier. I consider in all the circumstances that it is better for each of the children that such an order be made in respect of him or her than that no order should be made at all.

[26] Pending the making of an order or orders, if any, in November, the interim contact order made by the court on 19 August 2011 will remain in force. I was informed that there has been some flexibility regarding contact during the current school holiday period. This is obviously something that I would encourage and I wish to be addressed at the hearing in November on the extent to which the parties have respectively co-operated in and/or encouraged flexibility in relation to residence and contact during the intervening period. I would also intend at that time to deal with the interim interdict granted on 27 April 2011 which for the time being will also remain in force. The undertaking given by the defender on 16 December 2011 has been superseded by events and is no longer live.

Postscript

[27] I end this opinion by reminding both parties of what was said in evidence by Dr Boyle regarding the damage which may be done to children by the making of offensive or disparaging remarks by one parent about the other to or in the presence of their children. Both parties profess to have the children's best interests at heart, and in my view it is essential for them to demonstrate this by removing, so far as possible, their antipathy towards and mistrust of one another from the lives of the children.