Scottish Sheriff Court Decisions

SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH

 

Court Reference: F794/09

JUDGMENT   of   FIONA LENNOX REITH, Queen's Counsel   in the cause   K M   Pursuer   against   M G   Defender   ­­­­­­­­­­­­­­­­­­­­­­­_________________

 

Act: Mrs Girdwood, Bonar Mackenzie, Solicitors, Edinburgh

Alt: Ms Dick, Mowat Hall Dick, Solicitors, Glasgow

 

Edinburgh 15^th April 2010

 

The Sheriff, having resumed consideration of the cause, finds in fact:

 

1. The pursuer is 40 years of age. She is employed as a development and marketing officer for a housing association in Edinburgh. She holds a bachelor of business studies degree from the Institute of Technology in Dublin.

 

2. The defender is 40 years of age. He is employed as a systems developer for Standard Life Assurance Limited in Edinburgh.

 

3. The parties were involved in a relationship from about November 2002 until their separation in about August 2008. There are two children of the relationship, namely FG, who was born on 7^th November 2003, and NG, who was born on 29^th October 2007. Numbers 5/1/1 and 5/1/2 of process are extracts of their respective birth certificates.

 

4. On 9^th February 2006 the parties entered into an agreement conferring upon the defender parental rights and responsibilities in terms of section 4 of the Children (Scotland) Act 1995 in relation to FG. The said agreement was registered in the Books of Council and Session on 13^th February 2006. Number 5/1/3 is an extract thereof.

 

5. The defender is named as NG's father on her birth certificate. He accordingly also has parental rights and responsibilities in relation to NG.

 

6. The pursuer was born in Ireland and was educated there. She is an Irish national. The parties met at Samye Ling, a Buddhist retreat in Dumfriesshire, in about November 2002. At that point the pursuer was living and working in London. She had been working in London since about 2000. Prior to this she had lived and worked in Brussels for about four years, working for the European Commission.

 

7. The pursuer moved to Edinburgh in about February 2003 with the defender's agreement. This was with a view of furthering their relationship. The defender was at that point already living in Edinburgh. In March 2003 the pursuer learned that she was pregnant with FG. On discovering this, the parties decided to live together. They did so from about April 2003.

 

8. The parties purchased the family home in Edinburgh in joint names to provide a comfortable family home. It is close to a swing park, good schools and shops.

 

9. FG was born with an absent corpus callosum (one of the nerve pathways within the brain). This condition can sometimes be associated with a range of developmental abnormalities that may be profound but which may also not cause any developmental or health abnormalities at all. In the event, FG has made good progress since birth. She has been under the care of Dr Paul Eunson, consultant paediatric neurologist at the Royal Infirmary for Sick Children, Edinburgh. Her assessments over the years have been satisfactory. Dr Eunson has not had any concerns about her developmental process. She was last seen by him on 1^st December 2009. It is highly unlikely that FG is going to present with significant difficulties in the future. She has now been discharged from Dr Eunson's care.

 

10. FG was also born with an abnormally shaped left optic nerve, associated with reduced vision in the left eye. She has had surgery to straighten the left eye. She wears glasses to correct long sightedness. She has very minor co-ordination difficulties related to reduced vision in the left eye, but overall when using both eyes together her vision is effectively normal.

 

11. After FG was born the pursuer was the parent who was primarily responsible for her care. The pursuer was on maternity leave for the first 14 months of FG's life, from about October 2003 until about January 2005 when she returned to work part time five mornings a week. She resumed full time employment in about February 2007, working 37 hours a week. If FG was ill, the pursuer was the parent who took time off work to care for her.

 

12. The pursuer breast fed FG for the first 7 months of her life. The defender continued to work full time after FG's birth. He would help with FG in the evenings.

 

13. At Christmas 2003 the parties went to Ireland for a holiday. FG was baptised in a Catholic church there on 27^th December 2003. Both the pursuer and the defender attended. Although the pursuer was brought up as a Catholic she is no longer a practicing Catholic.

 

14. Both parties were elated when NG was born. She was born a healthy child. However, shortly after she was born she was diagnosed with bronchialitis. This required her to be re-admitted to hospital. She made a good recovery. However, NG was a very clingy child. She demanded a lot of attention from the pursuer in particular. The pursuer was the parent who was primarily responsible for her care. After she was born the defender helped out a great deal with FG because NG would not tolerate being assisted by anyone other than the pursuer initially. For example, tasks such as putting FG to bed and telling her a story became the defender's responsibility.

 

15. The pursuer was on maternity leave for the first 11 months of NG's life, returning to work part time for 32 hours a week in about October 2008. The pursuer worked four mornings a week on Mondays, Tuesdays, Wednesdays and Thursdays each week and all day on a Friday. If either FG or NG was unwell, the pursuer was the parent who took time off work to care for the said children. The defender worked full time but condensed his hours into four and a half days a week so that he could work a half day on a Friday. This enabled him to collect FG and NG from school and nursery respectively on Fridays.

 

16. In the course of 2008, the difficulties in the parties' relationship continued and they grew more distant. The defender became less sociable and was more reluctant to attend social events involving the pursuer. They had seen a counsellor for assistance on a number of occasions in the course of their relationship.

 

17. In July 2008 the pursuer visited Ireland with the children. They were to stay with the pursuer's parents in Clondalkin, a town south of Dublin, for about three weeks. The principal reason for the visit was to attend a family wedding on 14^th July 2008. The defender was due to join the pursuer and the said children in Ireland for the second week to go to the wedding as well. He did so. In the course of this second week the parties discussed the state of their relationship. There was also an incident involving the pursuer's sister-in-law, D, which the defender viewed as being symbolic as regards the state of his relationship with the pursuer. The defender then returned to Scotland. He had expected the pursuer and the children to return at the end of the three week period to have further discussions about their relationship. However, after his return to Scotland at the end of his week there, the pursuer telephoned to tell him that she wished to separate and that she wished to remain in Ireland with the said children.

 

18. Shortly after this telephone call the defender returned to Ireland for a weekend to try to persuade the pursuer to return to Scotland. He also visited Ireland again for a period of about ten days in August 2008. While the defender was in Ireland he and the pursuer had discussions about their future and that of the children. They went to look at schools in Naas and Clondalkin and housing in Naas. Naas is a town about 12 miles south of Clondalkin and is about 20 miles from the city centre of Dublin. The defender preferred Naas to Clondalkin. They again sought the assistance of a counsellor. The defender wanted the pursuer and the children to return to Scotland. FG had spent a pre-school year at a primary school in Edinburgh and she was expected to return to start primary 1 there in August 2008. The defender suggested that they could all return to Ireland once FG had completed primary 1. The defender told the pursuer that he would if necessary take legal proceedings to have the children returned to Scotland. The pursuer was also advised by her father that she should return to Scotland with the children to do things properly. The pursuer agreed to return to Scotland with the said children.

 

19. During the defender's ten day visit to Ireland in August 2008, two draft agreements were prepared. Number 5/3/1 of process comprises the first draft agreement. It was handwritten by the defender with the addition by the pursuer of one passage on page two in the second paragraph. In terms of said handwritten draft it was recorded that the parties had agreed as follows: "We both agree that in the short term we will return to Scotland and bring the children up there. We are both agreed that we should all move to Ireland and the children be brought up there. At the latest we expect to return to Ireland in time for [FG] to commence senior infant year (primary 2) in an Irish school." Later on the same day a typed draft agreement was prepared. Number 5/1/4 of process comprises said typed draft agreement. The typing was done by the pursuer but the drafting of the draft was principally done by the defender. The defender qualified as a solicitor in Scotland, albeit that he only practiced for about four months from about December 1998 to March 1999. The typed draft included the following:

 

"SECTION A:

...5. Parental responsibilities and rights continue to be shared equally between the parents. In particular [KM] and [MG] affirm that:

(a)     residential custody of the children will as far as possible be shared equally...

 

SECTION B:

Place of Residence:

In the short term, [KM], [MG] and their children's place of residence will continue to be Edinburgh until, at the latest, July 2009, at which point it is agreed that the whole family will move to Naas, Co Kildare. In Edinburgh, [KM] will reside at the family home in Edinburgh, jointly owned by [MG]. This is acknowledged to be [KM's] home and as such [MG] agrees to respect [KM's] privacy and will not enter the premises without prior notification and agreement. ([MG] to remove his personal belongings from the flat by 30/08/08). From early 2009, [KM] and [MG] will seek employment in Dublin or Kildare and in July 2009 will continue to live at separate addresses once the move to Ireland has been made.

Shared Parental Care:

Shared residential care

Contact arrangements

[KM] and [MG] agree that should the children wish to contact the parent who does not have temporary custody, they should be permitted to do so.

Schools and Nursery Care

[KM] and [MG] agree to send [FG] to [primary school in Edinburgh] until the end of the school year 2008-09, and [NG] to [nursery in Edinburgh] for the same period. Both children will be enrolled in Naas national school (and/or Scoil Bhride) and nursery respectively before the end of 2008 for the next academic year 2009/10".

 

20. The pursuer had been under the impression that the draft typed agreement would mean that the children would live with her principally and that they would see the defender at weekends. She is not legally qualified. July and August 2008 was an emotional time for both parties. The intention was that both parties would get legal advice. Neither draft agreement was ever signed.

 

21. The economic situation, including the prospects for employment, in Ireland has become significantly more difficult since the summer of 2008.

 

22. In about August 2008 the defender also wrote to the pursuer's parents. Number 5/3/2 of process comprises the defender's letter to them. His letter included the following: "I understand that you will now be fearing for [KM] on her return to Scotland. If it's any consolation let me state that my intention to bring the family to Ireland is a sincere one, as is my wish to minimise [KM's] discomfort whilst she remains in Scotland." The defender left the said letter for the pursuer's parents the morning he was returning to Scotland in August 2008.

 

23. The parties then returned to Scotland with the said children in late August 2008 in time for FG to start primary school in Edinburgh. On the parties' return to Scotland they lived together at the family home in Edinburgh for about one week while the defender sought alternative accommodation.

 

24. When the parties separated they agreed that the defender would come to the family home in Edinburgh, where the pursuer had remained with the children, to take FG to school in the mornings. They were trying to soften the blow of the separation for her. For a few months following the separation the defender also came to the family home between about 6pm and 6.30pm four evenings a week. After a few months this arrangement was altered to the defender going to the family home to see the children on Monday and Tuesday evenings between 7pm and 8pm. This arrangement continued until October 2009 when new contact arrangements were agreed as recorded in findings-in-fact 30, 31 and 32 below.

 

25. Between about September 2008 and December 2008 the defender had the said children each weekend from Friday evening to Sunday morning, staying at his sister's house in Edinburgh on a Friday night and then at his mother's house in Glasgow on a Saturday night. At the defender's request at about the end of November 2008, contact was changed to alternate weekends to allow the defender to find a flat and to do other things. At that point, his sister, FS, was considering moving to Glasgow and he wanted to find suitable alternative accommodation for weekend contact with the children. His sister moved to Glasgow in about December 2008. She and her husband had become reconciled and she and their two children moved to Glasgow to join him. The defender then obtained his current accommodation in about January 2009. It is suitable for the children to stay overnight with him. It has two bedrooms. Once he had moved in to his own accommodation he asked for the residential contact each weekend to be reinstated. The pursuer was not agreeable to this.

 

26. FG attends a primary school in Morningside, Edinburgh. She is in primary 2. FG enjoys school and is doing well there. She is making good progress in all areas of the curriculum. She is an able child academically. Her current class size is 28 pupils. Her homework is done to a high standard. It makes no difference which parent FG is staying with in that respect.

 

27. NG attends a nursery in Bruntsfield, Edinburgh. She enjoys it there.

 

28. The family home in Edinburgh has two bedrooms. The children share a room. The defender would be willing to allow the pursuer and the children to continue living there indefinitely.

 

29. The pursuer has been and continues to be the primary carer of the said children. However, the defender has contributed substantially to the bringing up of and care of the children.

 

30. Since about October 2009 the position, by agreement between the parties, has been that the defender arrives at the family home at about 8am to take FG to school on Monday, Tuesday and Wednesday each week. FG enjoys the defender taking her to school. His mother takes FG to school on his behalf on Fridays.

 

31. On Monday and Tuesday each week the defender also collects NG from nursery at 12 noon and takes her home to his flat. The pursuer then collects her at 1pm to take her back to the family home. This arrangement commenced in about October 2009 as part of an overall agreement reached between the parties at that stage in relation to ongoing contact. This was shortly before a Child Welfare Hearing fixed to take place in October 2009.

 

32. Since about October 2009 the defender has also had the children to stay overnight with him on Thursday each week. His mother, CG, comes to stay at the defender's flat on a Thursday night most weeks. If she does, she collects them from school and nursery respectively that day. She then takes them back to school and nursery respectively on Friday mornings on behalf of the defender. This allows the defender to start work at 7.30am on a Friday. The defender then collects the children from school and nursery himself on Friday afternoons. If it is the pursuer's weekend to have the children with her, she collects them from the defender's flat at 6.30pm. If it is the defender's weekend to have the children, they remain at his flat until 6.30pm on Sunday when the defender returns them to the family home. The children then remain in the pursuer's care from either Friday evening or Sunday evening, depending upon which parent has the children over the weekend, until the following Thursday morning each week. In exchange for the additional contact on Thursday's the defender no longer goes to the family home to see the children on Monday and Tuesday evenings.

 

33. The defender owns a car. He has agreed with the pursuer that which ever of them has the children has the use of the car. He is willing to continue this arrangement indefinitely if the pursuer and the children remain in Edinburgh.

 

34. The fees for NG's nursery are shared equally between the parties through a salary sacrifice scheme operated through their respective employments.

 

35. If the children remain in Edinburgh it is likely that NG would be given a state funded pre-school nursery place once she reaches the age of three in October 2010. That would be at her current nursery.

 

36. The children have a close and loving relationship with both parents. They are happy, settled and well cared for by the pursuer with whom they live principally. They both also enjoy spending time with the defender, with whom they are also happy and well cared for when they are in his care.

 

37. FG and NG enjoy a close and loving relationship with the pursuer's parents.

 

38. FG and NG enjoy a close and loving relationship with the defender's mother.

 

39. The children have a good relationship with the defender's relatives, including his sister and her children.

 

40. The pursuer's mother visits the pursuer and the children in Scotland about once every 6 to 8 weeks.

 

41. The children have a good relationship with the pursuer's relatives in Ireland.

 

42. Since about September 2009 NG has slept in her own bed in the same room as FG at the family home. Until then, NG had been sleeping beside the pursuer. The pursuer emailed the defender to tell him about the new sleeping arrangements. The pursuer hoped that the defender would do something similar at his house when the children were staying with him. Until about January 2010 the arrangement at the defender's flat was that FG and NG would sleep in his bed. He would sleep across the bed at an angle to them. FG had initially slept in a separate bedroom in his flat. However, she told the pursuer that she was lonely sleeping on her own. She had been used to sharing a bedroom with NG at the house at the family home. The pursuer therefore suggested to the defender that FG's bed should be moved through to his bedroom. He arranged this. In the event, however, she joined NG in sleeping in the defender's bed as well. When NG returned to the pursuer at the family home on a Sunday evening after having spent the weekend with the defender, she would cry and not settle back to her own bed at the family home. The pursuer would have to go through the process of allowing her to settle in the pursuer's bed first of all. She would also wake during the night and come to the pursuer's bedroom. This led to NG's (and pursuer's) sleep being disturbed every night. Such differing sleeping arrangements as between the pursuer and the defender were unsettling and confusing for the children. In January 2010, about a week after the first week of evidence in the proof and before the dates for the continued proof, the defender arranged for the children to sleep together in bunk beds in a second bedroom at his flat. He had already been investigating the possibility of buying bunk beds prior to the start of the proof.

 

43. The current arrangements agreed between the parties in relation to holiday contact are that the parties divide the Christmas, Easter and mid-term holidays. The summer holiday of 2009 was also divided between the parties. During the summer holiday the parties generally had the children to stay with them on alternate weeks. However, towards the end of the holiday in August the children spent about 10 days with each parent. The arrangements for holiday contact on this basis have worked well. Despite apprehensions on the part of the defender about NG being away from the pursuer for as long as a week at a time in the summer there were no problems.

 

44. The pursuer's mother, MM, has offered to provide the pursuer and the children with the use of a house owned by her in Newbridge rent-free on an indefinite basis. The house has 4 bedrooms and front and back gardens. It is on a housing estate where there are other families and children. Newbridge is about 6 miles from Naas. The house is let out to a tenant at present. The tenancy can be terminated upon four months notice to do so being given. The pursuer's mother has also offered the pursuer the use of her car as often as she requires it on an indefinite basis. The pursuer's only expenditure in relation to the car would be fuel, estimated at about £40 a month.

 

45. The pursuer's brother, SM, and his wife, RM, live in Naas. Naas is about 20 miles from the city centre of Dublin and about 12 miles south of Clondalkin. SM is Deputy Headmaster of a secondary school in Clondalkin. RM is a secondary school teacher in Naas. They have four children aged from 8 to 20. Their son, DM, aged 8, attends the Scoil Bhride Primary School in Naas.

 

46. A place has been secured at the Scoil Bhride Primary School in Naas for FG. It is a co-educational school. It was seen from the outside by the pursuer and the defender in August 2008. It has a new building. Class sizes are between about 28 and 30. The core curriculum is taught in English. Children there also learn some basic everyday phrases and instructions in Irish. It is unlikely that this would pose a problem for FG. SM and RM are very happy with the said school for their son.

 

47. NG would attend a nursery in either Naas or Newbridge in the mornings. A nursery place would cost about 300 euros a month.

 

48. The pursuer's parents live in Clondalkin. The pursuer has three brothers, the oldest of whom is SM. Both of the pursuer's parents are retired. Her mother is 68 and her father is 69. Her mother suffered a brain haemorrhage in 2000 and colon cancer in 2006. She has made a good recovery. Both of them would be willing and able to provide practical assistance to the pursuer, including looking after the children when necessary. The pursuer's mother would pay the fuel bills associated with the pursuer and the children living at the house in Newbridge. If the pursuer and the children were to relocate to Ireland, the pursuer would seek part-time employment in Ireland in an administrative role. She has applied for jobs in Ireland, but so far without success. In addition to a business studies degree, the pursuer has a number of IT qualifications. Her skills are not specific to any one industry. She hopes to obtain part-time employment paying about 12,000 euros a year for approximately a 20 hour week.

 

49. Naas is a cosmopolitan town of approximately 16,000 inhabitants. It is a major suburb of Dublin. Many people live in Naas and commute to and work in Dublin. Naas is considered to be the most affluent area in Co Kildare. There are dual carriageway and motorway connections to Dublin. Until the current economic recession in Ireland, Naas was considered to be the fastest growing town in Europe. However, unemployment in Ireland is now high as a result of the current recession. It would not be easy for the pursuer to find employment in Ireland. It was not proved how long it would take the pursuer to find employment there.

 

50. If either child was to fall ill and the pursuer was to require assistance, her mother would be willing to assist if the pursuer was living in Ireland.

 

51. At present, the pursuer's total net income is £2,423 a month, including child maintenance from the defender at the rate of £300 per month, and her current monthly outlays total £1,269.

 

52. The exchange rate at 11^th January 2010 was 1.1116 euros for one pound Sterling.

 

53. The pursuer therefore has a free income of £1,154 a month (or 1,283 euros). The pursuer currently has flexible hours of work with the availability of flexi-time. She also has a final salary scheme with her present employment.

 

54. In Ireland, the pursuer would be entitled to One Parent Family Payment (OPFP) of 1,105 euros a month and child benefit of 300 euros a month, totalling 1,405 euros a month.

 

55. The pursuer's expenditure on food in Ireland for herself and the children would be likely to be at a similar level to her current expenditure in Scotland, namely about £400 (444 euros) a month. On this basis, if the pursuer and the children were to relocate to Ireland, the pursuer would have a net free income of about 1,005 euros a month. If the defender was to continue to pay child maintenance at the rate of £300 per month (333 euros), the pursuer would have a total income of about 1,738 euros a month. After deducting about 444 euros a month for food, the pursuer would be left with free income of about 1,294 euros a month.

 

56. The defender's current net income per month comprises his salary of, on average, £1,780 net of tax and national insurance and a childcare salary sacrifice scheme of £243. If the pursuer and the children were to relocate to Ireland, the salary sacrifice scheme voucher would be withdrawn and the defender's net salary would increase by £172 (namely £243 net of tax and national insurance) a month.

 

57. The defender's current net monthly outgoings total £1,535, including child maintenance of £300. He will also have a legal aid contribution of about £2,400 in connection with the current proceedings.

 

58. The average cost of a return flight to Dublin is £126. The cost of car hire for three days for a trip to Ireland for the defender would be, on average, £90. The cost of accommodation for the defender and the children for the weekend would be, on average, £200.

 

59. The family home is in the joint names of the pursuer and the defender and is valued at £220,000.

 

60. The outstanding mortgage secured over the family home is £166,350.

 

61. In the event of the sale of the family home, the proceeds net of the expenses of sale would be in the region of £50,000 from a private sale on the basis of the figures in paragraphs 61 and 62 hereof.

 

62. In about July 2009, FG started complaining of having a sore stomach. In about September 2009 she also started to suffer from stomach cramps. She underwent tests with her GP and a gastroenterologist. No medical cause was found. The conclusion was that the symptoms could be psychosomatic.

 

63. The defender has explored with his employers, Standard Life, whether there are any opportunities within the company to enable him to work in their Dublin office. There are currently no such opportunities available. It was not proved that the defender would be likely to be able to obtain any other suitable employment in Ireland.

 

64. In November 2009 the defender made a Flexible Working Request to his employers in terms of which he would work the following pattern - week 1: 5 days for 40 hours and week 2: 5 days for 30 hours. This request has been accepted in principle depending on the outcome of the present proceedings. There could be some flexibility about the allocation of hours to be worked as between weeks 1 and 2. The policy operated by Standard Life is that this work pattern would be reviewed after a period of 3 months to ensure that it supported both the demands of work and his personal life. The defender is also able to work flexitime within his working week provided that he is at work during certain core hours during the middle of the morning and the middle of the afternoon. However, it has been agreed with his employer that he would not have to work those core hours on four afternoons a fortnight. It would be possible for him to work a 10 or 12 hour day, but this would not be encouraged every day. If on reviewing the work pattern his employers were of the view that the defender's work/life balance was not correct, it is likely that his total hours of work would be reduced.

 

65. The shortest time it would take to get from Dublin airport to Newbridge would be about 45 minutes. At worst, it would take about one and a half hours at times.

 

66. If the children were to be relocated to Ireland, the defender would only be able to see them at weekends and for holidays. It is likely that he would only be able to manage to see the children in Ireland about one weekend a month. He would therefore not be able to maintain anything approaching the level of contact he has had since the parties' separation. In that situation, it is likely that the quality of the relationship the defender currently has with the children would be adversely affected.

 

67. The parties have usually maintained a reasonably good level of co-operation in the children's best interests.

 

68. The pursuer's current downstairs neighbour, JC, is sometimes willing and able to babysit for the pursuer. The children are fond of her.

 

69. The pursuer has some friends in Edinburgh through her work. However, she does not feel able to call on them for assistance with the children.

 

70. If the pursuer and the children were to relocate to Ireland, the pursuer would be willing to offer the defender the use of her mother's house in Newbridge for the purposes of contact visits by him to Ireland.

 

71. It would not be in FG and NG's best interests to relocate to Ireland.

 

72. It would not be in FG and NG's best interests to live with the pursuer and the defender on alternate weeks.

 

 

 

Finds in fact and in law:

 

1. That it is not in the best interests of the said children, FG and NG, that the pursuer be allowed to move the said children from the United Kingdom to live permanently in Ireland.

 

2. That a residence order to the effect that they should reside with the pursuer is unnecessary.

 

3. That it is not in the best interests of the said children that a shared residence order should be made.

 

4. That a contact order in favour of the defender is unnecessary.

 

Therefore sustains the second and fourth pleas-in-law for the pursuer and the first plea-in-law for the defender, repels the first and third pleas-in-law for the pursuer and the second and third pleas-in-law for the defender and accordingly refuses to grant the pursuer's first crave for a specific issue order allowing the pursuer to move the said children from the United Kingdom to live permanently in Ireland; refuses the pursuer's second crave for a residence order as being unnecessary; refuses the defender's first crave for a shared residence order; refuses the defender's second crave as being unnecessary; quoad ultra dismisses the craves of either party; finds no expenses due to or by either party.

 

 

 

 

NOTE

 

Introduction

 

[1] This is a case in which the pursuer seeks a specific issue order under section 11(2)(e) of the Children (Scotland) Act 1995 ("the 1995 Act") allowing her to remove the children from the United Kingdom to live permanently with her in Ireland. This is opposed by the defender. The pursuer also has a crave for a residence order to be granted to the effect that the children should reside with her. This is likewise opposed by the defender. The defender in turn seeks a shared residence order, failing which a contact order. These craves are opposed by the pursuer.

 

[2] In the course of the proof the parties also intimated that they were agreed that part of the report by Ms Lesley McFall, solicitor, number 13 of process under the heading of "[FG] - aged 6 years and 1 month" commencing at page 4 of the report and ending at page 6 of the report was true and accurate.

 

[3] The pursuer gave evidence, supported by her sister-in-law, RM, her mother MM, Mr Gordon Cameron, an employment consultant and MJ, the Deputy Head Teacher at FG's primary school.

 

[4] The defender gave evidence, supported by his mother, CG, his sister FS, WV, a friend, DMcG, a cousin, MW of Standard Life and Ms Lesley McFall, solicitor, appointed by the court to prepare the report number 13 of process.

 

 

Background

 

[5] The parties met in November 2002 and moved in together at a house they bought to be the family home in Edinburgh about April 2003 after having learned that the pursuer was pregnant. FG was born in November 2003. The pursuer took maternity leave for the first 14 months of FG's life, returning to work part-time in about January 2005 and full-time in about February 2007. The pursuer had been keen to have a second child. The defender was, however, concerned about having a second child because he and the pursuer were already experiencing problems in their relationship. In the event, however, NG was born in October 2007 and both parties were elated at her safe arrival. The pursuer took maternity leave for the first 11 months of NG's life, returning to work part-time in about October 2008.

 

[6] The parties finally separated in about August 2008 when the defender moved out of the family home and into rented accommodation. Both parties tried very hard to soften the blow of the separation for FG. The defender would, for example, still visit the family home on a number of evenings a week to see the children. Contact arrangements have since then been agreed between the parties without the need for intervention by the court. The defender has parental rights and responsibilities in relation to both children. The fact that the parties have to a large extent been able to co-operate with one another for the benefit of the two children is much to their credit. It is very clear that FG and NG are much loved by both of their parents and that, subject to what I say about the defender's motivation at paragraphs [78] and [80] below, each parent is at heart motivated by what each thinks would be best for the children. Unfortunately, what each parent thinks would be best for the children for the future now differs. That issue therefore now requires to be determined by the court.

 

 

Legal framework

 

[7] Section 11(7) of the 1995 Act sets out the three overarching principles to which regard must be had in arriving at any decision about whether or not to make an order under section 11. The first is that the court is to regard the welfare of the child as its paramount consideration. The second is that the court must not make an order unless it would be better for the child that order be made than that none should be made at all (sometimes known as "the minimum intervention principle"). The third is that the court, taking into account the child's age and maturity, must have regard to such views as the child may express.

 

[8] Mrs Girdwood on behalf of the pursuer referred me to Treasure v McGrath 2006 Fam LR 100; Payne v Payne [2001] EWCA Civ 266; McShane v Duryea 2006 Fam LR 15; AM v IM, (which is reported as M v M 2008 Fam LR 90), 27^th June 2008, Sheriff Morrison QC; M v M 2000 Fam LR 85, and KB v LO'R [2009] IEHC 247.

 

[9] Ms Dick, on behalf of the defender, referred me to Fourman v Fourman 1998 Fam LR 98, Payne v Payne, supra, McShane v Duryea, supra, AM v IM, supra, and X v Y 2007 Fam LR 153.

 

[10] The questions for the court to decide in this case are (1) whether the pursuer should be allowed to take the children to live with her in Ireland, (2) whether a formal residence order should be made to the effect that they should reside with the pursuer, (3) whether a shared residence order should be made and (4) whether a formal order for contact should be made in favour of the defender.

 

[11] In my opinion, the question of whether the pursuer should be allowed to take the children to live with her in Ireland requires to be decided first of all as the answer to this question is highly relevant to the decision about whether a formal residence order should be made in favour of the pursuer. This was recognised in the order in which these issues were raised in the Closed Record. However, in her submissions to the court at the end of the proof, albeit acknowledging that the two issues were intimately connected and that had the pursuer had not sought to relocate to Ireland it was doubtful whether this case would ever have come before the court, Mrs Girdwood on behalf of the pursuer dealt with the two issues in reverse order. I am not persuaded that that was the correct approach. I therefore propose to address them in the order set out in paragraph [10] above.

 

[12] In addressing all of these issues the test is what is in the best interests of the child. This was not a matter of dispute. I have already made reference to the three overarching principles to which regard must be had in arriving at any decision about whether or not to make an order under section 11. Parties were also agreed that no question of onus arises: White v White 2001 SLT 485. The question of where a child's best interests lie depends on an assessment by the court of all the relevant facts and circumstances in any particular case. Since the best interests of the child is the test, there can be no presumption in favour of or against any order sought, including a specific issue order to allow a child to be removed from the United Kingdom to live abroad. The solicitors for both parties were also at one in this case that FG and NG were too young to express views to which any material weight might be attached.

 

[13] In relation to both the pursuer and the defender, I felt that they were doing their best to assist the court. On occasions, there were I think differences in perceptions but, generally, I felt that these were honestly held differences. I say more about this at paragraphs [24] through to [27] below. I comment on Mr Cameron's evidence at paragraph [32] below. MJ, Ms McFall and MW were all impartial and independent witnesses in relation to whom there was no suggestion that their evidence should not be accepted. WV is a friend of the defender, but in my opinion he gave his evidence in a very fair and measured manner and I had no reason to think that his evidence was other than accurate. I likewise had no reason to think that the evidence given by DMcG (the defender's cousin) and FS (the defender's sister) was other than accurate. So far as the mothers of both the pursuer and the defender were concerned, as might have been expected, each was very supportive of the pursuer and the defender respectively. Generally, however, I felt that each were honest witnesses. However, I detected a certain lack of warmth by MM (the pursuer's mother) towards defender. I detected a somewhat more pronounced lack of warmth on the part of CG as regards the pursuer. For example, she was glowing in the picture she painted of the defender as a parent to the children, and I had no reason to doubt what she said in that respect. However, even when pressed, she was not willing to say more - rather grudgingly it seemed to me - than that the pursuer had a "good" and "normal" relationship with the children.

 

 

Whether the pursuer should be allowed to take the children to live with her in Ireland?

 

[14] I was referred by the solicitors for both parties to the opinion of Dame Elizabeth Butler-Sloss in Payne v Payne, supra concerning an application by a mother under the Children Act 1989 ("the 1989 Act") to remove her child permanently from the United Kingdom to New Zealand. At paragraph 85 of her opinion she summarised the considerations which should be at the forefront of the mind of a judge deciding a case under the 1989 Act and weighed in the balance, albeit emphasising that they were not exclusive of the other important matters which arise in the individual case to be decided. There is, however, no presumption in favour of an applicant. It is evident from section 1 of the 1989 Act that the child's welfare is, as in this jurisdiction, to be the court's paramount consideration.

 

[15] I was also referred by both Mrs Girdwood and Ms Dick to the more recent decision of Sheriff Morrison QC in this jurisdiction in AM v IM, supra in which he, having considered authorities including Payne v Payne, set out the factors to be included in considering whether or not to make an order allowing a child to removed from the United Kingdom to another country and I gratefully adopt the factors set out by Sheriff Morrison which I now include here:

"In deciding whether it is in the best interests of a child to be moved out of the jurisdiction of the court it is necessary to consider what the factors are that have to be weighed in the balance. Having considered the authorities cited, it seems to me that the following factors would be included in considering whether or not to make such an order:

(1)   The reasonableness of the proposed move abroad. In many cases the reason for moving will be for a parent to be with a new partner or because of the parent's or partner's career. In considering reasonableness, the court will give considerable weight to the wish to move of an applicant parent with a residence order in respect of the child. This is because, as has been said in many cases, a child requires security and stability. That is best achieved if the life of the parent with the residence order is also secure and stable. The court will be reluctant to interfere with the right of a person to live where he or she wishes. There is, however, no presumption in favour of that parent or any other person; and the weight to be attached to that parent's wish is still subject to the best interests test.

(2)   The motive of the parent wishing to take the child abroad. To some extent this factor overlaps the reasonableness factor as a poor or wrong motive would also be unreasonable and a move to be with a new partner or because of a career, for example, may be reasonable.

(3)   The importance of the contact with the other or absent parent in the child's life.

(4)   The importance of the child's relationship with siblings, grandparents or other members of the child's extended family who are left behind.

(5)   The extent to which contact (if appropriate) is able to be maintained. It is almost inevitable that contact will be affected by a move abroad. It does not follow that because it would be affected to some extent that the move should be refused.

(6)   The extent to which the child may gain from a relationship with family members as a result of the proposed move.

(7)   The child's views where he or she is of an age to express them. One must bear in mind that a child may not be able to balance all the factors which an adult would have to consider. One should also not be surprised if a child would prefer the current arrangements to continue. One may assume that a child may not wish to lose friends or have contact that he or she enjoys reduced.

(8)   The effect of the move on the child.

(9)   The effect of refusal of the specific issue order on the applicant, particularly where that parent already has a residence order.

(10)    The effect of refusal on the welfare of the child.

(11)    Whether it is better for the child to make the order than that no order should be made. It does not seem to me that, in opposed emigration cases, this no-order factor adds anything at all to the other factors which might be considered. It is difficult to envisage circumstances in which it would be appropriate for a child to be taken out of the jurisdiction but that no order should be made. If parties were agreed, there would be no application to the court. Different considerations may apply in relation to matters such as residence and contact. In White v White 2001 SC 689 at page 699, para [21] Lord President Rodger, as he then was, regarded this factor as the second limb of the welfare factor, and mentioned that it was designed to give effect to Parliament's view that matters should be regulated by parties wherever possible."

 

[16] Both Mrs Girdwood and Ms Dick addressed me under reference, in effect, to these same factors. I will therefore consider these factors in relation to this case on the question of whether the pursuer should be allowed to take the children to live with her in Ireland. For completeness, I should mention that quite a number of events and matters were covered in the course of the evidence and on Record and not all of them were mentioned in submissions. I have confined myself to those events and matters which I have considered relevant to my decisions.

 

The reasonableness of the proposed move abroad

 

[17] Mrs Girdwood on behalf of the pursuer reminded me that the defender does not seek a residence order. At its highest, he seeks an order for shared residence. At present, effectively, the pursuer is the parent with primary residence. She had been their primary carer throughout their lives. Mrs Girdwood therefore submitted that considerable weight should be attached to the way of life selected by the pursuer. In short, Mrs Girdwood submitted that the position was that the pursuer believes that she and the children would have a better, happier and more secure life in Ireland where she would have the support and comfort of her family. She has made firm plans and practical arrangements for this proposed move. She had demonstrated that the children would be financially secure in the event of a move to Ireland. It was submitted that Mr Cameron's evidence was to the effect that the pursuer might have to endure a period of job search of up to six months. In the meantime, she would, with the assistance of her mother in relation to the provision of housing, a car and associated expenses, have sufficient free income from benefits in Ireland to meet likely expenditure, particularly if the defender was to continue to pay child maintenance at the rate of £300 a month. A place has been secured for FG at a suitable primary school in Naas. The school has the endorsement of the pursuer's sister-in-law, RM, who is herself a teacher and whose son is at that school.

 

[18] Ms Dick on behalf of the defender reminded me that the present case was not one where one parent was clearly the more important parent in terms of stability and security for the children. The defender currently sees the children 12 days out of every 14 days. They spent an equal amount of time with both parents in the summer school holidays in 2009. The pursuer had not lived in close proximity to her family for many years. The pursuer's current employment gives her significant financial security, including a final salary pension. She has contacts and a social life in Edinburgh. In the event of a move to Ireland, she would be reliant upon state benefits and a borrowed house. There was uncertainty about whether she would ever be able to afford to buy, or even rent, a house herself there. The pursuer's mother is in any event a regular visitor to Scotland, and the pursuer sees her brother and other members of the family on regular holiday visits to Ireland. Overall, Ms Dick submitted that a move to Ireland would appear to be a move to uncertainty rather than security and stability.

 

[19] Turning to the evidence, I am satisfied that the pursuer has been the primary carer throughout the children's lives to date. However, I am equally satisfied that the defender has over the years contributed substantially to the bringing up of and care of the children. Since the separation, he has made a significant effort to remain part of the lives of the children and sees them most days. It was clear to me that both children are much loved by both parents. The evidence from all witnesses who know the children was to the effect that both of them are delightful, happy and settled children who are well cared for by whichever parent they are with. The fact that they are such happy and settled children despite their parents' separation is a tribute to both parents.

 

[20] It is true to say that there have more recently been problems with FG experiencing a sore stomach. This has been noted at school by her class teacher in particular. No medical cause has been found and it is thought that the symptoms could be psychosomatic. It would not be at all surprising if FG was to be picking up on some of the anxieties inevitably being experienced by her parents as a result of these proceedings. However, there was no evidence that this is thought to be a serious problem. Overall, as recorded at findings-in-fact 9 and 10, FG has made excellent progress despite the initial concerns at birth about the potential for her development to be impaired. Fortunately, it is now highly unlikely that she is going to present with any significant difficulties in the future. Indeed, she has been discharged from Dr Eunson's care. If, however, there were to be further concerns, he has confirmed that the parties may revert directly to him without the need to be re-referred by a general practitioner.

 

[21] In the summer of 2008 when the parties were discussing arrangements for the children in the light of their separation, it was initially envisaged by both parties that they and the children would return to Scotland to enable FG to start primary school in August 2008 but that they would all then move to Ireland in about August 2009. The draft agreements were never signed. Even if they had been signed, both solicitors accepted that the best interests of the children would still have been paramount. However, it was perhaps of some note that it appears that at that point the defender was prepared to go along with the idea that the whole family should re-locate to Ireland at the end of FG's year at primary school. Indeed, this suggestion initially came from him at a point when the pursuer had told him that she wanted to remain in Ireland with the children but he was trying to persuade her to return to Scotland to enable FG to undertake her first year at primary school which was due to start that same month. His thoughts about this at that stage are supported by the terms of the letter, number 5/3/2 of process, which he wrote to the pursuer's parents in August 2008 in which he re-iterated that his intention to "bring the family to Ireland is a sincere one".

 

[22] It was submitted on behalf of the defender that before leaving Ireland in August 2008 he had been "willing to look at the possibility of moving to Naas". However, having seen and heard the defender in evidence, I am satisfied that his intention at that point was rather more than that and that it was, as he said in his letter to the pursuer's parents, to bring the family to Ireland and that this intention was a sincere one at that point in time. At the time, as the defender explained in his evidence, this was so that they could remain a "family unit" and he could remain a part of the children's lives. However, the idea was that they should each get legal advice. He also explained that when he and pursuer had been discussing the draft agreement they had had no experience of caring for children whilst separated. For example, they had been talking about sharing one property even although they would be separated. This he said now sounded naïve. Since then, the financial situation, including the position about jobs in Ireland, had changed dramatically. Initially, he had hoped that he would have been able to continue working for Standard Life, but in or from their Dublin office. However, his employers have since confirmed that that is not possible. The deterioration in the Irish economy gives little prospect of his being able to obtain other suitable alternative work there. He also explained that daily life since then had highlighted to him how important it was for him to remain involved in the lives of the children on a daily basis. I am satisfied that the defender had a perfectly understandable and rational basis for since then having changed his mind about the idea of relocating to Ireland.

 

[23] In relation to the draft agreements, having heard the pursuer's evidence about the circumstances surrounding the drafting of them, I am satisfied that when she and the defender were discussing the drafts she was under the impression that the intention was that that children would live with her principally and that they would see the defender at weekends. Unsurprisingly, the summer of 2008 was a very emotional time for both parties and was perhaps not an ideal time to make long-term decisions and to understand their possible implications. Their relationship had by then been in difficulties for a significant period. The pursuer herself said that although she had telephoned the defender to say that she wanted to separate from him, she still loved him. The pursuer was also described by her mother as having been "quite distraught" at that point and, according to RM, she was "very hurt, let down and abandoned". The defender is legally qualified and was able to draft the agreements. The pursuer was not legally qualified. However, neither party had at that stage had the benefit of impartial, dispassionate legal advice.

 

[24] I found the defender's evidence about aspects of his relationship with the pursuer puzzling. For example, at one point, he gave evidence to the effect that there had been an incident involving the pursuer's sister-in-law, D, during the week of the wedding in July 2009. D had ended up crying. The defender had asked D about it and she had given him "the impression" that something had gone on between herself and the pursuer as D had gesticulated towards her. However, she did not actually say anything to the defender. He told the court that this episode had nevertheless made him realise that he was witnessing a person being used as an "emotional punch-bag" and being left with emotional wounds, and that was what had happened to him. Mrs Girdwood later reminded me in submissions that this had not been put to the pursuer in cross-examination for her comment. The defender went on to say that for him this episode had been representative of something that had changed and that it had symbolised "the end" of their relationship. However, he accepted in cross-examination that he had never actually been told by D what, if anything, had happened.

 

[25] When asked about this episode, the pursuer told the court that she had been unaware at the time that D had become upset and that, when she had later spoken to her about it (following comments from the defender), it became apparent that there had been a misunderstanding between them. Having heard the pursuer's evidence about this, I accepted her account. That apart, what had been striking from the defender's evidence at this point was the way in which he had interpreted it and what he said this had symbolised for him, which appeared quite extreme and not entirely easy to understand. However, when he was later asked in re-examination at what point he had decided that the relationship was not going to go on, he responded to the effect that he had recognised that there were difficulties in the week in July when he had joined the pursuer in Ireland for the wedding but he said that they had not reached the point of having formally separated and that, even after he had returned to Scotland after the wedding, he still had "not entirely closed the door" on the relationship and that he would still have been willing to see if there was a way for them to try to rebuild things between them. It did not seem to me that these two accounts sat at all comfortably together; I was unable to reconcile them.

 

[26] It became apparent from the evidence, including that referred to in paragraphs [24] and [25] above, that the pursuer and the defender have very different temperaments. At one point the defender gave evidence to the effect that the pursuer was used to people "declaring exactly how they feel and what they want" whereas he was perhaps more used to attempting to see beneath what was going on and to dealing with people "who are less vocal". I noted that Ms McFall had, in her report number 13 of process, recorded the pursuer as saying (at page 7) that she was from a family where people talk about their problems whereas in the defender's family things are either implied or inferred, and that this had caused huge problems in their relationship. The pursuer's mother said that from the beginning she had not felt that they were totally suited. The defender himself admitted to being more solitary in nature. For example, in an e-mail number 5/7/1 of process dated 13 December 2007 to the pursuer he said: "I guess I am just more solitary by nature than you - I find I get to a point where I need to be on my own, and if I'm not then I just get irritable and become poor company anyway (even to myself)."

 

[27] A theme I noted in a number of occasions in the pursuer's evidence is that she had felt undervalued and unsupported by the defender during their relationship. I am entirely satisfied that the pursuer genuinely perceived this to be the case. One example was when the defender decided against joining the pursuer and the children to go to Ireland on 26 December 2007 for NG's christening and for New Year there. RM described the pursuer as feeling "very hurt, very let down and abandoned". The e-mail from the defender to which I have just referred in paragraph [26] above had been part of the discussion about this. The defender explained that he was not a Catholic and had not felt comfortable about taking on the responsibilities that would have been expected of him with a Catholic christening. He had been unaware of the extent of these when FG was christened. He had therefore remained in Scotland and then went to Seil Island for two days at New Year 2008 by himself. The pursuer was unable to contact him. He explained that he had wanted to remain in Scotland in case there was a problem concerning his sister who had given birth just before Christmas 2007. That would, as the pursuer accepted, have been understandable. However, he confirmed that Seil Island was about a three hour drive from where his sister then was in Edinburgh, and it is difficult to understand why he did not tell the pursuer that he was going to be on Seil Island at that time. Another example was that the pursuer felt that the defender had been unsupportive during her second pregnancy when she suffered quite severe morning sickness. The defender, by contrast, very strongly denied having been unsupportive, albeit explaining that 2007 had been a difficult year from his point of view. I am satisfied that the defender was genuine in his belief that he had been supportive, and there was no dispute that 2007 was a difficult year for him and his family. In particular, the defender's mother's partner - who had also been a close friend of the defender - died in April that year and the defender's sister, FS, was experiencing difficulties in both her marriage and her second pregnancy. However, my impression is that this is likely to have been an example of a situation where it is quite possible for two people (in this case with quite different temperaments) to have different, but honestly held, perceptions and interpretations of the same events. I think it more likely than not that the defender did not appreciate and understand the pursuer's apparent need for more re-assurance and support. Similarly, I think it more likely than not that the pursuer did not appreciate and understand the defender's apparent desire for some time to himself. She felt that this was the defender being selfish and unsupportive of her. His interpretation was that the pursuer was trying to be controlling of him. Unfortunately, such contrasting approaches did not prove capable of successful resolution by the parties.

 

[28] So far as the pursuer is concerned, it is evident that she has given serious thought to the practicalities of living in Ireland. She would have the close support of her parents and extended family there. Her mother is also prepared to provide her with the use of a house and a car indefinitely. By contrast, she feels quite isolated and unsupported in Edinburgh. She feels that this is also in contrast to the defender who has the assistance of his extended family and friends in Scotland. Although she has friends through her work in Edinburgh, she does not feel that she can, for example, ask them for help with the children. I accepted her evidence about this. She also does not feel that the defender's family are a source of support for her. There was a strained atmosphere between her and members of the defender's family when she attended a drama show in which FG was to be performing in the summer of 2009. FG was staying with the defender for a week at that point. The defender had asked the pursuer not to attend as a number of members of his family were going to be there.

 

[29] She has also secured a place for FG at a primary school in Naas. There was some discussion about the extent to which Irish would be used at this school. However, the core curriculum is taught in English. It was clear from the evidence of the pursuer's sister-in-law, RM, whose evidence I accepted, that the children of FG's age do no more than learn a few everyday phrases and instructions in Irish. I am satisfied that it is unlikely that this would pose a problem for FG. All the evidence I have heard about her satisfies me that she is an able and diligent little girl who is doing very well at school at present. RM, who is a languages teacher, gave evidence to the effect that an ideal time to learn a new language is for children aged between 4 and 8. FG is 5. There therefore seems little reason to think that she would not be able to cope with learning some everyday phrases in Irish.

 

[30] In my view, this is not a case such as AM v IM in which it is clear that the proposed move by the mother was "ill-thought out" as, amongst other things, she did not have any family in Spain, she did not speak Spanish and no school place had been arranged. Ms Dick highlighted a passage in the report by Ms McFall at page 9 in which the pursuer had been recorded as saying that the "worst case scenario is if she and the defender have to live in different countries. She does not believe that such an arrangement is in the children's best interests." However, the pursuer said that she thought that what she had said to Ms McFall had been taken out of context. She had been asked to give a "wish list" and to say what her best case scenario would be. That was that she wanted the defender to come to Ireland as well. She had then been asked to give her "worst case scenario", and that had been the opposite. This accorded with Ms McFall's recollection. The pursuer also did not agree with the final sentence. The pursuer went on to explain that what she was saying about a "worst case scenario" was reflecting an "overriding sense of sadness" that she had had. I accepted the pursuer's explanation about this; I do not consider that it was a concession that relocation without the defender was no longer something she favoured. I agree with Mrs Girdwood that it was rather simply an endorsement of the pursuer's long-held view that the best outcome for everyone, including the children, would be for them to be in Ireland and for the defender to be there as well.

 

[31] The defender confirmed that his life in Scotland is enhanced by the support he has from his extended family and that that might be the case for the pursuer should she move to Ireland, but that this was talking about a "maybe". He went on to make the point that it was not known exactly how the pursuer's experience might work out in Ireland as she had not lived there for quite some time. He thought that it was possible that a move to Ireland might help her but that it was not possible to be certain. By contrast, he emphasised that "it works" for the children in Scotland, but that it was not known if it would work in Ireland for the children.

 

[32] It seems to me that there is a reasonable basis for this apprehension on the part of the defender, not least bearing in mind the uncertainties about the financial situation. Figures were produced to show that, as Mrs Girdwood put it, the pursuer would be "financially secure in the short term". However, it was apparent that an area of difficulty is the extent to which it is possible to have confidence that the pursuer and the children really would be financially secure in the long term in the event of a move to Ireland. Until the current recession, Naas was apparently the fastest growing town in Europe. Many people living there commuted to Dublin every day. It is, however, now clear that Ireland has suffered significantly as a result of the recession and that unemployment there is now high. The pursuer is clearly well qualified. She hopes to obtain part-time employment there, but her applications have so far not met with success. Mr Gordon Cameron, a vocational consultant from Perth, gave evidence to the effect that the pursuer might well face a period of job search of up to about six months. I have to say, though, that his conclusions appeared to be based very much on some internet searches, with some data being less than up-to-date, and a comparison with an area of Glasgow. It was not at all clear to me that the area of Glasgow could be regarded as a reliable comparable. He accepted in cross-examination that the lack of statistics from Ireland, the small sample being used in a comparison he sought to make with the area of Glasgow and Naas and the general uncertainty in the overall economy in Ireland made his evidence more of a "guesstimate". I therefore agreed with the submission by Ms Dick to the effect that his evidence did not provide any concrete basis upon which to reach a conclusion in relation to her prospects for employment in Ireland. I therefore did not feel that I could conclude on a balance of probabilities that the pursuer's search for employment would take no more than about six months. In my opinion, the position about this is little better than speculation. This aspect of matters does not compare well with the certainty of the pursuer's current employment, including a final salary pension.

 

[33] In all the circumstances, despite the fact that I accept that the pursuer has given serious thought to the practicalities of living in Ireland, that she would have the support of her parents and extended family there and that, as I conclude below, I accept that her motivation is genuine, I take the view that a move to Ireland would be a move to uncertainty as compared with the current position of security and stability. I therefore cannot conclude that, viewed objectively, the proposed move to Ireland can be regarded as reasonable.

 

The motive of the parent wishing to take the child abroad

 

[34] As recorded by Sheriff Morrison, to some extent this factor overlaps the reasonableness factor, and parties' submissions in relation to these two factors took this approach.

 

[35] I am satisfied that the pursuer's desire to move to Ireland is genuinely motivated by her belief that she and the children would be happier and more secure living there where she would have the support of her extended family. She impressed me as being a credible and generally reliable witness who was doing her best to give an accurate account to the court. She also said quite openly, and in my opinion honestly, what she genuinely felt.

 

[36] One such statement made by the pursuer in the course of her evidence came to be founded on by the defender, and Ms Dick on his behalf, on the question of the pursuer's attitude towards the defender and her motivation for wishing to relocate the children to Ireland, and was founded on in support of a proposition that the pursuer had a negative perception of the defender. The pursuer was being asked in evidence in chief about what she had said to Ms McFall about a "worst case scenario" (at page 9 of the report number 13 of process). She explained what the discussion had been about at this point and added that she had spoken very plainly to Ms McFall, telling her that she would like the defender to have a "kick up the bottom" to make him realise what he had had - a partner who loved him and was in love with him and two children who are healthy and a lovely home, that was what she had told Ms McFall and that he would realise what he had turned his back on. She then added that having lived with the children for the past 18 months as a single parent had led her to believe that to be the best parent that she could be with a network of support she needed to go where that network of support was and that she believed that that was Ireland.

 

[37] The defender then gave evidence to the effect that the reference by the pursuer to giving him a "kick up the bottom" had indicated to him that she wished to punish him for the separation and he had a fear about what her feelings and attitude might be after the case concluded. He thought that she was more competitive in her outlook on things. He agreed that he was therefore sceptical about her motives.

 

[38] I do not accept that the pursuer is motivated by an aggressive desire, in effect, for vengeance. The way the pursuer explained her feelings gave me the distinct impression of a deep sadness on her part, reflecting on something that might have been but which had been lost and expressing regret for that loss. Her demeanour when she explained her feelings was emotional and she was close to tears at the time. I certainly did not have any impression of aggression; quite the opposite. I also did not form any impression that the pursuer was in some way more competitive than the defender.

 

The importance of the contact with the other or absent parent in the child's life

 

[39] In my opinion, this issue is absolutely fundamental in the present case because the defender has made a significant effort to remain part of the lives of the children since the parties' separation and sees them, or has them with him, for significant periods approximately 12 days out of every 14 days. It was clear to me from the evidence of all who spoke about the relationship between the defender and the children that they have a close and loving relationship. FS, the defender's sister, told the court: "He is a big part of their life." She thought that it would be detrimental to them if the defender was not having regular contact with them. CG, the defender's mother, thought that the children would "miss him terribly". The pursuer very fairly accepted that if the children were in Ireland they would miss the defender. She also accepted in cross-examination that it would be a "very, very different relationship" between the children and the defender if he was only to see them for holidays and at weekends.

 

[40] I have no doubt at all that the children would miss the defender enormously if they were to be relocated to Ireland. I also consider that it is almost inevitable that the quality of the relationship they have with him at present by virtue of the current close and regular contact they have with him would be adversely affected in that event. Contact with the defender is therefore of great importance for the children.

 

The importance of the child's relationship with siblings, grandparents or other members of the child's extended family who are left behind

 

[41] The children have a paternal grandmother, CG, in Glasgow. They see her regularly at present as she comes through to Edinburgh to stay with the defender on most Thursday nights. She collects them from school and nursery that day and then takes them back to school and nursery on a Friday morning. Ms McFall recorded FG as saying (in her report at page 4): "FG has two grannies in Glasgow. Her "wee granny" is the defender's grandmother. But granny [CG] (the defender's mother) is special to FG. Every time she has to say goodbye to her, FG is sad as granny [CG] is a "really very nice person"...She has an aunt called [FS] who has two sons: [A] is also 6 years old and [C] is 2 - just like FG and NG. FG sees her cousins a lot and likes to play with them." FS moved to Glasgow to Edinburgh in December 2008 to reconcile with her husband. Until then, the defender and the children had gone to stay with FS on Friday nights so that the defender could have them with him overnight following the separation.

 

[42] The most significant relationship in Scotland (other than that with the pursuer and the defender) is therefore that between the children and their paternal grandmother, CG. They have a particularly close and loving relationship with her. This relationship is therefore of material importance to the children.

 

[43] The defender also has a cousin, DMcG, who lives in Dunoon. She has two children aged 17 and 7. My impression was that they meet up with the defender and the children on an occasional basis. This relationship is therefore of lesser importance to the children.

 

The extent to which contact (if appropriate) is able to be maintained

 

[44] The pursuer told the court that she would be willing to offer the defender the use of the home she will have in Ireland to enable him to see the children for contact in Ireland. She felt that this would both help him and give the children continuity. Alternatively, he could stay in an hotel. The pursuer, however, accepted in cross-examination that she was not comfortable with the defender making himself at home in the family home, where she continues to live with the children. The defender told the court that the offer of the house in Newbridge was one which he would take up with "some trepidation" as he explained that when he went to the family home in Edinburgh he was refused even things such as a cup of tea. He would accept the offer but would then look for an alternative place where he could see them. I agreed with Ms Dick's proposition to the effect that staying in such alternative accommodation would be a "very far cry" from staying with the defender at present in a place where they feel at home. The defender thought it likely that contact for a weekend would only be possible on a monthly basis having regard to travelling time and the costs involved. This contrasts with the current situation whereby he sees the children about 12 days out of 14 days.

 

[45] As to holiday contact, the pursuer confirmed that she would be agreeable to the defender seeing the children for holiday contact for four weeks over the school summer holidays. As regards weekend contact, she agreed that this would be likely to be at weekends on a monthly basis. She also agreed that the defender would not be able to attend FG's school or get to know the children's friends in Ireland. He currently attends parent/teacher evenings together with the pursuer in Edinburgh. That would therefore no longer happen either.

 

The extent to which the child may gain from a relationship with family members as a result of the proposed move

 

[46] A move to Ireland would enable the children regularly to see their maternal grandparents and the pursuer's brother, SM, his wife, RM, and their four children on a regular basis as they all live close to where the pursuer proposes to live in Ireland. Ms McFall recorded at page 4 of her report number 13 of process FG: "loves her Nanny (her grandmother in Ireland) a lot" and that she knows her uncle SM's four children there "very well". In moving to Ireland, the children would inevitably gain a closer relationship with their relatives there and, in particular, their maternal grandmother, FM. There would therefore be a gain in that respect from the move to Ireland.

 

 

The child's views where he or she is of an age to express them

 

[47] Ms McFall recorded that FG is unaware of any proposed move to Ireland. She was therefore very cautious when speaking to FG. Ms McFall also recorded at page 6 of her report that she met with FG at her school, saying: "[FG] chose school because it is where I suspect, at this turbulent time, she feels comfortable, relaxed and free from pressure." At page 4 of the report number 13 of process Ms McFall went on to record inter alia: "Mostly, [FG] lives with her mum. She is happy in both homes and doesn't prefer one more than the other". She then continued at page 6: "I asked [FG] about the arrangements for her care. She is happy how things are organised at present. It means she sees mum a bit more than dad but "that's fine"." At page 5 she also recorded FG as saying that she "loves going to Ireland" and that "saying goodbye to daddy" makes FG sad. She also "loves school", being at the primary school in Morningside, because "everyone is so nice to her" and she has "great fun there", it is one of her "best places" and she "loves her teachers". She has "lots of friends". There is also no doubt in FG's mind that her parents love her a lot because "they tell me that and I know it is true. They love me a lot." As I have already indicated, the parties agreed that the whole of this section of Ms McFall's report, from which I have highlighted particular passages, is true and accurate. It seems clear from what FG told Ms McFall that her father and her school are two of the most important elements of her life at present. NG was too young to express any views to Ms McFall.

 

The effect of the move on the child

 

[48] Mrs Girdwood submitted that if the children were permitted to move to Ireland with the pursuer they will flourish. This was principally on the basis that they would be in the care of a much happier and more supported mother.

 

[49] The pursuer gave evidence to the effect that she was asking the court to grant the order allowing her to relocate the children to Ireland because she feels that the quality of life will be better for them there. This is because they would have a wide family circle there, in particular her parents and her brother and her sister-in-law, to provide support and accommodation with space, security, a garden and other children on the housing estate where the house is. She feels that these things would be beneficial for the children and their upbringing. However, in cross-examination, the pursuer agreed that in Scotland the children have a good school and a good nursery, that they have friends, that they have both parents, that that was the way the children would be expecting things to continue and that they are happy with that arrangement.

 

[50] Ms Dick submitted that everything that FG describes as positive in her life at the moment can be maintained by her remaining in Edinburgh. She also submitted that it seemed likely that for both children their removal to Ireland would mean a removal of much of significance to them with no obvious corresponding advantage.

 

[51] The defender told the court that the children are happy where they are at present. He believes that this is where they would be happiest and be more likely to realise their potential. The defender was asked in cross-examination if he accepted that in Ireland the pursuer would have the support of a loving family and he replied that she would, but that that the children would be absent the support from him. He was then asked if he accepted that with such support she would be a stronger and more confident parent. I noted with interest his reply to this. He replied to the effect that she was already a strong and confident parent as evidenced by how happy both children are. He said that he was not convinced that any extra happiness that a move to Ireland would bring would offset the amount of upset the children would have to suffer for that to happen. It was this point that he went on to say, as I have recorded at paragraph [31] above, that that "it works" for the children in Scotland, but that it was not known if it would work in Ireland for the children.

 

[52] I think that that is undoubtedly correct to say that everything that FG describes as positive in her life at the moment can be maintained by her remaining in Edinburgh. In my opinion, removal to Ireland would clearly mean removal of much of significance to the children. For example, the reality is that they will be removed from their father, their friends and their extended family in Scotland, subject to contact visits. I have already indicated that I have no doubt that the children would miss the defender enormously if they were to be relocated to Ireland. FG also told Ms McFall that "saying goodbye to daddy" makes her sad. That was consistent with other evidence from both parties to the effect that partings at the end of weekend contact can sometimes be less than easy at present.

 

[53] FG would also be removed from a school which she loves. MJ, the Deputy Head Teacher at FG's current school confirmed that she is an able child academically and that she is very conscientious and applies herself well. SM and RM are very happy with the school in Naas for their son, DM. They are both teachers. I have no reason to think that FG would not settle in well, and do well, there. FG was also described by MJ as "friendly and outgoing" and as getting on well with, and being liked by, everyone she came into contact with. FG has made close friends at school in Scotland. It seems likely that she would be able to do the same in Ireland, but there would still be the upheaval inevitably inherent in a change of school to that in a different country.

 

[54] In relation to the question of whether there would be a corresponding advantage, it seems obvious that there would be an advantage (that being an advantage to the pursuer directly), namely that the pursuer would be likely to be happier and more supported by her family being close at hand. In turn it seems possible that this would of some benefit to the children on the basis that, as the defender accepted in cross-examination, the children's happiness is closely connected to the happiness of the pursuer. However, it also has to be said that even although, unfortunately, the pursuer's position is that she is unhappy with the lack of a support network at present in Edinburgh, the children are nevertheless happy and settled as they are and that, therefore, "it works" for them as things are at present.

 

[55] In Payne v Payne, supra Dame Elizabeth Butler-Sloss referred in paragraph 83 of her opinion to a situation where the effect of refusal of the application was "seriously adverse to the new family, eg mother and child", in which event this would be a factor that had to be given great weight when weighing up the various factors in the balancing exercise. In all the circumstances of the present case, I cannot conclude in this case that the effect of refusal would be seriously adverse to the new family comprising the pursuer and the children.

 

The effect of refusal of the specific issue order on the applicant, particularly where that parent already has a residence order

 

[56] When asked how she would feel if the order was to be refused, the pursuer explained that she was already feeling undervalued as a co-parent and isolated in Edinburgh. The pursuer's mother, MM, thought that the pursuer would be devastated if the specific issue order was to be refused. RM thought that the pursuer would find it daunting to be a mother with two children in Edinburgh with the lack of support that she has. When asked how she thought the pursuer would cope if she was not able to return to Ireland, RM replied that the pursuer's main concern was the children and that "she will cope with anything" as long as she has got the children, although it would be a difficult time for her and the children.

 

[57] The effect of refusal would undoubtedly be a serious disappointment for the pursuer as it is entirely understandable that she should wish to be closer to her parents and extended family, for both practical and emotional support.

 

The effect of refusal on the welfare of the child

 

[58] As I have already mentioned, the pursuer gave evidence to the effect that she already feels undervalued as a co-parent and isolated in Edinburgh. She went on to say that she felt that the children would pick up on how she is feeling, that she would try to deal with it but that it might be a cause of worry for FG.

 

[59] Although the pursuer feels unsupported and isolated in Edinburgh, it has to be said that the children are clearly happy, settled and well cared for as they are. Although FG has been experiencing a sore stomach in recent months, it does not appear that this is thought to be a serious problem. In all the circumstances, it does not seem to me that refusal of the order would have any material effect on the children.

 

Conclusions in relation to the best interests of the children

 

[60] The test is what is in the best interests of the children, their welfare being the paramount consideration. All of the relevant factors in any given case have to be considered in the balancing exercise. Having weighed the various factors arising in the present case, I do not consider that it would be in the best interests of the children in this case to relocate to Ireland.

 

[61] I appreciate that the pursuer has been and continues to be the primary carer, that she has given serious thought to the practicalities of living in Ireland, that she would have the support of her parents and extended family there, that her motivation is genuine and that she will undoubtedly be disappointed by refusal of her request to relocate the children to Ireland. However, this is a case in which the father of the children plays a large part in their daily lives and the fact is that they are clearly happy and settled where they are at present. That is an undoubted fact. By contrast, although it is certainly possible that a move to Ireland might prove to be a help to the pursuer and in turn the children, it is in my view no more than a possibility that this would be to the benefit of the children. The economic situation there is also problematic and the employment prospects for the pursuer are not at all certain. The situation there does not compare well with the pursuer's current position as regards employment. A move to Ireland would therefore be a move to uncertainty as compared with the current position of security and stability for the children.

 

[62] The issue of contact between the children and the defender is also of very real importance in this case. I take the view that it is almost inevitable that the quality of their relationship with him would be adversely affected if contact between them was to be limited in practical terms to approximately monthly weekend contact and holiday contact. On no view would that be in the children's best interests in my opinion.

 

[63] Further, refusal of the order would not in my judgment be likely to have any material effect on the children.

 

[64] In all the circumstances, neither can I conclude that it is better for the children to make the order allowing their relocation to Ireland than that no order should be made. I therefore refuse to make the specific issue order for the pursuer to be allowed to take the children to live with her in Ireland.

 

 

Whether a formal residence order should be made to the effect that they should reside with the pursuer?

 

[65] In addressing this, and the remaining issues, it is necessary to bear in mind the three overarching principles in section 11(7) of the 1995 Act to which I have referred in paragraph [7] above. I have referred to FG's views, so far as relevant, particularly at paragraph [47] above.

 

[66] I took the view that the question of whether the pursuer should be allowed to take the children to live with her in Ireland required to be decided first of all as the answer to this question was highly relevant to the decision about whether a formal residence order should be made as sought by the pursuer. I have decided that an order should not be made allowing the pursuer to relocate the children to Ireland.

 

[67] As I understood Mrs Girdwood's submissions, her position was that the welfare of the children would best be safeguarded by the granting of a residence order in the pursuer's favour on the basis that the pursuer has been the primary carer for the children throughout their lives, that residing with the pursuer would best safeguard their emotional security and that it was better that an order in these terms be made. When I asked Mrs Girdwood to explain this last point, she submitted that it would be better for a formal residence order to be made than not because, although there is a veneer of co-operation between the parties, when the surface is scratched it becomes apparent that there has been a background of some lack of co-operation and lack of goodwill between the parties and that it would therefore be better for the children that there be some certainty. An example she gave to illustrate this was the different regimes about sleeping arrangements (finding-in-fact 42) between about September 2009 and January 2010. This led to disruption in relation to something that was quite a fundamental issue. However, Mrs Girdwood also very fairly said that if a formal residence order was not made and if the specific issue order was not made, she was not suggesting that there would be terrible consequences. She suspected that matters would continue much as they are but that, against the background described, it would be better if the issue of residence was finally determined as it would be better if there was some certainty for the children.

 

[68] The pursuer explained that she was asking the court to grant a residence order as she believes that the children need consistency, continuity, routine and certainty in the pattern of their daily lives, that she can provide that to them, and that she already does. I have to observe at this point that she does indeed already do this and that this has been achieved without any apparent need for a formal residence order.

 

[69] Ms Dick did not accept that there was any need for a residence order to be granted as sought by the pursuer. She submitted that, despite what she said was the co-operation being shown by the pursuer over the arrangements for the children, the defender had a strong concern about the possible consequences of what he saw as being the pursuer's negative perception of him coupled with a tendency to see herself as the one who would be in charge. If the children were to remain in Scotland he feared that those tendencies would increase. He therefore felt the need for a "strong legal platform" to "continue to offer a combined assistance to the children". Hence the thoughts he had given to the practicalities of shared care. It was submitted that there was no suggestion that the pursuer's current status with the children required any legal endorsement. It was a clear example of where the no order principle should prevail. If a specific issue order was to be granted, there would be no need to supplement that with a residence order. If a shared residence order was to be granted, that would define the parental relationship but, if not, the defender would be left with either a contact order or both parties would be left with the status quo, and in any of those situations no case had been made for a residence order. It would have the emblematic and possibly undermining impact which is to be avoided. Much of what had already been submitted was said to be relevant to this aspect also. The evidence had generally been about the involvement of both parents in a co-operative way, which had underlined that the status quo in fact had been managed well between them. A particularly bad outcome for the defender would be a residence order where none is needed as it would seem to endorse a sense of power or control when there has been no need shown for this. Further, Ms Dick submitted that the points made by Mrs Girdwood did not appear to be met or addressed by having a residence order. It would not deliver an answer to such issues as have cropped up between the parties. It would not solve any of the problems outlined and, as such, it would be unnecessary and against the spirit of the legislation. If the defender was to end up with a contact order, then that would define his position with the children. The pursuer had no need of further legal reinforcement. The reality would be that a contact order would restrict the defender's legal position when the pursuer had no need for her legal position to be bolstered or reinforced.

 

[70] I did not accept the contention about a negative perception of the defender on the part of the pursuer. As I have already indicated at paragraph [38] above, I did not have any impression of aggression or competitive attitude on the part of the pursuer towards him. There has never been any suggestion, for example, that the pursuer has attempted to influence the children against the defender. Indeed, my impression is that the position is quite the opposite. However, I do agree with the submission that there is no need for a residence order to be granted as sought by the pursuer. It is true to say that there have been some occasional problems in relation to co-operation between the parties, but generally the level of co-operation between them has been reasonably good and, having regard to the minimum intervention principle, I cannot see how the granting of a formal residence order sought by the pursuer would improve the situation and benefit the welfare of the children. I am satisfied that the children are happy, settled and well-cared for living with the pursuer and that it is in their best interests that they should continue to live with her. However, I do not consider that it would be better that a formal residence order be made than not.

 

 

Whether a shared a shared residence order should be made?

 

[71] The first crave for the defender is for a shared residence order whereby the children would live with the parties on an alternate week basis from Friday to Friday each week. Ms Dick told me that the defender was particularly keen to achieve earlier handovers at a neutral venue and also "to achieve the level playing field" as parents that a shared residence order would provide. I was reminded that at present the defender usually sees the children for 12 days out of 14 and for a significant proportion of their waking hours when not at school or nursery. She submitted that a shared residence order would seem the most appropriate one to be made "to reflect this involvement". She particularly founded on the division of time in relation to the summer holidays in 2009 which everyone agreed had worked well. The arrangement of the children being with each parent had allowed the children to settle in to each household. I was also reminded that the defender would be able to work on a two weekly pattern being, on the week he would have the children, a total of 28 hours comprising 31/2 hours on each of the Monday, Tuesday and Wednesday, 71/2 hours on the Thursday (when his mother would collect them from school and nursery) and 10 hours on the Friday (when his mother would take them to school and nursery). During the second week he would work 45 hours, including 10 hour days on Mondays through to Thursdays.

 

[72] Failing that, Ms Dick told me that the defender was asking the court for a formal award of contact as set out in crave 2 or such other contact as the court may deem appropriate. As Ms Dick's submissions progressed, however, she told the court that, as a fall back to the arrangement sought in crave one, the arrangements as set out in crave 2 for the defender could be "treated as a shared residence arrangement during the school term", with the defender having both children on alternate weeks from Thursday after school and nursery to Monday mornings and on intervening weeks from Thursdays after school and nursery until Saturday mornings at 10am. She said that the balance of time would still allow longer periods for the children to be with each parent continuously and minimise difficult handovers. In that event, the defender would seek to have FG from 8am until 8.45am on Wednesdays only to allow him to take her to school that day and NG from noon until 1pm only on Tuesdays. She submitted that such an arrangement would give almost equal time with each parent and that "being granted as a shared residence order" (as opposed to a contact order) would reflect the defender's involvement and "reinforce the status" and commitment of both parties.

 

[73] Failing that, if a "joint residence order" was not made, I was told that the defender would still seek to have an order for alternating weekend contact as set out in crave 2 to minimise "late handovers" and that he would be willing to drop or restrict the morning and lunchtime contact if necessary.

 

[74] Mrs Girdwood said that she was uneasy about the submissions that had been made by Ms Dick about turning the second crave for the defender into a shared residence crave and the consequences which flow from that because what was being said about that was that that would somehow "reinforce" the defender's role in the life of the children. She submitted that that was not a child-centred approach. The name given to an order did not change anything from the perspective of the children. That appeared to be like the "stamp of approval" which had been criticised in Treasure v McGrath, supra. I was reminded that that was a case in which Sheriff Morrison had been critical of the suggestion that parental rights and responsibilities should be conferred by the court to gain a "stamp of approval" or to be conferred to give a parent standing in society in relation to his daughter. In that case Sheriff Morrison observed: "They have to be merited as being in the best interests of the particular child in the circumstances." Mrs Girdwood submitted that either there was a compelling reason having regard to the welfare of the children to grant a residence order or not. Calling something a residence order as opposed to a contact order would not benefit the children at all.

 

[75] I was also reminded by Mrs Girdwood that the pursuer does not feel valued as a co-parent at present and that that did not bode well for a shared care arrangement. The pattern of shared care the defender sought in his first crave would in effect deny the children any contact with their mother for 7 days at a time and would involve their being collected from nursery and school on one day in that cycle by the defender's mother. Even although they get on well with her, there would be no benefit to them in being with her as opposed to their mother. There was also some uncertainty about how the defender's work pattern would operate in the 30 hour week proposed in the flexible working arrangement suggested. In cross-examination he had spoken of working for 3 1/2 hours on the Monday, Tuesday and Wednesday of the week when he would have the children in a shared care arrangement but for longer on a Thursday so that his mother would have to deal with the arrangements for the children on a Thursday afternoon. What he seemed to envisage would result in working for very long hours at other times which MW, his line manager, seemed to suggest would be discouraged by Standard Life. MW confirmed that, in line with company policy, the new work pattern would be reviewed after a period of three months to ensure that it supported both the demands of work and his personal life. He went on to say that if there was concern about this the defender might be asked to work fewer hours. The question of the extent to which this might result in a reduction of the defender's income was not explored.

 

[76] Further, Mrs Girdwood submitted that for shared care to function well and in the interests of the children there required to be an excellent relationship between the parents and high levels of co-operation, mutual respect and support. There has been some co-operation but there have also been problems with divergent approaches to some things with which the children have had to cope. Mrs Girdwood referred to the differing regimes there had been about sleeping arrangements between September 2009 and January 2010, saying that she thought this was very confusing for the children, and the defender's refusal to agree to allow FG to use a new bicycle he had bought her at the family home where she lives with the pursuer. Mrs Girdwood questioned in what sense such a response by the defender could be said to co-operative or placing FG's best interests first. The pursuer had also explained in evidence how FG loves her own space and that she was very proud of "her own corner and her belongings".

 

[77] I was reminded that the pursuer believes that the current contact arrangements should prevail. I was also reminded that the additional contact as proposed in terms of crave 2 would effectively mean that the children would never have a full weekend in the care of their mother. I was also reminded that the handovers took place at 6.30pm which it was submitted could hardly be described as "late" and that in any event they had become less problematic of late.

 

[78] The tenor of the defender's evidence and Ms Dick's submissions gave me the clear impression that the defender was at least in part motivated by concerns about legal labels and his status in the eyes of the law. When asked why he was seeking a shared residence order, he replied to the effect that he thought that the children would be best served if he and the pursuer had an equal input and say in their lives and that he had some fears and concerns that if he was formally given what might be seen as "a secondary role in the eyes of the law" that would not be in their best interests. However, it was not apparent to me that a legal label in the form of a formal order this would make a difference to the welfare of the children in this case. I agreed with Mrs Girdwood's submissions on this issue, as recorded at paragraph [74] above. It should also be recalled that the defender has parental rights and responsibilities in relation to both children.

 

[79] In the light of the evidence, I am satisfied that the parties have usually maintained a reasonably good level of co-operation. For example, the parties have attended parents' evenings together since their separation and they co-operate over arrangements for birthdays and the provision of presents to the children. However, there have been some problems, which is why I have found that co-operation has only been reasonably good. One problem was the differing arrangements between September 2009 and January 2010 about where the children would sleep, as referred to in finding-in-fact 42. It is no surprise that this was unsettling and confusing for the children. In particular, it is no surprise that FG was lonely sleeping on her own room in his house when she was used to sharing a bedroom with NG at the pursuer's home. Despite the fact that the defender maintained that he had "a link to FG's deeper feelings", it is perhaps surprising that he did not appreciate this until FG told the pursuer and the pursuer in turn told him. It is unfortunate that it took quite as long as it did to co-ordinate the sleeping arrangements as between the two houses. However, I did not think that this was due to any deliberate intention on the part of the defender to try to cause difficulties. He accepted that the pursuer had told him about the new sleeping arrangements once she had put them in place, but explained that it would helped if she had shared her plans about this in advance. He told the court that he had already been thinking about bunk beds for them, but that it had then taken a bit of time to find suitable bunk beds for them. I had no reason not to accept his evidence about this.

 

[80] A further problem in relation to the question of co-operation between the parties was an occasion in the summer of 2009 when the defender had bought FG a new, light, bicycle without stabilisers. She already had a heavier bicycle with stabilisers at the family home. The pursuer contacted the defender to say that FG was delighted to have learned to ride a bicycle without stabilisers and she asked if FG could use the new lighter bicycle without stabilisers at the family home. The defender refused this request. He wanted the new bicycle to remain something for FG to use at his house to be sure that she would always have a bicycle there. I have to record that the defender's negative response to the pursuer's request concerned me. I felt that this sent an unhelpful, and perhaps rather combative, message and it caused me to wonder if this might be an example of the defender thinking more of himself and his position than of what was in FG's wider best interests.

 

[81] The strained atmosphere at the drama show at which the children were also present - referred to at paragraph [28] above - although perhaps understandable in the difficult circumstances of a separation, was also unfortunate.

 

[82] I also felt that it was not a very good sign from the point of view of seeking a shared residence order that the defender seemed to feel that it would be best for handovers to be at a neutral venue (in his evidence he referred to not having "any direct interaction" as being an apparent benefit). That did not seem to me to sit entirely comfortably with what Ms Dick said about the defender's evidence when she said: "He recognises that the current very happy and confident children described by all parties are a product of two parents co-operating over their care in Edinburgh." Just after this I was, again, reminded that the defender was looking for a "seal of approval, looking for endorsement of a good working team".

 

[83] In relation to handovers, the defender told the court that Friday evening handovers had been a source of upset for FG in 2009; she had regularly been expressing a wish to stay longer with him. He felt that being asked to go with "someone else" (that someone else being their mother) at the end of the day when they were tired was "a bit of an ask". To deal with this he had sometimes gone back to the family home with the pursuer and the children to help put them to bed there. However, the situation with FG improved towards the end of 2009. Instead, NG then started becoming upset at handovers on Sunday evenings. The pursuer told the court that after the change in contact arrangements in October 2009 there had been some problems at handovers with NG crying and FG asking to stay with the defender for longer. The pursuer thought that NG might be punishing her for not being with her, being a hangover from the time when NG had been so clingy in relation to the pursuer. The pursuer had felt that handovers could benefit from being more positive. The situation had however improved more recently. Having heard the evidence of both parties about handovers, I did not have the impression that there were serious continuing problems. I also agreed with Mrs Girdwood that 6.30pm could hardly be described as "late night" handovers.

 

[84] The pursuer accepted that the holiday arrangements in the summer of 2009 had gone well. However, her position was that these periods of alternate weeks during the summer holidays could hardly be said to be indicative of the normal rhythm of life for the children as they had been enjoying holiday activities such as drama clubs, trips away, circus visits and other events and being off school and nursery. The defender accepted in cross-examination that the pattern of contact in the summer was not on all fours with the regular pattern of contact when there was a normal routine when FG would be going to school and he would be going to work.

 

[85] The pursuer also told the court that she thought that if there were to be different regimes this would be very confusing for the children. Another way she put it was that she thought that it would be "wholly disruptive, confusing and unsettling" for them. In particular, she felt that FG would find it very difficult to deal with the proposal which would mean a change every week. I was also reminded that NG is still very young. The pursuer thought that as regards either the "alternate week scenario" or the extended weekend to a Monday, it would be unfair on young children to take them away for such periods from their mother who put all her needs before her own. Her belief is that the children need consistency, continuity, routine and certainty in the pattern of their daily lives, that she can provide that to them, and that she already does that.

 

[86] In all the circumstances, I take the view that the children are happy, settled and well-cared as they are, living principally with the pursuer, and that it is in their best interests that the current arrangements, including the current arrangements about contact, should continue as they are. I do not consider that their welfare would be better served by their living with each parent for alternate weeks as proposed in the defender's first crave or, alternatively, the extended weekends to a Monday as sought in his second crave. It is an undoubted fact that they are happy and settled where they are at present and with the current arrangements. I take the view that there is a real risk that changing that regime materially, which is what I consider the defender's alternative proposals (both craves one and two) would do, would be likely to be disruptive, confusing and unsettling for them and would mean that they would be away from their mother for many days at a time. I do not consider that that would be in their best interests. It follows that I also do not consider that it would be better that a shared residence order be made than not.

 

 

Whether a formal order for contact should be made in favour of the defender?

 

[87] In the course of her evidence, the pursuer had expressed some doubts about the benefit to NG of the defender seeing her for an hour on Mondays and Tuesdays each week from 12 noon until 1pm when she is at nursery. However, if she was not with him during this period she would simply be at nursery waiting to be collected by the pursuer at 1pm. It seems to me that if the defender is willing and able to take her for this same period, it is better that she should be with him.

 

[88] Mrs Girdwood confirmed in submissions that the pursuer believes that the current contact arrangements should continue. That being so, and consistent with the approach I have taken at paragraph [70] above about there being no need for any formal order in relation to residence, I cannot see that there is any need for a formal contact order in favour of the defender. As Ms Dick submitted in relation to the residence order sought by the pursuer, such problems as there are did not appear to be met or addressed by having a formal order. To adopt the words she used in that context: "It would not deliver an answer to such issues as have cropped up between the parties. It would not solve any of the problems outlined and, as such, it would be unnecessary and against the spirit of the legislation." In my opinion, the same can be said in relation to a formal contact order. Having regard to the minimum intervention principle, I cannot see how the granting of a formal contact order sought by the defender as a fall-back position would improve the situation and benefit the welfare of the children.

 

[89] As I have already indicated, however, I take the view that the current arrangements as to contact - including holiday contact - should continue, and that includes the one hour periods on Mondays and Tuesdays when NG is at nursery. As it happens, these latter periods were not formally sought in crave two for the defender, but this is part of the current arrangements.

 

 

Result

 

[90] In the result, I make no formal order in favour of either party. I would, however, wish to encourage both parties to do their best to co-operate with each other as this will undoubtedly make a significant difference long-term to the welfare of FG and NG. Both girls are fortunate to have parents who are so obviously devoted to them.

 

[91] I would also like to record my appreciation to both Mrs Girdwood and Ms Dick for the sensitive and careful way in which they both conducted this case.

 

 

Expenses

 

[92] Parties were agreed that there should be no award of expenses due to or by either party as both parties are legally aided.