Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2017] CSOH 60

 

F74/16

OPINION OF LADY WISE

In the cause

GB or L

Pursuer

against

JL

Defender

Pursuer:  Shewan;  Harper Macleod LLP

Defender:  Hayhow;  Stuart & Stuart

6 April 2017

Introduction
[1]        The parties in this case are married and although they no longer live together as husband and wife they continue to share a home at present.  They were married on 26 October 2013 and have one child together, namely OJL, born 14 February 2015.  The pursuer was born and brought up in England but she has been habitually resident in Scotland for some years.  The defender was born and bred in Scotland and is also habitually resident here.  The child O has lived in the outskirts of Edinburgh with his parents for the whole of his short life to date. 

[2]        The parties’ marriage became unhappy during the early part of 2016.  By the end of May 2016 they knew that their marriage had irretrievably broken down.  They were unable to agree arrangements for the care of their son.  The defender has continued to live in the former matrimonial home, title to which is held by the pursuer alone, pending resolution of that issue.  The pursuer has decided that she would like to return to Bromsgrove, south-west of Birmingham, where her parents and other extended family reside.  She raised these proceedings seeking both a residence order providing that the child reside with her and a specific issue order entitling her to remove O from Scotland for the purpose of him residing in England.  The defender opposes both orders, arguing that it would not be better for O for those orders to be made than for no orders to be made at all and that his welfare would better be served by him staying in the Edinburgh area and being looked after by the parties, albeit separately.  The proof in this case lasted for six days.  Both parties lodged a large number of affidavits.  Not all of the witnesses who swore affidavits gave oral evidence as not all spoke to controversial matters in relation to the issues in dispute. 

 

The Applicable Law
[3]        It is not in dispute that each of the parties to this action holds full parental responsibilities and parental rights in respect of the child O.  The relevant parental responsibilities are outlined in section 1 of the Children (Scotland) Act 1995 and the corresponding parental rights are listed in section 2 of that legislation.  Section 11(1) of the 1995 Act provides that the court, in circumstances such as those that arise in this case, may make orders in relation to:

(a)  parental responsibilities;

(b)  parental rights;

(c)  guardianship; or

(d) subject to section 14(1) and (2) of this Act, the administration of a child’s property. 

The orders sought by the pursuer in this case are sought pursuant to section 11(2)(c) and (e) of the 1995 Act which provide as follows:

“The court may make such order under subsection (1) above as it thinks fit; and without prejudice to the generality of that subsection may in particular so make any of the following orders—

…

(c)  an order regulating the arrangements as to—

(i)    with whom; or

(ii)   if with different persons alternately or periodically, with whom during what periods,

a child under the age of sixteen years is to live (any such order being known as a ‘residence order’);

…

(e)  an order regulating any specific question which has arisen, or may arise, in connection with any of the matters mentioned in paragraphs (a) to (d) of subsection (1) of this section (any such order being known as a “specific issue order”);”

 

[4]        The test to be applied by the court where any order under section 11 is sought can be found in section 11(7) which provides:

“…in considering whether or not to make an order under subsection (1) above and what order to make, the court—

(a)  shall regard the welfare of the child concerned as its paramount consideration and shall not make any such 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; and

(b)  taking account of the child’s age and maturity, shall so far as practicable—

(i)      give him an opportunity to indicate whether he wishes to express his views;

(ii)     if he does so wish, give him an opportunity to express them; and

(iii)    have regard to such views as he may express.”

 

[5]        The child in the present proceedings has just attained the age of 2.  Accordingly that part of the test relating to the listing of the child’s views is inapplicable.  The two strands to which I must have regard are both contained in section 11(7)(a). 

[6]        Relocation cases are those in which a party seeks to remove a child from the jurisdiction  of his habitual residence to settle elsewhere.  Such removal is unlawful other than with a court order, where the intention is to remove a child habitually resident in Scotland from the United Kingdom – section 2(3) of the 1995 Act.  Although that provision does not apply to the removal of a child habitually resident in Scotland to one of the other territorial jurisdictions of the United Kingdom, it is clear from the Family Law Act 1986 which deals, amongst other matters, with the inter-relationship between proceedings relating to children in different parts of the United Kingdom, that our legislation does not condone the removal of a child from the territorial jurisdiction of his habitual residence without the consent of any other person who hold parental responsibilities and rights in respect of that child.  For example, section 41 of that Act provides that where a child under the age of 16 who is habitually resident in one part of the United Kingdom is removed from that part to effect a change of residence without the agreement of the person or persons having, under the law of the part of the United Kingdom in which he is habitually resident, a right to determine where he is to reside, that child is treated for the purposes of the legislation as continuing to be habitually resident in the part of the United Kingdom from which he was removed for a period of one year after that removal. Issues about his welfare would normally then require to be heard in the territorial jurisdiction from which he had been removed without appropriate consent.  Further, any person reaching a major decision involving his or her fulfilling a parental responsibility or exercising a parental right must have regard so far as practicable, to, amongst other things, the views of any other person who has parental responsibilities or parental rights in relation to the child – section 6 of the Children (Scotland) Act 1995.  Accordingly, it has been accepted for some years in this jurisdiction that the appropriate course, where a parent such as the pursuer seeks to change the habitual residence of a child of a marriage where both parties have parental responsibilities and parental rights is to seek a specific issue order from the court permitting that change. 

[7]        In M v M 2012 SLT 428, at para 52,Lord Emslie, giving the decision of the Inner House,  confirmed that, subject to differences of degree, broadly similar considerations apply to any long distance relocation, whether international or domestic.  In that case the Inner House made clear also  that in such a case “The welfare and best interests of the child or children concerned are paramount, and fall to be judged without any preconceived leaning in favour of the rights and interests of others” ( paragraph 15).  The position in Scotland has differed to the approach in England where the plans of a parent with sole or primary care of a child, including the effect of the refusal of an application to relocate on that parent, are a material factor (Payne v Payne [2001] 2 WLR 1826).  Such an approach forms no part of the law of Scotland.  As it happens , in a case such as the present one where the child continues to live with both parents, the English approach to relocation is not so different to that applicable in this jurisdiction – K v K [2011] EWCA Civ 793;  Re F (A child) [2012] EWCA Civ 1364. 

[8]        The correct approach to such cases in this jurisdiction was more recently summarised by Lady Smith in the case of Donaldson v Donaldson 2014 Fam LR 126 as follows:

“Since the decision of this court in the case of M v M, it has been clear that, on an issue of relocation, it is no part of our law that a judge requires to regard any particular factor as having greater weight than any other.  It would, for instance, be wrong to proceed on the basis that there is a rule that the most crucial assessment required is as to the effect that a refusal of the relocation application will have on the applicant.  This is often conveniently described as a ‘presumption free’ approach; it accords with the court’s duty to regard the welfare of the child as the paramount consideration.  That is not to say that, in an individual case, there may not be features which are of particular importance when considering the welfare of the individual child concerned.  The availability in each jurisdiction of some particular medical treatment or educational provision that the child requires would be an example.  Much will depend on the facts of each case.”

 

[9]        In light of these authorities, it is in my view neither instructive nor appropriate to try to formulate any list of applicable factors to be applied in considering a case of this sort.  As Lady Smith emphasised, these cases are fact sensitive and scrutiny of the particular circumstances of the dispute and the child concerned is what matters.  Accordingly, I turn now to address the evidence led at proof. 

 

The Pursuer’s Case
(i) Evidence of the Pursuer
[10]      The pursuer is 32 years old.  She swore a 44 page affidavit on 10 January 2017 which she adopted and elaborated on in oral evidence.  Her position is that she is a full-time carer to her 2 year old son.  She does not intend to return to work until next year when O attains the age of 3.  Even then, she intends to return to work only on a part‑time basis.  The pursuer had a number of complaints about the defender as a person and as a parent.  He is a solicitor and partner in a law firm.  The pursuer claims that the defender’s life did not change after the child was born, that he still pursued his hobby of playing football, that he returned home late from work and that he gave her little support in terms of the care of the child.  Her evidence was that for the first 16 months of the child’s life she attended to their son both during the day and regularly through the night.  She found that exhausting and would ask the defender to take on more of the responsibility.  She acknowledged that the defender had helped out on occasions during this period and in particular had taken on night-time “duty” with the child on a Friday night.  However, she stated that productions lodged by him of slightly humorous Facebook postings he relates to the night time care of O are examples of him making “a big show of helping out with O’s care”. 

[11]      There were a number of aspects of O’s care about which the parties disagreed.  The pursuer wanted O in a routine where he went to bed at 6.30pm each night.  On her account, the defender would only very rarely come home to see his son before bedtime.  She said that family and friends would telephone and that she would tell them that he was not home.  She said that he would routinely arrive home at 8, 9 or 10pm depending on what he had on at work.  She said in terms in examination-in-chief that he was “never home before 7pm”.  She acknowledged that the defender had lodged documents showing the times at which he “logged on” and “logged off” from his computer at work during the period 17 August 2015 to 29 August 2016 and that these appeared to show that he tended to log on to his work computer at sometime between 0915 and 0930 in the morning and log off in the evening any time from about 1720/1730 to 1830.  The documents also showed that there were occasions when he arrived at work slightly later or left work later in the evening but the general pattern was as stated – 7/43 and 7/44.  The pursuer’s response to these documents, particularly under cross-examination, was that they “proved nothing”.  She said that sometimes she would receive text messages from the defender to say that he was working late even at times when his computer seemed to indicate that he had logged off.  She said that she had no idea what he was doing between the hours of 6pm and 8, 9 or 10pm, the times at which he would routinely return home.

[12]      The pursuer described a marked difference in the defender’s behaviour from the time that she took advice in relation to their separation.  She pinpointed that time as June 2016.  She said that before that date the defender only very rarely came home and put O to bed.  She said this was an issue that had been discussed at marriage counselling when the parties were trying to see if their marriage could be saved.  After June 2016 she acknowledged that the defender had spent much more time with O both during the week and at weekends.  However she still contended that this was restricted to 10 minutes on weekday mornings while he would have a cup of tea and sit with O while she showered.  At weekends they have tended to share O’s care, perhaps taking a weekend day each with their child.

[13]      The pursuer had a number of complaints about the defender’s behaviour towards her during the marriage.  In particular she claimed that he was overly fastidious in terms of his desire for a clean home.  She said that however much she cleaned the home it was never good enough for him and he would always criticise.  She claimed that he would prioritise a clean and tidy house over playing with his son.  He would allege that the pursuer had left open, dirty nappies around the house.  As a result of arguments about the pursuer not cleaning to the defender’s standards a decision was taken during the marriage that a cleaner would be employed.  The pursuer said that over a period of time “three cleaners were employed but none came up to J’s standards”. 

[14]      There were some issues about clothes for O.  The pursuer said that previously she did not feel that the defender dressed O appropriately.  Sometimes he would put him in a babysuit with jeans over the top.  If she tried to change him the defender would think she was being bossy.  She acknowledged that the defender has for some months always packed a bag for O when taking him to Saltcoats in Ayrshire to see the defender’s extended family.  He now buys clothes for O which he keeps in his own bedroom.  The pursuer’s complaint was that these clothes were kept in a locked suitcase and she did not have access to them.  So far as their respective financial contributions to O’s care are concerned, the pursuer was involved in a serious road traffic accident when she was a young adult in 2002.  She suffered quite serious injuries and secured a large compensation payment.  From that, she has purchased a property in Bromsgrove which is currently rented out.  She also bought the house in Musselburgh for her, the defender and O to live in.  That property is mortgage free.  The pursuer contributes a third of the bills.  The pursuer claimed that this was a departure from what they had previously agreed and she had not realised she would have to make a contribution to the bills for the house. 

[15]      There was a difference between the parties about what time the pursuer has spent away from O since he was born.  Her position was that prior to May 2016 she had been away from O overnight only once, in January 2016, when she and a friend attended a spa as a birthday celebration.  She denied that she went for evenings out with friends regularly.  She said that although she had good friends from her NCT group it was a struggle to find dates that would suit for evenings out.  She estimated that she had been out for the evening about 3 times in the 2 year period.  She would more regularly invite one of her female friends over to the parties’ home for a meal.  The pursuer said that the defender had not taken O to socialise with his (the defender’s) own friends prior to June 2016 but that he did so now which she regarded as a positive development.

[16]      The pursuer claimed that the defender started to read to O only when the pursuer confirmed that she wished to separate.  She suggested that the defender’s choice of books for O, such as the “Mr Men” books were not as age appropriate as those that she would have chosen.  So far as emotional attachment was concerned, the pursuer expressed the view that a child must have a primary attachment and that O’s primary attachment was to her.  She said in terms “I am not saying J isn’t good enough [as a parent] – I am just saying that I am the one who has been there for O.” 

[17]      On the specifics of her relocation plan, the pursuer said that her principal reason for wanting to leave the Edinburgh area and settle in her hometown of Bromsgrove with O was that she had more support from family and friends down south.  She agreed that she had made some close friends in the Edinburgh area.  One friend in particular (T) could provide practical support and would come and look after O if she was tired and had a migraine.  T and her husband (D) had always been around and supportive of the pursuer but she felt she could not rely on them the way that she could rely on her own family.  She outlined the practical arrangements on any return to Bromsgrove.  She would move into the property she already owns there.  It is located a short 10 or 15 minute drive from her parents’ house.  Her father, SB, is due to take an early retirement package in April 2017.  He would be her primary backup childcare support when she returns to work part-time.  Her mother PB works full time but could provide support on non-working days and has some flexibility within her working week.  Her sister has recently had a child and is not working.  The pursuer would anticipate spending a lot of time with her sister and O’s new cousin.  The pursuer has investigated nursery facilities in Bromsgrove which are of a good quality.  She has also explored some possibilities for schooling in the future, and has produced documentation illustrating that there are suitable nursery and school options available in the area. 

[18]      The pursuer explained that she is opposed to the level of time the defender wishes to spend with O should relocation be refused.  He has suggested a fortnightly routine with him having O overnight on a Thursday and Friday in week 1 and a Thursday, Friday, Saturday and Sunday in week 2.  The pursuer considers this would be too disruptive for the child and complained that the defender does not respect her wishes in relation to routine.  She also objected to the idea that on the proposals made by the defender, he was suggesting that O might attend a private nursery on a Thursday and Friday as part of a shared care arrangement where the defender would take him there in the morning and collect him afterwards.  She felt strongly that if she was available to look after O she should do so.  She acknowledged that she had recently used the services of a child minder but only for two hours on a Tuesday morning and considered that otherwise she would be the one caring for the child.  The pursuer’s proposals for the time O should spend with his father were almost the same whatever the outcome of her relocation application.  She proposed that the defender should have the child every second weekend.  If she was permitted to relocate she would travel up to Edinburgh once a month to facilitate that so that the defender only required to travel down to Bromsgrove on one weekend of each month.  So far as holidays were concerned, she proposed a single week of holiday in the summer initially which she thought might be built up so that the defender had a greater proportion of the summer holiday once O was attending school.  The pursuer was unwilling to accept that she might have the support of the defender’s mother, his niece and his sister who all live in Ayrshire should she remain in Scotland.  She said that not one of the defender’s family had offered support or even contacted her since separation.

[19]      Under cross-examination the pursuer was extremely reluctant to concede that the early stages of her marriage, her pregnancy and O’s first few months had been positive in terms of the defender’s involvement.  Detailed questions were put to her about how involved the defender had been in terms of attendance at scans and antenatal appointments, choosing equipment and clothes for the baby and decorating the nursery.  In response to an assertion that he had also spoken to her “bump” while she was pregnant so that the unborn child would know his voice she remarked, “not in the way that my sister’s husband did, he just talked”.  When challenged about the picture she had painted about someone seemingly interested in having a child before his son’s birth but then becoming so uninterested, the pursuer complained that the defender still worked and played football two times per week.  He had not taken as much paternity leave as she had wanted him to and although she acknowledged that he had been moving jobs at the time and could not take more time off, she appeared to be aggrieved at the defender’s need to be outside the home in order to pursue his career.  She compared his work commitments unfavourably with those of her sister’s husband and her own father, both of whom reportedly arrive home at about 5.30pm in order to be as involved as possible in family life.  The pursuer’s general position was that any bottle feeding and nappy changing carried out by the defender tended to be when other people were around or he was outside the home rather than when the two of them were alone with O.

[20]      The pursuer claimed that she suffered from fatigue and this was a lasting consequence of her brain injury.  She stated that the implications of her accident had a huge effect in the early months of O’s life.  During the course of the last 2 years, the parties appear to have communicated by text, even when in the house together.  Several text messages were put to the pursuer that she had sent to the defender in positive and even glowing terms about the assistance he was giving as a father and the support he was giving her.  When challenged about whether these were true and accurate and the pursuer indicated that her purpose had been to encourage the defender and praise him when he assisted but she maintained her position that he was of little support during the relevant period.  When she was challenged that the picture she had portrayed was inaccurate and that the defender had been significantly involved in night time feeding once O was bottle fed and in caring for him whenever he could, the pursuer remarked that her contrasting account was “my truth”.  Again she complained that the defender’s life had not changed after their son’s birth because he carried on working late into the evenings.  When shown an affidavit (No 27 of process) of AE, who was previously a colleague of the defender, which contained a number of statements about the defender not tending to work late in the office from the time that the pursuer fell pregnant onwards, and that she had the impression that he was going home to help his wife, being a fully involved and enthusiastic father, the pursuer responded that Miss E was simply repeating what she had been told.

[21]      When the pursuer was challenged in cross-examination about why she regarded it as so important that O’s bedtime took place at 6.30pm given that it was difficult for the defender to return home much before that, she retorted that if the defender wanted to see O he could simply come home earlier.  She said:

“It’s not good enough for him to come in and switch the lights on at 6.30pm just when I have got him (O) down.  It’s not good enough for him to come home at 6.30pm and read him a story”.

 

In relation to texts from 2015 (Nos 7/1, 7/2-7/8 of process) put to the pursuer in which she had texted the defender referring to him as “super daddy” for giving O his bottle, putting him to bed, looking after him and so on, the pursuer said “he is a supper daddy to O I’m not saying that he’s not”.  However immediately afterwards she added “this is just a text – it doesn’t prove anything and it was at an early stage”.  Again the pursuer emphasised that the texts in question were simply examples of her encouraging the defender to try to keep him sweet because he was domineering and controlling.  When I interjected to try to ascertain whether any of her expressions of thanks to the defender for his help and support were genuine or not, the pursuer said that sometimes she had meant what she said but not at other times when she would simply be trying to keep him happy.

[22]      The pursuer accepted that by December 2015 she had decided to attend her general practitioner about the possibility of being prescribed antidepressants because she was feeling anxious and stressed.  She disputed that she was stressed and anxious because she found the first year of O’s life difficult, claiming it was due to the way the defender made her feel.  When it was put to her that it was likely to be difficult for the defender to hear now that all the loving and positive messages acknowledging his contribution were not genuine, the pursuer said “I’ve been put through so much ... I can’t say what was genuine and what was not.  That’s my truth”.

[23]      The pursuer was challenged about her stance that the defender’s involvement with their child changed in June 2016.  It was put to her that the defender had no reason to suspect that she might wish to relocate until late July 2016.  The pursuer in response spoke to a conversation she had with the defender’s mother in June 2016 when it was known that the parties were to be separating but had gone to stay with the defender’s mother so that they could attend a concert in Glasgow that was prearranged.  She said that the defender’s mother had asked her, inappropriately in the pursuer’s view, whether it was her intention to move back down to Bromsgrove and take O with her.  Her position was that she had said to the defender’s mother that she may or may not relocate and that she was taking advice.  She denied that she had told the defender’s mother in terms that she would never take O away from his father.  When the relevant portion of the affidavit of the defender’s mother, RL (No 38 of process) was put to her the pursuer said those were “her words not my words”.  She did accept that during the period the parties attended marriage guidance counselling in March 2016 she had stated to the defender during a text conversation (7/13 and 7/14) “I am not going back to mum and dad’s.  My life is up here!”.  She said that she had changed her mind thereafter and accepted that references in those messages to her having a good network here in Scotland would have led the defender to think that she would not be intending to relocate at that time.  She said that an incident in June 2016 when the defender had refused to change O’s nappy and had been aggressive to her was the incident that had changed everything for her.  She maintained her position that the change she saw in the defender was after she had received legal advice in June 2016.  The defender started coming home earlier from work, reading to O, sometimes bathing him and so on.  She accepted that from June 2016 the defender has been well able to meet O’s care needs and that he was now engaged in a number of activities with his son including taking him to the parks, soft play, the Scottish Owl Centre and so on.  She declined to accept, however, that O had responded very positively to the defender’s commitment to his care, claiming the child was very clingy to her.

[24]      The pursuer confirmed that she and the defender had disagreed on matters relating to discipline since June 2016.  She accepted, however, that such matters had no bearing on the relocation issue.  She also accepted, albeit grudgingly, that the defender’s commitment in terms of working outside the home and providing financially was itself a form of childcare.  She reiterated, in support of her relocation plan, that she regarded herself the person to whom O was most attached.  She acknowledged that primary attachments can change over a child’s life.  However, she said that the move to Bromsgrove would be best for O because “he doesn’t have close family members here”.  She did accept that O had become more attached to his father over the course of the last 6 of 7 months.  She stated concerns about whether the defender’s commitment to O would be consistent in future.

[25]      The pursuer’s reasons for seeking to relocate were examined closely in cross-examination.  She accepted that there was no accommodation reason to move as she owns a three bedroom mortgage free property with a garden in the Edinburgh area.  She accepted that there was no financial reason to relocate and that there was no pressing need for her to find work.  She explained that she plans to undertake a “top-up degree” at the University of Birmingham in her chosen field of dealing with the complex needs of the blind but agreed that she had already planned to take that course using distance learning prior to the parties’ separation.  She would not require to live down south to attain that qualification.  She agreed that she has wonderful group of friends in the Edinburgh area although not all were lifelong permanent friendships.  Her single stated reason for moving to Bromsgrove was because she considered that she needed the support of the family and friends that she has down south in order to look after O at times when she could not, such as when she had a doctor’s appointment or on her return to work.  She agreed that all of the simulating activities O currently undertakes and would undertake in Bromsgrove are equally available in both places although she seemed to think that life would be better for the child in Bromsgrove.  When it was put to her directly that there was no pressing need at all for her to leave Scotland she said “it’s support, I need more support”.  She later added that she thought the child needed more support too.  When it was put to her that the significant drawback of her relocating to Bromsgrove with O was that his relationship with the defender would be threatened and that could only be done for very compelling reasons, the pursuer became very tearful and said that the father and son relationship could still continue after she moved.  She agreed that the defender had the unique advantage of being a male role model for O but thought there were sufficient male role models back in Bromsgrove to fulfil that need.  She disputed that there would be a significant difference in the input the defender could provide in Scotland where he could attend sports fixtures, parents evenings and the like for O.  She thought if he really wanted to be involved in such events when she was in Bromsgrove he could take a holiday from work.

[26]      After the parties separated there had been a dispute about whether the defender should take O on a holiday to Arran with his own extended family.  The pursuer did not want him to do that.  She referred to it as the time when “... he wanted to take O to Arran away from me.  I said why not stay in the house alone with O and step into his life”.  She did not agree that she had a tendency to complain if the defender wanted to do something different with O than what she directed.  At this point in her evidence the pursuer almost lost control.  She said she had been scared for her child and worried about the suitability of the hotel on Arran in which the defender had planned to stay.  When it was put to her that during the short holidays O has already had away with his father he had come to absolutely no harm, the pursuer refused to accept that as it was only what the defender had said.  In relation to jobs in the voluntary sector that the pursuer could undertake regardless of whether or not she undertakes the “top up” degree through distance learning or otherwise, the pursuer was reluctant to accept that there were any suitable part-time jobs available in Scotland for which she had the requisite qualifications.  She thought that there would be fewer jobs available of the type for which she was suited in Scotland than in the Bromsgrove area.

[27]      It was put to the pursuer that the defender might find it hard to accept that she would facilitate extended contact between him and O if she moved to Bromsgrove given that she had opposed his plan to have O for a week over the New Year period 2016/17.  She was adamant that she would go with whatever arrangements she was told were to be in place. When it was put to her that her proposal for a gradual build-up of holiday contact indicated that she wanted to dictate the pace of this, she replied “I am his mother”.  There was an exchange about how long it takes to drive from the outskirts of Edinburgh to the outskirts of Birmingham.  Ultimately the pursuer seemed to accept that it took 6½ to 7 hours but the traffic was unpredictable and it could be longer depending on whether she had to stop more than once with O on the way.  The pursuer disagreed that O was likely to resent having to spend two 7 hour trips over the course of a weekend in the car.  She suggested that other forms of transport could be contemplated as he got older.  The defender’s detailed affidavit evidence in relation to the pursuer’s proposals for contact should she be resident in Bromsgrove were put to the pursuer.  She agreed that there would be costs involved but suggested that it would be best for O if the defender was prepared to move into her home for the weekend, she would move out and the child could remain in his own surroundings.  She indicated that she would assist with the substantial costs that would be involved in the round trips to Bromsgrove that would be required, particularly if she was bringing O to the Edinburgh area once per month.

[28]      The pursuer maintained that O would be able to continue to develop his relationship with his father through “Facetime” during periods they were apart.  She disputed that after the parties had separated her mother, PB had said she would not speak to the defender again.  She did acknowledge, however, that her mother had always had reservations about the defender and that it “takes a lot” for her to remain amicable in her dealings with him.  She agreed that her father had sent one or two texts (7/18 of process) to the defender after she had involved her father in a dispute between her and the defender about whether she had put O to bed early so that he did not see him.  When it was put to her that both her parents described the defender as controlling, manipulating and domineering such that they were unlikely to encourage a positive view of the defender if O was living down in Bromsgrove near them the pursuer said that their views of the defender were true.  She reiterated that she thought it was unlikely the defender would keep up a commitment to O and said she did not know how long he would actually maintain contact with his son following a move to Bromsgrove.  She said “I believe it’s better for O to be back home”.

 

(ii)        Evidence of the Pursuer’s other witnesses
[29]      The pursuer led evidence from four close family members, namely her parents, P and SB, her aunt, JB and her sister, NBD.  JB lives in Manchester and is the aunt of the pursuer albeit that the age gap between them is only 16 years.  She swore an affidavit (No 17 of process) on 8 January which she adopted as her evidence.  In that affidavit and in oral evidence, she was critical of the defender and adopted a similar position to the pursuer in terms of his lack of support from prior to O’s birth and for the first year of his life.  However, under cross-examination she accepted that there were only three occasions she had ever seen O with his father.  Two of those were during 2015 and the last occasion was in April 2016.  She accepted also that much of the information she has was reported to her by the pursuer, although she said she had observed the defender speaking to the pursuer in a way that was quite critical on the occasions she saw him.  Her comments on issues relevant to O’s care such as the defender spending more time with O since the pursuer sought to relocate, the failure of the defender to follow O’s sleep routine, the hiring and dismissing of cleaners for the home and so on all emanated from the pursuer and not from any observation on the part of her aunt.  JB works as a consultant clinical child psychologist.  She accepted that she was attending court as a family member and not a psychologist but she clearly regarded herself as an informed witness.  In that context she agreed with the suggestion put to her in cross‑examination that a father has a particular and unique role to play in a child’s life.  She agreed with the proposition that any arrangement that jeopardised the relationship between father and son without compelling reasons would be difficult to justify.

[30]      The pursuer’s mother, PB spoke to her affidavit No 15 of process.  She adopted that affidavit as her evidence in chief and added that she felt very strongly that she wished to support her daughter in her plan.  She said that the pursuer is very close to her family and wanted and needed their support.  Mrs B claimed that her daughter had no real support in the area where she currently lives on the outskirts of Edinburgh.  Mrs B’s affidavit was peppered with negative remarks about the defender.  She was cross-examined about these.  She agreed that she did not feel that the parties were suited as a couple from the outset.  She never liked the defender.  She said she noticed he was controlling, that he would raise his voice and be demanding of the pursuer.  She maintained that the defender was manipulative but when asked to give an example of how his manipulative nature showed itself she was unable to give one.  In general terms she thought that he would try to “turn around” something the pursuer said but when given another opportunity she was again unable to give any specific example.  She denied that the allegation of manipulation was one that the pursuer had made and she had simply repeated.  She said she could not respond to a suggestion that while the defender may have been critical of the pursuer on occasions he was not manipulative. 

[31]      On the issue of whether the defender was routinely late home after work in the first year or so of O’s life Mrs B said that her daughter would often phone her and her husband when the defender was late home.  When it was put to her that the computer records produced by the defender did not fit with a statement that the defender was coming home as late as 9.30pm in the evening Mrs B, rather like the pursuer, dismissed the logs as meaningless and maintained that the defender was not home.  She thought the explanation was that the defender was logging off at work but not going home.  She said she did not know what he was doing but on many instances he was not home.  When it was put to her that the statement in paragraph 8 of her affidavit that “I lost count of the number of times G would call us sometimes as late 10.30 and 11.00pm at night to say how J was not home from work” was an even more extreme position than her daughter had taken and was an exaggeration Mrs B responded “I am right”.  She accepted that she had not raised anything about him being late home with the defender at the time but said that she did not feel it was her place to tell him what to do.  She was critical of what she saw as his lack of involvement as a father and said that he did not do what most fathers do in terms of playing with his son.  Like the pursuer she felt that the defender had changed completely as a result of the court proceedings.  Mrs B thought that the defender was defending this action through pride.  Regardless of his current committed involvement with his son, her complaint was that the defender should have given the pursuer care and support during the first year of O’s life.  In any event, she emphasised that the defender was a full time worker and was not particularly involved with O other than at the weekend.  She felt he would not be able to pick O up from nursery when he started attending there. 

[32]      Mrs B did not think there would be any detrimental effect on the defender’s relationship with his son if they lived 300 miles apart.  She thought that he could have O for a similar type of contact to that which she understands he enjoys at present.  She emphasised that her husband had been offered early retirement and would be able to help G with O if the move was permitted.  She did not think it would be feasible for Mr B to come up to Musselburgh to help G as she and her husband have just made the final payment on their mortgage and they would not want to incur that sort of expense.  She also added that her husband has hobbies, friends and commitments down in Bromsgrove with her.  If G was in Bromsgrove Mrs B said that she would sometimes help out as although she works full time she has some flexible arrangement and can occasionally take a day or a half day off.  It was put to Mrs B that her husband might be retiring due to ill health and she disputed that.  She said that he had been absent from work recently with stress and anxiety but that was purely a result of the current proceedings.  When pressed about the date of his ill health absence Mrs B said she could not say but it would have to have been since July 2016 to be attributable to the present proceedings.  Mrs B confirmed that her mother in law, Mrs B’s mother, lives in Bromsgrove and is 82 years old, but is healthy and does not currently need any care and assistance from her and her husband.  PB said it would not be a burden at all to facilitate and encourage contact between the defender and O notwithstanding that she regards him as an angry, manipulative, controlling and unpleasant man.  She said “at the end of the day J is O’s father and we will let him know that”.  She said that she would not portray the defender in a bad light to his son notwithstanding her strong personal feelings.  She disputed that she had said to the pursuer when she and the defender separated that she was not going to speak to the defender again.  On the lengthy list of complaints she made about the defender in her affidavit including the removal of a DVD player from the parties’ house and cancelling a Sky contract she maintained that these were legitimate complaints.  She agreed that since the parties separated she had seen O on about three separate occasions, in May, October and December 2016.  The May visit was a two week period when the pursuer brought O to Bromsgrove.  She has daily telephone contact with the pursuer, who likes to elicit her parents’ opinion on matters.  She accepted that she does not check whether what the pursuer is telling her about over the telephone is correct although she indicated that her husband had challenged the defender on one or two matters from time to time. 

[33]      A passage at paragraph 28 of her affidavit was put to Mrs B in which she states that the defender is a very controlling person, wants everything his own way and does not ever look at what is in O’s best interests.  She maintained that was accurate and was her evidence.  When asked whether she wanted to reconsider the statement that the defender never looked at what was in O’s best interests she said that what she meant was that the defender was not looking at matters from O’s perspective.  When pressed, the witness indicated she might reconsider the matter but after pausing confirmed that she did maintain the position stated at paragraph 28 of her affidavit.  Mrs B claimed that the defender was unlikely to be able to commit to doing anything significant for O during the week because of his work commitments and reiterated that there was insufficient support for G and O in the Edinburgh area as the defender’s family lived 90 miles away and he is working.  Another passage in her affidavit (paragraph 22) in which she expressed some criticism of the defender’s family was put to Mrs B.  That passage reads: 

            “They have visited Musselburgh only a handful of times since O was born and, in particular, did not even attend O’s first birthday party, which G had put a lot of effort into.  My husband, S, and I made the trip up from Worchester as we would never have missed such an occasion.”

 

When it was put to Mrs B that the statement made was untrue as she had not attended O’s first birthday party she said she had just noticed that the passage in the affidavit was a mistake for which she apologised and that she had been confused when she made the statement about the Christmas period when she and her husband had visited Musselburgh.  She continued to maintain however that the defender’s family had cancelled going to the birthday party at the last minute.  Another passage of the affidavit (paragraph 27) was put to Mrs B where she states that the defender did not offer to help out with O at all when the pursuer was planning to undertake a top up degree.  Certain text exchanges between the parties (No 7/7 of process) were put to Mrs B where it was clear that dates had been discussed and the defender had agreed that O could stay with him.  Mrs B maintained that her understanding remained that the defender had been unwilling to help.  She accepted she must have been told that by the pursuer and it looked as if what she had been told was incorrect.  On the issue of cleaners for the parties’ home which at paragraph 7 of her affidavit Mrs B stated had all been sacked by the defender, she conceded when the circumstances of each cleaner were put to her that all she really knew was that there had been three cleaners in a row.  She maintained that the defender had particularly high standards of cleanliness but retreated slightly from the reference to “impossible standards” in her affidavit. 

[34]      SB, the pursuer’s father, is 62 years old and lives with his wife in Worcestershire.  He swore an affidavit (No 14 of process) on 6 January 2017 which he adopted as his evidence.  In oral evidence he described O as a loving and very intelligent boy who was full of life and energy.  He spoke in glowing terms of the close bond between his daughter and her son.  He cherishes his own relationship with O as a grandfather.  He has spent as much as time with O as he can on visits to Musselburgh and when the pursuer brings O down to Bromsgrove.  They enjoyed a holiday to Cornwall with the parties and O in the first year of O’s life.  More recently he and his wife have enjoyed “Facetime” with O almost every day at around 5.30pm when they both arrive home from work.  He felt that it was possible to keep O engaged for a reasonable length of time using that medium as O’s speech is extraordinarily good for a child just attaining the age of two.  Mr B described the sorts of activities he likes to engage in with O when he sees him.  He, his wife and his two daughters are a close family and during the course of the pursuer’s marriage to the defender he had encouraged her to contact him and his wife if she had any problems.  He did not regard that as interference because he simply thought that the pursuer needed backup.  He agreed that matters had become quite heated around the time of the parties’ separation.  There was a telephone call during which Mr B spoke to the defender and asked him to reflect on why G was feeling that the marriage may be at an end.  The defender challenged Mr B to give an example of where he had gone wrong and Mr B offered that he understood the defender was often home late.  The defender disputed that allegation vehemently.  From that point onwards it had been difficult for him to conduct a relationship with the defender.  Mr B maintained that he had seen the defender lose his temper on several occasions during the marriage.  However, he stated that he felt he had tried to be a good father in law to the defender and continued to regard him as part of the extended family. 

[35]      On his physical health, Mr B confirmed that in 2011 he had suffered an atrial fibrillation followed by the discovery of two small cysts in his thyroid.  He had surgery which was successful and he returned to work after a period of recovery.  About a year ago he had a check-up as he had in the past suffered from anxiety which resulted in ectopic heartbeat.  His father had died of a heart attack aged 59 hence the reason for the concern relating to this.  However, following the check-up he confirmed that his heart was fine and that he has no ongoing health issues that would affect his ability to support with the care of O.  He has accepted an early retirement package which will take effect from 1 April 2017.  He will be able to support the pursuer if she moves to Bromsgrove and needed help picking O up from nursery or if she was studying or if she or O were ill.  He could be with her in 10 to 15 minutes which is the time it takes to drive from his home to the one that she plans to live in Bromsgrove.  Once O was a little older and at nursery or school Mr B would be happy to be involved in collecting O when required.  He would also be happy to facilitate whatever contact between O and the defender was taking place in such a situation.  He supports the pursuer’s plan because he feels a move would offer her and O the supportive, loving network that O requires and a happy future. 

[36]      Under cross-examination Mr B disputed that his tendency was to take the pursuer’s part against the defender where there were disagreements.  The text messages relating to a disagreement between the parties about the pursuer putting O to bed early were put to Mr B – 7/18 and 7/19 of process.  He disputed that he had simply accepted the pursuer’s view without question.  He said he recalled that O was really tired on that occasion and he was trying to tell the defender that because he had the impression that the defender would not listen to the pursuer.  When it was suggested that the disputes between the parties about whether the pursuer had cleaned the home properly were relatively minor issues, Mr B said he thought it was the defender who regarded it as a larger issue.  He felt that these small issues added up over time in the parties’ marriage.  It was put to Mr B that his references to the defender employing a clever use of controlled words and being manipulative were unjustifiably negative.  Mr B responded that although the pursuer had recovered following her accident to some extent they understood that she would probably always get more tired than someone who had not been through such an injury and that one feature of that was that she could get confused and find it difficult to explain her reasons in an argument.  In short he felt that the defender had not made any concessions to that.  He felt that the pursuer found it difficult to answer back to the defender who could over power her in the course of an argument. 

[37]      On the issue of whether the defender had been involved in O’s care in the early months, Mr B confirmed that he felt more of an effort was made when other people were there.  He contrasted this with complaints made by the pursuer about the defender on the telephone when Mr and Mrs B were at their home in Bromsgrove.  Mr B readily accepted that the defender’s role in working and supporting his family was also a form of childcare that did not lead to a conclusion that he was unable to care for his child while at home or even that he was less committed to his upbringing.  However, like his wife, Mr B suggested that during the first year of O’s life the defender must have been logging off from his computer at work and not going straight home.  He had a recollection that he and his wife would often be on the phone to the pursuer who said that she was feeling lonely because the defender was not home.  He also recalled occasions on which he and his wife would be speaking to the pursuer on the telephone when the defender appeared to arrive home.  Mr B seemed to find it strange that the defender was not home in the very early evening.  He thought the first three months of bringing up a child were very difficult and felt that the defender should have been there.  He accepted that in the absence of telephone records showing that there had been these evening telephone calls between him and his wife on the one hand and the pursuer on the other there was no external support for his position.  On the issue of whether the pursuer had already applied for work in Worcestershire (paragraph 15 of his affidavit) Mr B indicated that was an error to say she had already applied for work.  He thought he had misunderstood what the pursuer told him and realises now she was just looking at suitable jobs in the area out of interest.  In contrast with his wife’s evidence, Mr B stated that the period when he had been absent from work with stress and anxiety was not recently.  It was at least two years ago and the cause had been his having to change his role at work. 

[38]      Mr B accepted without question both that a grandfather/grandson relationship was in no way a substitute for a father/son relationship and that the latter relationship was particularly important and brought a unique and special contribution to a boy’s life.  He felt that a good bond could be created even with a 300 mile distance as he had managed to form a good bond with O but accepted that there would be an impact on the father/son relationship.  He felt that the difficulties could be overcome just as he and his wife do what they can to mitigate the impact of their daughter being so far away from them at the moment.  He agreed that it was undoubtedly easier for a father/son relationship to develop properly if they were living in the same town.  Mr B also accepted that both he and his wife described the defender in uncomplimentary terms in their affidavits.  He expressed a desire for moving forward and learning by mistakes and felt that he could alter his own feelings if there was a willingness on both sides to do so. 

[39]      The pursuer’s sister, NBD is aged 35 and lives in Bromsgrove.  She works as a primary school teacher but is currently on maternity leave.  She swore an affidavit, No 16 of process, on 6 January 2017 which she adopted as her evidence.  Mrs D has a close relationship with her sister and was very supportive of her in evidence.  She spoke positively of all the activities the pursuer carries out with O.  In a similar vein to the pursuer and her parents, Mrs D emphasised what she saw as the defender’s inability to be involved with O because of his work commitments.  She had clearly been influenced by the negative comments the pursuer has made about the defender over the last two years.  She supports the pursuer’s plan to relocate to Bromsgrove.  She saw the benefit as being that his extended family including her, her husband and her parents could see O so much more than they did at present.  Under cross-examination Mrs D accepted that the difficulties that had arisen between the parties in their marriage had no real bearing on the ability of either of them to care for their son.  However she still sought to emphasise the pursuer’s perspective on issues such as the bedtime routine and early disciplinary matters for O.  She disagreed that the absence of day-to-day contact with his son would severely affect the development of the defender’s relationship with O, commenting again that he was struggling to return home from work in time to see O before bedtime.  She did accept that the pursuer could be demanding of people around her and that she would become frustrated about things when wanting to communicate her point of view.  When a series of texts was put to Mrs D (No 7/21 of process) illustrating that the defender had offered to stay at home rather than go to work when the pursuer was not feeling well in November 2016 and to come home earlier than 6.30pm, Mrs D commented that the defender had “upped his game” since her sister had initiated these proceedings.  When it was put to Mrs D that her sister would continue to have close friends, the defender’s support and the advantage of O being in close proximity to his father were she to stay in the Edinburgh area, she commented that the pursuer needed to be back home, as the current situation could not be sustained.  She said her concern was also for O because “I don’t want to see my nephew having to spend time in nurseries rather than with us.” 

[40]      The pursuer also led evidence from some of her close friends.  DM, a 34 year old firefighter swore an affidavit (No 20 of process) on 4 January 2017.  He adopted his affidavit in evidence and explained that his friendship with the pursuer had evolved because, as a firefighter, he works particular shifts that allow him a lot of non‑working time during the week.  He and his wife T tended to meet up most weekends in the first year of O’s life with G and sometimes with other families.  He said he could recall only five instances of the defender being there on those weekends.  He and his wife were very supportive of the pursuer and would continue to be in a position to give support to her whether or not relocation was permitted.  Under cross-examination Mr M agreed that he had gleaned that the pursuer was generally dissatisfied with her husband from early on in his friendship with her.  He accepted he did not know why the defender did not attend the weekend outings regularly and that he had had little real meaningful contact with him.  Mr M’s wife is a full-time teacher.  He accepted that working full-time did not make her or any other working parent anything less than fully committed to their child.  He was unaware of the various activities in which the defender had been involved with O over the last year.  He disputed that he was partisan in favour of the pursuer but accepted that much of what he knew had been reported to him by her.  He accepted that if his wife wanted to take his son over 300 miles away to live it would have a large impact on his relationship with him.  He thought that was because he spent much more time with his son than most fathers do.  He accepted unreservedly that a father has a unique position in relation to his son and can understand what boys experience as they are growing up.  He accepted that moving to Bromsgrove would on any view have a significant detrimental effect on the relationship between the defender and his son. 

[41]      The pursuer’s friend LH, aged 32, gave evidence.  She had sworn an affidavit (No 18 of process) on 5 January 2017.  She works as a beauty therapist.  She reiterated some of the complaints about the defender that the pursuer and her family had made.  There had been an incident when she stayed with the parties after their marriage.  She claimed that the defender had shouted at the pursuer because the work surfaces had not been cleaned after an evening she and the pursuer had been having drinks together.  Under cross-examination she agreed that she had met the pursuer when they were five years old and they were best friends.  She was loyal to the pursuer and supported her relocation plan.  Ms H did accept that in general terms there would require to be a compelling reason before close proximity between a parent and his child should be severed.  She agreed that in November 2015 she and the pursuer had gone for a two day and one night trip to a spa without O who was left in the care of the defender.  While she accepted the pursuer may have texted him in positive terms during that period she thought that G was simply trying to praise the defender so that he would care for their son more.  She claimed that the defender had suddenly started to spend more time with his son in order to “win” in these proceedings.  She thought that the difficulties in the parties’ marriage had arisen because the pursuer could not give as much time to the defender after the child was born and that he may have resented that. 

[42]      Another close friend of the pursuer, HM, is 32 years old and had sworn an affidavit, No 19 of process.  She claimed to have direct experience of the defender having a bad temper.  This related to an incident in November 2015 when apparently the defender became angry at a party when she and the pursuer were dancing and other men were trying to dance with them.  She said that her partner had to reassure the defender about the incident.  She accepted under cross-examination however that the incident had involved a drunk man who was making a nuisance of himself and that it was not unreasonable of the defender to have been concerned about the man’s behaviour.  When asked why that incident had made her conclude that the defender was an angry person, she said that she had not felt threatened by the stranger’s behaviour and she thought that the defender had looked enraged and angry at the time.  Ms M was again very supportive of the pursuer and her plans to relocate.  She has a flexible work routine as she is employed by her father who has his own business.  She also attends university and would be available to help out with O if required. 

[43]      AS, aged 27, who lives in Edinburgh also gave evidence in the pursuer’s case.  She had sworn an affidavit, No 21 of process, on 6 January 2017.  She became a close friend of the pursuer when they worked together in Edinburgh prior to O’s birth.  She continues to have close contact with her by text and telephone calls.  She had formed the view during G’s pregnancy that the defender was controlling and ill-mannered.  The pursuer had shown her unpleasant text messages she had received from him while at work.  After O was born Ms S went to the parties’ home to meet the baby.  The defender was not there.  She estimated that she had visited on five or six occasions when the defender was not home.  Although she is a close friend of the pursuer, Ms S is not available to babysit for O because her mother has a deteriorating health condition, and requires support.  Under cross-examination Ms S accepted that most of what she knows about the defender comes from reports given to her by the pursuer.  When asked about her references to the defender’s “persistent anger and aggression” she said that this was a reference to the defender telling the pursuer to do something without giving her an opportunity to ask about it or discuss it.  She accepted that she had stayed over with the pursuer on at least one occasion when the defender required to be away working in London but claimed that there were other times when she had been present and he had not been home.  She agreed also that there were times when the defender would be at home with O so that she and the pursuer could go out although she said that she and the pursuer would have to wait for him to come home and would not be able to go out until later than they had planned.  Ms S has never been to Bromsgrove and could offer no direct evidence about the circumstances there.  She expressed a view that the change in the defender’s commitment to his son was something he would be unlikely to sustain.  She did not think there would be any significant change in his relationship with his son if O was living 300 miles away.

 

The Defender’s Case
(i)  Evidence of the Defender

[44]      The defender is 40 years old.  He swore an affidavit, No 39 of process, on 11 January 2017 which he accepted as true and accurate and adopted as his evidence.  He explained that his son O’s welfare was of paramount importance to him.  He rejected the contention that he was somehow not involved in O’s care early in his son’s life.  He had understood at the time that his wife appreciated his involvement with O and the support he gave her.  He had no reason to think that her text messages to him to that effect were not sincere and genuine.  While he had always worked full time as a solicitor, he spent as much free time as he could with his family from the time of O’s birth.  The examples given in the various productions showing Facebook messages and the like were all examples of his involvement in O’s care and were representative of how life at home was.  He described himself as a proud father.  He had no inkling until July 2016 that the pursuer was to raise proceedings seeking relocation.  He disputed that there had been any material change in his level of input to O’s care from June 2016.  He described an ordinary weekday as being one where he would leave for work at 8.30am and come home around 6.30pm.  He said that his wife’s evidence that he was not home until 9.30pm or 10.00pm regularly prior to June 2016 was completely untrue.  He did not go out socialising or for any other reason after he logged off from work, he went home to see his son.  Although the parties separated at the end of May 2016, he described his wife’s behaviour towards him after that as erratic.  She seemed to be ambivalent about whether she really wanted to end the marriage.  On 7 June 2016, when the parties had been staying with the defender’s mother in order to attend a Coldplay concert, the defender was aware that the pursuer had assured his mother that she had no intention of taking O down to live in Bromsgrove.  The defender took legal advice after he realised that the pursuer, notwithstanding her assurance to his mother, intended to try to relocate.  The defender’s position was that the only difference in the time he has spent with O since the parties separated was that he has more “one-to-one” time with his son because the parties do things separately with their child.  He talked about reading a lot to O as he had been keen to introduce books to him at an early stage.  He has always been able to care for O physically by feeding, dressing, changing and washing him.  He has tended to visit his family in Saltcoats with O during weekends that he has sole care of him because he feels it is important for his son to maintain contact with both extended families.  O knows all members of the defender’s extended family in Ayrshire by name and interacts well with them.  The defender considers that his son has an extremely loving and supportive family on both sides and he would hope that would be maintained.  He knows of no financial reason for the pursuer to relocate.  She has no reason to leave her current accommodation, the quality of nursery provision in the area of Scotland where the parties live is excellent.  All of the various clubs and activities O might attend are available in both jurisdictions and the pursuer has a very good support network in the Edinburgh area.  The defender’s perception was that his wife had formed deep relationships here and sees her friends in the Edinburgh area far more often than her older friends from childhood.  Further, it had always been the intention that the pursuer would start her top-up course through distance learning.  There was on the face of it no employment reason to take the pursuer away from Scotland.  The pursuer’s plans to relocate would result only in a huge disadvantage so far as the defender is concerned in that it would impact adversely on his relationship with his son.  He pointed out that it is not in dispute that O is an extremely well-developed little boy who has flourished in his current circumstances.

[45]      Mr L regarded the pursuer’s proposals for contact between him and his son if relocation was allowed to be impracticable.  The travel time to Bromsgrove he thought was rather longer than the pursuer had suggested and often took as much as 8 hours either because of travel or weather problems or the number of stops required when travelling with a young child.  Ultimately he considered that if he was travelling to Bromsgrove once a month for weekend contact that would involve him spending time with his son only on the Saturday and part of Sunday to take account of the need to travel there and back.  On weekends that the pursuer would bring O to the Edinburgh area he accepted that he would see a little more of him.  However, he thought that it would be difficult for him to maintain the contact between O and his extended family in that situation.  He would have so little time with his son that he thought it unlikely that he would spend the weekend driving to Ayrshire to see his family with O.  It was accepted that the costs of contact after relocation calculated by the defender and included in paragraphs 94 to 96 of his affidavit required to be reduced to take account of the pursuer’s offer to travel to Edinburgh once per month for contact.  However many of the other costs the defender will have once the parties are living in separate homes would be the same.  In any event, he considered that the pursuer’s proposals would lead to an unsatisfactory situation in terms of his relationship with his son.  The suggestion that he could use Skype and Facebook to keep in touch between visits was also unrealistic.  While he thought that FaceTime worked as part of contact for an extended family, it was hardly a satisfactory way to maintain the bond between father and son if it was not necessary.  O was not yet able to concentrate for long periods. 

[46]      So far as the defender’s relationship with the pursuer’s family was concerned, after the parties separated the pursuer told him that her mother said she was not intending to speak to him again, a position that the pursuer appeared to support.  Shortly thereafter the defender’s mother was diagnosed with cancer and neither S nor PB contacted him to ask how everyone was coping.  It was only after the pursuer told him that she intended to divorce him and to relocate that SB had raised a concern that he (the defender) apparently had not supported the pursuer during the marriage.  He felt this was a stark change of direction on the part of Mr B.  Any communication between the defender and the Bs is now very formal and stilted.  He could not accept as genuine the statements in the Bs’ affidavits that they had regarded him as controlling, manipulative and bad-tempered.  He felt that he had previously enjoyed a good, open relationship with Mr B in particular, albeit that the pursuer would continually tell him what her parents had to say about any matter they disagreed on.  He now felt that the content of the Bs’ affidavits was so extreme and vitriolic that he could not see that they would promote his good character to O if relocation was permitted.  He clearly felt hurt and betrayed by the Bs who he said had seen him bathing, carrying and changing his child in a way that they now appeared to dispute. 

[47]      The defender is proud of his educational and professional achievements and he considers that he can offer O all of the advantages that his own success has brought, including providing encouragement and support for his son’s education.  He has a history of playing the bagpipes and continues to play football when he can.  These are the sorts of interests that he might encourage his son to be exposed to.  He recalled being a child himself and looking for his dad on the touchline when he was playing sport.  He felt that a father was the closest role model for any child from a male perspective.  He expressed significant concerns about the likelihood that he would maintain the close relationship he has with his son if he was only seeing him for two or three days a month.  He also doubted that the pursuer would maintain even a level of contact she was proposing on relocation.  She had indicated she would resist mid-week residential contact even if she was living in the Edinburgh area.  There had always been disputes about how early the pursuer put O to bed but since the summons was served there had been occasions when she had put him to bed as early as 5pm and on several occasions at 6pm.  Ultimately the defender managed to elicit an agreement from her that they would set a time of 6.30pm when O could go to bed if the defender was not yet home.

[48]      The defender spoke to the level of care he would hope to provide for his son in the event that relocation to Bromsgrove was refused.  He has an arrangement with his firm that he can leave work early one day a week if required.  He has not required to do so thus far as he and the pursuer have support and any time they have required backup childcare they have been able to secure a babysitter.  On the odd occasion when the pursuer has been unwell the defender has been able to stay at home in the morning.  He has also secured an agreement through the HR Director at his firm that in principle he can leave early once per week if he has his son staying with him overnight.  His hope was that he could have O staying with him for six nights per fortnight, a Thursday and Friday in week one and a Thursday afternoon through to a Monday morning in week two.  If O was not yet attending nursery, he would be perfectly happy for the pursuer to care for him during the day even if his son was staying overnight with him.  However, he was prepared to provide day nursery care if the pursuer would prefer. 

[49]      Under cross-examination the defender accepted that the pursuer often liked to go to bed quite early but he disputed that she suffered from any extreme tiredness.  When O was a young baby she was understandably tired but as things developed and she recovered from the birth and from breastfeeding any tiredness was not out of the ordinary.  There was clearly an issue about the pursuer deciding that the parties should not sleep together at all after O was born and although they had occasionally had marital relations that had ceased by the time of O’s first birthday.  The defender’s position was that from about May 2015 he was undertaking the “night shift” with O on a Friday and Saturday night, not just the one night per weekend that the pursuer accepted he carried out.  He said that only very occasionally did he go out for a drink after work on a Friday evening and if he did the pursuer would text him and remind him that he was going to be “on duty”.  It was put to the defender that he continued to play football twice a week after O’s birth which he disputed.  He said he had given up playing twice a week during the season 2014/15 because he was not fit enough to do that anymore.  Throughout O’s life he had really only played football once per week.  He had attended the gym after work only very occasionally, the last time being in November 2015.  His socialising with work colleagues was so exceptional that he could remember the occasion such as an office night out at Christmas and one particular Friday evening where he made an arrangement with the pursuer that he could do so.  He never went out without prior arrangement with the pursuer.  He had very occasional business development commitments in London but that had only been twice prior to the parties separation for one night each time.  It was suggested that the defender had not produced all of the log-in and log-out details for the first few months of O’s life showing when he arrived at and left work.  He explained that he had recovered everything that was available, bearing in mind that he had moved firms when O was a young baby.

[50]      The defender regarded it as a deliberate misrepresentation for the pursuer to suggest that he was never home before 7pm in the evening.  He came home invariably at around 6.30pm to try to see his son.  It was simply not true that the pursuer was alone in the evenings with O and that he would have left work but not be home.  Under reference to the various examples of text communications between the parties (6/62 – 6/72), the defender pointed out that many of those examples included requests by the pursuer to him when he was at work to bring home food or other provisions.  It was noteworthy that the pursuer was unable to produce texts pleading with him to come home or complaining that he was not home.  If there was any truth in the allegation that he was habitually home at 9.30/10pm he thought there would have been some examples of that.  Of course there had been the odd occasion when the defender had to work late and he recalled very clearly 23 June 2016, the date of the EU Referendum, when he had been in London and his flight back from Gatwick was delayed such that he did not arrive home until midnight.  That was very much an exception rather than the rule and his daily routine was to leave work at a time where he could see his son at bedtime. 

[51]      In response to the contention that the pursuer would attend activities with other friends and their children at the weekends prior to June 2016, the defender explained that because he would often be up with O through on a Friday night and early Saturday morning the pursuer would sometimes go out for a while with O during the day while he showered and recovered.  However, he explained that it was not the norm that the pursuer would go out with her friends on a Saturday in the first year of O’s life as they tended to do things together as a family.  In any event, he thought it noteworthy that DM had said he had met the defender on five occasions involving parents and children over a relatively short period of time.  He disputed that Mr M would have been spending most weekends on visits with the pursuer and their respective children without him.  He recalled various weekend trips with the pursuer and O to Portobello, to Fort Kinnaird and for family visits during the first year of O’s life. 

[52]      When cross-examined about the difficulties in the parties’ relationship including his own high hygiene standards, the defender confirmed that he did have some concerns about the pursuer’s lower standards of domestic hygiene.  He would raise these issues with her but she would typically ignore him and disregard what he had to say, preferring the views of her parents instead.  His concerns included finding used sanitary products open and accessible to O in a bathroom bin, rotten food festering in cupboards and open soiled nappies and dog excrement thrown by the pursuer into bins without first being placed in bags.  He disputed that his standards were exceptionally high and said that he had only run his fingers over the worktops in a critical manner once and it was because the pursuer had used bleach which had left a residue on the surfaces.

[53]      On the subject of the pursuer’s alleged fatigue, the defender explained that in the initial stages of their relationship the pursuer had claimed to him that she needed more sleep than normal in consequence of the accident she had sustained when a teenager.  However, over the years of their relationship his experience had been that the pursuer did not really require more sleep than the average.  He had seen the notes from the litigation following her accident which she had shared with him and nothing he saw suggested that she needed more sleep as a long-term consequence of her injuries.  In any event, he felt the pursuer had coped admirably well with all of O’s requirements when he was a baby and did not seem to be suffering any long-term sequelae of her accident.  The defender said that he could accept that the pursuer’s father would be protective of her given the history of her accident but he felt that did not justify the level of interference by her parents in the minutiae of his life with the pursuer. 

[54]      The defender was cross-examined at length about his alleged aggressive and controlling behaviour, including about incidents that had occurred before O was born.  There had been a particular argument between the parties when the pursuer was heavily pregnant.  The defender’s perception of that incident and of allegations that he took his wife to task over the cleanliness or otherwise of kitchen surfaces was rather different than that of the pursuer.  In any event it was clear that while on the one hand the pursuer complained of the defender having a temper and being difficult to live with, for his part he regarded the pursuer as impossible to reason with and unreasonable in her demands.  A letter written by the defender’s niece MS was referred to in which she indicated that the defender had a habit of making people feel small.  The defender explained that he understood why his niece might say that as he had expressed strong views to her when she was considering a career in nursing.  He felt that she had the potential to go further and become a doctor and he recalled expressing his strong views on that to her at the time. 

[55]      It was also put to the defender that the parties had disagreed on whether the pursuer should “co-sleep” with O.  The defender had disagreed with the pursuer because they had both read books and knew there was a risk of suffocation in sleeping in the same bed as a small child.  The pursuer preferred to take the advice of her aunt and her father about it and continued to have O sleeping in her bed.  The defender emphasised that despite a number of disagreements there had also been a large measure of agreement between him and his wife in relation to O’s care.  They had agreed that he would not be allowed sweets or fizzy drinks and to limit the amount they took him swimming when he was very young to avoid him catching too many colds.  They had shopped together for clothes, equipment and toys.  The defender disputed as “utterly ridiculous” a contention that there was an occasion in June 2016 where he had refused to change O’s nappy on the basis that it was somehow his wife’s task.  He also rejected the contention that there had been an occasion where he prioritised cleaning the floor rather than tending to O who had been sick.  The issue of whether O should be disciplined by taking him out of the room or shutting him out of the room was also explored, although the pursuer had already accepted that this had nothing to do with the relocation issue.  The defender accepted that he now keeps a locked suitcase in his bedroom with clothes and toys for O.  These were things that his own family had bought at considerable expense for O at Christmas time.  He wanted to keep them for special days out and in the knowledge that he and his wife would be going their separate ways he had already packed these items to take with him when he goes.  There had been a problem with the pursuer dressing O in the clothes in question when they were already dirty.  The defender accepted also that he had some books for O in a rucksack ready to take with him when he moves.  He explained that he felt placed in an impossible situation following the service of the summons and the allegations made against him.  He has stayed for O’s benefit but felt it had been difficult for everyone concerned and that ultimately the parties had kept out of each other’s way within the home.  He had tried to be respectful to S and PB but this had been difficult given the evidence given by the Bs at proof at a time when they were all staying under the same roof. 

[56]      The parties’ financial situation was also the subject of cross-examination and the defender accepted readily that the pursuer made a financial contribution to household bills by contributing a third of what he paid.  He disputed that his wife could be regarded as O’s primary carer and the person with whom the child has a principal attachment.  He felt that his son was close to both parents while acknowledging that of course the pursuer spends more time with him on a daily basis because of the defender’s work commitments.  On the issue of nursery care the defender felt that a decision would require to be made going forward.  O’s socialising needs had to date been met by spending time with the pursuer and other parents and children but he was fast approaching the stage where educational socialising would become appropriate.  While he was open to discussion on the point, he had tried to take on board that the pursuer seemed to be saying that she needed more support and so his proposal that O attend nursery two days a week was partly to meet that concern.  He felt his son would benefit from some time in a nursery environment. 

[57]      On being pressed about the contact proposals following relocation that the pursuer had put forward, the defender said that he had no confidence that such proposals would be adhered to if his son was taken to live in Bromsgrove.  He thought that the pursuer and her family would go out of their way to avoid compliance with any court order.  The circumstances of these proceedings had left him with no faith that anything stated by the pursuer was genuine.  In any event, he considered it unrealistic of her to suggest that he should stay in her home in Bromsgrove as a cost saving measure.  Should relocation be refused, the defender was confident that he and the pursuer could at least resolve the issue of how they would divide the holidays with O going forward.  He had always thought they would negotiate reasonable amounts of time each with O over holiday periods.  The defender disputed that his professional responsibilities rendered him unable to be involved on a very regular basis with his son.  He foresaw being able to collect O from nursery and later school in the fullness of time.  His proposals had taken into account that the pursuer would be available for much of the week and that he would organise the other part.  He confirmed that in the two years since O was born the parties had not encountered any particular problem managing bouts of illness, dental appointments and the like that required some flexibility on his part.  It was suggested to the defender that he had not spent time with his own friends and their children together with O prior to the parties’ separation but had done so subsequently.  He responded that he had met one or two friends such as SB prior to separation in the company of his son but that this was something that had developed more as O had grown.  It was also suggested to the defender that as he had spent the two holidays he had enjoyed with O since the parties’ separated in the company of some of his extended family that opportunity would continue even if O relocated with the pursuer.  The defender thought it unlikely that he would do so if his time with O was so restricted that he had to focus on the development of their relationship during holiday periods.

[58]      The defender’s niece MS gave evidence.  She was interposed during the course of the pursuer’s case but called by the defender as a witness.  Ms S is aged 23 and lives in Ardrossan.  She adopted an affidavit (No 31 of process) sworn by her as her evidence.  She explained that the defender is her mother’s brother and he had lived not far from her until he moved to Edinburgh.  She described him as very supportive of her encouraging her during her university years.  Ms S now works as a registered nurse with a memory clinic, having previously practised as a nurse in Accident & Emergency.  She explained that when O was first born she and the rest of her family had been surprised and pleased at how well he took to being a father given that he was older perhaps than the average in becoming a parent.  She had seen instances of O looking to his dad for comfort in preference to others while she and other extended family were there.  She thought that O was close with all his extended family now and seems particularly fond of Ms S’s father, R.  She has routinely seen him being actively involved in O’s care, changing nappies, feeding him and so on.  A letter was put to Ms S that she had written to the pursuer the day after O was born – No 6/76 of process.  In that letter she thanked the pursuer for bringing so much joy and happiness into her uncle’s life.  She explained that everyone in the family had been absolutely delighted at the turn of events.  However the letter went on to state “I know he may not always show it, believe me I know more than anyone how difficult he can be and how small he can make people feel”.  Ms S accepted that this was a reference to the defender but said that all she had meant by it was that because the defender gets passionate about issues he can sometimes come across harsher than intended.  He had made her feel small in a situation where she had spoken to him about her ambition to be a nurse and he had tried to persuade her to aim to study medicine and become a doctor.  Ms S was quite clear that the defender was a kind and loving person who would do anything for her.  The context of the letter she had written to the pursuer was simply to let her know that she had a friend that she could confide in in the overwhelming situation of being a mother for the first time.  She was not trying to criticise her uncle and the letter was not taken that way at the time.  She recalled that the pursuer had thanked her for it.

[59]      Under cross-examination Ms S confirmed that if O stayed in Scotland she would be free at the weekends and could help out in an emergency while accepting of course that the distance of 90 miles meant that she was not as physically available as someone who lived close by.  She disputed that the last time she had seen the pursuer and O together that O was “clingy” to the pursuer.  She agreed that there may have been some increase in the frequency of her contact with O since June last year.  She now sees him once a month and has FaceTime contact in addition.  She denied that the defender had a temper and described him as loyal, hardworking and generous.  It was put to her that the expression about making people feel small in her letter did not relate only to the single occasion of her choice of career but related to a course of conduct.  Ms S disputed that and said that the statement in her letter had not been a general one about the defender’s personality. 

[60]      The defender’s mother RL who is aged 67 gave evidence.  She swore an affidavit, No 38 of process, on 10 January which she adopted as her evidence.  She described O as a very happy child who had bonded well with his father.  She had no concerns about the level of practical care the defender could provide for his son and described him as a very competent, loving and caring father.  The defender stays at her home relatively regularly with O and she has seen him changing nappies, putting O to bed and attending to his nutritional needs all without difficulty.  Mrs L has never seen O crying or even asking for his mother in her absence.  The defender makes sure that O speaks to his mother using FaceTime when he is through at Saltcoats for the weekend with his son.  Mrs L explained that the defender had been very supportive to her when her late husband was ill and that he has consistently been a close and caring relative, not just to her but also to his sister L and his niece M.  Mrs L thought it was not true that the defender was less committed to O’s care in the first 16 months of his life.  She recalled that the defender would often telephone her from the car on his way home from work at about 6 o’clock or 6.30 when he was getting nearer the house.  These calls would take place a couple of times a week at least and she was confident that her son was going home to spend time with his wife and son.  She also had FaceTime contact once or twice a week with her son and O in the evenings.  Her impression was that the defender was very much involved in family life.  Mrs L explained that she suffered from an auto‑immune problem that resulted in her fingers in her left-hand being clawed.  Her right hand is also affected but much less so.  She receives medication for her condition which was diagnosed in 1989.  She keeps her hands active and has no difficulty changing O’s nappy on her knee, knitting, cooking and carrying out general housework.  She was aware of the proposed relocation plan.  She had been concerned that the pursuer might try to take O down to Bromsgrove when the parties separated, but in June 2016 when the parties were at her home before attending a Coldplay concert she had asked the pursuer directly what her plans were.  The pursuer had responded “I would never take O away from his dad.  Musselburgh is my home.”  Mrs L recalled that she had heaved a sigh of relief at the time and had told her son about the conversation.  She expressed concerns about the pursuer’s proposals now to relocate.  She thought that regular contact between such a committed father and his son would be better for O.  She would be happy to help out with childcare if that was required although acknowledged that it would take her up to two hours to travel to the parties’ home.

[61]      Under cross-examination Mrs L agreed that there had been arguments between the parties about cleanliness and recalled that this arose on occasions when her son found used bottles of O’s in the bed with congealed milk in them.  She emphasised that her son had been brought up in a clean environment and had always kept his properties clean and tidy which she regarded as a positive thing.  Mrs L accepted without hesitation that she regarded the pursuer as a good parent.  She had little direct information about the injuries the pursuer had sustained when a teenager but she had heard her say that she needed to go to bed early.  She recalled hearing that the defender had been on “weekend duties” with O in the first year of his life, staying up on a Friday and Saturday night to provide whatever care was required.  She had visited the parties’ home and that was the routine she had observed.  She disputed that she was playing down the pursuer’s contribution to O’s care and exaggerating her son’s involvement.  She had observed the defender working hard to prepare everything for Christmas in 2015.  So far as the current arrangements were concerned, Mrs L did not accept that the pursuer could be described as O’s main carer.  She felt that the parties shared the care of their child, with the pursuer looking after him on weekdays when the defender was at work with the weekends being shared between them.  So far as the pursuer’s relocation plan was concerned, Mrs L was absolutely clear that the pursuer had not said that she was unsure about moving to Bromsgrove, she had given a complete reassurance in June 2016 that she had no such plan.  The letter from MS was also put to Mrs L for comment.  She recalled also that there had been an incident about M wanting to study nursing and the defender being keen that she aim to study medicine.  She felt that her son had been caring for his niece and it had been a subject of considerable discussion in the family at the time.  Like the defender, Mrs L was rather sceptical about the pursuer’s commitment to ongoing contact should O live in Bromsgrove.  Having been reassured by the pursuer that she would never take O away from his father and initiating these court proceedings shortly thereafter, Mrs L had no faith that the pursuer would honour any contact commitments.  She felt that her own contact with O would diminish should relocation be allowed.  She was confident that the defender would continue to try and involve his extended family with O but she would feel that it was not right for them to interrupt the precious time that he would have with his son if it was so restricted. 

[62]      The defender’s older sister LS gave evidence.  She is 44 years old and lives in Stevenston in Ayrshire.  She is the mother of MS.  She swore an affidavit, No 32 of process, on 10 January 2017 which she adopted as her evidence.  Mrs S explained that she had formed what she thought was a good close relationship with the pursuer after the parties married.  When the pursuer was pregnant with O she asked Mrs S to be her birthing partner, something that Mrs S had been delighted to undertake.  She had visited the parties and O on a number of occasions at their home and they had visited her.  She has had no substantial contact at all with the pursuer since the parties separated and has not seen her with O.  She has seen the defender and his son regularly since then.  In the first 16 months of O’s life she recalled various times when she had enjoyed FaceTime with the defender and O on occasions such as bedtime and bath time.  She was absolutely clear that the defender is a great father to his son who in turn loves him very much.  She enjoys spending time with O herself and described him as a “great character”.  He seems particularly fond of her husband who he follows around the house when he visits.  Mrs S said she would be devastated if the defender’s time with O was reduced to restricted contact periods following relocation.  If that occurred, she felt she would see less of O as she would feel awkward in imposing on such limited time between father and son.

[63]      Prior to June 2016, despite their good relationship, the pursuer had never complained to LS that the defender was not fully involved in O’s care.  In fact the pursuer had given her sister-in-law the opposite impression.  She had said that J was an extremely supportive dad and husband.  She told Mrs S at the time that the defender had been taking O for a night on a Friday and getting up early on a Saturday morning to give her a break.  She described herself as “so lucky” to have the defender’s support.  Mrs S admitted frankly that the defender had taken to fatherhood a lot better than she had expected given his years as a single man without children.  He appeared to fully embrace parenthood and threw himself into it.  Mrs S was also asked about whether she was willing to assist in the care of O should that be required.  She confirmed that she was and would be more than willing to drive through to Edinburgh and help whenever necessary.

[64]      Under cross-examination Mrs S rejected the contention that the pursuer somehow had more responsibility for O’s care because she was a full-time mum and her husband worked.  LS’s husband worked full-time when their own children were small and she was a full-time mother but she always regarded herself and her husband as having joint responsibility for the children.  Of course she had undertaken more practical care and the pursuer will have done the same.  The letter sent by her daughter M to the pursuer was also put to LS who agreed that there were times when the defender could “talk down” to people which she attributed to his being a lawyer.  However, she regarded the defender and M as very close and she appreciated the support he had given about M’s education.  It was put to Mrs S that holidays between the defender, O and the defender’s extended family could continue in future even following a move to Bromsgrove for the child.  Mrs S pointed out that although the defender had spent two short holidays so far in Ayrshire things were bound to be different in the future.  It seemed likely that in the fullness of time the pursuer and the defender would both have new partners and possibly new families.  All of that would require to be factored in. 

[65]      Stuart B, a friend of the defender, swore an affidavit (No 37 of process) which he adopted in evidence.  He is 36 years old and married with a 3 year old daughter.  He has been a close friend of the defender for some years although they have not managed to meet up as frequently since they both had children as they did before.  When he has seen the defender with O he has noted them to have a “typically healthy” relationship.  When the defender has come to visit with O he always has the correct equipment and is attuned to his son’s needs.  Stuart B described the defender as very capable domestically and a family-orientated man.  He recalled that prior to O’s birth the defender would speak of his own family in Ayrshire often and appeared to visit them frequently.  In all the years he had known the defender Stuart B had never seen him exhibit a bad temper or be controlling or manipulative.  As a parent himself he found it difficult to imagine anything less than daily contact with his own daughter and felt it would be very difficult for any parent to maintain a very close relationship with their child if there was a distance involving a six or seven hour drive between them. 

[66]      Under cross-examination Stuart B accepted that he had only seen the pursuer, the defender and their son together as a family on about three occasions prior to their separation.  He had spent more time together with the defender and O since the parties separated.  He acknowledged that he would not know whether or not O was clingy to his mother at present.  References in his affidavit to the defender getting home to see O in the evening were based on what the defender had told him.  He had not discussed the proposed move to Bromsgrove with the pursuer and his knowledge of the defender’s time with his own extended family was based on what the defender had told him.

 

Conclusions from the Evidence

Credibility and Reliability

[67]      Prior to setting out the conclusions I have reached from the evidence, I will set out my views on the credibility and reliability of the principal witnesses in this case.  So far as the pursuer is concerned I am not satisfied that I can accept her evidence as wholly credible and reliable.  She had a tendency to exaggerate, one example being in relation to the time at which she stated the defender arrived home in the evening.  She said in terms that he “never arrived home before 7pm” but it was clear from her evidence as a whole that even in the first year of O’s life and on her own account there had been times when the defender arrived home in time to see his son before bedtime.  She exaggerated also the amount of time she spent with O describing it as a “24/7” task.  In fact, there was evidence that she had managed to have time away from her son such as the spa break with her friend in November 2015 and a number of nights out with other friends and trips away since June last year (17 separate instances are noted by the defender in paragraph 153 of his Affidavit).  Such trips outside home are perfectly normal and not something the pursuer should be criticised about.  However, it was her tendency to state things in the extreme that leads me to be cautious about her evidence.  More importantly, the pursuer’s evidence about whether the supportive texts she had sent to the defender during the course of the marriage about his involvement with their son were genuine expressions of gratitude at the time was unsatisfactory and a matter of real concern.  She seemed unclear at first as to whether her messages praising him had been genuine or not.  Ultimately her position seemed to be that some were genuine and some were not.  LS gave unchallenged evidence that the pursuer had praised the defender as a father during this period, commenting how lucky she was to have his support.  Ultimately, I am unable to rely on the pursuer’s account on this matter.  A further matter on which I am unable to accept the pursuer’s evidence is the conversation she had with the defender’s mother in June 2016 about whether or not she intended to relocate to Bromsgrove with O.  The defender’s mother RL gave an entirely clear and credible account of what had occurred in that conversation.  She had been reassured and relieved by the pursuer’s clear statement that she would not try to leave Scotland.  The pursuer was uneasy when giving evidence about this matter and unconvincing in her account that she had told RL that she was unsure of her plans.  In general terms, the pursuer was unwilling to make any appropriate concessions in cross-examination.  She was overwrought and emotional when giving evidence.  I have made allowances for the stress she will have undoubtedly been suffering as a result of the court process as compared with the defender for whom litigation is part of his daily work.  However, even making such allowances, I am not able to accept the evidence of the pursuer on matters where her account differed from that of the defender. 

[68]      The pursuer’s mother PB presented as an openly hostile witness who appeared to resent having to appear in court at all.  The position she stated in relation to the defender’s personality and his lack of involvement with his son was so extreme and unreasonable that I am unable to rely on it.  I formed the impression that Mrs B was prepared to say whatever was required to present her daughter’s case in the best possible light.  I have narrated the passage in her affidavit where she states in terms, in seeking to portray the defender’s family in a poor light, that they had not even attended O’s first birthday party, unlike she and her husband who “…would never have missed such an occasion”.  While Mrs B claimed that this was a mistake she had just noticed while giving evidence as she had not attended the birthday party at all, I regret that I did not believe her.  Her husband SB had not made any such claim to have attended the birthday party in his affidavit.  Of even greater concern was Mrs B’s statement about her own husband’s health.  She was keen to point out that what she described as her husband’s recent absence from work with stress and anxiety had been solely a result of the impact on him of the current proceedings.  In contrast, Mr B explained that he had been absent from work with stress and anxiety about two years ago and that the cause had been his having to change his role in his employment.  I have no reason to reject Mr B’s account on this.  The extremity of Mrs B’s animosity towards her son-in-law is something that has a bearing on the substantive issue on this case and I will revert to it.  However, I am unable to rely to any material extent on the evidence she gave. 

In contrast I found Mr SB to be a reasonably credible and reliable witness.  He made several appropriate concessions in relation to matters put to him in cross‑examination.  He was clearly influenced by his wife and daughter’s negative views of the defender which he had, to some extent, adopted as his own.  However he presented as a far more calm and measured person and I believed him when he said that he would be prepared to put the acrimony of the past behind him and move on if others would do the same.  The other witnesses led in the pursuer’s case appeared to me to be doing their best to give a truthful and accurate account.  However, so much of their evidence emanated from what the pursuer had told them rather than their own experience that in general it has not had a material bearing on my conclusions.  The exception to that general position is that I found the evidence of DM on the issue of how he, as a father, would feel about his child being taken to live 300 miles away by his wife to be of some assistance. He was clearly not expecting the line of questioning and appeared to answer candidly and without consideration of which side might benefit from his answers.

[69]      So far as the defender is concerned, he gave evidence in a calm, lucid and straightforward manner.  He is an articulate person with a tendency to give fairly lengthy answers.  I do not criticise him for that.  The case is an extremely anxious one for him too and he seemed keen to give as much information as possible.  As I have indicated, I have tried to make allowances for the pursuer’s emotional state and to acknowledge that the defender, as a solicitor involved in contentious employment law, will be well-acquainted with the court process.  However, I did not form the impression that the defender was in any way tapering his answers to best suit his case.  To some extent he also struggled with controlling his emotions in dealing with some of the more contentious aspects of the case, but managed ultimately to retain his composure throughout his evidence.  On many of the issues in contention, the defender’s evidence was supported by the extraneous documentation such as the computer log-out records, the Facebook entries and messages and by the evidence of his sister and his mother.  It may be that the defender underestimated slightly the number of occasions when he arrived home late from work and overstated how many times he was up in the night with his son.  I do not think that he did so deliberately.  I had the impression that he was giving his best recollection without having checked that against the records.  Overall, I consider that his account of family life between February 2015 and June 2016 was far more accurate than that given by the pursuer. 

[70]      I found the defender’s mother RL to be a straightforward witness giving her evidence clearly and without unnecessary embellishment.  While she is very proud of and loyal to her son there were no matters on which I considered that she was telling anything other than the whole truth.  In particular, her account of her conversation with the pursuer in June 2016 about whether the pursuer intended to relocate appeared entirely honest.  LS, the defender’s sister, was an impressive witness.  She is clearly a trusted family member, so trusted by the pursuer that she was the pursuer’s birthing partner at the time of O’s birth.  I had no reason whatsoever to doubt any of her evidence.  I accept without hesitation her evidence in relation to the pursuer’s favourable remarks to her about the defender’s support and involvement with his son in the period 2015‑2016.  The defender’s niece MS was a nervous witness.  She will have been aware that she was to be challenged in relation to the letter she had written to the pursuer on the day of O’s birth.  Her account in relation to that matter was supported by the defender’s mother.  However, while I do not doubt the honesty of Ms S’s position I preferred the evidence of LS that there were times when the defender could “talk down” to people, which she attributed to his being a lawyer and very sure of himself.  Mrs S was prepared to make that general comment about her brother in a way that perhaps MS felt unable to do as a younger person.  In any event, I accepted without question the close family relationship described by MS and the love and support that the defender had provided to her.  SB was a credible witness but added little of substance to the defender’s case.  His evidence was, however, important in addressing the attack on the defender’s character made by the pursuer’s witness, a point to which I will return. 

 

 Evidence Heard Under Reservation

[71]      At the commencement of the diet of proof in this case the defender had sought to object to a line of evidence that it appeared, from the affidavit of the pursuer, lodged well after the pleadings had been finalised, she might seek to argue namely that she suffered from “chronic fatigue” arising from the brain injury she had sustained in 2002 in a car accident. Mr Hayhow’s objection was that there was no notice of any ongoing sequelae of the pursuer’s injuries mentioned on record in a way that would make it a relevant factor for the purposes of the relocation dispute.  Ms Shewan accepted that there was no record for this and indicated that the reference to “chronic fatigue” in the pursuer’s affidavit was not intended to convey that she suffered from chronic fatigue syndrome or that she had been diagnosed as suffering from that.  Her evidence was simply that she suffered from tiredness and that this was attributable at least in part to the injuries she suffered some years ago.  A letter from the pursuer’s GP, No 6/50 of process, had been produced confirming the position.  I decided that the best course was to hear any evidence about this matter under reservation given the defender’s complaint that he had no notice of such a line being taken.

[72]      In the event, the defender and his mother both accepted that the pursuer had complained of tiredness over the years and that she attributed it, at least in part, to the injuries she had sustained as a teenager.  The dispute was really not about whether they had knowledge of the pursuer’s claim that she suffered from tiredness, but whether they accepted it.  The defender in particular had not found the pursuer to suffer from tiredness much more than the average person.  Ultimately, I did not consider there was any real prejudice to the defender in such evidence as there was about this matter being led.  Clearly the pursuer cannot found on any excessive fatigue as a material factor in the decision about whether she should be allowed to relocate with O.  She did not raise the matter in her pleadings and it is not suggested that she is unable to cope with the care of her son because of fatigue.  No specialist medical evidence was placed before the court.  The GP’s letter (6/50 of process) is in very general terms and gives no indication as to whether the doctor has had sight of any of the documentation relating to the pursuer’s accident and its consequences.  Had this been an issue of serious contention in the case I would have expected the matter to have been raised in the pleadings and for skilled evidence to have been led.  In conclusion, I am left with the impression that the pursuer may be somebody who retires to bed early and attributes her tiredness at least in part to the injuries she suffered in 2002.  There is no evidence before me to suggest that her view is based on acceptable medical opinion from those who treated her subsequent to her accident or on an independent expert view.  She was fit for work prior to O’s birth.  The exhaustion she experienced caring for O during weekday nights when he was very young has now passed.  This issue has not had a material bearing on my decision in the case. 

 

Discussion of  the Substantive Issues in Dispute

[73]      The evidence at proof was wide ranging and covered a number of matters not directly relevant to the substantive issue in dispute, which is whether the pursuer should be permitted to remove O from Scotland and take him to live in Bromsgrove.  I have attempted as succinct a summary of the evidence as possible from which a number of issues for determination emerge.  The first is that the pursuer and her witnesses, particularly her family, mounted a serious attack on the defender and his perceived personality traits.  Such an attack might be relevant if this was a defended divorce although in a case where the sole subject matter is the care and upbringing of the parties’ child, to whom it is accepted both parents are now devoted, it is unwarranted and unhelpful.  Under cross‑examination, it became apparent that the pursuer’s parents had no concrete basis for their conclusion that the defender was controlling, domineering and aggressive other than complaints made by the pursuer and in the case of PB, a seemingly instant dislike of the defender from the outset.  SB, a friend of the defender for many years and a former flatmate of his between 2008 and 2010, did not recognise the description of the defender as bad-tempered, controlling and manipulative.  His evidence that he had not seen behaviour on the part of the defender manifesting such personality traits was unchallenged.  Accordingly, I have reached the conclusion that the pursuer’s attack on the defender’s character was at best significantly exaggerated and presented with a view to undermining his position before the court.  As I have already indicated, LS appeared entirely candid in her view that the defender is someone who, as a confident lawyer, can appear slightly forceful, overbearing or emphatic at times.  The defender himself may have given little thought to how he comes across when trying to persuade someone of his point of view.  However, it is important that a litigation of this sort does not descend into some sort of personality contest between the two carers of a child.  I do not accept the evidence that the defender was controlling or manipulative in the manner described by the pursuer and her parents.  More importantly, there was no real suggestion that the defender was anything other than soft, appropriate and loving to his young son when he did and does spend time with him.  Accordingly, I find that there is nothing in the defender’s character or about the circumstances of the breakdown of the parties’ relationship to give cause for concern about the defender’s ongoing relationship with his son, or which support the pursuer’s plan to take O to live in Bromsgrove.

[74]      Another major area of contention was the extent of the defender’s input with O between February 2015 and June 2016.  I have already indicated that I found the accounts of the pursuer and her parents on this to be grossly exaggerated.  I accept the defender’s evidence that the log-in and log-out records from his place of work are illustrative of when he arrived and left the office on a working day.  I accept that he drove straight home in the evenings to see his son if possible before bedtime.  It is clear from the records that there will have been times when he arrived too late to be involved in O’s bedtime.  However, by and large those records support the defender’s account of his daily routine.  It seemed to me that the pursuer and her parents had an entirely unrealistic expectation of the defender’s ability to pursue his career as a lawyer while arriving home on a weekday evening in time to spend a significant period with his baby son and to support the pursuer.  That unrealistic expectation appears to be based on the experiences of the pursuer, her own father having arrived home at 5.30pm each day and her sister’s husband apparently does the same.  In a situation where the parties have agreed that in the early stages of a child’s life one parent will stay at home and the other will pursue their career and fit that around family life as best as he can, it is to be expected that the majority of the working parent’s time with the young infant will be at weekends and holidays with precious snatched periods of time during the week in the morning and the evenings.  I reject completely the suggestion implicit in the pursuer’s case that somehow because a parent works full-time they have less responsibility for their child or should be criticised as not being involved.  The numerous Facebook postings lodged in process but made by the defender at a time when he had no idea that this litigation would ensue, support his account of staying up with his son many weekend nights to give the pursuer a break in the first year of O’s life.  The picture presented is that of a doting, involved father able to see the amusing side of the demands of a young baby.  The impression I had was that the pursuer had not anticipated, and was disappointed by, the defender’s need to commit to his work rather more than for the basic hours required of an employee in a more routine occupation.  She may well have been exhausted and a little overwhelmed in the first few months of O’s life.  However, her contemporaneous texts to the defender, again sent without foresight of what was to come, support the defender’s position that the pursuer gave him no indication that she was anything other than pleased with the support he provided at the time.  There are numerous examples of this.  To take but one, in a text of 16 September 2015 (7/4 of process) the pursuer messaged the defender in the following terms:

“Thank u for doing O until 12 it really makes a difference – you’re so brill :) my brill hubby xx…”

 

And later at that day at 16.38:

 

“J you’re just so great thank u your support is all I need to feel okay again!”

 

It is difficult to reconcile those and other similar messages with the pursuer’s statement that she was, much of the time, simply trying to praise her husband in the hope that he would do more.  I am prepared to accept that the defender contributed less to the “night duty” with O in the very early months when the pursuer was breastfeeding most of the time but he can hardly be faulted for that.  It is also noteworthy that, once the parties’ relationship was deteriorating, the text messages between them reflected that, suggesting that overall those texts are a fairly accurate reflection of the situation between the parties at any given time. 

[75]      The defender’s account of being actively involved in family life with the pursuer and O between February 2015 and June 2016 is supported also by the evidence of RL, LS and MS.  They were all in regular contact with the defender by telephone and “Facetime” and enjoyed visits both at the parties’ home and more frequently through in Ayrshire.  It is noteworthy that as soon as the parties separated the defender started travelling through to Ayrshire with O by himself to see his family and was no longer accompanied by the pursuer.  I have concluded that the pursuer is somewhat overprotective of O and quite determined that she should be the decision maker for him.  It would have been almost inconceivable for her to have gone along with the pattern of the defender making regular visits to Ayrshire once per month and staying overnight there with O had his practical involvement with his son up until June 2016 been as minimal as she claimed in evidence.  Further, while they did not give evidence, there was some support of the defender’s position in relation to this period in the affidavit evidence of colleagues including AA and FA (affidavit Nos 26 and 27 of process).  In all the circumstances, I considered that the defender’s account on this area of contention is again to be preferred to that of the pursuer. 

[76]      As I have concluded that the defender was significantly involved in the life of his young child prior to June 2016, it follows that the dispute about the extent to which his level of involvement changed after June 2016 must be resolved in the his favour.  The pursuer seemed to maintain that his attitude had changed after she sought legal advice during the month of June 2016.  However, the defender’s evidence was that he knew nothing of her intention to relocate until the following month.  He described in detail his shock and upset when the Summons was served on him with the allegations in relation to his character and the conclusion for removal of O to Bromsgrove.  Several of the pursuer’s witnesses offered evidence that the defender had “upped his game” in relation to his parenting of his young son as a result of these proceedings.  Some of those witnesses, such as the pursuer’s friends from Bromsgrove, could only have formed this view based on what the pursuer had told them.  The reality seems to be that the defender has enjoyed more separate time with O since the parties separated and he spoke to that in evidence.  As a result of the parties’ separation, he has gone alone to Ayrshire monthly with O and has also spent one full day of each weekend in the company of his son but without his wife.  That does not amount to increased involvement, it simply reflects that the parties no longer wish to spend time together as a family but are sharing the care of O by dividing the time each spends with him in a fair way. 

[77]      A more significant conclusion I have reached about the evidence for the period June 2016 to date is that the pursuer and her witnesses had no substantial complaints about the defender’s ability to care for O or indeed his commitment to him during this later period.  Even had I found that the pursuer’s account of the earlier period was to be preferred, that earlier period would have had less significance than the more recent eight or nine months during which it is not contended that the defender has been anything other than fully committed to O.  Of course, the pursuer questions his motives for that and is sceptical about whether the current level of commitment will be sustained.  To that extent, the conclusion I have reached about his active involvement prior to the parties’ separation has a bearing, in that I do not accept that his approach has been inconsistent or erratic to date.  In turning, as I now do, to the central issue of the pursuer’s proposal to relocate, it must be borne in mind that I test that against the current situation, namely that it is accepted that the defender is routinely and actively engaged in the care of his son. 

[78]      The central issue, then, is that of the order the pursuer seeks to be permitted to relocate to Bromsgrove with O.  I have recorded some of the evidence in relation to the pursuer’s stated motivation for relocating.  She said in terms that she considers that she needs the support of her family and friends in Bromsgrove to assist with the care and upbringing of O.  She considers that it would be easier for her to return to work when he is older if her father is available to attend to collections from nursery and to cover any small emergencies such as ill health or appointments for which childcare cover is required.  The pursuer’s desire to return to her hometown and live near to her parents, her sister and her old school friends is entirely understandable.  Although she has lived in Scotland for some years now, the breakdown of her marriage has resulted in her altering her view in relation to a desire to live in Scotland.  Accordingly, if this was a question of what the pursuer wanted or even what is best for the pursuer, her plan to relocate to Bromsgrove appears rational, reasonable and understandable.  However, what I require to consider are the advantages and disadvantages for O of a move to Bromsgrove. 

[79]      A comparison of what this young boy’s life would be like if relocation was permitted as against a scenario of relocation being refused illustrates that there are a number of factors that are almost entirely neutral from a child welfare perspective.  O lives in a comfortable family home on the outskirts of Edinburgh and on a move to Bromsgrove would live in a comfortable family home there.  The pursuer does not work currently and intends to work on a part time basis once O has attained the age of 3.  That will be the situation whether or not relocation is permitted.  As he grows older O will attend nursery and then primary school and develop friends and interests outside the home, particularly once the formal educational phase of his life commences.  That will occur wherever he is situated.  There are good nurseries and schools available both in the part of Scotland in which he currently lives and in Bromsgrove.  Further, the type of environment in which O will reside is quite similar regardless of which of the two proposed locations is chosen.  The current town in which he lives is of medium size and close to Scotland’s capital city.  Bromsgrove is a medium sized town not far from the major conurbation of Birmingham.  So there is no question of a proposed move from a rural environment to an urban environment or vice versa.  

[80]      Turning then to the question of support insofar as that is relevant to the care of O, it is clear that the pursuer would be more comfortable with the environment in Bromsgrove than in the Edinburgh area.  However, there was evidence that she has a good support network of friends here and that she has integrated well into the community.  Since June 2016 she has used the services of a local childminder who cares for O every Tuesday for two hours.  The detailed evidence about the activities O is engaged at present, his connection with the other small children of the pursuer’s friends and the important uncontentious evidence that he is a lively, healthy and happy little boy all support a conclusion that there has to date been a sufficient network here outside immediate family to provide any essential backup care required.  As the defender pointed out, while he has an arrangement with his firm that would enable some flexibility should backup care be required due to the pursuer’s unavailability, he has not required to call on that to date.  In summary, there appears to be nothing in the evidence about O’s daily life here in Edinburgh that is negative and would suggest that he would benefit in a positive sense from being taken to live in Bromsgrove.  There would of course be one significant impact on his life were he to relocate and that is that his relationship with his father would be detrimentally affected.  The pursuer appeared to accept the proposition put to her that an ongoing relationship between O and his father was of paramount importance.  Her proposals for contact between father and son in the event of relocation must be examined against that acceptance. 

[81]      The pursuer proposes that the defender should spend each alternate weekend with his son following relocation.  She offers to travel to Edinburgh once per month so that the defender requires to make the journey down to see O in the Bromsgrove area only every fourth weekend.  There was ultimately little dispute that for the foreseeable future this would involve several hours travelling time by the defender every second weekend such that he would be unable to see his son on the Friday night when he arrived.  He would be able to spend Saturday and some of Sunday with O before then making the journey back to Edinburgh so that he could return to work on the Monday.  More time would be available on the pursuer’s visits to Edinburgh with O, certainly in the preschool period and assuming that she did not have work commitments that would interfere with her proposal.  The issue that arises is whether, on the evidence, I conclude that it would be detrimental to O’s welfare for contact to be restricted to these alternate weekend visits and such holidays as can be agreed or which require to be ordered by the court.  I have reached two related conclusions.  First it would not be the best outcome for O if his contact with the defender was limited to that which would be available on relocation to Bromsgrove.  Secondly, I would go further and conclude that O would suffer a detriment were his contact to be limited in this way.  There are circumstances in which, unavoidably, one parent or the other becomes a “weekend dad” (or mum) who is not involved in their child’s daily life but spends such quality time with their child as is possible given the situation.  Sometimes this is necessary due to a change in location for career reasons on the part of one parent, remarriage by a parent who has care of the child in circumstances that require relocation out of Scotland or where financial constraints of living in this country require a foreign national who has care of the child to return to their home country.  These are simply a few examples of situations where very difficult considerations arise in assessing detriment to the child of having less contact with one of his parents against other, sometimes compelling, factors that justify a move.  In this case, I find that there are no compelling reasons for O to be taken to live in Bromsgrove.  On the contrary, there is a compelling reason for him to continue to live in the Edinburgh area, namely that it is the only way in which he will continue to maintain and develop a meaningful relationship with both of his parents now that they are separated.  There is no reason, taking O’s interests as the paramount consideration, for his relationship with his father to be limited to the times that defender makes expensive trips down south for short weekends or stays with him once per month in Edinburgh.  If the child stays in the Edinburgh area his care and upbringing can be reasonably shared between the parties.  The pursuer will spend more time with him during the week as has always been the case since he was born.  The defender will be able to see his son at some point during the week and spend large chunks of time with him at the weekend in relaxed and familiar surroundings.  From a child-centred perspective, it would be far better for O to move between his parents’ homes once they are physically separated in a manner that does not require significant planning and travel.  In the fullness of time he will be able to do so flexibly if both remain in the Edinburgh area.  It would be impossible for the defender to play an active role in the O’s educational upbringing were his son to live in Bromsgrove.  Attendance by his parents at nursery meetings, school parents’ evenings, sports days and the like are events that are already not too far away in the life of this young child.  The opportunity is there for both parents to attend such events, either separately or together, if he remains in the Edinburgh area. 

[82]      A further factor supporting the conclusion I have reached is that, even if the pursuer’s proposals for contact were sufficient for there to be some form of meaningful ongoing relationship between the defender and his son, I have no confidence that the pursuer and her family would facilitate that contact in the longer term.  The pursuer and her mother expressed such negative views of the defender and his rationale for involvement in his son’s life that I consider it likely that they would not be well motivated towards honouring the contact proposed.  I have accepted that Mr B is genuine in his expression of hope that the parties could move forward and revive a relationship with the defender in the interests of O.  However I fear that his would be a lone voice of reason in an atmosphere generally hostile to the defender.  A move to Bromsgrove for O that did not seriously detract from his relationship with his father could be attempted only against a background of consistent and genuine positive reinforcement of his father’s role when they are apart.  Having seen first-hand the very negative attitude and strength of feeling against the defender from almost all those who gave evidence on behalf of the pursuer, I conclude that such positive reinforcement would not be present following a move down south.  This would be to the further detriment of O’s welfare.

[83]      The evidence in relation to the pursuer’s approach to the defender wishing to spend more time with O following the parties’ separation supports the conclusion I have reached that she is unlikely to facilitate contact following relocation.  She objected to the defender taking O to Arran on holiday with his family suggesting that instead he remain at home with his son.  She resisted his proposal that he should have O for a week over New Year 2016/17 when there were to be celebrations for his 40^th birthday, such that resort to this court was required.  These events are illustrative of the pursuer’s attitude to the parties’ respective roles in O’s life.  She appears to regard any desire on the defender’s part to spend significant periods of time with O as negative because she feels that he is taking O away from her.  It was clear that she regards herself as the primary decision maker in relation to her son.  She appeared not to understand that as both parties have and will continue to have full parental responsibilities and parental rights in relation to their son no question arises as to one of them having greater rights than the other.  I will return to this in addressing the arguments for and against the Residence Order sought by the pursuer.  So far as this chapter is concerned, I conclude that the pursuer exhibited a possessiveness towards O that indicates a desire to control all of the important aspects of his life.  I have a real concern that, if permitted to relocate, she would seek to minimise the defender’s role in his son’s life and to substitute herself and her own family as the child’s only care-givers.  While Mr B was prepared to acknowledge that he was not a “father substitute” in this context, the pursuer’s position was very clearly that she felt there were sufficient number of male role models in Bromsgrove, including her father, to mitigate any effects of the loss of the daily father/son relationship.  She seemed unable to acknowledge the tangible drawbacks for her son of living 300 miles away from the father he has shared a home with for the whole of his short life to date. 

 

Application of the Law to the Facts and the Orders sought by the Pursuer
(i) Relocation

[84]      As I have already indicated at paragraphs 6 – 8 of this opinion, the applicable law where one parent seeks to take a child from his jurisdiction of habitual residence to live somewhere else is well settled.  The parent seeking the order must provide evidence illustrating that the proposal is in the interests of the child.  In reaching a decision I must regard the welfare of the child as paramount and must not regard the rights and interests of either party as determinative.  Once the evidence is scrutinised, it ought to be clear what the welfare of the child demands.  In this case, having regard to the conclusions I have reached from the evidence I am in no doubt that the welfare of this child requires refusal of the order sought by the pursuer to remove him to Bromsgrove.  The decision is not finely balanced;  it is the inevitable result of there being no factors from a child welfare perspective militating strongly in favour of change and one very significant factor supporting the status quo.  I recognise that the particular situation in which the parties currently reside will come to an end shortly after these proceedings are over.  The defender will either move to a property he still owns in Edinburgh or find somewhere to live even closer to where the pursuer and O will stay.  The pursuer indicated an intention to move from her current home but only to a slightly smaller property in the same area.  The effect of my decision to refuse the order sought by the pursuer is that O will have two homes within reasonably close proximity to each other.  He will spend time with each parent, the precise extent of which has not yet been agreed, a point to which I will return.  He will continue to spend time with both his maternal and paternal extended families.  Any arrangements for his care ought to factor in trips to Bromsgrove to see his parents, aunt and uncle and other family there.  Similarly, the defender will continue to make regular trips to Ayrshire so that O can maintain the good relationship he has forged already with that side of the family.  When the pursuer’s father retires in April this year, he will have the flexibility to see more of the pursuer and O either by travelling to Edinburgh or by spending more time with them when they visit Bromsgrove.  The pursuer will be free to commence the distance learning course she has already planned.  Any additional childcare required so that she can attend the short blocks of a number of days each required to complete that course can be facilitated by her parents, particularly her father, helping out or by the defender taking leave from work in order to do so.  In short, there is nothing in Bromsgrove for O that is not available in Edinburgh to the extent allowed by the current arrangements.  Conversely, the absence of regular routine contact with his father that is available in Edinburgh would not be available in Bromsgrove and that is something that O’s welfare requires. 

 

(ii) Residence and Contact

[85]      The pursuer seeks a Residence Order providing that O live with her.  I have already commented that she seems to misunderstand the nature of such an order.  It would not give her the right to take important decisions about O’s care and upbringing, including his education, without reference to the defender.  Residence Orders are appropriate when there is a genuine disagreement about with whom a child should live.  In this particular case, the defender has accepted from the outset that, at this stage in O’s young life, it is appropriate for him to spend more time with his mother, who is not currently working, than with his father.  Accordingly there is no real dispute about residence.  There are good reasons for not making a Residence Order in this case.  The absence of a Residence Order will send a signal to the pursuer that neither party has ultimate authority over this child.  O is not a prize to be won or lost in this contest.  He is a little boy with two parents whose ongoing involvement in his life he has come to expect insofar as a 2 year old child has any expectations.  The parties will simply have to work together as best they can to ensure that O is not exposed to any ongoing animosity between them.  I am confident that they both care so deeply for their child that they will be capable of putting his interests before their own in this respect.  By and large they have managed to do so while living under the same roof but separated.  It is to be hoped that a more comfortable modus vivendi for all will be achieved following the conclusion of these proceedings. 

[86]      So far as how the care of O should be divided between the parties, the defender has proposed that O spends six nights out of every fortnight with him, albeit that this would require the pursuer’s involvement during the day every second Thursday and Friday or the use of a nursery facility.  The pursuer seems clear that she would prefer to have O with her when he is not with the defender rather than using a nursery care provision.  That does not seem unreasonable, although the time will come fairly soon where the parties will require to agree on some educational nursery provision for their son.  While I do not regard the defender’s proposals as unreasonable in principle, I acknowledge also that the pursuer wishes to be in a position to take O to spend time with her family in Bromsgrove at least once every six weeks or so.  As I have indicated, it is important for O to spend meaningful time with both sets of extended families.  It seems to me that, to some extent, both parties’ concerns can be catered for by substituting a different week night for the defender to have with O in return for the pursuer having a long weekend with him every six weeks.  The pursuer’s proposals for contact on refusal of relocation were almost identical to those she suggested if relocation was permitted.  There is no child centred basis for that and it  exemplifies her seeking to minimise the amount of time the defender spends with his son.  On the other hand, it being accepted that the pursuer, at least while she is not working, is freely available to be with O on a daily basis, I consider that an arrangement whereby the defender has O with him for five nights out of every fortnight with the other nine nights being spent with the pursuer, would better serve the child’s needs in the immediate aftermath of the parties’ physical separation into two homes.  After a year or so, once the pursuer has taken up the part time work she intends to commit to and once O has embarked on the stage of early learning at nursery, there may be scope for altering the specific breakdown of time spent with each parent.  I do not intend to set out a specific cycle of how this plan for O should work.  Having concluded that a Residence Order is neither necessary nor appropriate, I consider it would be best if the parties could agree the specific hours and dates of contact without the imposition of an order.  If they are unable to do so I will pronounce an order reflecting the general conclusions I have just reached.  The case will be brought out By Order following my decision for that purpose and to deal with expenses.

 

Disposal

[87]      In light of the conclusions I have reached I will sustain the first plea-in-law for the defender, repel the pursuer’s first and second pleas-in-law, the effect of which is that there will be neither a Residence Order nor a specific issue order entitling the pursuer to remove the child from Scotland to live in England.  I will reserve meantime all questions of expenses.