Scottish Sheriff Court Decisions

(F168/08)

JUDGMENT OF

SHERIFF PRINCIPAL EDWARD F BOWEN QC

in the appeal

in the cause

S.M.

Pursuer and Appellant

against

C.M.

Act: Bell, Advocate, instructed by Garden Stirling Burnet

Alt: Mrs A Wild, Advocate, instructed by Wright & Co

EDINBURGH, 13 January 2011

The Sheriff Principal resumed consideration of the cause, refuses the appeal and adheres to the Sheriff's interlocutor complained of dated 1 June 2010; reserves all question of expenses and appoints parties to be heard on further orders on a date to be afterwards determined.

(signed) E Bowen

Note:

1. The parties to this action are husband and wife who separated finally in April 2009. They have two children, a son D who will be seven in February 2011 and a daughter A who is four. The pursuer lives in Haddington. The defender lives with the children in the village of Gifford. She has formed an attachment to MM who lives and works in Crowthorne, Berkshire. She wishes to go to live with him, taking the children with her.

2. The proceedings to which the interlocutor under appeal relates were commenced in August 2008. The parties had lived together in Gifford until 16 August 2008. On that date the defender left with the children and went to stay in Dover. She raised proceedings against the pursuer in Canterbury County Court, and obtained a residence order. The pursuer, in response, raised an action in this court, asserting with success that this was the appropriate court with jurisdiction having regard to the place of habitual residence of the children. The defender was ordered to deliver the children to the marital home in Gifford on an undertaking by the pursuer that he would move out. She did so in September 2008 and has lived there ever since. By interlocutor of 4 November 2008 the court made a residence order in favour of the defender. That order followed the recommendation in a report prepared by Mrs Dorothy Latimer, Solicitor, who reported on 28 October 2008.

3. The present appeal arises following an application by the pursuer for a Residence Order in terms of section 11(2)(c) of the Children (Scotland) Act 1995 providing that the children live with him. Alternatively, the pursuer seeks a Specific Issue Order in terms of section 11(2)(e) directing that the children should live with the defender at her address in Gifford or in the catchment area of Gifford Primary School. The defender seeks a Specific Issue Order allowing her to move to England with the children. Following proof the Sheriff refused to grant the Order sought by the pursuer and found in favour of the defender. That decision went against the recommendation of Mrs Latimer in a second report dated 28 October 2009. Mrs Latimer concluded that D's best interests would be served by continuing to reside in East Lothian and attending Yester Primary School; residence would be with his father on the basis that the defender had resolved to move to England. Mrs Latimer also recommended that D and A should live together, that is to say with the pursuer.

4. A particular feature of this case concerns the need for D to have specialist educational support. He had a difficult infancy, being born with significant medical problems which kept him in hospital until he was almost six months. He has a hearing problem and requires to use hearing aids. He has sight difficulties and has required to wear spectacles with a patch. His educational progress was about 18 months behind his peers. Yester Primary School has provided excellent education and learning support for D, and he has made significant progress as a result.

5. In opening his submission on behalf of the pursuer and appellant Mr Bell, Advocate, acknowledged that it would be an unusual course for an Appeal Court to allow itself to be persuaded to interfere in a case of this nature. He contended however, that this was a case in which the Sheriff had applied the wrong test and had, in effect, simply balanced the competing interests of the parties. In so doing he had lost sight of the fact that the paramount consideration was the welfare of the children. In the result, counsel maintained, the Sheriff had reached a conclusion which was clearly wrong.

6. Counsel took as his starting point the provisions of Section 11(7)(a) of the 1995 Act which enjoined the Court in a case of this nature "To regard the welfare of the children as its paramount consideration" and provides that it "shall not make any...order unless it considers that it would be better for the child that the order be made than that none should be made at all". As for section 11(7)(b) which requires the Court to take into account the views of the child, it was not disputed that the children were too young to express a view. In relation to the facts the Sheriff had accepted (Note page 37) that the children were happy and well settled in Gifford. It was also beyond dispute that the pursuer has a close relationship with the children (page 35), particularly D. In such a situation in general terms the status quo should not be disturbed unless the proposed move had a lot to offer and, further, the Court would require to be satisfied that meaningful contact arrangements could be maintained.

7. Counsel submitted that the Sheriff had not addressed these matters adequately. He pointed to a section at pages 33 to 35 of the Note wherein the Sheriff dealt with credibility and reliability of the parties. It contains scathing comments about the defender, commencing with an expression of view that she was not "invariably reliable"; going on to describe her as "devious" in her answers; as using her intelligence and word skills "in effect to demand or manipulate to get her own way with little regard to the interests of others", and accepting a view that she was "impulsive". After dealing with a number of specific matters which did not reflect well on the defender the Sheriff concluded: "After the final separation, all of her actings have been directed towards achieving that original objective - a move to Crowthorne, not Dover, to be with MM. I do therefore regard much of her conduct as being self-centred and to achieve her own objectives. I did give serious consideration as to whether the Court should, having identified the scheme, allow it to succeed. It does, but only because I have concluded it is in the best interests of the two children that they reside with their mother - and that it is an unreasonable restraint to insist that she says in East Lothian".

8. This last sentence, said counsel, was a clear indication that the Sheriff had gone wrong. Even before considering the factors which were relevant in a case of this nature (as set out in M v M 2008 FAM LR 90 derived from Payne v Payne 2001 FAM 473) the Sheriff had set out a conclusion based on the defender's interests. He had purported to carry out a more balanced exercise towards the end of his Note (page 46). The passage there sought to draw together a number of factors which the Sheriff had dealt with earlier. He recorded that the accommodation offered by MM in Crowthorne was as good as the defender's accommodation in Gifford. There was a sentence in somewhat opaque terms about finance: "I accept also that the financial circumstances are immediately and in the medium to longer term more viably established". Whatever that meant, it did not take account of the fact that the pursuer earned only £13,000 per annum and travelling to Berkshire to exercise contact would cost £300 per weekend visit (Finding in Fact 26). The Sheriff then said "I have also indicated that in my judgment contact with the pursuer can with effort be put in place and maintained". This was a reference back to Section V 2.7 (page 42 of his Note) where the Sheriff said: "It was submitted that the defender could do all she could to frustrate contact and to try to remove the pursuer from the children's' lives, replacing him with MM. She may have that objective in mind but I accept that she understands where there is an Order of the Court she must comply with it. I hope that she also understands, as she says she does, that it is in the best interests of the children that they do so and enjoy a continuing good relationship with their father and that she has a responsibility to encourage that rather than to deny it. She will only store up trouble for herself in future difficulties in the teenage and adult relations between her and the children if she does discourage contact. In her evidence she expressly undertook to encourage the children to see their father and she must be held to that. Accordingly, I disregard the fear that Court Orders will not be followed and the pursuer does have remedies available to him if that happens".

9. Counsel was highly critical of the Sheriff's approach to this central issue as to whether contact could be maintained. The Sheriff had expressly said that the defender may "have in mind" the objective of defeating contact. There was no more than a hope that she would respect Court Orders. It was notorious how difficult Contact Orders were to enforce against an unwilling party. Against that unsatisfactory background it was unsurprising but fatal to his decision that the Sheriff had made no Finding in Fact that contact could be maintained were the defender to move with the children to Crowthorne.

10. The concluding passage went on to refer to "a significant harmful prospect for the children if the mother's desire to set up home with MM is...frustrated". There was no Finding in Fact to that effect, but equally there was no Finding in Fact as to the detriment to the children if they lost contact with their father. Finally, in the last sentence the Sheriff said "I have to find a balance and it seems to me to oblige the defender to remain in East Lothian becomes unreasonable when all of the factors are considered and to do that is a restriction on her freedom of movement that should not be insisted upon in all of the circumstances". The overwhelming impression was that the Sheriff had concentrated on the competing interests of the parties rather than on the children. The "welfare" principle had not been consistently applied.

11. That impression was reinforced, it was maintained, when one came to examine individual factors used by the Sheriff in forming his decision. When dealing with the "reasonableness of the move" (pages 37 to 39) the Sheriff had proceeded on the premise that there would be a move. He had failed to consider the positive benefits for the children in staying where they are. Counsel emphasised that the question for the Court was whether it was reasonable for the children to move, not whether it was reasonable to prevent them from being moved.

12. After a careful analysis of the evidence given by staff from D's school, Mr Bell submitted that the Sheriff was wrong to conclude that the concerns which existed at the time of Mrs Latimer's second report about the affect of a change of school on D were "now largely if not totally removed". Counsel proposed a new Finding in Fact in the following terms: "D still suffers from a language delay. He has difficulty forming relationships. He does not adapt well to change. He is a child who requires consistency and clear boundaries. A familiar environment suits him best. There is a risk that if he is taken out of his current environment his behaviour may regress. A slow and planned transition between schools, involving reciprocal visits by staff would be best. Such visits would not be possible in this instance because of the distance involved".

13. Counsel dealt in further detail with the manner in which the Sheriff had considered the prospect of loss of contact between the pursuer and the children. He proposed two new Findings in Fact: "(1) The parties have close and loving relationships with both children. Until about mid-2009 the pursuer had the stronger relationship with D. Neither is now materially stronger than the other. (2) The children have close relationships with the pursuer's sister Mary and also with his mother". He argued that the Sheriff had merely assessed the prospect of contact arrangements existing without assessing the importance and significance of contact in the children's lives. Section V.2.7 of the Note provided a wholly inadequate basis on which to determine the principle issue in the case in favour of the defender. It was plain, said Mr Bell, that if the Sheriff's interlocutor was allowed to stand the pursuer's relationship with the children was effectively over.

14. The Sheriff had also erred, Mr Bell maintained, in relation to the practicalities of contact. Referring to the difficulty in making contact with the children if they live 400 miles away the Sheriff said that the problem facing the pursuer was not insoluble. He said (page 41): "He will have capital claims on the sale proceeds of the house in Gifford and will be in a position to use at least some of that in order to fund trips to see his children and to provide holidays for them - if he so elects. Alternatively, employment prospects may change. I accept that he is unlikely to want to move to Berkshire or that he would find employment in that immediate area. That full-time employment in the Edinburgh area may well give him greater resources as well in order to accommodate visits to the children or receiving them to visit him here". This was entirely speculative and unsupported by any evidence. Even if the defender made a contribution of £100 towards each of the pursuer's visits the pursuer had made it clear in evidence that he could not afford regular visits costing £300 each (Vol 2 page 268 to 270).

15. Developing the general theme that Sheriff ought to have found that the pursuer was likely to loose all meaningful contact with the children in the event of the defender's move south, and pointing to the fact that there were no Findings in Fact to support the conclusion that extended contact could be created and maintained, Mr Bell contended:

(i) that having indicated that the defender was unreliable, prone to poor judgment, and may have in mind the objective of frustrating contact (all of which views were justified having regard to particular aspects of the evidence), it was clear that the defender could not be relied on to facilitate contact;

(ii) the Sheriff had ignored the evidence given by Mrs Latimer who considered that if the defender moved south with the children their relationship with their father would be lost completely. Whilst the Sheriff had dealt with Mrs Latimer's Report (Note pages 29-30) he had not dealt with this view which was based on the Reporter's conclusion that the defender would not facilitate contact;

(iii) he had given too much weight to the evidence of MM. Whilst MM might have satisfied the Sheriff that he would do all he could to facilitate contact (Note page 46) the fact remained that there was nothing that MM could do to make the defender obtemper a Court Order;

(iv) he had ignored evidence of the Reporter that a very high degree of co-operation and goodwill is required to maintain contact arrangements in the face of a geographical separation of the proposed magnitude. He ought to have acknowledged this difficulty and to have concluded that such co-operation did not exist in this case by making two further findings viz: "(1) Crowthorne is approximately 425 miles from East Lothian. The cost of travelling there for the weekend would be about £300 which the pursuer could not afford to do on any regular basis. (2) The defender is wilful and manipulative. She is determined to have her own way without consideration of others and the pursuer in particular. She is impulsive and apt to subordinate everyone else's interests and wishes to her own selfish desires. She may have the objective in mind of frustrating contact".

16. It was significant that there were no findings about the extent of contact which was realistically possible. Without a finding in fact as to the level of possible contact the Sheriff was not entitled to be satisfied that it could take place. "Findings in Fact should be stated in sufficient detail to explain and justify the decerniture": Macphail Sheriff Court Practice, 3^rd Edition, paragraph 1705. Under reference to Walker Wright & Co Ltd v Cowdray 1973 SLT (Sh Ct) 56 Mr Bell submitted that the Sheriff's decision could not be supported by reference to his Note.

17. No proper consideration had been given anywhere to the harmful effect of the loss of, or drastic reduction in, contact with the children particularly D. It was self evident that this would be detrimental and the Sheriff had not given proper consideration to the need to avoid this situation arising if at all possible.

18. There was, it was suggested, some indication that the Sheriff may have changed his mind in the course of preparing his judgment. On any view there were passages which were inherently contradictory. The Sheriff had said (page 38) that he had "given some weight to the defender's wish to move but this has not been decisive or determinative for me". This was in contrast to the passage when he said that he would only allow the defender's "scheme" to succeed because "it is an unreasonable restraint to insist that she stays in East Lothian" (page 33). The fact that the defender wished to relocate could not be allowed to "trump" the fact that the children were so well settled and the likely loss of the close relationship with their father; to reach such a conclusion bordered on the perverse.

19. There were no found facts to balance against the clear benefits of the children remaining where they are. The Sheriff had said (Note page 40) that "The best interests of the children are going to be affected by the state of mind and outlook of the defender". That was not the subject of a Finding in Fact, but what did it mean? There was no evidence to suggest that there would be any harmful effect on the children were the defender's wish to relocate be frustrated. Further, the notion that the defender herself was likely to suffer by not being able to move was inconsistent with what the Sheriff had said at page 38 of the Note: "While I have considered the defender's wish to move south to Berkshire, I have balanced against that, the fact that she has lived satisfactorily in Gifford and has brought about real progress in D during the last 18 months and that therefore her life there could continue. I am not greatly convinced by her evidence that she lacks support/friends. It seems to me that she has become involved in the school and community in ways which assist her children and from which she also derives benefit. It is interesting that during the time she has lived in the Edinburgh area over the past 10 years she has chosen to live in villages in more rural areas one of which she now characterises as unduly quiet. It is thought by many that this is part of a number of attractive features of Gifford".

20. Finding in Fact 30 states: "The defender's relationship with MM appears strong and potentially lasting providing she can move to Crowthorne to live with him in his house there. MM has established an affectionate relationship with both children who respond well to him". Mr Bell challenged this finding in part. He maintained that MM had made it clear in his evidence that his relationship with the defender would continue even if she were not in a position to leave Scotland. MM had given evidence that he would consider a move to Scotland and the Sheriff had given insufficient weight to that. This, Mr Bell maintained, was another example of the Sheriff losing sight of the fact that it was the children who were at the centre of this matter.

21. In his concluding submissions Counsel reiterated the contention that the Sheriff had approached this matter incorrectly. It was not enough to say that the children will probably be alright if they were to move. It was necessary for the defender to show that there would be a positive benefit. He cited the cases of KM v MG (unreported) Sheriff Reith, Edinburgh Sheriff Court 15 April 2010 and SMcC v JMcC (unreported) Sheriff McFarlane, Kilmarnock Sheriff Court 20 November 2010 as examples of cases in which the Sheriff had taken the correct approach. These were both cases in which a specific direction to be allowed to remove children from the jurisdiction of the Court was refused. They demonstrated the principle that it was for the defender to satisfy the Court that a move would be in the children's best interests.

22. Counsel for the defender began her submissions by reminding me of the observations of Lord Fraser of Tullybelton in G v G (minors custody appeal) 1985 1WLR 647 who, in referring to cases involving the welfare of children said: "The jurisdiction in such cases is one of great difficulty, as every Judge who has had to exercise it must be aware. The main reason is that in most of these cases there is no right answer. All practicable answers are to some extent unsatisfactory and therefore to some extent wrong, and the best that can be done is to find an answer that is reasonably satisfactory. It is comparatively seldom that the Court of Appeal, even if it would itself have preferred a different answer, can say that the Judge's decision was wrong, and unless it can say so it will leave his decision undisturbed".

23. Mrs Wild then referred to the opening words of the Judgment of Sachs LJ in Poel v Poel 1971 WLR 1469, an early case dealing with an application for a child to be removed out of the jurisdiction of the Court. His Lordship said: "When a marriage breaks up a situation normally arises when the child of that marriage instead of being in the joint custody of both parents, must of necessity become one who is in the custody of a single parent. Once that position has arisen and the custody is working well, this Court should not lightly interfere with such reasonable way of life as is selected by that parent to whom custody has been rightly given. Any such interference may...produce considerable strains which would not only be unfair to the parent whose way of life is interfered with but also to any new marriage of that parent. In that way it might well in due course reflect on the welfare of the child. The way in which the parent who properly has custody of a child may choose in a reasonable manner to order his or her way of life is one of those things which the parent who has not been given custody may well have to bear, even though one has every sympathy with the latter on some of the results".

24. That case was the start of a line of authority embracing Payne v Payne and M v M. It involved an application by a mother to take her child to New Zealand. In allowing the appeal and granting the application the Court of Appeal, reflecting Lord Justice Sachs' observations on interference with any reasonable mode of life selected by the parent having custody, indicated that whilst the primary consideration was the welfare of the child regard had to be had to the welfare of the parent who had custody since if he or she became unhappy it might adversely affect the child.

25. Counsel then dealt with the new Findings in Fact proposed by Counsel for the pursuer. She too referred in some detail to the evidence given by the Head Teacher and Class teacher from Yester Primary School and a specialist teacher for the deaf who dealt with D. There was, it was submitted, clear evidence that D had developed considerably since he started school, and a position had been reached according to the evidence where a move to a new school would not necessarily be any more challenging than a move to a new class. The Sheriff was accordingly justified in certain observations he made (at pages 37-38 of the Note): "Yester Primary School, Gifford and all of the teachers involved have produced a very fine result in the changes and improvements for D over the period even since Mrs Latimer prepared her report in October 2009. As at that date she was very concerned that D should not be moved because he would not be able to cope with the challenge that that presents. That concern did exist then for the teachers. I am satisfied on the evidence from all of the school teachers than none of them share that concern now, whether or not they did in October 2009. All of the teachers seem to agree that provided there was a good deal of exchange of information between Yester and the proposed new school at Wildmoor Heath, and they expected that that would happen, then a managed transition would probably not have significant effects for D". He went on to say: "I do not regard the change of school as a reason to insist that D stay in Scotland - or that A must do so. I consider that any risk that does exist in this move is the same risk that would exist for any child facing a move".

26. The Sheriff had dealt specifically with the effect of a move on D in paragraph V 2.10. He had said that change for D could be managed "with sufficient care and the involvement of the receiving professionals". In all these circumstances the first proposed new Finding in Fact for the pursuer went beyond what was supported by the evidence.

27. Mrs Wild submitted that there was no evidence to support a conclusion, contained in the second proposed Finding, that "until 2009 the pursuer had the stronger relationship with D". The Sheriff had specifically rejected that (Note page 45) and said: "I do not agree that D's primary relationship has been with the pursuer indeed to the contrary it seems to me that over the past two years at least his primary relationship has been with the defender". He then acknowledged that the primary relationship for A was with the defender, but it did not follow that there was a stronger relationship with D. Equally there was no cause to make a Finding about the relationship between the pursuer's sister and mother. The position was accurately reflected in Finding in Fact 34: "The pursuer's mother lives in Penicuik as does the pursuer's sister Mary M who is very attached to the children and the children are fond of her. The pursuer takes the children to Penicuik every second weekend when he has residential contact".

28. Whilst it was accurate to state that Crowthorne is approximately 425 miles from East Lothian a Finding in Fact to that effect was unnecessary. The Sheriff had stated in Finding 26 that in the event that the pursuer had to travel to Berkshire to exercise contact it was likely he would incur costs in the region of £300 per weekend visit. It was not necessary to go beyond that; the question of whether the pursuer could afford to do so on a "regular" basis to some extent depended on what was meant by "regular" and was debatable.

29. Counsel turned to the fifth proposed Finding which related to the character of the defender and the possibility of an "objective" of frustrating contact. Part of the proposed Finding was derived from a section in the Sheriff's Note dealing with credibility and reliability. It was generally inappropriate to turn Findings as to credibility and reliability into Findings in Fact. But more importantly there was no proper foundation for the belief argued for by counsel for the pursuer in a likely loss of contact. The pursuer's main concern appeared to be about the length of contact periods (Notes of Evidence page 266). Whilst he had said that he did not believe that the defender would adhere to contact arrangements he had given no reason. The defender herself had acknowledged the importance of contact (page 648) where she said that the children were very close to the pursuer "and I would not argue that fact". There was no justification for over emphasising the practical difficulties relating to contact. The Sheriff had accepted the possibility of a loss of contact as a concern but said in Chapter V 2.5 of his Note that he did not see this as either necessary or inevitable and indicated that the continuation of contact was not simply a matter for the defender. There was evidence that the parties' house would be sold and that in consequence funds would be available for the pursuer. The Sheriff's observations in that regard had an evidential foundation.

30. Counsel covered in some detail the evidence given by Mrs Latimer. The main thrust of the submission was that the reports were historical in nature by the time of the proof in particular because D had only been at primary school for 10 weeks when the second report was made. The reporter was not aware of the excellent progress he had made since then. The conclusions reached by the reporter were reflective of her view at a particular time, and the Sheriff was entitled to reach his own conclusions. It was nevertheless interesting to note that Mrs Latimer had believed MM when he indicated a determination that the pursuer should continue to see the children. That sat comfortably with the position of the Sheriff who had no concerns over the credibility of MM.

31. Counsel submitted that it had to be borne in mind that any views expressed by the Sheriff about the continuation of contact were in a context where he had not been asked to consider the extent of a contact order which was to be made. He could hardly be criticised for not considering the extent of contact in that situation. Nor could he be criticised for not dealing with the question of whether a move south would have a harmful effect on the children because there was no record for any such suggestion or evidence of it. Whilst a submission had been made to the Sheriff that no attempt had been made to assess the harm which a move to a new school and new surroundings might potentially cause particularly in the case of D, the Sheriff had dealt with this in Chapter V 2.3 of his Note when considering the reasonableness of the move.

32. Counsel for the pursuer had made much of the current stable situation of the defender and the children in Gifford. The Sheriff had recorded, properly, that the house provided by the defender was "very suitable" (Finding in Fact 17). But Mrs Wild contended that this stability might not necessarily continue on any view beyond the time when A started school in the autumn of 2011. The defender had indicated that it was likely that she would require to find full-time employment at that stage, and might have difficulty maintaining the existing house for financial reasons (pages 596/7). Moreover, it had to be observed that because of the current arrangements whereby the defender visited Crowthorne regularly (Finding in Fact 15) and the pursuer took the children to his mother's house every second weekend (Finding in Fact 34) in point of fact the children were hardly at Gifford at weekends. The situation in Crowthorne - a place with which the children were by now quite familiar, offered good accommodation and a substantial level of stability.

33. As to the Sheriff's general approach he had been invited to consider the factors identified in M v M (supra) as relevant to an application of this type. He had done that, and had taken into account other factors which he considered to be relevant. Given the prospect of long term stability in Gifford which MM had to offer there was ample justification for the conclusion which the Sheriff had reached and no proper basis for interfering with it. Counsel contrasted the case with the situation in KM v MG (supra) where the Sheriff had concluded that the pursuer's proposed move to Ireland would be a "move to uncertainty" which could not be regarded as reasonable, and with S McC v J McC where a number of factors supported the view that the proposed move was unreasonable, not least of which was the inadequacy of accommodation.

34. In response Mr Bell made two main submissions. In relation to the case of Poel he observed that if this could be regarded as authority for the view that there was a presumption that a person in whose favour a residence order had been granted should not be restrained from taking the children where they wished, any such presumption should be disregarded in the light of the provisions of the 1995 Act. There was no such presumption; the court could only make an order if satisfied that it was better that one should be made than that none should be made at all.

35. Mr Bell contended that the question of the sustainability of contact was the most important facet of this case. He reiterated the contention that the Sheriff's Findings were inadequate to support the view that contact was sustainable and for that reason alone the pursuer was entitled to succeed.

DISCUSSION AND DECISION

36. The scope of this appeal has been well articulated in submissions but I consider that the essence of it is well focussed in the pursuer's written grounds of appeal. The first critical question is whether the Sheriff erred in law in his general approach to the case by failing to apply the "welfare" test to the question of whether the specific issue order should be granted.

37. I am in no doubt that it is unfortunate that the Sheriff described the defender's wish to move to England with the child as a "scheme" and, on the face of his judgment, even before considering each of the matters relevant to an application of this type, declared that he was prepared to "allow it to succeed". To say that the "scheme" should be allowed to succeed "but only because I have concluded that it is in the best interests of the two children that they reside with their mother - and that it is an unreasonable restraint to insist that she stays in East Lothian" certainly laid his decision open to the interpretation that the special issue order was being granted without reference to the provisions of section 11(7)(d) of the 1995 Act.

38. Regrettable though that may be, it is never fair to focus on a solitary observation without having regard to a judgment as a whole. The Sheriff's position is, I consider, more fully explained in a passage on pages 39-40 of the Note under the heading "The Motive of the Parent wishing to remove the Child". It is in reality a passage which appears to be an overall conclusion, and confusion might have been avoided if it had appeared under that head. It reads: "Despite the defender's protest that she lacks support and would wish to have much closer and more immediate contact with her parents, her sister and her children, I am in little doubt that the main and perhaps even single important reason for the move is that the defender wants to set up home with MM. But inevitably, the best interests of the children are going to be affected by the state of mind and outlook of the defender. As I have indicated, it does seem to me that her relationship with MM is now established and have survived (sic) a significant period. No-one can know the future when they do live together in what might be described as more ordinary life and times. Everyone's future is uncertain. But having considered all of the other elements and factors keeping the interests of the children are paramount (sic) I have come to the conclusion that it is not helpful to them to frustrate the liberty and independence of the defender to live where she chooses within the United Kingdom".

39. Such a view appears to apply the law as directed by section 11(7). Moreover, it is in line with the type of common sense considerations articulated by Sachs LJ in Poel, namely that a restraint on a reasonable mode of life selected by a parent having custody "might well in due course reflect on the welfare of the child". I accept Mr Bell's submission that there is no presumption in law that a parent having a residence order should be free to take the child wherever he or she wishes, but it stands to reason that to restrict a parent from taking a step which is reasonable brings with it the danger of creating family instability.

40. I therefore conclude that, although the structure of the judgment in this case results in the Sheriff's fundamental reasoning being to some extent concealed, his general approach to the tests to be applied to the granting of section 11(2)(c) order was not at fault.

41. I have only to add that I do not consider that on a proper interpretation of the terms of section 11(7)(a) the court is required, in an application of this type, to identify some specific positive benefit to the children distinct from the interests of the parent before giving authority to the proposed move. If the move is in the best interests of the family unit as a whole, in my opinion, that would be sufficient. In this case the general conclusion that it would be better for the children to be with a contented mother settled in England, than to be with a mother in an unsettled state in Scotland in my view meets the welfare test.

42. The matter does not end there because there are two other important considerations in this case. The first of these is in part focussed in the written grounds of appeal, but arises more specifically in relation to the first new Finding in Fact proposed by counsel for the pursuer. It relates to D's development difficulties and the need for stability. In this respect on a review of the evidence I consider that counsel for the defender was well founded in her submission that the proposed finding goes beyond what is supported by the evidence. It is clear that Wildmoor Primary School offers similar levels of support to that given to D in Gifford, but more importantly, having regard to the progress made by D it was reasonable for the Sheriff to take the view (at page 38) that the risk involved in the move was the same risk as would exist for any child facing a move.

43. The main matter of difficulty - and I confess that this has caused me real concern - relates to the issue of continuing contact. The first question in that respect is whether, as Mr Bell submitted, the absence of a Finding in Fact that continuing contact with the pursuer is sustainable is fatal to the Sheriff's decision. I do not consider that it is. On any view the question of whether contact is sustainable is a matter of aspiration and not fact. Moreover, I would be reluctant to determine a matter of such importance on what might be regarded as a technical argument.

44. What might have been found as a Fact, but was not, was whether there was a willingness on the part of both parties and MM to facilitate meaningful contact arrangements. The absence of such a Finding may, at least in part, be explained by the fact that the Sheriff was not dealing with a proof which was focussed on contact arrangements. Be that as it may, it does appear that the Sheriff accepted a genuine wish on the part of the pursuer to retain contact with his children albeit there would be practical and financial difficulties, and a genuine acknowledgement by MM of the desirability of contact between parent and child based on his own experience.

45. It is the position of the defender which causes the difficulty and in this respect I have to say that the Sheriff's Note does convey somewhat mixed messages. He did not regard her as "invariably reliable" although the justification for this - failing to give a simple and direct answer to questions and deviousness in some respects - strikes me as more of an issue of credibility than reliability. He noted a "determination to have her own way without consideration of others and the pursuer in particular" (page 33). On the other hand he did not hold that there was a deliberate intention on her part to frustrate contact and the observation (at page 42) that she "may have that objective in mind" has to be read alongside the Sheriff's acceptance that the pursuer understands the need to comply with an order of the court. Further, in dealing with "the importance of contact" the Sheriff said: "There have been difficulties with contact arrangements as is expressed in submissions of both counsel and in evidence. I have come to the conclusion that these are aspects of the acrimonious relations which have existed between the pursuer and the defender and are not finally decisive or even a substantial indicator of efforts by the defender to frustrate or deny contact. As in other aspects of the marriage and its breakdown there are responsibilities and even fault on both sides".

46. The question of whether an individual might be regarded as dependable on a matter of contact is very much one for determination by the Sheriff who has the opportunity to see the party in question. If the Sheriff thought that contact was likely to be frustrated by the activities of the defender I would have expected him to say so. In fact he has not. His overall conclusion on contact - based on the assumption that the children would be living in Crowthorne - appears to be that despite practical difficulties the pursuer would do all that he could to maintain regular relations; that MM could be regarded as dependable; and that that defender, whatever her underlying feelings, would acknowledge and respect the decision of the court. That seems to me to lead to the conclusion that contact is capable of being maintained and, without the benefit of seeing the parties, I would not be minded to take a different view.

47. When one steps back and views this case objectively it is clear that it is a good example of a situation where neither alternative for the children can be said to be ideal. Whilst there is stability in remaining in Gifford there is substance in the submission advanced by counsel for the defender that this cannot be viewed as likely to last for particularly long because of the financial pressures facing the defender once A starts school. There is the added dimension that the present arrangements which involve the children making regular long trips south with the defender to visit MM cannot be regarded as wholly satisfactory. In consequence it seems to be that the Sheriff's decision which contemplates a more settled future for the children cannot be regarded as "completely wrong".

48. I have only to add that had I been minded to grant this appeal I would have been conscious of the fact that requiring the defender and children to remain in East Lothian would be likely to provide no more than a temporary solution. It is possible that the defender's relationship with MM will come to nothing, but the Sheriff, who saw them both, was satisfied that it was likely to be permanent. If that is so, if one discounts the possibility of MM moving to Scotland (for which view there would be considerable justification) it can only be a matter of time before the defender makes a further request to move south. I do not regard that as a satisfactory state of affairs: see the remarks of Lord Fraser in G v G (supra) at page 652 on the desirability of putting an end to litigation when children are involved. This is not an extreme case as was Poel where the request was to take the children to New Zealand, nor is it in the category of M v M where there was the prospect of an unsettled life in Spain. The Sheriff was faced with a difficult and finely balanced set of issues. Despite Mr Bell's thorough and persuasive submissions I am not minded to interfere with the decision which he took.

49. In refusing the appeal I reserve all questions of expenses. I understand that a further hearing will be required in relation to contact orders and will appoint parties to be heard on that matter on a date to be afterwards determined.