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Cite as: [2023] ScotCS CSOH_72, [2023] CSOH 72

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OUTER HOUSE, COURT OF SESSION

[2023] CSOH 72

F101/21

OPINION OF LORD STUART

In the cause

Pursuer

against

Defender

Pursuer: Scott KC; Balfour + Manson LLP acting on behalf of Moore Marshall Solicitors

Defender: Shewan; Burnett Christie Knowles McCourts

13 October 2023

Introduction

[1]

This is an action for divorce and for further orders in relation to financial provision

and the parties' only child. The parties agree that their marriage has broken down

irretrievably and that there are no prospects of reconciliation. The parties have, by

agreement, resolved matters relating to financial provision. The remaining issues in dispute

relate to residence, contact and relocation in respect of their only child, a son, born on

8 March 2020. It is in relation to these issues that I heard a proof and in relation to which

this opinion is concerned.

The applicable law

[2]

Both parties to this action hold full parental responsibilities and parental rights in

respect of the child. These responsibilities and rights are listed, respectively, in sections 1

and 2 of the Children (Scotland) Act 1995. 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)

The administration of a child's property.

[3]

The orders sought in this case are in terms of section 11(2)(c), (d) and (e), which

provide as follows:

"...

(c)

an order regulating the arrangements as to

(i)

with whom or

(ii)

if with different persons alternately or periodically, with whom and

during what periods, a child under the age of 16 years is to live (any

such order being known as a `residence order');

(d)

an order regulating the arrangements for maintaining personal relations and

direct contact between a child under that age and a person with whom the

child is not, or will not be, living (any such order being known as a "contact

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)-(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 is set

out 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;

(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;

(iii)

have regard to such views as he may express."

[5]

The child is 3 years old. It is not reasonably practicable to take into account the

child's views.

[6]

Accordingly, the two elements of the test that must be applied in this case are (a) that

the child's welfare must be the paramount consideration and (b) that I should make no order

unless I consider that it would be better for the child to do so than making no order at all.

[7]

Where both parents hold parental responsibilities and rights, the removal of a child

habitually resident in Scotland to outside the United Kingdom is unlawful other than with a

court order where the other parent does not consent (section 2(3) of the 1995 Act). Further,

any person reaching a major decision involving his or her fulfilling a parental responsibility

or exercising a parental right must also have regard, so far as practicable, to the views of any

other person who has parental responsibilities or parental rights in relation to the child

(section 6 of the 1995 Act).

[8]

The applicable law governing the approach that courts in this jurisdiction must take

to relocation is settled. In M v M 2012 SLT 428, at paragraph 9, Lord Emslie, giving the

decision of the Inner House, confirmed that in relocation cases,

"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".

Thus, as has been observed on a number of occasions, the position in Scotland differs to the

approach in England where the reasonable plan of a parent with sole primary care of a child,

including the effect of the refusal of an application to relocate by that parent, has been a

material factor (Payne v Payne [2001] 2 WLR 1826). Such an approach forms no part of the

law of Scotland.

[9]

The correct approach to applications of this sort was summarised by Lady Smith in

the case of Donaldson v Donaldson 2014 Fam LR 126 at paragraph 27 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."

[10]

It has been acknowledged in cases such as M v M, cited above, that there are cases in

which significant weight can be attached to a reasonable relocation plan of a parent with

care of a child. Much will depend on the particular circumstances of the case, the

advantages and disadvantages for the child of the proposed move together with the wishes

and interests of each parent, each receiving no greater weight than they deserve in the

circumstances.

[11]

Finally, in questions of relocation there is an evidential burden of proof on the parent

seeking to relocate the child. That parent must show (1) that relocation would in fact be in

the best interest of the child concerned and (2) that from the child's perspective it would be

better to allow relocation than to make no order (M v M). It is neither instructive nor

appropriate to try to formulate any preconceived list of applicable factors as relocation cases

are fact sensitive and scrutiny of the particular circumstances of the dispute and the child is

what matters (Donaldson v Donaldson; GL v JL [2017] Fam LR 54).

The undisputed facts

[12]

In terms of a joint minute of evidence entered into by the parties it is agreed as

follows. The pursuer was born in Scotland on 17 March 1980. He is habitually resident in

Scotland and lives in Larbert. The pursuer's parents, brother and sister are Scottish and

reside in Falkirk (a town adjacent to Larbert). The defender was born in France on

30 October 1983. She has lived and worked in the UK since 2010, initially in Bournemouth.

In April 2011 the defender moved to Edinburgh for work. The defender's mother lives in

Bayonne in France. The defender's wider family lives in France. The pursuer and defender

met in 2015. They became engaged in 2016 and married on 29 April 2017. The pursuer

purchased a house in Falkirk in August 2016. The parties cohabited at this address from the

date of purchase until 1 December 2021 when the defender left the address. The pursuer has

continued to reside at the address. Since December 2021 the defender has not disclosed to

the pursuer where she has lived. The child resided with the parties until 1 December 2021,

when the defender left the family home taking the child with her. The pursuer had no

contact with the child until 17 December 2021. The pursuer exercised contact with the child

until late January 2022. That contact generally involved non-residential contact for a period

of two hours during the week and residential contact for one night at the weekend. In late

January contact ceased but resumed again in terms of various court interlocutors. In

June 2022 the parties agreed to shared care of the child until the summer of 2023 when the

defender would relocate to France with the child. Since June 2022 the parties have operated

a shared care regime on a two weekly cycle. In May 2023 the pursuer withdrew his consent

for the defender to relocate to France with the child.

[13]

Beyond the joint minute of admissions, at submissions counsel were also at one on a

number of further factual matters about the child. The child has a devoted family in

Scotland and a devoted family in France. Each of his parents is attuned to his needs and he

receives an excellent standard of care from each parent. He attends nursery, which is a

positive experience for him. He is thriving, happy, healthy, well-adjusted and is meeting his

milestones.

Submissions

[14]

Counsel were also at one on the applicable law, which is as set out above. Thereafter

their respective submissions focused on the question of relocation and the evidence insofar

as relevant to this.

[15]

Ms Shewan, for the defender, submitted that when the issues of education, housing,

financial stability through employment and living environment were considered it was in

the child's best interest to move to live in Bayonne with the defender. It was accepted that

whilst there would be an overall reduction in the amount of time the child would spend

with the pursuer, time spent together would be in holidays allowing for more activities

together and this would maintain the relationship between the child and the pursuer. Such

an arrangement would also maintain the child's relationships with the pursuer's wider

family. The defender was isolated in Scotland without significant support. The defender's

current housing was unsuitable. In contrast, in France the child would initially live in his

maternal grandmother's flat until the defender rented her own accommodation. Although

the defender had worked in Scotland before going on maternity leave and then being made

redundant she had not, since separation, looked for employment as she believed that she

would be relocating to France. The defender believed that she would be well qualified to

obtain professional employment on returning to France. It was accepted that the defender

would take steps to obtain employment in Scotland if relocation of the child was not

permitted but she faced the difficulties of the absence of family support for childcare and the

need for paid childcare. Currently the child was entitled to free nursery care but that might

change should the defender take employment with a need for longer hours of private

nursery. There might be a statutory allowance but that would be for a longer daily period

over term time or a shorter daily period throughout the year. Shift work and weekend work

might complicate matters. Whilst it was put to the defender in cross-examination that the

pursuer or members of his family might be able to assist with weekend child care, the

defender's position was that this would leave less time for the child to be with the defender.

In contrast, the defender's position was that should she be allowed to relocate to France, the

maternal grandmother could provide childcare whilst the defender was working and the

child was not at school. The agreement reached between the parties demonstrated that the

pursuer had accepted that it was in the child's best interest to relocate to France. Albeit not

determinative, the court could take into consideration a reasonable relocation plan of a

parent with care of the child.

[16]

Mrs Scott, on behalf of the pursuer, submitted by reference to the evidence, that it

was for the defender to show that the child's welfare requires him to be removed from his

current environment to live with his mother in France. Treating the child's perspective as

paramount there is no requirement to uproot him. It might be said, albeit unnecessary to go

so far given the section 11(7) test, that the evidence indicated that relocation would have

adverse effects on the child. The diminution of the child's relationship with his father and

the role his father played in his life was the most significant disadvantage to the child. This

was a "shared care" case. The child experienced equal care from his mother and father. The

child had a strong relationship with his father, who put considerable thought and care into

looking after him. There were considerable uncertainties associated with the defender's

plan in connection with relocation, which ought to be weighed against the established

regime. The decision did not turn on questions of the countries' respective education and

healthcare systems. These factors were of little weight in the overall balancing exercise. The

prior agreement reached between the parties carried little, if any, weight. The matter was

now in the hands of the courts to decide what was in the child's best interest. Likewise the

historical care regime of the child carried little weight. There might have been a difference

of opinion about respective responsibilities and input but both parties were in agreement

that the child was doing well under the shared care regime. There was no merit in the

accusations made against the pursuer in respect of either the defender or the child and any

such evidence should be disregarded.

The evidence in connection with the issues before court

[17]

The principal issues before me relate to (i) divorce and (ii) the care arrangements for

the child, including relocation of the child to France. Divorce was not opposed and having

considered the evidence before me at proof, I am satisfied that the parties' marriage has

broken down irretrievably. I will therefore grant decree of divorce as first concluded for by

the pursuer.

[18]

The significant dispute before me was relocation of the child, which involves a

comparison between the child's current circumstances (shared care in Scotland) with what

his life would be like should he relocate to France with his mother. Having heard the

evidence at proof and considered the affidavits lodged, it seems to me that the evidence fell

into five broad areas that bear upon the question of whether the defender can show

(1) relocation would in fact be in the best interest of the child and (2) that from the child's

perspective it would be better to allow relocation than to make no order. These areas are:

Relationship with parents, including maintenance of contact.

Wider family relationships and childcare, including family support.

Employment.

Accommodation.

Education.

[19]

I do not intend to narrate at length the evidence heard at proof and contained in the

affidavits lodged. In preparation of this opinion I have reviewed the affidavits and my notes

of evidence. What I will do is consider the evidence within these five areas and explain how

I have assessed that evidence in considering the test for relocation identified above.

[20]

Dealing first with credibility and reliability, in relation to the witnesses who gave

evidence about the child's circumstances, I accept that all were doing their best to tell the

truth. It was obviously apparent that all loved and cared for the child deeply. However, I

did have some concerns arising out of parts of the evidence of the defender and the

defender's mother. The defender's desire to return to "her home" as she described France

and the security of her family there following the breakdown of her marriage is entirely

understandable. The isolation she appears to have experienced as a result of the loss of her

relationship will, I have no doubt, been compounded by a belief that she was, by agreement,

to relocate to France with the child and a consequential reluctance to put down new roots in

Scotland, for example in relation to employment and accommodation. But in relation to

some elements of her evidence, I was left with the impression that this sought to justify her

own desire to return to France rather than be from a perspective of what might or might not

truly be in the best interests of the child, for example in relation to the importance of time

spent together between the pursuer and the child and the child's ability to benefit from his

wider relatives.

[21]

In relation to the defender's mother's evidence, again for entirely understandable

reasons, I was left with the impression that the defender's mother downplayed any concerns

raised with her in evidence and overplayed issues that she thought might be supportive of

her daughter's return to France. For example when asked about the support for her

daughter and the child in France, she suggested that maybe [one] should not focus on lack of

opportunities and that nothing was impossible and when giving evidence about the pursuer

and his family she suggested that they did not have knowledge of life and that whilst they

might not want any harm to the child, they will harm [him] because you cannot live in a tiny

village any more (which I took to be a metaphor for life). The latter particularly struck me as

being entirely contrary to the position both counsel advanced in submission on behalf of the

parties that the child was thriving under the care of the pursuer and his family.

[22]

The starting position in this case is that since June 2022 the child has benefited from a

shared care arrangement between his parents. Both parents are actively involved with the

child's life and the child is thriving under the arrangement. That is an important

consideration when approaching the questions (1) whether relocation to France would be in

the best interest of the child and (2) whether that from the child's perspective it would be

better to allow relocation than to make no order.

[23]

Considering first the child's relationship with his parents, I agree with the defender

when she said in evidence that she and the pursuer were the principal persons who had

responsibility to care for the child and to raise him. In support of her desire to relocate to

France with the child, the defender suggested that whilst relocation would lead to an overall

reduction in the amount of time the child and pursuer spend together, the time they did

would be in the child's school holidays (around 90 days according to the defender) and

would allow for more activities together, which would maintain the relationship between

the child and the pursuer. I disagree. The suggestion misses the fundamental importance to

the child of the pursuer's presence in the child's life on an ongoing basis, including the

pursuer's direct involvement in the child's social, cultural and emotional development, his

schooling and his extra-curricular activities. It was a matter of agreement that the child is

thriving in the care of both parents. Further, the evidence from all witnesses who knew the

child was that the child enjoyed and responded positively to physical contact with those

around him, whether his parents, grandparents or aunt and uncle. Relocating the child as

sought would fundamentally undermine both the important and beneficial presence of the

pursuer in the child's life and the child's apparent, innate desire for physical contact with

the pursuer. Indirect contact, irrespective of issues of whether it would or would not be

appropriately facilitated by the defender, is a poor substitute, if indeed a substitute at all.

When asked in cross-examination whether she agreed that it was important for the child to

have a father figure in his life, the defender, it seemed to me, sought to justify the inevitable

absence her proposed plan would entail by replying that she did not have a father, her

father having left the family home. That is not an answer that focuses of the child's best

interest. I agree with Mrs Scott's submission that the diminution of the child's relationship

with his father and the role his father plays in his life would be the most significant

disadvantage to the child. I am very clear that the care arrangements suggested by the

defender insofar as the relationship between the pursuer and child father and son would

not be in the child's best interests.

[24]

In relation to wider family relations and childcare, including family support, I accept

that if the child was to relocate to France he might very well see more of his maternal

grandmother. The other side of the same coin is that he would almost certainly see little of

his paternal grandparents. The evidence before me suggests that the maternal grandmother

has visited Scotland on a number of occasions whereas the paternal grandparents have

never visited France. It is clear that both the paternal and maternal grandparents are willing

to assist when asked. Whilst the pursuer's father felt hurt by events between his son and the

defender and said in evidence that he would find it difficult to support the defender, as

opposed to the child who he would support, the pursuer's mother was clear that she would

support both the child and the defender if asked to do so. Having seen her be cross-

examined about this, I do not doubt her evidence. I also note the evidence of the pursuer's

sister who said that she thought her father's attitude might change in time. It was also clear

from the evidence that the pursuer's brother and sister have both provided support for the

pursuer and the child and that they are prepared to continue to do so. It was not disputed

that both have developed a strong relationship with the child and both play a positive role

in the child's life. The pursuer's sister and brother made it clear they too would assist the

defender if asked to do so.

[25]

The defender raised in evidence the issue of nursery childcare and working. She

suggested that her employment opportunities in Scotland might involve shift or weekend

working, which in turn might require more nursery childcare and/or difficulties with

informal childcare. When it was suggested to her that, if she had such work patterns, the

pursuer or his family could assist, the defender responded that if that was so she would see

the child less. However, in support of her argument for relocating to Bayonne the defender

suggested that to allow her to obtain and sustain work she could draw on the help of her

mother to provide childcare. It seemed to me that the defender took an inconsistent position

to support relocation. Whilst children benefit from the learning experiences and interactions

they have in more formal nursery settings, it seems to me that having an extended family

available to assist with childcare when the defender was working would provide a balance

of formal and informal childcare and, in any event, irrespective of whether it was the

pursuer or a maternal or paternal grandparent/family member who provided childcare

whilst the defender worked, the outcome would be the same, she would see the child less.

[26]

The evidence regarding the benefits of interactions with the defender's wider family

in France was an area that caused me some concerns in respect of reliability. The tenor of

the defender and her mother's evidence was that they had a strong family network around

them and that this would provide a benefit for the child, particularly, as was emphasised by

both, the child's ability to play with his cousins. In cross-examination it became clear to me

that this family network was not as portrayed. The extended family appeared to be located

close to Paris, some eight hours away by car, and in answer to a direct question about the

number of times the child had seen his cousins in the last year the defender's mother said

once at least but beyond that she could not be certain. The impression I was left with from

the evidence was that, contrary to the picture painted by the defender and her mother,

extended family life in France was not and was unlikely to be as interactive as suggested,

whereas the child appeared to be very much integrated with his wider family in Scotland.

That might well, I suspect, be as much a matter of geography as anything else. There was no

basis in the evidence to suggest that relocation of the child to France would significantly

change matters with his extended French family, whereas the evidence clearly suggested

that relocation of the child to France would significantly reduce the benefits to the child

derived from his interactions with the pursuer's extended family.

[27]

Turning to the issue of employment, as the defender acknowledged in her evidence,

which I accept, her current position is not indicative of any longer term position in Scotland

if the court refused the order for relocation. She has been in limbo, first believing she was to

return to France by agreement, then awaiting the outcome of the court case. Whilst, as the

defender said in evidence, there might be some challenges around working and childcare, if

the defender was to remain in Scotland with the child she would find employment. The

undisputed evidence regarding the defender's work history and seeing her give evidence

suggests that the defender is an able individual who would find employment in Scotland.

Having come to that view, it is, I think, inevitable that were the defender to relocate to

France she would find employment there also. Beyond that, there is little else I can conclude

from the evidence. Although the defender and her mother suggested that the defender

might, given her French qualifications, be able to secure professional employment in France,

there was no independent evidence put before the court to support that assertion and, in any

event, given the significant passage of time it is difficult to conclude what, if any, advantage

the defender would get from any qualifications.

[28]

In relation to the issue of education, I accept the evidence that the child has a place at

a school in Bayonne and that the school will offer opportunities for the child. I am also

prepared to accept that the identified school in Bayonne might offer different opportunities

but there is no evidence to suggest that the school in Bayonne will, overall, offer the child

better opportunities. Both parties gave evidence about the benefits to the child of being bi-

lingual. I accept that this would be a benefit to the child. The defender suggests that when

in France outwith school the child would speak French and when in school the child would

receive English lessons. This, the defender suggested, was the better arrangement. I do not

agree. With the child in Scotland he will speak French with his mother and maternal

grandmother when she visits. He will also speak French when he visits France. I suspect

that lessons in French at school will add little. But the child will also speak English with his

paternal family and at school. In Scotland the child will have a much fuller immersion in

both English and French than he would in France. Overall, on the evidence before me I find

the issue of education largely neutral. I reach the same conclusion regarding healthcare.

[29]

On the issue of accommodation, there is no suggestion that the pursuer's house is not

suitable for the child. The child is clearly familiar with the house, having spent a significant

part of his life there. In France the defender suggests that, on relocation, she and the child

would reside with her mother, in the short term, for around 6 to 8 months and thereafter the

expectation is that the defender will then be working and be able to afford her own

accommodation. On that basis the issue is at best neutral. That said, on the basis of the

evidence before me, the maternal grandmother's flat is not particularly suited to the child's

needs. The flat is on the fifth floor, and has a balcony. Photographs of the flat were lodged.

The child is 3 years old. A degree of supervision would be required at any point the child

had access to the balcony. As the defender acknowledged, if she remains in Scotland, once

she obtains employment here she will be able to address the issue of more suitable

accommodation.

Other issues

[30]

Parties made reference to two other particular issues during the course of the

evidence. These were (i) the criminal proceedings in which the pursuer was the accused and

the defender the complainer and (ii) the prior agreement between the parties that the

defender and the child would relocate to Bayonne. In relation to the criminal proceedings,

at submission both counsel appeared to accept that the issue had little bearing on the issue

of relocation. I agree, subject to one observation that I will come back to. In relation to the

prior agreement in respect of relocation, this also has little relevance to the issue of

relocation, again subject to the same observation. It is clear that the criminal proceedings

have created a lack of trust between the parties. Both said so in evidence. That lack of trust

caused the pursuer to re-evaluate the agreement in relation to relocation. He gave evidence

that he had concerns the defender would seek to exclude him from the child's life and that

with the child in France he would be disadvantaged if he had to resort to the courts. I accept

that the pursuer's subjective experience of the criminal proceedings provide him with an

objectively rational basis to form the concerns he has and thereby withdraw his consent to

relocation of the child. I do not accept that the pursuer's initial consent to the child's

relocation should be taken as an implied indication that such relocation would be in the

child's best interest. That is a question for the court.

[31]

Drawing the above threads together, the single, most significant factor, by some

margin, is the very likely adverse effect of relocation on the relationship between the

pursuer and the child and thus the welfare of the child. There would need to be clear

evidence of significant benefits to the child in other areas before the court could conclude

that the negative effect on the relationship between the pursuer and the child was

sufficiently offset to demonstrate relocation was in the child's best interests. The evidence in

these other areas falls well short of doing so. In these circumstances, I am very clear that

having regard to the welfare of the child as the paramount consideration, it would not be

better for the child that the order be made than that none should be made at all.

Accordingly, I refuse the defender's conclusion seeking an order permitting the child to

relocate to France.

Orders and further procedure

[32]

Given these conclusions, I shall (1) grant decree of divorce as first conclusion for by

the pursuer, (2) as per the joint minute of the parties, dismiss conclusions 12 and 13 for the

pursuer and conclusions 6, 7, 8, 9, and 10 for the defender, (3) refuse to make the order for

residence and the specific issue order sought by the defender as first and second concluded

for by her and (4) as per the joint minute of the parties, find no expenses due to or by either

party in respect of matters relating to financial provision.

[33]

Thereafter I will put the case out by order to be addressed on (1) the precise terms of

orders regulating the care arrangements for the child, including contact (it might be possible

for parties to agree matters now that the principal issue of relocation has been determined)

and (2) expenses insofar as not already dealt with.