Scottish Sheriff Court Decisions

SHERIFFDOM OF TAYSIDE, CENTRAL AND FIFE AT KIRKCALDY

 

 

F262/03

JUDGMENT   of   SHERIFF ALASTAIR G D THORNTON   in causa   DY PURSUER   against   LY DEFENDER   and   STEVEN THOMAS GLEESON, Curator ad litem to LGY   MINUTER __________

Act: Samson, Blackadders

Alt: Chalmers, Black & Guild

Curator ad litem: Gleeson, Gleeson McCafferty

 

 

 

Kirkcaldy 31 August 2011.

The Sheriff, having resumed consideration of the cause, FINDS IN FACT:

 

[1] The pursuer is the father of LGY (L) born 5 February 2000. The defender is the mother of L. At the date of the proof the pursuer was aged 40 and the defender was aged 47.

[2] The pursuer and the defender were married in the United States of America on 7 February 1997. 5/3/2 is their marriage license.

[3] Their only son L was born in Dayton, Ohio, USA on 5 February 2000. 5/3/1 is his birth certificate. At the date of the proof L was 11 years old.

[4] The pursuer was born and brought up in Athens, Ohio, USA. His father still lives there. His mother is no longer alive. His sister, who is his only sibling, lives with her family in Indiana, USA. His extended family of aunts, uncles, and cousins on both his mother's and father's sides is large, extending to about 200 individuals, most of whom live in the vicinity of Athens, Ohio. The pursuer also has a number of friends, many of whom live in Ohio.

[5] The defender was born and brought up in Scotland. Her elderly parents live in Edinburgh.

[6] The pursuer and the defender met when the defender was travelling in the USA in about 1996. After they married they lived together in Athens and later in Preble County, Ohio.

[7] In about June 2001, the defender told the pursuer that her father was unwell and that she wished to return to Scotland for three months. She took L with her. The pursuer gave her written permission to take L out of the USA for this purpose.

[8] It was not true that the defender's father was unwell at this time. About 2 weeks after returning to Scotland, she admitted this to the pursuer. She asked the pursuer to come and live with them in Scotland.

[9] The pursuer subsequently made arrangements to come to Scotland arriving in about June 2002. Both parties and L have lived in Scotland ever since.

[10] On the pursuer's arrival in Scotland, the pursuer and the defender lived together for a period with L. They attempted reconciliation which was unsuccessful. In about August 2003 the defender removed herself and the child L from their house in Kirkcaldy without warning.

[11] Having traced the defender in Edinburgh through her parents, the pursuer raised these proceedings for a residence order in respect of L, which failing for contact.

[12] Between about November 2003 and October 2009, the pursuer enjoyed residential contact with L.

[13] Since at least 2007, L had expressed the wish to reside with his father instead of with the defender. In about October 2009, with the consent of the defender, L went to reside with the pursuer.

[14] At that time he moved school to X Primary School, and has flourished there, performing well academically, making a number of friends and enjoying sporting and other activities after school.

[15] Since October 2009, the defender has exercised residential contact with L every fortnight from Friday afternoon to Sunday evening.

[16] Throughout these proceedings, no interim order for residence has been pronounced by the Court; L presently resides with his father with the agreement of the defender and without the necessity of such an order being granted.

[17] The parties are now divorced. .

[18] The pursuer formed a new relationship in about 2003 and married MY on 24 July 2008. L resides with the pursuer and MY at their home, which is owned by MY, near Cupar, Fife.

[19] The pursuer does not wish to live in Scotland. He is homesick and misses being with his family and friends in Ohio. In particular he wants to be close to his father who is suffering from a serious illness. He dislikes living in Scotland to the extent that he presents with anxiety/depressive symptoms. He suffers from low mood, poor sleep pattern and irritability. He has been prescribed medication for depression and has attended psychiatric counselling. His symptoms cause concern to his wife and to L.

[20] The pursuer wishes L to experience life as a child growing up in Ohio and to get to know his large extended family there, in particular his grandfather, the Pursuer's own father. His motive for seeking relocation is genuine.

[21] The pursuer has maintained regular contact with family and friends in Athens since moving to Scotland in 2003. He has visited them on several occasions over that period. He knows what life is like there.

[22] The relationship between the pursuer and L is extremely close and loving. L is devoted to his father, and spends a lot of time in his company. They engage in many pursuits and activities together from which they both derive great enjoyment.

[23] L also has a close bond with the defender. He loves her, although at times their relationship is difficult. He is critical of her and sometimes does not behave well with her. During his contact periods with her, he also sees her parents and is fond of them.

[24] L finds some of the time he spends on contact with his mother to be boring. Little of the time they spend together is focused on activities of the kinds he favours.

[25] L wishes to relocate with his father and MY to Ohio. His wishes are genuine and sincerely held. He wishes to experience the different type of lifestyle that a child of his age will enjoy there. He wishes to enjoy the outdoor pursuits and the leisure and sporting activities which the climate there encourages. His expectations are largely based on the pursuer's stories of his own childhood experiences in Ohio. L also wishes to spend more time with his paternal grandfather and with the other members of the pursuer's extended family and friends.

[26] L will miss his mother's presence and affection if he moves to Ohio.

[27] L has only visited the USA on one occasion in Summer 2009 and then for less than 2 weeks. He travelled there with his father and MY. They spent about 1 week with the pursuer's sister and her family in Indiana and the rest of the time in Ohio seeing the pursuer's father and some of the pursuer's old friends. The Pursuer's father has also visited the pursuer in Scotland and has seen L there several times.

[28] The pursuer is a self-employed tattoo artist. He has his own studio in Dundee. His designs have won a number of awards. His business is reasonably successful and provides a reasonable income. He was previously successful in the same occupation in Ohio before he came to Scotland in 2003. His skills as a tattoo artist are readily transferable. He has offers of work in studios in Athens, Ohio. If relocation is permitted, he will start his own business in the nearby city of Lancaster within a few months. He will encounter no difficulty in obtaining the requisite health certificates and permissions to undertake work as a tattoo artist in Ohio.

[29] The defender is in part-time employment as a catering assistant at a school during term time, but she is principally reliant on state benefits for her income.

[30] MY has run a number of small businesses. She is currently engaged in business as a chocolatière which she operates from the home she shares with the pursuer and L.

[31] As the spouse of a US citizen, MY is eligible to seek a Green Card to enable her to live permanently in the United States. She will be granted a Green Card by the US immigration authorities. With the possession of a Green Card, MY may carry on her business in Ohio.

[32] As the child of an American citizen, L will be permitted to remain in his father's care in the USA.

[33] The pursuer has a willing buyer for his tattoo business in Dundee at a reasonable price, and is in a position readily to sell his other assets in Scotland or transfer them to the USA.

[34] The pursuer will be able to afford to rent suitable accommodation in or near Athens, Ohio for himself, L and his wife.

[35] MY will be able to sell her property near Cupar at a price sufficient, after redemption of the relative mortgage, to allow the purchase of a comfortable three- or four-bedroomed house in or near Athens, Ohio for the pursuer, L and herself.

[36] There are suitable schools available for L to attend in Athens. These schools have a good reputation. L will have little difficulty in settling into school there.

[37] Relocation to Ohio would entail a very significant reduction in the amount of contact which it would be possible for L to have with his mother.

[38] The defender's financial circumstances will prevent her from travelling to have contact with L in the USA.

[39] Continuing contact between L and the defender is sustainable in the event of relocation to Ohio being permitted, as is continuing contact between L and the defender's parents.

[40] In the event of relocation to Ohio, L will have very regular contact with his closest relatives there and will develop relationships with many other members of his wider family.

[41] L will be happy if he is permitted to relocate to Athens, Ohio.

[42] If relocation is refused L will be very disappointed and will blame the defender for frustrating his expressed wishes.

[43] If relocation is refused, the pursuer will stay in Scotland to care for L. His depressive symptoms will continue and may worsen, and his wife and L will continue to have concerns for his well-being.

 

 

FINDS IN FACT AND IN LAW:-

(1) That L is habitually resident in Scotland;

(2) That the pursuer is not entitled unless with the consent of the defender (which is withheld) or by order of this court to remove L from the United Kingdom;

(3) That it is in the best interests of L to continue to reside with the pursuer;

(4) That it is not necessary for a residence order to be made;

(5) That it is in the best interests of L that the specific issue order sought by the pursuer be granted;

(6) That it is in the best interests of L that he continues to have contact with the defender;

(7) That it is better that the specific issue order and an order for ongoing contact be made than that no orders should be made at all.

 

THEREFORE Sustains the pursuer's second, third and fourth pleas-in-law; Repels the pursuer's first plea; Sustains the defender's seventh plea-in-law to the extent of making the aftermentioned order for contact; Repels the defender's first, second, third, fourth, fifth, sixth, eighth and ninth pleas; Sustains the minuter's second plea-in-law to the extent of making the said order for contact; Repels the minuter's first and third pleas; Refuses the pursuer's first crave and the minuter's first crave as being unnecessary; Grants the pursuer's second crave for a specific issue order allowing the child LGY born dd/mm/2000 to relocate with the pursuer to the United States of America, subject to the contact order hereinafter made in favour of the defender; Refuses the defender's first, second and fourth craves; Grants the defender's third crave and the minuter's second crave for contact, but only to the extent of making an order providing that the said child shall have direct residential contact with the defender in Scotland for a continuous period of at least two weeks' duration during the child's school summer holidays each year, and indirect contact by means of telephone, e-mail and Skype at least once every three days throughout the rest of the year; Finds no expenses due to or by any party; and Decerns.

 

 

NOTE

The issue

[1] The issue in this case is whether the Pursuer should be able to take the parties' son, L, now aged 11, to live in Ohio in the United States of America in or near to the city of Athens, Ohio. Such a move is opposed by the defender and also by the child's curator ad litem. The Pursuer raised the issue by way of a crave for a specific issue order under section 11(2)(e) of the Children (Scotland) Act 1995. L's residence is not in dispute - he is to continue to live with his father. Nor is it disputed that L should have continuing contact with his mother. Parties are agreed that no order should be granted in relation to residence. If the Pursuer is allowed to move to Ohio with L, parties are agreed that a formal order in relation to contact with the defender should be pronounced. The defender seeks an order for contact in the event that the specific issue order is refused.

[2] The proof proceeded over 4 days: 13, 14 and 15 June 2011 and 25 July 2011. I heard evidence from the Pursuer, from his second wife MY, and from Mrs Samantha McManus, who had experience of living in Athens, Ohio and of the schooling there. On behalf of the defender, evidence was led from the defender herself, and from her friends, Mrs Hilary Dickie and Mrs Alison Brown. Mr Gleeson, solicitor, L's curator ad litem also gave evidence on his own behalf. In addition on 19 July 2011 I had an opportunity to meet L himself and to ascertain his views.

[3] Submissions were called for in writing within 7 days after the closing of the proof in order to facilitate as early a decision as possible.

 

The law
[4] Section 2(3) of the Children (Scotland) Act 1995 is in the following terms:

"Without prejudice to any court order, no person shall be entitled to remove a child habitually resident in Scotland from, or to retain any such child outwith, the United Kingdom without the consent of a person described in subsection (6) below".

 

Subsection (6) states that such person is a person (whether or not a parent of the child) who for the time being has and is exercising in relation to the child the rights of residence or contact. Since the defender does not consent to the removal of L from the United Kingdom, the legislation requires the making of a court order if such removal is to be allowed. This is the order sought by the pursuer in terms of section 11(2)(e) of the 1995 Act.

[5] In considering whether or not to make such an order and what order to make, the court is required by section 11(7) to do certain things. The court

"(a) shall regard the welfare of the child concerned as its paramount consideration and shall not make any such order unless it considers that it would be better for the child that the order be made than that none should be made at all; and

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

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

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

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

 

Put short, section 11(7) specifies the relevant tests as being:

(1) the welfare test, which is to be paramount;

(2) the "no order" principle;

(3) the need to obtain and consider the views of the child.

Apart from these three tests, there are no other specific factors set out in legislation which the court is required to take into account.

[6] I was referred to a number of authorities. The agents for all parties referred me to Payne v Payne [2001] Fam 473; M v M [2008] Fam LR 90; K M v M G [2010] WL 1608452 or [2010] GWD17-33. The Pursuer's solicitor also referred me to McShane v Duryea [2006] Fam LR 15 and X v Y [2007] Fam LR 153. Both the Pursuer's solicitor and the curator ad litem also referred me to S McC v J McC [2010] GWD 39-790; Re.F (Children) (Internal Relocation) [2010] EWCA - Civ 1428; and D v K [2011] GWD 20-469 and 2011 WL 2039813. Finally the defender's agent also referred me to the Washington Declaration of International Family Relocation and Re.AR (A Child; Relocation) [2010] EWCH 1346. None of these authorities is binding on me. It appears to me that all of the cases to which I was referred turn on their own specific facts. A common feature of all the Scottish cases is that they take into consideration the decision of the Court of Appeal in England in Payne v Payne. I have been referred to certain dicta in that case which it is appropriate to set out. Thorpe LJ at para [26] said:

"In summary, a review of the decisions of this court over the course of the last 30 years demonstrates that relocation cases have been consistently decided upon the application of the following two propositions:

 

(a) The welfare of a child is the paramount consideration; and

(b) Refusing the primary carer's reasonable proposals for the relocation of her family life is likely to impact detrimentally on the welfare of her dependant children. Therefore her application to relocate will be granted unless the court concludes that it is incompatible with the welfare of the children".

 

[7] Later Thorpe LJ goes on to state at para 40:-

"However there is a danger that if the regard which the court pays to the reasonable proposals of the primary carer were elevated into a legal presumption then there would be an obvious risk of the breach of the respondent's rights not only under Article 8 but also his rights under Article 6 to a fair trial. To guard against the risk of too perfunctory an investigation resulting from too ready an assumption that the mother's proposals are necessarily compatible with the child's welfare, I would suggest the following discipline as a prelude to conclusion:

(a) Pose the question: is the mother's application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child's life? Then ask is the mother's application realistic, by which I mean founded on practical proposals both well researched and investigated? If the application fails either of these tests refusal will inevitably follow.

(b) If however the application passes these tests then there must be a careful appraisal of the father's opposition: is it motivated by genuine concern for the future of the child's welfare or is it driven by some ulterior motive? What would be the extent of the detriment to him and his future relationship with the child were the application granted? To what extent would that be offset by extension of the child's relationships with the maternal family and homeland?

(c) What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal?

(d) The outcome of the second and third appraisals must then be brought into an overriding review of the child's welfare as the paramount consideration, directed by the statutory checklist insofar as appropriate.

41. In suggesting such a discipline I would not wish to be thought to have diminished the importance that this court has consistently attached to the emotional and psychological well-being of the primary carer. In any evaluation of the welfare of the child as the paramount consideration great weight must be given to this factor."

[8] Later in the decision of the Court of Appeal in Payne, Dame Elizabeth Butler-Sloss P said at para [85]:-

"In summary I would suggest that the following considerations should be in the forefront of the mind of a judge trying one of these difficult cases. They are not and could not be exclusive of the other important matters which arise in the individual case to be decided. All the relevant factors need to be considered, including the points I make below, so far as they are relevant, and weighed in the balance. The points I make are obvious but in view of the arguments presented to us in this case, it may be worthwhile to repeat them.

(a) The welfare of the child is always paramount.

(b) There is no presumption created by section 13(1)(b) of the Children Act 1989 in favour of the applicant parent.

(c) The reasonable proposals of the parent with a residence order wishing to live abroad carry great weight.

(d) Consequently the proposals have to be scrutinised with care and the court needs to be satisfied that there is a genuine motivation for the move and not the intention to bring contact between the child and the other parent to an end.

(e) The effect upon the applicant parent and the new family of the child of a refusal of leave is very important.

(f) The effect upon the child of the denial of contact with the other parent and in some cases his family is very important.

(g) The opportunity for continuing contact between the child and the parent left behind may be very significant."

 

[9] I think it is important to reiterate that the test which I have to apply is the three-fold one set out in section 11(7). While it may be helpful to note how factors of particular relevance have been addressed in other cases and in other jurisdictions, this court requires to reach a view on:

(a) What is in L's best interests, his welfare being the paramount consideration;

(b) Whether it is better for the child that the order sought be made than that none should be made; and

(c) The need to have regard to the views of the child, taking account of his age and maturity.

In each case there will be a number of particular factors and considerations which it is appropriate for the court to take into account and weigh in the overall balance when determining what is in the best interests of the child. I am not persuaded that it is appropriate to approach the decision-making exercise on the basis that one of these particular factors or considerations, such as the wishes of the relocating parent, should be afforded any special status. That factor is of course of relevance and importance, but I do not consider that it should be approached by the court as possessing a special elevated importance beyond that of other relevant factors. To the extent that the dicta in Payne suggest that the proposals of the parent with residence wishing to relocate should be given a weight which is greater than other factors, I am not inclined to adopt the Court of Appeal's approach in Payne.

[10] I am fortified in that view by a number of other authorities. In M v M Sheriff N M P Morrison, Q.C., set out his own list of relevant factors. As we shall see that list suggests that the court should consider in addition to other factors the reasonableness of the proposed move abroad and the motive of the parent wishing to relocate. Sheriff Morrison states that in considering reasonableness, the court will give considerable weight to the wish of an applicant parent to move, but that the weight to be given to that parent's wish is still subject to the best interests test. In D v K Sheriff W H Holligan expresses reservations about placing too heavy a reliance on English authority in this matter on the basis that the statutory regime in England is a little different from that in Scotland but mainly, as I read the learned Sheriff's judgement, because the decision as to what the welfare of the child demands requires the court to make a judgement on the basis of the material put before it. Since each case must turn on its own facts, what is a factor in one case may not arise in another and a factor of great weight in one case may be of little or no importance in another. In X v Y Sheriff E T McFarlane expressed reservations about placing too great an emphasis on the list of considerations enunciated in Payne by Dame Elizabeth Butler Sloss. I respectfully agree with Sheriff McFarlane that the Scottish courts must always be guided by the principles set out in section 11(7) of the 1995 Act.

[11] In addition, Ms Chalmers for the defender has referred me to the Washington Declaration on International Relocation from March 2010 which was agreed by more than 50 judges and other experts from a number of countries around the world including the United Kingdom and the United States of America. The Declaration set out a different list of factors relevant to decisions on international child relocation. The factors listed are said to reflect research findings concerning children's needs and development in the context of relocation. The Declaration states that the purpose of the list is to identify more clearly cases in which relocation should be granted or refused, and to promote a more uniform approach internationally. It provides that the exercise of judicial discretion should be guided in particular, but not exclusively, by some 13 factors which are listed in no order of priority. It is stated that the weight to be given to any one factor will vary from case to case. Interestingly the wishes and concerns of the parent with residence seeking to relocate are not specifically enumerated among the Declaration's 13 factors. The list is as follows:

" (i) the right of the child separated from one parent to maintain personal relations and direct contact with both parents on a regular basis in a manner consistent with the child's development, except if the contact is contrary to the child's best interests;

(ii) the views of the child having regard to the child's age and maturity;

(iii) the parties' proposals for the practical arrangements for relocation, including accommodation, schooling and employment;

(iv) where relevant to the determination of the outcome, the reasons for seeking or opposing the relocation;

(v) any history of family violence or abuse, whether physic al or psychological;

(vi) the history of the family and particularly the continuity and quality of past and current care and contact arrangements;

(vii) pre-existing custody and access determinations;

(viii) the impact of grant or refusal on the child, in the context of his or her extended family, education and social life, and on the parties;

(ix) the nature of the inter-parental relationship and the commitment of the applicant to support and facilitate the relationship between the child and the respondent after the relocation;

(x) whether the parties' proposals for contact after relocation are realistic, having particular regard to the cost to the family and the burden to the child;

(xi) the enforceability of contact provisions ordered as a condition of relocation in the State of destination;

(xii) issues of mobility for family members; and 

(xiii) any other circumstances deemed to be relevant by the judge."

 

[12] The Declaration has been considered by Mostyn J in Re.AR (a Child; Relocation) in which he commented on Payne and the line of authority which followed it at para. 8 as follows:-

"Indeed there is a strong view that the heavy emphasis on the emotional reaction of the thwarted primary carer represents an illegitimate gloss on the purity of the paramountcy principle."

 

At para. 11 Mostyn J goes on to say:-

"The Declaration supplies a more balanced and neutral approach to a relocation application, as is the norm in many other jurisdictions. It specifically ordains a non-presumptive approach. It requires the court in a real rather than synthetic way to take into account the impact on both the child and the left-behind parent of the disruption of the periodicity and quantum of the prevailing contact arrangement. The hitherto decisive factor for us - the psychological impact on the thwarted primary carer - is relegated to a seemingly minor position at the back end of para 4(viii)."

 

[13] Because each case will turn on its own facts, no list of factors can ever be exhaustive. Indeed para xiii) of the list in the Declaration includes "any other circumstances deemed to be relevant by the judge". I am not particularly attracted to adopting the Declaration's list for the purpose of my own consideration of relevant factors in the case before me. I say this because, while I am not persuaded that undue weight should be placed upon any negative impact upon an applicant of refusal to allow relocation, it also seems to me that the Declaration places insufficient weight upon that factor. It seems to me that this is a factor that merits consideration along with all other relevant factors. In Re.AR (a Child; Relocation) Mostyn J seems to have accepted this up to a point. At para. 12 he says:

"Certainly the factor of the impact on the thwarted primary carer deserves its own berth and as such deserves its due weight, no more, no less."

 

[14] I am more attracted by the approach taken by Sheriff Morrison in M v M to identifying the factors which should be included when considering whether an order permitting a child to more abroad should be granted. It appears to me that Sheriff Morrison's factors are relevant to the issues which arise in the present case before me. These factors are as follows:

(1) The reasonableness of the proposed move abroad;

(2) The motive of the parent wishing to take the child abroad;

(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 is able to be maintained;

(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;

(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.

I will consider these factors in relation to this case, but first it is appropriate to set out some background information.

 

Background
[15] The Pursuer is a native of Ohio, USA. The defender was born and brought up in Scotland. They met in Ohio when the defender was travelling there. Up to that point the Pursuer had lived all his life in and around the city of Athens in Ohio. They formed a relationship and married on 7 February 1997 in Ohio and lived there thereafter for a number of years before their son L was born on 5 February 2000. Unfortunately there were problems in their relationship, and the defender became homesick. In about June 2001 she sought permission from the Pursuer to take L back to Scotland with her for 3 months during the summer on the pretext that she wished to visit her father who was unwell. The Pursuer gave his permission, but it transpired that in truth the defender's father was not unwell. She told the Pursuer that she wished to stay in Scotland with L but that she wanted to remain married, and she asked the Pursuer to come to live with her in Scotland. It took around 9 months for the Pursuer to arrange to emigrate to Scotland. He arrived in Scotland in about June 2002.

[16] The parties lived together in Kirkcaldy while they attempted to reconcile their differences. Unfortunately this was not successful and in about August 2003 the pursuer returned home from work to find that his wife and child were not there. The next day the defender telephoned him to inform him that she had moved out. She told him that he could not have contact with L until she had obtained legal advice. She refused to disclose where she and L were living and subsequently told the pursuer that he could only have contact with L under supervision at her parents' home. The defender accepts that her removal of L from the USA on a false pretext and her later removal without notice of the child from the parties' home in Kirkcaldy were reprehensible.

[17] The pursuer was able to discover the whereabouts of the defender and L. Shortly thereafter the parties agreed that the pursuer should have frequent unsupervised contact with L. This lasted for sometime but was stopped by the defender when she learned that the pursuer had formed a new relationship with someone else. This is the person he has now married, MY.

[18] The Pursuer raised this action as one for a residence order which failing contact in August 2003. The action came before the court on a number of occasions in 2003. An agreement was reached between the parties in relation to contact. The child L resided with the defender without the need for any interim orders and in November 2003 the Pursuer was awarded interim contact to L three weekends out of four and residential contact during the school holidays. This arrangement for contact continued without interruption until 2007. The relationship between L and his mother became more difficult. L indicated that he preferred spending time with his father than with his mother. Mr Gleeson who had originally been appointed to provide a bar report in 2003 and had subsequently been appointed as L's curator ad litem, proposed a variation in the contact arrangements to allow the defender to spend more time with L at weekends provided that she made arrangements for L to engage socially with children of his own age. On 27 June 2007 contact between the Pursuer and L was reduced to every alternate weekend, but this did not achieve the anticipated benefit for L and on 7 November 2007 interim contact reverted to the prior arrangement of 3 weekends out of 4.

[19] L continued to reside with his mother until 2009 when a diet of proof was discharged and the defender consented to L residing with his father in accordance with his wishes. Accordingly she became the party exercising residential contact every alternate weekend and for one half of the school holidays. She deserves considerable credit for deciding that L's best interests at that time would be served by living with his father. This decision must have been difficult for her. To date there has been no requirement for a residence order to be granted to either party, nor has the court required to adjudicate between the parties with regards to specific details for contact, the parties having largely made arrangements directly between themselves or their agents.

[20] Despite the expressed wishes of L to visit the USA to meet his relatives there, the defender declined to give her consent to such a trip until 2009. L has visited the USA on one occasion with the pursuer and MY during which time he met relatives and friends of his father.

[21] The pursuer met his current wife, MY, in about June 2003. They started living together in summer 2004 and have resided together in the house owned by MY near Cupar since about the end of 2004. They married in July 2008. It was clear to me from the evidence that they have a very close, warm and loving relationship.

[22] After the pursuer learned that the reason given by L's mother for returning to the UK in June 2001 with L (the serious illness of her father) was not true, he was angry and upset, but missed L greatly and decided to come to the UK himself. It took him some time to make the financial arrangements, but he arrived in Scotland in about June 2002. From the outset he has disliked living in Scotland. The only reason he is doing so is to be with L. He misses living in Ohio and his family and friends there. He is very homesick and is continuing to receive treatment for the symptoms of anxiety and/or depression which are attributed to his having to live in a country he dislikes.

[23] Since 2003 the pursuer has consistently believed that L's best interests would be most appropriately served by returning to live in the United States where L has many relatives and where the pursuer considers that the quality of life and lifestyle offered in the vicinity of Athens, Ohio would be substantially better than that L can experience in Scotland.

[24] The relationship between L and his father is an extremely close and loving one. This has been the case since L was a young child. It is clear from the first bar report (No.12 of process), written when L was three years old, that the reporter was impressed with the close bond and affection between father and son, and the extent to which they enjoyed each other's company. The warmth and closeness of their relationship has continued and developed in the subsequent years, so much so that from 2007 L repeatedly expressed a desire to go to live with his father. Since October 2009 when, with the agreement of the defender, L went to live with his father, the closeness of their bond has developed. They spend a lot of time playing together and the relationship is one of friendship, not just that of parent and child. L also has a good and happy relationship with his father's new wife.

[25] L loves his mother, but he does not enjoy her company as much as his father's. He finds a number of the activities which he undertakes with the defender to be less interesting and enjoyable than those he does with the pursuer. Now that L is living with his father he still does not find his fortnightly residential contact with the defender to be stimulating. He sometimes requires to be encouraged and persuaded by his father to go for contact. On occasion he has behaved badly during contact with his mother and she has required to telephone the pursuer for him to speak to L about his behaviour. L is intolerant of his mother drinking alcohol, which she does in company with her friends. In addition to the fortnightly residential contact, L also speaks by telephone to his mother every other day, but he sometimes has nothing to say to her.

[26] On contact visits with the defender, she regularly takes L with her to visit her parents, who are quite elderly. L is fond of them but again he does not find that there is much for him to do on these visits.

[27] Communications between the pursuer and the defender are not easy. There is much anger and resentment on both sides, and as a result very little communication.

[28] Since about June 2007 L has repeatedly stated his firm wish to go to live in America with his father. He has visited America on one occasion only, for about two weeks in summer 2009. He met family members and friends of his father. Roughly half of the holiday was spent in Indiana and the other half in Ohio. The bulk of L's understanding of life in Ohio comes from his father's experience and memories of growing up and living there until 2003. The pursuer's knowledge of his home state and particularly the area of Athens, Ohio is very extensive. MY has also only experienced Ohio when on holiday there.

[29] Athens, Ohio is a city of some 22,000 people, set in the lower hills of the Appalachian and Allegheny Mountains of the USA. It is the seat of Ohio University, which is the largest employer in the area. There is no longer much large-scale industry there. The climate is substantially different to Scotland. The seasons are more pronounced; it is considerably warmer during the summer months and colder in winter. The weather during each season is much more consistent and less changeable than in the UK. The climate enables people to enjoy a lifestyle which is more outdoor-based. Sporting and other outdoor activities are very popular. Such a lifestyle is appealing to L.

[30] The pursuer has offers of employment to work as a tattoo artist in studios in Athens. It is likely that he will be able to set up his own studio within a relatively short period after arrival there. He will encounter no difficulty in obtaining the necessary health certificates and permissions to operate as a tattoo artist in Ohio.

[31] The pursuer and his wife are in regular contact with a real estate agent in Athens. They have obtained particulars of a number of suitable properties for sale in the Athens area. The pursuer and MY would require to realise assets in Scotland in order to purchase a suitable house there. The pursuer is able to raise sufficient funds from the sale of motor vehicles and equipment in Scotland to fund the relocation. However, in order to purchase a house in Athens, the house which they presently occupy with L near Cupar, which is owned by MY, must be sold.

[32] There are suitable schools available for L in Athens. Subject to passing an IQ test, it is likely that L would enter Athens Middle School at grade 7 level, spending two years there before moving on to High School. It is expected that L will have no difficulty in satisfying the IQ test, but if there are any problems he would enter grade 6, which is the final year, at Athens Elementary School. The pursuer attended Athens Middle School and High School himself, as did many of his relatives and friends, and he has fond memories of his time there. The pursuer indicated in his evidence that L would find it easier to settle into High School in Ohio if he had previous experience of being in school there. He would be accepted more readily by other children at High School if he knew the school system and some of his fellow pupils previously. I accept that this is likely to be true, and that, in the event that relocation is permitted, it would be better for L to attend Middle School (or Elementary School) first before starting High School. The autumn term for schools in Athens commences on about 22 or 23 August 2011. If the move were to be allowed, L would be able to start school there shortly after arrival.

[33] As a native American citizen the pursuer does not require permission to return to the USA to live and work. L was born in the USA, but does not hold a US passport. As the child of a US citizen, L may enter the USA and remain in his father's care thereafter. When he is 18 years old, he will be entitled to apply for an American passport. At that stage he will have to choose between having a US passport or a UK one.

[34] As the spouse of a US citizen, MY is entitled to apply for permanent residence in the USA (known as a Green Card, which will also allow her to work there). She could apply for this permission in the UK before travelling to America, but she has not done so. It is proposed that she would travel to America on a tourist visa and then apply for her Green Card there. Although she has a criminal conviction for drink driving, there is little doubt that she would be granted a Green Card.

[35] If L were to relocate to Ohio with his father and MY, there would be a very significant reduction in the amount of contact he presently has with his mother. Instead of spending alternate weekends with her and longer periods during school holidays, the pursuer proposes to bring L back to Scotland for two or three weeks every summer to see her and his grandparents here. He also says that the defender will be welcome to visit L in Ohio and have contact with him there at any time she wishes, but the defender's restricted financial circumstances mean that it is very unlikely that she will be able to afford to travel to America. In addition the pursuer proposes that the defender should have very regular indirect contact with L by telephone or email or Skype. The defender does not have a computer so communication by email or Skype would be difficult for her, but the pursuer indicated that if necessary he would provide her with a computer for this purpose.

 

The witnesses

[36] There was very little material controversy between the parties as to the facts of what has happened in the past. I found all the witnesses to be credible and reliable in this regard. The real differences between the parties arose in relation to the success or otherwise of the contact between L and his mother; the reasonableness of the relocation proposals; L's views on the proposals and the weight to be attached to them; the impact those proposals would have upon L and his mother if granted; and their impact upon L and his father if they were refused. It is much more difficult to make assessments of credibility or reliability in relation to witnesses expressing opinions about emotional or hypothetical issues. However it is possible for the court to indicate which of these views or opinions it accepts and which it does not, and I shall do so below in the context of addressing the relevant factors for decision in this case.

 

The submissions

[37] The solicitor for the pursuer argued that, while the starting point for identification of relevant factors is Payne, I should base my decision on the similar, but not identical, list of factors set out by Sheriff Morrison in M v M. He chose to address his client's motive for wishing to relocate L before dealing with the other factors enumerated by Sheriff Morrison, but I did not consider this difference to be of any consequence as I did not understand him to be arguing that motivation should be given any predominance or special importance as a factor. He submitted that L would enjoy a better quality of life in Ohio and that he would benefit greatly from meeting and being with his father's extended family there. He said that the pursuer has a substantial connection with Athens, Ohio, which he knows very well, he can readily obtain employment there and earn a living, good schooling is available there for L, as is suitable accommodation and there will be no difficulties with immigration for L or MY. He suggested that significant weight should be placed upon L's views: the child wishes to move to the United States. His views are firmly held and sincere. The move will cause a very substantial reduction in contact with his mother, but there will still be ongoing contact (albeit much restricted) and in any event L does not derive much enjoyment from his time during contact with his mother. His relationship with her is somewhat strained. If relocation is refused, L will feel resentment against his mother and his relationship with her will deteriorate further. It was also argued that the impact of refusal on the pursuer would be severe as he already suffers from depression through having to live in Scotland.

[38] For the defender it was argued that the proposal to relocate was not reasonable. The arrangements for employment, accommodation, schooling and immigration to the USA (particularly for MY) had been inadequately researched and thought through. The extensive regular contact L presently has with his mother is an important element in his life and it is not in his best interests for it to be reduced as substantially as would be necessitated if the relocation were to be permitted. The weight to be given to L's views requires to be moderated by his age and lack of experience of life in America. Like the agent for the pursuer, the defender's solicitor also submitted that I should have regard to the list of factors set out by Sheriff Morrison in M v M. She referred to the Washington Declaration of International Family Relocation and to the way in which the various factors enumerated in the Declaration were set out, with the issue of the impact of refusal on the parent with care not being separately identified in the way in which it was by the Court of Appeal in Payne. I have already indicated that it appears to me that the way in which the Declaration is expressed may place insufficient weight upon that factor. If the impact of refusal upon the parent with residence is to be a specific factor, then I also consider it appropriate to take into account the impact of granting the order upon the parent whose contact with the child will be affected.

[39] The curator ad litem submitted that I should have regard to the factors set out in Payne and in M v M. He also argued that I should consider seven differently expressed factors which he proposed as suitable for the circumstances of this case. It appears to me that most of these differently expressed factors fit within Sheriff Morrison's list in M v M. However, in my view, one of the curator's factors does not do so. The curator suggests that the court should pose the question: "Is this a move that is absolutely necessary for the pursuer or is this a matter of choice and indeed a move necessitated by selfish motives on his behalf?" While the motive of the applicant is identified as a relevant factor in M v M, it seems to me that the curator's reference to necessity, indeed absolute necessity, seeks to introduce a new factor which is not to be found in other authorities. The applicant parent requires to demonstrate that the proposal to relocate is reasonable, but I am of the view that he does not have to satisfy the much higher test of necessity. In my view the test of necessity is not an appropriate one for such a case. Indeed it might be difficult to envisage any parent who seeks to move with their child to a different country being able to satisfy the court that such a move is truly necessary. Since the overriding test must be that of the best interests of the child which requires a balanced and rounded analysis of all relevant circumstances, I do not think that it can be correct that the application be periled because a proposal which may be reasonable cannot be demonstrated to the court to be necessary as such. I therefore prefer to have regard to the factors set out by Sheriff Morrison in M v M.

[40] The curator submitted that L's knowledge of life in the United States comes almost entirely from his father and is based upon the pursuer's rather rosy and elderly memories of the place. L is devoted to his father and wishes to please him, and weight should not be given to his expressed wish to live in the United States because he does not possess a sufficient knowledge or understanding of what life there will be like to comprehend what the move will mean for him. He has a close and loving bond with his mother and grandparents in Scotland, whereas no such relationship exists at present with his relatives in America. He is happy at school in Scotland and performing well. A move to America will involve upheaval and it is not known whether he will fit in there. The defender has demonstrated her love for L and her commitment to his best interests by agreeing to his going to live with the pursuer. L enjoys extensive regular contact with his mother, which is in the child's best interests. This would be drastically affected by a move to the United States, and the pursuer's proposals for ongoing contact in that event would provide no adequate substitute for what L and his mother would lose. Furthermore, the curator submitted that the pursuer's reasons for wanting to relocate are not sufficiently strong, nor are the arrangements for making a life in Ohio adequately researched. Accordingly he argued that the proposed relocation is not reasonable. He conceded that a refusal by the court to permit the move could sour relations between L and his mother and their relationship could deteriorate. However, he believed that L could cope with a refusal provided that it is not dwelt on by the pursuer. Overall the curator argued that it is not in L's best interests to move to Ohio.

[41] I now turn to consider the relevant factors.

 

Discussion

 

Reasonableness
[42] This is not a case where the pursuer wishes to relocate because a move is necessary for work reasons, or because of a new relationship. These appear to be the most common causes for relocation. I shall consider what lies behind the proposed relocation in this case under the heading of "Motive" below.

[43] The pursuer was born in Athens, Ohio and lived there for about 26 years of his life. He has maintained regular contact with family and friends in Athens since coming to Scotland 9 years ago. In addition to regular telephone and e-mail communications he has visited them in Athens four times since 2003. He has a good understanding of what life is like there.

[44] He has a very large extended family there, in particular his father who is elderly and has not been in the best of health. L has met the pursuer's father both in Ohio and in Scotland. The pursuer is close to his sister Theodosia (Dodie) who lives with her family in the neighbouring state of Indiana, about 5 hours' drive from Athens by car. It is possible that she and her family may return to Athens. L gets on well with her sons, his cousins.

[45] Since at least 2003 the pursuer has believed that it would be in L's best interests to live in the USA. He considers that L would benefit from a better lifestyle there. His views to this effect are mentioned in Mr Gleeson's first report to the court in November 2003 (no. 12 of process at page 15). Mr Gleeson considered at that time that the pursuer's views in this connection were sincere, and I am satisfied that they have remained consistent and genuine since then.

[46] The climate in Ohio favours an outdoor lifestyle which is attractive to L, to the pursuer and to MY. Samantha McManus, a witness for the pursuer who spent just over a year in Athens in 1998-1999 while her husband was studying at Ohio University, spoke in fond terms of the very pleasant environment and the good quality of lifestyle there. She emphasised the relaxed way of life with a focus on socialising, eating and enjoying leisure activities out of doors. She and her family made friendships which have endured to this day. She has returned there six times since then, and her view of Athens remains very positive. Contrary to a suggestion in Wikipedia about the area, she - like the pursuer - said that the area was not economically depressed, but relatively prosperous. If I had had any concerns about the pursuer's view being too rose-tinted, these were dispelled by Mrs McManus's clear, rational and favourable description of life there.

[47] From the evidence I am in no doubt that the pursuer will have no difficulty in earning a living in Ohio. He is a successful, indeed award-winning, tattoo artist and his skills are in demand. He has received offers of employment from tattoo studios in Athens already, and he has a track record of setting up and running four successful studios himself in Ohio and in Scotland. He has maintained contact with a number of customers in Ohio who are keen for him to return. His plans to work for an existing studio in Athens first before setting up his own business in the more populous city of Lancaster seemed to me to be sensible, realistic and not over-ambitious. I am satisfied that he will be well able to provide for L and for MY if relocation is allowed.

[48] MY also has a track record of setting up reasonably successful businesses. Her present enterprise as a chocolatière is a new one and is not yet well-established. However her analysis that chocolate is as popular in Ohio as in Scotland seemed to me to be a reasonable one, and she can obtain assistance in Ohio from the same US-based franchisor with whom she presently deals. Provided that she is able to obtain a Green Card to live and work in the USA (see paras. [55] and [56]), I am satisfied that it is likely that she will be able to run her business there and derive an income which, together with the pursuer's earnings, will support a reasonably comfortable living.

[49] It was argued on behalf of the defender and the curator that the ability to earn a living in Ohio is not guaranteed. That is true, but in my view, based upon my assessment of the pursuer and his wife, such an outcome is very likely. I do not consider that it is necessary for the pursuer to place before the court plans which are guaranteed to achieve a particular outcome. I can conceive of virtually no plans of such a kind where an actual guarantee of success could be given. The most that the applicant in such a case can reasonably be expected to do is to demonstrate that he or she has investigated the situation and that his or her plans are likely to succeed. In this case I take the view that the pursuer's plans for earning a living in Ohio have a strong prospect of success.

[50] I am satisfied on the evidence that the pursuer has a keen buyer for his tattoo business in Dundee, Mr Rafal Zydonik, (see No. 5/7/1 of process), and will realise about £10,000 on the sale. Together with selling his pickup truck and one of his motorcycles, which are also readily saleable, the pursuer will raise about £18,000, which will easily meet all the costs of relocation to Ohio.

[51] The pursuer and MY have looked at a number of properties to buy in or close to Athens. They have identified a particular favourite, but their ability to purchase will be dependant upon selling their present home near Cupar which belongs to MY. They say that an informal verbal valuation of £185,000 was given on that house about 3 years ago, and they have done work on it since to enhance the value. They also gave evidence that the property is in a sought-after location and that a neighbouring house recently sold very quickly and at a good price. A formal valuation would have provided both them and the court with greater assurance about value and marketability, but I can understand a reluctance to incur significant expense without knowing whether permission to relocate is to be given. The property has an outstanding mortgage over it of £65,000.

[52] I also accepted MY's evidence that it is likely that she will be able to sell her property and realise a net figure of around £120,000 after redemption of the mortgage and payment of the expenses of sale. Based upon the information provided from their real estate agent in Athens, I am satisfied that, at present exchange rates, it is very likely that the proceeds of sale will enable the purchase of a comfortable house in or near Athens without the need for a mortgage. In the event that a mortgage is required, it is likely to be only for a moderate sum which could be afforded from the pursuer's income.

[53] Their immediate intention on arrival, if the order is granted, is to live with the pursuer's father for a short time and then look to rent suitable accommodation in Athens. Evidence was given, which I accepted, that there is plenty of accommodation of a good standard which is available for rent in Athens. I am satisfied that the pursuer will be able to afford the cost of renting accommodation from his income as a tattoo artist, whether as an employee or later as the proprietor of his own business. He will also have the balance of funds left from the sale of his business and vehicles after payment of the immediate costs of relocation.

[54] It is fair to say that this aspect of the pursuer's proposals is not comprehensively researched, and depends upon a number of assumptions which he and MY have made about the saleability of her house and the price it will achieve, but I am not persuaded that these assumptions are unrealistic or unreasonable. Rather I consider that there is a substantial likelihood that their expectations will be realised.

[55] The evidence showed that the pursuer has also made some assumptions about the ease with which his wife can obtain permission to live permanently in the USA (her Green Card). While she can enter the USA on a tourist visa, she cannot reside there permanently with the pursuer without a Green Card. There is some doubt on the evidence whether she can apply for her Green Card while she is in the USA, or whether she will require to return to Britain and apply to the US authorities here. My view on the evidence is that she will be able to apply in the USA, but even if I am wrong in that, she will be returning to the UK in any event to deal with the sale of her house and so she can apply at that time. I am sure that the pursuer will assist in any way necessary. I am not prepared to be critical of MY for not having applied to the US authorities in Britain before now without knowing whether the relocation would be allowed. That seems to me to be approaching a counsel of perfection.

[56] A doubt was also raised on behalf of the defender about the impact upon MY's application for a Green Card of her conviction for drink driving a few years ago. She does not know for certain whether this will affect her application, but neither she, the pursuer nor the curator believed that it would create a substantial problem for her. Indeed they all were in no doubt that that she would be granted a Green Card. On the basis of the evidence led, I am prepared to reach the same conclusion.

[57] L will turn 12 during the next school year. The defender's agent referred to information which suggested that because of his age L would not be eligible to start at Athens Middle School until August 2012. The pursuer's communications with staff at Athens Middle School indicated that L would be able to start there in 2011 provided he passed the appropriate IQ test. I accepted the pursuer's evidence about his conversations with Athens Middle School. L is an intelligent child and has every prospect of passing the IQ test satisfactorily. If he were not to gain entry to the Middle School this year, he would attend one of the 5 elementary schools in the area and then move on to the Middle School in 2012. The precise elementary school would depend largely on the part of Athens in which they may be living.

[58] Mrs McManus' daughter was 10 when their family went to Athens. She attended elementary school and Mrs McManus was very complimentary about the quality of schooling there. The school handled her daughter's minor learning difficulty very well. Her daughter made a particularly close friendship with a girl there who went on to attend Athens Middle School and High School. The McManus family have maintained close and regular contact with this girl and her family. They are attending her wedding in Ohio this year. They know that the girl received a good education in the Middle School and High School and that she was very happy there.

[59] Considering all aspects of the pursuer's proposal for relocation, I am satisfied that it has been properly researched and considered and is a reasonable one.

 

Motive

[60] As I have indicated, the pursuer's view that L's best interests would be served by living in the United States has been, and is, consistently and sincerely held. Apart from the quality of life in Ohio which he believes to be significantly better than in Scotland, he wishes to live closer to his family in the USA and to give L the opportunity to get to know them.

[61] The pursuer is undoubtedly homesick and suffering from symptoms of depression as a consequence. I accepted the evidence which he and MY gave in this connection along with the letter from his general practitioner, Dr Cruikshank (No. 5/4/22 of process). I accept that the pursuer is very unhappy living in Scotland and has a strong desire to return home to Athens, Ohio. I also accept that if permission were to be granted for the relocation, his depressive symptoms would probably be alleviated entirely.

[62] I am in no doubt that the proposed relocation is not motivated by a desire on the pursuer's part to damage L's relationship with the defender or to frustrate contact between them. Rather I consider that the pursuer is in favour of L having ongoing contact with his mother and that he will do what he can to facilitate this despite his own very strained relationship with the defender. However the effect of the move would be to reduce the extent of direct contact between L and his mother very significantly. I will deal with that aspect below.

[63] I am of the view that the pursuer's motivation for the proposed relocation is genuine.

 

The importance of the contact with the defender in the child's life

[64] Until October 2009 the defender was L's primary carer. Since then he has spent every alternate weekend with her as well as half of the school holidays. This is quite a substantial amount of contact, and if relocation were to be permitted, it would involve a very significant reduction in the extent of face-to-face contact between L and his mother.

[65] L has regularly indicated that he gets bored during his time with the defender. Activities with her are less stimulating for him than the time he spends with his father. As an 11 year old boy, he does not find visiting shops with his mother very interesting. On occasion they have "days-in" at her house which are not particularly enjoyable for him. Sometimes they go to the cinema or swimming which he likes. Recently they went to the National Gallery of Scotland. On the whole he derives greater enjoyment from different, perhaps more masculine pursuits with his father. The defender has a regular routine of going to the home of one of her friends, either Hilary Dickie or Alison Brown, every Friday night. There are usually 6 adults present as well as 3 children of around L's age. Sometimes there are 3 older children there as well. When L is staying with her she takes him too. They all have dinner and generally the adults relax, enjoy each other's company and conversation and drink some wine. The children eat and play together and sometimes watch television. It is clear that the defender enjoys these evenings and they are an important part of her weekly life. L values these evenings less. He is not close to the children there. The defender believes that L is happy to go there but he has told his curator and his father that he does not enjoy himself at her friends' homes. He told me that he and his mother do not really do much during contact visits, and that they always seem to do the same thing. He specifically told me, as he told his curator, that he does not like seeing his mother drinking wine "and getting drunk".

[66] When he was living with her before October 2009 he did not have many friends to play with outside school. They lived outside the school's catchment area, so none of his school friends lived nearby. He was not particularly friendly with other children who live near her home. The defender was given an opportunity in 2007 at the suggestion of the curator to provide him with more stimulating activities at weekends when in her care, and contact with the pursuer was reduced to enable this. However she found it very difficult to achieve this, and after a short time L went back to spending three out of four of his weekends with his father.

[67] After L went to reside with his father, he expressed an unwillingness to go for contact with his mother. He was persuaded by the pursuer and MY to go, and has not subsequently refused to do so, but I accept that sometimes he expresses reluctance.

[68] He often finds that he has little to say to his mother when she telephones during the week. Sometimes he feels that these regular telephone calls are an imposition. The defender is aware of his feelings.

[69] The defender accepts that her relationship with L can sometimes be difficult, though at other times it can be close and loving. She knows that L seems to blame her for many things, but she ascribes this to the influence of the pursuer. I am in no doubt that she would find L moving to live in America and the inevitable resultant reduction in contact to be extremely upsetting. She would miss him and his company enormously. The routine of spending every other weekend with L would be shattered. I would have a great deal of personal sympathy for any parent affected in that way. A balanced analysis requires me to have regard to the impact on the defender if the order should be granted, but the critical issue to determine is what is in L's best interests. If those are likely to be affected by her distress at the granting of an order permitting relocation, then it is appropriate for me to weigh that with other relevant factors. However I did not hear evidence in this case which would entitle me to draw an inference that such distress on her part would have a damaging effect on L's well-being.

[70] The defender clearly feels that it is important for her to have the contact she does at present with L. However I am satisfied that, from L's perspective, the quality and enjoyment of the contact is not all that it might be, and accordingly it is of lesser value to him. It is beyond question that it is in L's best interests to continue to have contact with his mother, but the quality of contact would be improved if it had less of the routine about it. The defender was given an opportunity to do something about this in the past, but she did not manage to achieve this. I consider that L would have little difficulty in coping with a reduction in the regularity of contact, but the effective consequence of relocation would be to cut out all weekend visits and leave only some of the holiday contact in place. I am of the view that L is likely to miss his mother if that were to be the only contact he could enjoy with her. It would be very important for L to stay in close and regular touch with his mother in other ways, and I shall say more about this below.

 

The importance of the child's relationship with other relatives who would be left behind

[71] The evidence indicated that the only other relatives in the UK with whom L has any contact are his maternal grandparents. They are in their 80s and both of them have experienced significant health problems within the last 2 years. They live fairly close to the defender. She takes L to see them quite often, at least once a month. She conceded that this is not very exciting for L, but he does love his grandparents. L told me that, if allowed to move to the USA, he would still want to see them during annual visits to Scotland, but he would not particularly miss seeing them between visits. He would like to keep in touch with them by phone, e-mail or Skype.

[72] L also sees MY's parents from time to time. If the relocation is permitted, MY will maintain contact with them and this will involve L on occasion.

[73] The defender's parents have other grandchildren who reside in Canada. They see these grandchildren when they visit from time to time and otherwise maintain contact with them by telephone.

[74] I am satisfied that a bond exists between L and his mother's parents. If the move were allowed, it would have a material effect on the frequency of direct face-to-face contact between them. Provided that some contact between them remains in place, albeit reduced in frequency so far as direct contact is concerned, I consider that the bond between the child and these grandparents will be maintained, and L is unlikely to miss them to a significant extent.

 

The extent to which contact is able to be maintained

[75] Since L moved to live with the pursuer and MY in October 2009, the pursuer has encouraged him to go for contact with his mother whenever he showed some reluctance. The pursuer believes that it is in L's best interests that he still have contact with the defender notwithstanding any move to the USA if that were allowed. He proposes that he and his wife would bring L back to Scotland for 2 or 3 weeks each summer, and that L would spend most of this time with the defender. MY would be visiting her parents in Blairgowrie at this time and the pursuer would accompany her. This was confirmed by MY. The pursuer would like L to spend a short time at the beginning and end of the visit with MY's parents.

[76] He said that the defender would be welcome to come and visit L in Ohio at any time. I am sure that if she did travel to Ohio, the pursuer would certainly make appropriate arrangements for her to spend as much time with L there as possible. However it was clear from the evidence that the defender's financial circumstances are restricted and that there is no reasonable prospect of her being able to afford a trip to the United States.

[77] The pursuer also proposes that there be very regular indirect contact between L and his mother. He suggested that this could be several times each week, after L has come home from school. Because of the time difference, that would equate to about 9 pm in Scotland. He suggested the use of Skype (i.e. internet-based telephone) or e-mail. Both would require the use of a computer at either end, but the defender does not have a computer. Her parents do have one, but according to her they do not use it very often and it may not work. Her father has an iPad. Although she works in a school, she says that access to a computer there is not available. L has been given a laptop computer by the pursuer. The advantages of Skype as a means of communication are that it is considerably cheaper than making telephone calls, and it is possible for the callers at each end to see each other as well as speaking to each other. But I am satisfied that on her income the defender is not in a position to afford to purchase a computer to enable communication by Skype or e-mail, nor to meet the monthly cost of an appropriate internet connection.

[78] In his evidence, the pursuer said that, if necessary, he would buy a computer for the defender to enable her to have contact by Skype and e-mail with L. I took him at his word.

[79] Though the pursuer's proposals would involve a very substantial reduction in the amount of face-to-face contact between L and his mother, I am satisfied that meaningful contact between them could still be achieved by means of a period in Scotland during the summer holidays and the indirect contact by phone, Skype and e-mail which is suggested. I think it is inevitable that the pursuer would have to bear a proportion of the resultant cost, because of the defender's financial circumstances and because it seems to me to be fair that the parent proposing the move should, where appropriate, make a contribution towards the costs of ongoing contact being maintained. This has already been anticipated by the pursuer offering to provide the defender with a computer.

 

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

[80] The pursuer's father lives just outside Athens. He is 60. The pursuer stays in close touch with him - they speak on the telephone about three times a week. The pursuer gave evidence that his father has problems with his kidneys and a blood disorder, and suffered a significant period of illness in summer 2010. However his father remains active and would be available to spend a substantial amount of time with L, taking him hunting and fishing, for example. It is submitted that L would derive much pleasure from this, and I accept that that is probably correct. L has already met his grandfather in Scotland and spent a short time with him in Ohio in 2009. In addition L speaks to his grandfather on the telephone about twice each week.

[81] During his holiday in the USA in summer 2009, L spent about a week with his Aunt Dodie (the pursuer's sister) and her family in Indiana. He met her sons, Jase and Gage, aged 11 and 15 respectively, and got on well with them. Their home is about an 8 hour drive from Athens. There was some suggestion during the pursuer's evidence that they might come back to live in Athens, if the pursuer returned there with his wife and L, but I considered this to be more than a little uncertain. If Aunt Dodie and her family remain in Indiana, L will still be able to see them quite regularly, in the event of a move being allowed.

[82] L has also met one or two other relatives in Ohio, albeit briefly. Some of them are very elderly. There is a large family reunion every year in Athens. In 2010 it was attended by more than 200 individuals.

[83] If the court allowed L to relocate to Ohio, there is no doubt in my mind that he would have extensive contact with his closest relatives in the USA, and would also get to know many other relations who live there. He would gain a fuller knowledge and appreciation of his larger family from development of these relationships, and I consider that he would benefit from this.

 

The child's views (where he is of an age to express them)

[84] L is highly intelligent and articulate. He expresses himself very clearly, sometimes in a way one would expect from an older person. When I met him, I was impressed by his calm and sensible way of talking about what was important to him. I am in no doubt that he wishes to be allowed to relocate to Athens, Ohio with his father. He was extremely enthusiastic about this, because it would allow him to spend time with his grandfather there and get to know his cousins - 7 or 8 in number - as well as his father's friends who live in the area and their children who are around the same age as him. He accepted that he had not spent very long in Athens when on holiday in the USA in 2009, but he has learned a great deal about life there from his father and also through regular phone conversations with his grandfather. He knows that some of his cousins attend Athens Middle School and that they like it there. He is looking forward to being part of a large extended family of about 200 and being able to see them all. He is excited by the idea of being able to engage in a number of outdoor activities like hunting and fishing, as well as sports such as baseball, basketball, hockey, soccer and American football. He is particularly interested in playing basketball and hockey.

[85] He has a strong sense of being American. He was born there and feels that Ohio is where he comes from. However he indicated to me that his main reason for wishing to live there is to get to know his family who live in that area. L told me that the possibility of living there is something he finds "very, very cool" and he feels he would be embarking on "a big adventure". I am also in no doubt that he is devoted to his father, and knows that his father is unhappy in Scotland and vehemently wishes to return to the USA.

[86] I am also satisfied that the views held and the wishes expressed by L are sincere and genuine on his part. He has not articulated them in order simply to please his father. He really does want to go.

[87] It is submitted by his mother and by Mr Gleeson as his curator that L does not possess sufficient knowledge or experience of his own of life in America and more particularly in Athens, Ohio to be able to make a reasoned and well-thought-out decision about wanting to live there. Mr Gleeson said that the pursuer only speaks in positive terms about his childhood there, that there is no balance in what he tells L and that L has not been given the full picture. He submitted that in the longer term it is possible that L might find life in the United States to be hard, with limited employment prospects in that area of Ohio. I am certain that Mr Gleeson is solely concerned about L's welfare and motivated only by a conscientious attention to what he considers to be in L's best interests. However in my view the evidence of the economic situation in Athens was pretty inconclusive. I have no reason to believe that it is any worse than it is in many parts of Scotland, including Fife.

[88] It is also possible that fitting into school in America may present certain challenges for L in being accepted by other children, but L has already coped extremely well with the move from school in Edinburgh to Dunbog Primary School, and indeed has flourished there. I believe him to be at least as well-equipped as any other child to cope with fitting in to school in Athens. Samantha McManus' daughter did not encounter difficulty settling into Athens Middle School. Any challenges L faces would be common to any child moving to a foreign country (albeit an English-speaking one).

[89] I am not persuaded that L's views can be accorded less value because the pursuer has not drawn concerns about potential problems of this kind to L's attention. Life can always throw up unexpected challenges and I am not prepared to criticise the pursuer for not being more cautious in relating his memories and impressions of Athens to L.

[90] I consider that weight should be given to L's views. His thinking on this issue is probably better informed and more well-developed than could be expected of most 11 year old boys because of his own obvious intelligence and his father's close knowledge of life in Ohio.

 

The effect of the move on the child

[91] If relocation were to be permitted, I think that L would be very happy at the decision. He would be pleased for himself and pleased for his father. He would feel that he is where he belongs. I am very confident that there would be an improvement in his father's well-being and that this would increase L's happiness, as well as his stability and security. He would enjoy getting to know his large number of relatives and developing his relationship with his grandfather and his cousins. He would enjoy the outdoors-orientated lifestyle in Ohio, particularly the leisure activities and sports which are available there as a consequence of the climate.

[92] The travel would provide no difficulty for him. The culture would be different from what he has experienced in Scotland, but he has learned much about it from his father, he has visited it before, albeit briefly, and his father and MY would support him. He would have to cope with starting at a new school, where he would be a foreigner. It is certainly possible that this process may not be trouble-free for him, but as I have indicated, I consider it very likely that he will handle any challenges well. I did not understand it to be suggested that the school system in Athens is any worse than that he currently experiences in Fife.

[93] He would not see his mother in person for 11 months at a time. At present he sees her every second weekend and for longer periods during school holidays. He says that he would not miss her because he would call her every day or two and would e-mail her too. I am not so sure. I think that he probably would not miss the evenings at Hilary's or Alison's, nor going to the shops, nor the "days-in" at his mother's house. But I consider it likely that he would miss her regular presence and affection. The defender's two witnesses talked about the affection between L and his mother. No matter how often the calls or e-mails, and no matter the advantages of seeing his mother during calls via Skype, I think that some element of intimacy would inevitably be sacrificed. That might be regenerated during summer holiday contact in Scotland, but it would undoubtedly take longer because of the absence of the present fortnightly contact visits. Looked at in isolation, this particular aspect is one which favours refusal, though there are many elements of the effect of the move on L which are positive in my view, and which provide a balance to my thoughts about the impact on L's relationship with his mother.

 

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

[94] As it happens the pursuer does not have a residence order at present. That is because L came to live with him in October 2009 with the agreement of the defender. There was no need for the court to make an interim residence order at that time, and the court is enjoined by section 11(7)(a) of the 1995 Act to make no order unless it considers that it would be better for the child that an order be made than that none should be made at all. I do not consider that it is appropriate to give an elevated status in a relocation case to a parent who has a residence order as opposed to one with whom the child resides by agreement. It is appropriate to consider the impact on the principal carer of refusal of permission to move, even where no residence order has been granted. I do not see how the court can properly consider otherwise all the factors which may be relevant to the determination of the best interests of the child.

[95] The pursuer is already very unhappy at having to live in Scotland, and is demonstrating symptoms of depression/anxiety as a consequence. In my view refusal to allow him to take L to live in Ohio is likely to increase the effects of depression and/or anxiety from which he suffers. I am in no doubt that he would not leave L here and return to Athens himself. He has already demonstrated an extremely strong commitment to L's best interests by coming to Scotland in 2002 and remaining here since then while initially exercising substantial levels of contact with L and latterly having L live with him and MY. My impression of him from the evidence is that he would accept the decision of the court and remain here providing a home to L even though his homesickness and unhappiness would increase as a result. I think it is likely that increased unhappiness and continuing depressive symptoms on his part would impact on L and on MY, who would have to cope with them and provide support to him. It would be better for L's welfare if this could be avoided.

[96] In my view the likelihood that the pursuer would soldier on if the order were to be refused does not provide a sufficient basis for refusal provided that relocation is otherwise considered to be in L's best interests.

 

The effect of refusal on the welfare of the child

[97] L would certainly be very disappointed if relocation were not to be permitted. He is very keen to move to Athens, and I am in no doubt that he would feel that his clearly expressed wishes had been thwarted. As I have indicated above, I consider it likely that L would find his father more unhappy and depressed by refusal of the order he seeks, and that this may have a negative impact on L as a result. Having heard the evidence and having met L, I consider that there is also a substantial risk that L would hold his mother responsible for the refusal. The relationship between them is already difficult and L has expressed his discontent with her on various occasions. Whether or not this is fair on L's part to the defender, I think it likely that L's resentment towards her would be exacerbated by his reaction to a refusal, and that there would be a further deterioration in their relationship. Mr Gleeson in both his evidence and his submissions conceded that this was possible, but having heard all the evidence I consider it to be more likely than not. I do not consider that it would be in L's best interests for there to be any further souring of his relationship with his mother which would inevitably decrease the benefit for him of his contact with her.

 

Whether it is better for the child to make the order than that no order should be made

[98] I respectfully agree with the comments of Sheriff Morrison in M v M that 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. After all the parties are very clearly not in agreement. I do not think that in this case this factor adds anything to the other factors which I have to consider.

 

L's best interests

[99] Weighing all the above factors in the balance I conclude that it is in L's best interests that the specific issue order sought by his father be granted. It seems to me that there are more factors which favour allowing the move than those which provide reasons for refusing it. I have had particular regard to L's views which I found to be clear, unequivocal and compelling, to the view which I have formed of the effect upon him were the order to be refused, and overall to the reasonableness of the pursuer's proposals. On the other hand I have also had particular regard to the extent to which I believe L will miss his mother's regular presence and affection, although he may underestimate that himself. Overall I have reached the view that L's welfare will be promoted if he is allowed to move to Athens, Ohio. That is however subject to the proviso that the ongoing contact proposed by the pursuer must be achieved and maintained. I have confidence that DY will ensure that this happens. There is no reason in my mind to doubt that he will bring L back to Scotland every summer and make him available for contact with the defender. There is also no reason to believe that the pursuer will do anything but encourage and facilitate indirect contact between L and his mother.

[100] L should spend at least 2 weeks each summer with his mother. I am unwilling to see that whittled down any further by a day or two here or there at MY's parents' home in Blairgowrie. That will have to take place outside the 2 week period with the defender. Since it is unlikely that she will be able to afford to travel to the USA, frequent indirect contact between L's visits to Scotland during summer holidays is very important in my view. This indirect contact should not be any less frequent than every 3 days. In order to facilitate this I rely on the pursuer to make good on his offer in evidence to supply a suitable computer for the defender's use so that she can communicate with L by Skype and by e-mail. I am satisfied that I can have confidence that, before departure to America, the pursuer will enter into a minute of agreement or provide an undertaking to provide the defender with such a computer possessing an effective internet connection and to pay the annual cost of keeping that connection.

[101] I consider that it is better that a specific issue order permitting L's relocation subject to the said ongoing contact with the defender be made rather than not. Taking all factors together, I am satisfied that L's best interests will be promoted by making the order.

 

 

Expenses

[102] All parties moved me to make a finding of no expenses due to or by any of them, irrespective of success in the case. This is a longstanding family action in which agreement between the parties has not been possible. I am satisfied that the issues in dispute are such that it would be reasonable to accede to the parties' submissions in relation to expenses, so I will make no finding in that regard against any of them.