SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT ABERDEEN

 

F477/10

		JUDGMENT   of   SHERIFF SCOTT PATTISON
		in the cause
		AB
		Pursuer
		against
		CD
		Defender     ________________________

 

 

 

Act: Innes, Counsel, instructed by Aberdein & Considine, Solicitors, Aberdeen

Alt: Halley, Counsel, instructed by Lindsay & Kirk, Solicitors, Aberdeen

 

 

 

 

ABERDEEN, 22 February 2012.

 

The sheriff, having resumed consideration of the cause, Finds in Fact that:-

 

(1) The Pursuer is AB. He is 34 years old. He resides in Cove, Aberdeen.

 

(2) The Defender is CD. She is 41 years old and resides in Peterculter, Aberdeen.

 

(3) The parties were in a relationship in 2009 to 2010, as a result of which, they have one child together, IL, born on 19^th April 2010. No. 5/1 of process is a copy of her birth certificate. IL is habitually resident in this sheriffdom and Aberdeen Sheriff Court has jurisdiction.

 

(4) Both parties have parental rights and responsibilities in relation to IL. IL resides with the Defender who is her primary carer. The Pursuer, subject to an order of court, has contact with IL each weekend on either a Saturday or a Sunday between 10 am and 6 pm and on one afternoon per week between 2 pm and 5 pm. The relevant order of court was made on 1^st October 2010 (No. 3 of process).

 

(5) The Defender is a Canadian citizen. She is originally from Port Maitland in Yarmouth in Nova Scotia, Canada. She grew up in Port Maitland where her family still live. Her parents are still alive and she has two older brothers and many cousins who still stay in the area. Her brothers are both married with children of their own and live there still. She has eight or nine aunts and uncles who live in the area.

 

(6) The Defender is divorced and was originally married for around twenty years, ultimately divorcing in 2010 after separating in 2006. She has a daughter, MS from that relationship. MS is aged 20 and studying at Strathclyde University and living in Glasgow. MS is near completion of her studies and wishes to do a post-graduate qualification in either Glasgow or Canada.

 

(7) The Defender lived in Canada with her family from her birth until she married on 24^th August 1992. She ceased living with her parents in April 1992. Her husband was a chef and to follow his career the Defender lived with him in Nevis from October 1992 to May 1993. They thereafter lived in Canada until going to Grand Cayman from 1999 to December 2001 and to Scotland from December 2001 to October 2002. From October 2002 to December 2005 they resided in Canada. They came to Aberdeen in December 2005 where the Defender has since lived.

 

(8) The Defender has one close friend in Scotland, DD, who gave evidence. Apart from MS and IL she has no family in Scotland.

 

(9) The parties have never been married. The Defender first met the Pursuer in May 2009 at a local gym in Aberdeen. A relationship thereafter began which was, at first, a very good one in which the couple understood each other. The Defender had a key to the Pursuer's home and spent a lot of time there.

 

(10) The Defender became aware that she was pregnant on 28^th August 2009. She was very happy and initially the Pursuer seemed happy too. However, within a few days the Pursuer had sent the Defender a text message saying that he did not want to be a father anymore and that she should terminate the pregnancy. The Defender was shocked at this and collapsed at her work when she received the message and her boss had to pick her up. The parties met shortly thereafter and the Pursuer again asked the Defender to get an abortion. The Defender refused and the Pursuer stopped all contact with the Defender at that time until the parties met again in October at the gym. The couple saw each other occasionally afterwards.

 

(11) The Pursuer changed his view about the pregnancy towards the end of 2009. The parties' relationship continued after that point. The parties resided together at the Pursuer's home for one month prior to IL's birth and for around one month after the birth, separating on or around 19^th May 2010.

 

(12) The Pursuer was frequently verbally abusive towards the Defender during the relationship and was both verbally and physically abusive to her when the parties were residing together.

 

(13) Between Christmas and IL's birth, the parties lived with each other occasionally and the Pursuer was verbally aggressive at this time, in particular saying that the Defender was a "loser" and had a "loser job".

 

(14) In this period, the Pursuer had an episode in his home which was observed by the Defender in which he appeared to have a form of breakdown for a few hours and in which he was saying that the devil was all around him and that his mother and brother had the devil in them. The Defender thought that he was stressed and tired and tried to coax him out of the corner he was in. The Defender called the Pursuer's brother, GL, for assistance and stressed that the Pursuer seek help.

 

(15) There were a number of incidents involving verbal and physical abuse after IL's birth. On the first night home with IL, the Pursuer became angry at the Defender due to a minor incident involving the steriliser and grabbed her wrist and twisted it while she was holding IL. Shortly after the birth, the Pursuer also separately threatened to break the Defender's legs. The Defender did not call the police as she took the view that this was a family matter and should be kept within the family. She asked the Pursuer's brother for assistance in mediation. She also contacted the out-of-hours number of the Social Work Department and left messages for a specific social worker but no one called back.

 

(16) At one point while the parties were living together, the Pursuer was very angry with the Defender and threw her out in a snow storm.

 

(17) There was also an incident when the parties were in bed and when the Pursuer was holding IL in which he raised his right hand and hit her on the face during an argument.

 

(18) The Pursuer's mother was staying with the couple at this time to help in the early stages with the baby. At this time there was an incident when the Pursuer was changing IL's nappy in the kitchen and unfortunately spilled mess from the nappy. The Defender was very angry with the Pursuer and the Pursuer retaliated with anger also and pushed her against a door with his two hands.

 

(19) The Defender moved out of the house on a Tuesday - 19^th May 2010 - after another incident of physical violence in which the Pursuer put his hands around her neck as though to choke her. This also followed an incident in which the Pursuer was changing IL in the kitchen. He, the Pursuer, also called the Defender names at this time, such as "bitch, slut and lazy cow". The Pursuer's mother came down the stairs just after the incident and all parties were frantic and upset.

 

(20) The current relationship between the parties is very poor. Contact is only by means of compliance with the orders of court. Mediation has been tried unsuccessfully.

 

(21) The Defender was initially afraid of the Pursuer following the separation and did not agree to contact until it was ordered by the court on 30^th July 2010 after the Pursuer had raised this action.

 

(22) Both parties love and care for IL. The Defender is a loving and committed mother. She is a good mother with a track record of parental experience. MS is an articulate, clever, happy and well adjusted girl. IL is healthy, happy and contented. The Pursuer loves IL. There is a bond between him and his daughter but it is a lesser bond than that which exists between the Defender and IL.

 

(23) The Defender's current flat has two bedrooms in which IL has her own room. There is a communal garden. It is a rented flat. MS grew up in this flat while she lived in Aberdeen.

 

(24) The Defender works part-time at Thomas Cook, a travel agency in Aberdeen and has worked there since April 2007. She was a flight attendant before this. The Defender does not consider that the job is secure due to the current economic climate and Thomas Cook's difficult position in that the company is carrying a lot of debts. The Defender earns around £580 a month although some incentives can boost this to a maximum of around £100. She obtains Child Benefit of £81.20 per month and Child Tax Credit and Working Tax Credit amounting to £200 to £233 per week. She also receives Housing Benefit of £327 per month. She also receives £331 per month in Child Support from the Pursuer via the Child Support Agency. She has the following outlays: £587 per month for nursery fees; £550 for rent; £149 for council tax; £37 per month for Sky television; £23.99 per month for internet; and £85 or thereabouts per month for her telephone bill. Her mobile phone costs £25.30 per month. Food costs around £100 per week and her electricity and gas bills are £141 and £35 respectively. After outgoings there is less than £200 left for other expenses.

 

(25) The Pursuer has exercised contact with IL following the orders of court. This takes place at his home where IL has her own room and a nursery. These contact visits have gone well and a bond is developing between IL and her father. At times, IL is reluctant to go to the Pursuer when he arrives to pick her up in his car but similarly she is, at times, reluctant to leave him after playing at his house to return to the Defender.

 

(26) There have been occasions when the Pursuer has not adhered to the times of contact and occasions when he has stayed talking to the Defender after returning IL for 20 to 25 minutes. He has also, at times, been verbally abusive to the Defender at contact times. This led to the Defender asking her solicitor to write to the Pursuer's solicitor to express her concerns.

 

(27) In September 2010, IL required a hernia operation. On the day of the operation there was an unfortunate incident at the hospital. The Defender had sent to the Pursuer a text message indicating that the operation would take place in the afternoon as opposed to the morning when she originally expected it to take place and that he did not need to attend that morning. The Pursuer, however, came in the morning with his brother's partner. The Pursuer wished to see IL but the Defender delayed this by showing a copy of the court interlocutor specifying the days on which the Pursuer was allowed contact with IL to hospital staff and also by displaying a copy of a letter which she had instructed her solicitors to send to the Pursuer's solicitors indicating that she was considering seeking an interdict. Eventually, the matter was resolved and the Pursuer saw IL.

 

(28) The Defender wishes to move home to Canada and take IL there. She feels isolated in Scotland and very stressed about her current situation and the future. Other than DD and MS, she has no consistent support available to her in Scotland. On the weekend before the proof commenced, the Defender was very unwell and MS had to call the Defender's ex mother-in-law to come to the house at midnight to assist her. The Defender considers that the conditions she is living in in Scotland are causing her stress and she has been attending counselling. She does not see a future for herself and IL in Scotland.

 

(29) The Defender has a strong family and community support network available to her in Port Maitland. It is an outdoor life in Port Maitland.

 

(30) If allowed to return to Canada the Defender would live in Port Maitland where she grew up. It is in Yarmouth County and three and a half hours from the largest City, Halifax. There are 7,000 people in Port Maitland. 6/1/11 of process is the 2010 Visitor's Guide for Yarmouth County and it highlights many festivals and cultural activities. It also highlights the beach at Port Maitland which is one of Nova Scotia's Provincial Parks in which it stretches for a kilometre. A plan of the area clearly shows a hospital, golf course, curling link and various recreational parks. It is a close community which has a focus on family and children.

 

(31) The Defender does not own property in Canada and if she returns she would live with her aunt, MC. MC has a large house with four to five bedrooms and is willing to have the Defender and IL stay with her and her husband for as long as they wish. The Defender would not have to contribute to household costs until she had found a job and was on her feet. MC's home is in the country but just ten minutes from the town. In the longer term the Defender would stay in Port Maitland but it would depend if she had a car or not. She would like to buy a house there if possible and expects to pay less in Canada for a property than she would require to pay in Scotland. There is a strong church community which would also provide support for her and IL.

 

(32) In Nova Scotia, Healthcare is provided by the State as is education.

 

(33) In terms of employment, the Defender would like to get back into the travel industry but will not be able to secure a job until she is actually in Canada. She has sent some emails to travel agencies in the area and will follow this up if she is able to return. The Defender is well motivated and well educated. The Defender would like to work four days a week in Canada, if possible, and if she does not secure a job in a travel agency then she would consider retraining at the local community college. There is potential funding available to support retraining.

 

(34) State Benefits are also available in Canada and these are set out in 6/1/8, 6/3/5 and 6/3/6 of process, all of which relate to Childcare Tax Benefits, basic income assistance rates and employability related expenses. The benefits available in Canada are broadly similar to those available in the United Kingdom.

 

(35) The Defender has secured a place at a nursery for IL if she is able to return. The nursery is called L'il Jems which is in the local area and the Defender knows the owner. 6/3/2 is a letter from the owner of the nursery confirming that a place will be available for IL. The nursery is recommended and MC's grandchildren have attended it. The Defender also intends to have IL attend a French Immersion Course to allow her to become bi-lingual as French is so much a part of the culture in the area. The Defender and her daughter, MS, have experience of the education system. IL would be likely to receive a very good nursery, primary and secondary education in Canada.

 

(36) The Pursuer would be welcome to visit Canada whenever he wished and the Defender would be willing to agree to him seeing IL for most of each of the days in which he was in Canada. The Pursuer would be welcome to stay at MC's home during these visits. There are also hotels and bed and breakfast accommodation in the nearby area. The Defender would return to Scotland at least once per year and twice if she could afford it and would be willing for the Pursuer to see IL for most of each of these days also. The Pursuer can afford to visit Canada for at least a two week period each year. The Defender has researched flight costs. The Defender would also facilitate internet contact on a weekly basis or over the telephone.

 

(37) The Defender agrees that as the Pursuer has parental rights and responsibilities that he has the right to be consulted on major decisions about IL including decisions about her nursery and education. The Defender did not consult the Pursuer about IL's current nursery placement in Scotland although she later provided him with details and the Pursuer has visited the nursery and spoken to the manager.

 

(38) It is likely that the Defender will not be as stressed and it is also likely that she will gain employment in Canada. She and IL will have practical, moral and emotional support available to them to a far greater extent than is available in Scotland. If the specific issue order is refused the Defender is likely to remain isolated and unsupported to any significant extent in Scotland. This is not in IL's interests.

 

(39) The Pursuer has his own home and owns a restaurant jointly with his brother. He does not wish IL to go to Canada and is fearful that this will destroy the bond which has developed between IL and himself - and also with his family.

 

(40) The Pursuer could afford to travel to Canada for a two week period at least once per year and perhaps twice.

 

(41) IL's relationship with her mother is of fundamental importance in her life and there is no dispute that she, the Defender, should remain as the primary carer. IL should continue to reside with her mother.

 

(42) IL is too young to express a view on whether she wishes to reside in Canada as opposed to Scotland.

 

(43) In light of IL's age and the fact that she has less frequent contact with the Pursuer means that her bond with him is not as fundamentally important as the bond she has with her mother. A change in the scope and frequency of the contact arrangements is not likely to have a significant detrimental affect on IL. Contact between the Pursuer and IL were the Specific Issue Order to be granted would be possible and practicable.

 

(44) The Defender can be trusted to co-operate with contact arrangements were she to be allowed to move to Canada. Her initial failure to allow contact between May 2010 and September 2010 is explained by her fear of the Pursuer at that time.

 

 

Finds in fact and in law that it is in the best interests of the child IL that a Specific Issue Order is made permitting the Defender to leave Scotland with the said child to reside permanently with the Defender in Yarmouth, Nova Scotia, Canada; therefore Sustains the Defender's first and third pleas-in-law and Repels the Pursuer's first and third pleas-in-law and consequently grants decree by making a Specific Issue Order permitting the Defender to leave Scotland with the said child and to reside permanently in Yarmouth, Nova Scotia, Canada; continues consideration of the second plea-in-law for both parties and appoints parties to be heard on the issues of contact and expenses on Monday, 5^th March 2012 at 10 am.

 

 

NOTE:

 

Introduction/The Issue

[1] In this case, the Defender seeks a Specific Issue Order to permit her to leave Scotland with her daughter, IL, now nineteen months old, to reside with her in Yarmouth, Nova Scotia, Canada. The Pursue is IL's father, the child having been conceived after a short relationship between the parties. Although the Pursuer in terms of crave 1 is seeking a Residence Order, it was confirmed by Counsel on his behalf that this is no longer to be sought. It is not therefore in dispute that IL should continue to reside with her mother, the Defender, and that she should remain the primary carer and resident parent. It is also not disputed that there should be continuing contact between IL and her father which is currently regulated by orders of court. Parties were agreed that I should first decide the Specific Issue Order and wished to reserve their positions in relation to contact and asked me to appoint a hearing on both contact arrangements and expenses at a later date.

 

[2] I heard five days of evidence and submissions. I heard evidence from the Defender, her daughter, MS, her friend, DD and from her aunt, MC, currently residing in Nova Scotia and Pastor SM and his wife HM, also currently residing in Yarmouth, Nova Scotia. On behalf of the Pursuer, evidence was led from the Pursuer himself, his brother GL, his brother's partner, JC and his mother, RL and from AB, a health visitor. I was also the beneficiary of excellent and very helpful written submissions from counsel.

 

The Law

[3] Counsel were essentially in agreement as to the law which required to be applied and the relevant and current case law. Section 11(7) of the Children (Scotland) Act 1995 is the relevant and key provision. In terms of Section 11(7), the court:-

 

"(a) Shall regard the welfare of the child concerned as its paramount consideration and 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; 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."

 

[4] Counsel for the Defender emphasised that Section 11(7D) was also relevant providing that:-

 

"Where -

(a)                the court is considering making an order under sub-section 1 above; and

 

(b)               in pursuance of that order, two or more relevant persons would have to co-operate with one another as respects matters affecting the child, the court shall consider whether it would be appropriate to make the order."

 

[5] IL is only nineteen months old and, in this case, is too young to have a view on what should happen. It therefore follows that the court must consider and focus on the welfare of the child concerned as the paramount consideration in a case such as this and that no order should be made unless the court considers that it would be better for the child that the order be made than none should be made at all. Parties were agreed that the court should view the matter from the child's perspective.

 

[6] Parties were also agreed that each case requires to be determined on the basis of its own facts and circumstances. It is also clear that there is no presumption in Scotland for or against a parent with a Residence Order relocating. In SM v CM 2011 CSIH 65, an extra division of the Inner House approved the submission that:-

 

"the guidance embodied in Payne v Payne 2001 2 WLR 1826 and other English decisions forms no part of the law of Scotland."

 

In SM v CM, the extra division made clear that no undue importance should be attached to a party's desire to leave with the child and that there was a danger in assuming adverse consequences if that desire were thwarted. The court also referred favourably to Lord Hope's opinion in the case of Sanderson v McManus 1997 SCHL 55 (at page 62) as to the position of any court contemplating the possibility of making a relevant order:-

 

"The court must ... be able to conclude that it would be in the child's best interests that the order should be made. If it is unable to come to that view, the proper course for it to take is to make no order."

 

[7] I was referred to a number of other helpful cases including Whyte v Whyte 2001 SC689; Elsie v KM, judgment of Sheriff John Halley, Advocate at Stonehaven, unreported; Stewart v Stewart, judgment of Sheriff Gregor Murray at Aberdeen, 18^th November 2011, unreported. In particular, Counsel for both parties commended the judgment of Sheriff Holligan in GD v EK, 2011 WL 2039813 and the approach taken therein. I have benefited from considering the approaches taken in these various cases and I have also considered and benefited from Sheriff Thornton's approach in DY v LY, Kirkcaldy 31^st August 2011, unreported. I also had the benefit of Sheriff Morrison's well known opinion in M v M 2008 FamLR 90.

 

Counsel agreed that a "presumption free" approach is appropriate and I note that in SM v CM that this was encapsulated by the court as follows:

 

"In the end, the welfare and best interests of the child or children are paramount, and fall to be judged without and preconceived leaning in favour of the rights and interests of others."

 

[8] Time and again in the authorities it has been stated that the factors to be considered will differ from case to case. Sheriff Holligan helpfully points out at page 118 in GD v EK that:-

 

"Parliament has not prescribed a set of specific factors which the court should take into account, nor has it prescribed any hierarchy in dealing with them .... subject to such guidance as exists within the structure of the 1995 Act itself it is very much a matter of judgment for the court to reach on the basis of the material placed before it. (See the opinion of Lord President Roger in Whyte v Whyte 2001 SC 689)."

 

[9] Counsel for the Defender also referred me to Brixey v Lynas 1996 SCHL in which the court stated:-

 

"However, where a very young child has been with its mother since birth and there is no criticism of her ability to care for the child, only the strongest competing advantages are likely to prevail. Such is not this case."

 

Counsel also very properly referred me to a speech given by Lord Hope to the Family Law Association Conference on 18^th November 2011 in which he casts some doubt that Brixey v Lynas would be decided in the same way if they were to be decided today. In that speech, Lord Hope drew back - as the court has done in Scotland in SM v CM - from any presumption that the right of a resident parent to relocate should have any more significant weight than any other factor in a case and in particular stated -

 

"There is no question of a parental right where the welfare of the child is an issue. It is only as a contributor to the child's welfare that parent who assumes any significance."

 

[10] At the end of the day therefore one is left requiring to apply a judgment to the facts of the case using the statutory test and with a focus on the welfare of the child and the interests of the child. In particular, it is important to attempt to view the issues in a case such as this from the perspective of the child, in this case, IL, herself.

 

[11] In SM v CM, the court made plain, however, that there may be cases where significant and even dominant weight would incidentally attach to the reasonable relocation plans of a resident parent (paragraph 53). The court went on to give an example and I will return to this issue later.

 

Background

[12] The Defender is a Canadian citizen who has been resident in Scotland on a full-time basis since December 2005. She grew up in Port Maitland, Yarmouth, Nova Scotia in Canada. Her parents are still alive - although her father has had two significant battles with serious illness in recent times - and she has two older brothers and cousins who still stay in the area. She also has eight or nine aunts and uncles who live in the area. She was previously married to her husband who is a chef and the couple travelled together in support of his career. The couple met in August 1982 in Canada and lived in Nevis from October 1992 to May 1993 and thereafter in Canada until they went to Grand Cayman from 1999 to December 2001 and Scotland from December 2001 to October 2002. From October 2002 to December 2005 they resided in Canada. There is one child of that relationship, MS, aged 20 who is currently studying at Strathclyde University in Glasgow.

 

The Pursuer is Italian but resides permanently in Scotland where he has a restaurant business which he co-owns with his brother, GL. The parties met in May 2009 at a local gym in Aberdeen and started a relationship. The relationship was positive until the Defender became pregnant. She learned of this on 28^th August 2009. Although the Pursuer seemed initially to be happy he sent her a text message a few days after he heard news of the pregnancy saying that he did not want to be a father anymore and that she should terminate the pregnancy. The Pursuer did not dispute this in evidence but now regrets that he did that and that he communicated it by text message. The Defender was shocked at this, collapsed at work but refused to have an abortion. The relationship between the parties appears to have recommenced around Christmas 2009 and ultimately they began to reside with one another one month before IL was born on 19^th April 2010 and for three to four weeks thereafter, ultimately separating on or around 19^th May 2010. While residing together, the relationship between the parties was stormy to say the least. It was marked by arguments and disputes and by bouts of verbal and physical aggression by the Pursuer towards the Defender. The Pursuer disputes that he was ever verbally or physically aggressive but I have rejected his evidence on this matter for reasons which I will set out later. Prior to the birth of IL he was prone to calling the Defender a loser and to say that she had a loser job and after the birth he continued with verbal abuse at times but more concerningly began to grow physical towards the Defender. In particular, at one point, he seized a hold of her wrists and on separate occasions pushed her with both hands, struck her on the face and put his hands around her neck as though to choke her. The Defender sought assistance from the Pursuer's brother on a number of occasions, called the out-of-hours social work helpline and telephoned the Pursuer's brother's partner, JC, on a number of occasions to tell her of her discontent with the relationship and the Pursuer's behaviour. Although the Defender, in her evidence, said that she did not call the police preferring to keep the matter within the family, it is clear that the police were called by someone because the Pursuer was detained and interviewed by the police in relation to allegations made by the Defender, albeit no prosecution was ever taken as there was insufficient evidence to take matters further.

 

After the couple separated on 19^th May 2010, the Defender stated that she was in fear of the Pursuer and was fearful for IL and therefore did not allow the Pursuer contact with her until the Pursuer raised this action. Thereafter, contact has been regulated by order of court. The initial order was made on 30^th July 2010 and was extended on 1^st October 2010 and the Pursuer has had regular contact with IL each weekend on either a Saturday or a Sunday between 10 am and 6 pm and one afternoon per week between 2 pm and 5 pm.

 

[13] A degree of acrimony exists between the parties - this was evident throughout the evidence. The Defender spoke of IL getting upset when the Pursuer arrived to take her for contact visits but the Pursuer also spoke of IL not wanting to leave him after a day of playing in his house. The Defender did not seek to make much of this and stated that it was, to an extent, natural given IL was so young. The Defender has, however, raised issues about the Pursuer not keeping to the times of contact and to overstaying his welcome at the house after dropping IL off and also has complained that he has been verbally abusive. This led her to instructing her solicitors to send the Pursuer's solicitors letters setting out her concerns. At one point she threatened to seek an interdict.

 

[14] It was plain, however, from the evidence that both parties love IL and that she is a healthy and happy nineteen month old. The Pursuer did not dispute that the Defender is a good mother and indeed she has a very positive track record as MS is very obviously a happy, intelligent and well adjusted young woman. The Pursuer did not dispute that IL should continue to reside with the Defender, albeit he states that should be in Scotland. He is fearful that the bond he has developed with IL will be jeopardised if her mother is allowed to move to Canada with her.

 

[15] If permitted to move to Canada, the Defender stated that she would visit Scotland for a two week period at least once a year and twice if she could and that the Pursuer would be welcome to come to Canada as much as he wished to visit IL where he could stay with her family or in a local bed and breakfast or hotel. She said that she would be willing to offer the Pursuer contact for most of each day of his visit. She made a similar offer in relation to the time that she would spend with IL in Scotland when she returned there annually. The Pursuer's position was that he would be able to go to Canada at least once per year and possibly twice although he does try to fit in a visit to Italy each year also and this may jeopardise him going to Canada but he clearly has funds to visit Canada once per year and possibly twice. Despite the Defender's evidence about the verbal and physical abuse perpetrated on her by the Pursuer, she did not dispute that the Pursuer loves and cares for IL and she did not lead any evidence or raise any concern that IL was in any way at risk from the Pursuer.

 

[16] The Defender feels isolated and unsupported in Scotland. She stated that she feels this is affecting her health and she has been off work with stress for some time. She says that the stress is caused by her current situation and her feeling of being isolated and unsupported here. She has a strong support network in Canada including many family members in the local area where she will live and a church which will provide support. Her aunt MC has offered to provide accommodation at no cost to her and IL until she finds her feet and she has made attempts to contact local travel agencies in the area to ascertain if any employment prospects might be available when she returns. She has no job offer and says that she would require to return to Canada to obtain a position and that it is not possible to do so remotely when her date of return is only speculative and dependent on the order of the court. The Defender is educated to degree level and appears highly motivated. She only has one real friend in Scotland, DD, who gave evidence and her only family is MS and IL. The Defender spoke of being very unwell the weekend immediately preceding the proof and to MS requiring to telephone her ex mother-in-law to come and provide her with urgent assistance. DD, although a very good friend, is in a situation where her husband may be required to work abroad and to relocate on that basis.

 

[17] Evidence was led from the Defender, MC, Pastor SM and HM (the latter three via a video link from Nova Scotia) about the environment in Port Maitland and Yarmouth County. MC spoke of her support for the Defender returning home and made an offer to house her for as long as she needed accommodation and also to provide accommodation for the Pursuer if he visited. This was obviously a very genuine and heartfelt offer. MC also spoke of the Defender's father's ill health and that it would be appropriate for the Defender to see her father again against the possibility of any recurring health difficulties.

 

[18] All the evidence was that the local area is blessed with a strong community spirit. It focuses on a lifestyle which is outdoors. Education and health are provided for by the State similar to the UK and the Defender would be able to apply for state benefits prior to obtaining employment. The Defender does not have a job to go to, as I say, but has contact with some local travel agencies with a view to making formal applications when she arrives in Canada. IL has a confirmed nursery place at a local nursery which has a very good reputation.

 

[19] IL has formed a bond with her father and with his mother, brother and partner but it is a more limited bond than currently exists with the Defender due to IL's age and stage of development.

 

Submissions for the Defender

[20] Counsel for the Defender moved that the Specific Issue Order be granted and asked me to conclude that the Defender was a credible and reliable witness in the essentials of her evidence. In particular, he asked me to prefer the Defender's evidence in relation to the alleged incidents of verbal and physical abuse and to hold that the Pursuer, his brother and to an extent, JC, were lying in relation to this. It was submitted that the court required to deal with the Specific Issue Order on the basis of trustworthy accounts from the witnesses on material matters and that I should discount the evidence of the Pursuer to this extent. He submitted that the Pursuer was a controlling person evidenced by his reluctance to provide support for IL until the Child Support Agency stepped in and his refusal to sign a Canadian passport application for IL to allow the Defender and IL to travel home in the event of deterioration in her father's ill health in 2010.

 

[21] The Defender has had a long-term desire to go home and her ill-health and high blood pressure are related to the present circumstances. She had been absent from work for three months. She is motivated and is likely to obtain employment in Nova Scotia and there is a family and church community in Nova Scotia which is eager to meet both IL and the Defender and to look after them. The lifestyle available to IL in Nova Scotia is an attractive one and there is a nursery place available.

 

[22] It was submitted that the evidence of JC who was initially reluctant, but ultimately conceded, that the Defender had contacted her on a number of occasions to complain about the Pursuer's behaviour towards her while they were living together - and conceded that at one point she, the Defender, did say to her that the Pursuer was behaving bizarrely and talking about the devil, cast significant doubt on the evidence of the Pursuer and his brother, GL on the incidents of verbal and physical abuse. The Defender invited me to conclude that on material matters each of the Pursuer's witnesses had confidently and calmly lied. On any view, allegations of domestic, verbal and physical aggression are material matters. This is relevant to IL's welfare.

 

[23] Counsel referred me to a number of factors which were said to be relevant to consideration of the Specific Issue Order in this case. These included IL's current circumstances, including her age in the care of the Defender, the proposal to relocate and whether it was reasonable and properly thought out, the possible arrangements for contact following a move to Canada and the Defender's proven ability to co-operate. The Defender also asked me to consider the likely effect on IL, and the Defender, if the order sought is refused.

 

[24] It was submitted that Section 11(7D) of the 1995 Act was relevant here as the Defender has a proven track record of co-operating with her previous husband in the upbringing of MS. Her initial failure to allow the Pursuer contact with IL following the separation was explained on the basis of her fear of the Pursuer and she was credible and reliable in relation to this. She has since co-operated with the orders of the court. The Pursuer, on the other hand, has refused to sign a passport application for IL and refused to provide support until the Child Support Agency regulated the matter. The court can be satisfied that the Defender will co-operate in IL's best interests in relation to contact. It was submitted that, in reality, if the order is not granted IL will be the subject of on-going litigation for the foreseeable future such is the state of the relationship between the parties. It cannot be in IL's best interests to reside in Scotland in the care of her mother in circumstances which make her mother unwell. It was finally submitted that the Defender's intention was well motivated and not self-motivated. For most of her adult life she lived in a manner which is to ensure the welfare of her children is secured. The safe and sure course for IL is what would be in her best interests. It was submitted that at her age and in these circumstances, the safe and sure course for IL was to be in the care of her mother, at home, where she comes from and with her maternal family and community.

 

Submissions for the Pursuer

[25] Counsel referred me to the fact that all witnesses agreed that IL was a very happy and lively child, suggesting that she is settled and secure within the relationships which she currently has and in her environment. The Specific Issue Order - and whether it is in IL's best interests - requires to be considered from her perspective and not from the perspective of her mother.

 

[26] The Pursuer submitted that the court should not consider that the Pursuer's initial attitude to the pregnancy is relevant. The Pursuer was shocked at the start and did ask the Defender to terminate the pregnancy but his view genuinely changed and he now loves and cares for IL and prioritises her in his life.

 

[27] Much was obviously made of the allegations of verbal abuse and physical violence which were disputed by the Pursuer. Counsel asked me to consider that even if I preferred the evidence of the Defender on these issues that they were not relevant to the issue of whether the order should be granted. There is no suggestion that the Pursuer is lying about loving and caring for IL and there was no evidence that he presents as any risk to her at all.

 

[28] The Pursuer's brother, mother and JC all spoke very positively about the Pursuer as a good father. IL is his "number one priority." His life revolves around her and he is devoted. Becoming a father has changed him and he has become more responsible and mature. The court should place no weight on the evidence about IL becoming slightly distressed at handover times. This was natural for a nineteen month old child and there was also evidence that she becomes slightly distressed when leaving the Pursuer. It is clear if IL remained in Scotland she will continue to have a meaningful relationship with both parents which must be in her best interests.

 

[29] In relation to the move to Canada, there was no evidence that the Defender's accommodation or financial circumstances will inevitably improve. She has no job to go to in Canada. Although there is a nursery place available for IL, there was no evidence this would be a better nursery place than she currently has in Scotland. The educational and health benefits to living in Nova Scotia looked very similar to those which are currently available in Scotland.

 

[30] In relation to the Defender's social circumstances, it was submitted that the Defender has not engaged with normal social circles at the moment - such as with other mothers at nursery and referred to her evidence that she prefers to spend time with IL herself when IL was not at nursery or was not having contact with the Pursuer. It was submitted that this cast doubt on whether her circumstances, socially, would inevitably improve if she lived in Canada.

 

[31] It was not true the Defender was not supported. She has a strong friend in DD, her daughter Michaela is in Scotland and she still has contact with the parents of her former husband.

 

[32] No medical evidence was led to confirm the position of the Defender with regard to her claims of high blood pressure and stress nor was there evidence or information as to whether these issues had any connection with her current circumstances or not. There is no basis for saying that if she was permitted to move to Canada that her health would improve. The only relevant consideration is whether, if the Defender is isolated and unwell, that has a negative effect on IL. There is no evidence of that and on the contrary IL is universally described as a happy child.

 

[33] If the Defender was permitted to move to Canada there would be an inevitable diminution in the amount of time and the frequency of time which the Pursuer would have with IL. Internet and Skype contact on a weekly basis is no substitute for regular face-to-face contact and the Pursuer's position is that this would not provide a basis for a father/daughter relationship. Contact in Yarmouth would be more difficult than it is at the moment as the Defender is not agreeable to overnight contact. The Pursuer would require to take IL out for the day and he does not wish to stay with the Defender's relatives - that is understandable.

 

[34] The Defender would require to apply for benefits when she got to Canada and would be in a similar position to that which exists currently. She had no guarantee of employment. The Pursuer cast doubt on the Defender's motivation in wanting to go to Canada and suggested that over the last twenty four years, she appears to have spent little more than three years in Yarmouth. Immediately after the breakdown of her relationship with the Pursuer, the Defender posted messages on Facebook indicating that she wanted to leave Scotland possibly to go to Grand Cayman and Halifax. These show that the issue is less about being with her family and more about leaving Scotland. Her aunt understood her to want to go to Canada so that she could see her father. That is understandable but it would still be possible for her to go on holiday to Canada. The Pursuer would consent to that. This is in IL's best interests and permanent removal is not.

 

[35] The Pursuer has a legitimate concern that if he is to exercise contact in Canada, difficulties or obstacles would be put in his way. Any meaningful involvement that she could have in joint decision making on major issues would be effectively removed. He would require to litigate in Canada in the event that IL goes to live there.

 

[36] Both parties were content to address me on contact once the Specific Issue Order had been decided.

 

The witnesses

[37] I turn briefly to the evidence of the witnesses. I found the Defender to be on the whole a credible and reliable witness who gave evidence in a straightforward and frank manner. The only point I would make about her evidence is that I do find that she was less than absolutely forthright in relation to the incident at the hospital and it seems clear to me that she did attempt to delay the Pursuer seeing IL by using the documentation which I have referred to above. However, I consider that this was in all likelihood attributable to the stress of the situation and her state of mind at the time. I have no difficulty concluding that MS, DD, MC, HM and Pastor SM are credible and reliable witnesses. In fact their evidence was not challenged to any significant extent in the case. MS's evidence and the way she presented is relevant because it demonstrates that the Defender has a proven track record of parenting - and a very positive one. DD spoke of the Defender's isolated position in Scotland and confirmed that, in her view, her stress is attributable to her current circumstances and feeling of isolation. The evidence of the three witnesses from Canada confirms the extensive support network which will be available to the Defender and IL if they are allowed to relocate.

 

[38] The evidence of the Pursuer and his witnesses is not so straightforward to classify. I did not find the Pursuer or his brother to be credible and reliable in relation to many aspects of their evidence. In particular, in my view, they are not to be trusted in relation to the chapter of evidence relating to the allegations of verbal abuse and physical violence.

 

I prefer the Defender's evidence in relation to this chapter for a number of reasons. Firstly, because of the way she gave her evidence. She remembered the incidents in detail and in terms of their chronology. Secondly, she was supported by DD's evidence of receiving telephone calls from her asking for assistance and complaining about the Pursuer's treatment of her. JC, under pressure in cross-examination, also confirmed this. In contrast, the Pursuer was plainly trying to avoid responsibility for his actions. Firstly, although he agreed there were arguments between the parties when they lived together, he only conceded that there were raised voices on one occasion and refused to concede that there was any shouting far less that he was the one doing it. This is not credible in the circumstances. Secondly, his evidence was inconsistent with his affidavit on a number of salient points. His evidence was also inconsistent with that of his brother, GL in relation to the dates and times of alleged incidents. I will return to the relevance of this chapter of evidence to the issue under consideration shortly.

 

[39 JC was evasive and defensive and I took the view that she was trying to protect the Pursuer's position so far as she could. She presented as someone who may have been under pressure to take a particular line. When challenged, in cross-examination and also by the court as a potential prevaricating witness, she conceded that the Defender had contacted her on a number of occasions to complain about the Pursuer's behaviour and also that there was an incident reported to her by the Defender in which the Pursuer was talking about the devil. Again, I will return to the relevance of this in a few moments.

 

[40] I do accept - and indeed it was unchallenged - that the Pursuer loves IL and cares for her. I do not accept that he has been co-operative however. He failed to sign a passport application which would have allowed IL to return with her mother to Canada to visit her father who was unwell in 2010. This was simply unreasonable. His explanation that the request made at him was cheeky is simply not acceptable. His waiting for the Child Support Agency to become involved was also not reasonable in my view.

 

[41] I took the view that GL was trying to support his brother and that he was being less than frank with the court about the truth of the situation when the parties were living together. The Pursuer's mother does not speak English and clearly loves the Pursuer and IL. I did not find that her evidence added anything significant to the case. The evidence of AB, the health visitor, was not controversial and confirmed that the Defender is a loving and committed mother and that the Pursuer has approached the health authorities for assistance and educational material to assist him in relation to his responsibilities for IL.

 

Discussion/Decision

[42] In this case there is no dispute that IL should continue to reside with her mother. All of the relevant evidence pointed towards the fact that the Defender is a very good, loving and committed mother who prioritises IL above all else. The relationship with her mother has to be seen as the foundation of IL's life. She spends a majority of her time with her mother who requires, as the primary carer, to make the majority of decisions in relation to IL's life and to provide for her, albeit with a contribution from the Pursuer. The court requires to have regard to IL's welfare as the paramount consideration and to determine whether the order sought is in IL's interests and whether it is better for her that the order should be made than not.

 

[43] Significantly, evidence was led in this case in relation to the Pursuer's initial wish that the pregnancy be terminated and, as I have said above, in relation to the allegations of verbal abuse and physical violence, I accept the Defender's evidence in relation to the latter. Counsel for the Pursuer invited me to hold that this evidence is not relevant to the question of whether the Specific Issue Order should be granted. Counsel for the Defender submitted that if I disbelieved the Pursuer on these issues then it pointed towards a lack of trustworthiness on his part. I am not persuaded by the Defender's argument in this regard. I do not consider that the Pursuer's lack of credibility in relation to the allegations of abuse and violence is necessarily relevant to the question which I require to determine in this case, namely whether the order should be granted. Put simply, because he lied in relation to these matters does not mean that he is lying in relation to his love and care for IL and his deep concern that his relationship with her will be jeopardised by her proposed move to Canada. However, the fact that the verbal abuse and physical violence took place is relevant in the case to an important extent in that it clearly explains, in my view, the Defender's attitude to the Pursuer having contact with IL after the separation in May 2010 and before a court order was in place. I consider that her attitude at that time was understandable and not indicative of a general disposition not to co-operate with the Pursuer.

 

On the other hand, in this case, although the Pursuer has said that he prioritises IL as his number one priority, there are a number of factors which cause me to have concern in relation to his attitude. Firstly, it took the Child Support Agency to become involved before he provided financial support to IL. Admittedly, it only took three months to remedy this but it is a salient feature. He also refused to co-operate in relation to signing a passport application for IL and I have found that to be completely unreasonable. Lastly, in a chapter of evidence in which the Pursuer was asked whether he would be able to travel to Canada to see IL if the order was granted, he said that he could only definitely go for one two week period per year as he would require to go Italy and was not sure whether he could in turn afford a third foreign trip to Canada. As I understood it, his visit to Italy would be to see his mother and friends. However, his mother comes to live with him for a significant part of each year in Scotland. I thought this chapter of evidence, though I do not make too much of it, ran slightly contrary to his evidence on prioritising IL.

 

[44] IL's main relationship is with her mother, they are in effect a family unit. There is no relationship between the parties at present and there have been difficulties in co-operation in the past. IL is a happy, lively child and appears to all who know her to be content.

 

[45] It seems to me that it stands to reason that the most important relationship IL has is with her mother. Her relationship with her father is more limited though I accept that there is a bond between them and that the Pursuer loves IL very much. Contact between the Pursuer and IL is at an appropriate level at the moment but means that his relationship with her is necessarily of less significance than the major relationship in her life. It also seems to me that IL's interests and welfare are strongly linked to the interests and welfare of her mother. A child's welfare is of course linked to the welfare of the parents - for example in financial terms - and the key parent in IL's life is her mother.

 

[46] The court heard of the potential life available to the Defender and IL in Canada. There clearly is a strong and close community and a strong and extensive network of family and church support which will be available to them. Although I consider that it is highly likely that the Defender will obtain employment in Canada, it cannot be said that their financial position will necessarily be any better than it is in the United Kingdom. She is likely to receive benefits in a similar way to her receipt of these in Scotland and although her education and motivation will assist her in securing employment one cannot be certain what that employment will be or whether necessarily the life which she will attain will be more financially secure.

 

In many ways - other than what appears to be a much more temperate climate - a significant number of the factors prayed in aid of the move to Canada do not appear immediately more attractive to those which are ready available to the Defender and IL in Scotland. For example, education and health are provided by the State in Canada as they are in Scotland. And IL will have a good nursery place in Canada as she does in Scotland. In relation to accommodation, the offer of accommodation at the Defender's aunt's home will place the Defender in a more advantageous position in that she will not be paying for accommodation in the first instance until she has found her feet. The home has a garden and sufficient space for the family to reside in. However, in Scotland, IL has access to a communal garden and to her father's garden when she visits him at his home during the contact visits.

 

[47] It seems therefore that the significant difference in Canada will be the family, community and church support which is available to the Defender and IL. It was suggested that the Defender has support in Scotland via DD and her relationship with the parents of her ex-husband. However, DD said in evidence that her husband's job has changed and he may be required to relocate at very short notice so it seems to me that the relationship cannot be relied upon. It also seemed to me, in the course of the evidence, that the Defender's calling-in of assistance from her ex mother-in-law was very much the exception rather than the rule and that that relationship cannot be relied upon for routine help and support. There was no evidence that the Defender will obtain more friends or be more sociable were she to move to Canada. I accept this but there is already a support network available to her in Canada through family and the church. I accept that the Defender feels isolated and unsupported in Scotland and that this affects her state of mind and her approach to life. I also accept that her feelings of stress and of being unwell are attributable to her current situation. I do not accept that I require to have formal medical evidence in this regard. I heard from the Defender herself and DD and on the basis of that evidence, I am content that her current situation is having an adverse effect on the Defender.

 

[48] I consider that the proposed move to Canada is reasonable in the circumstances. I also consider that the Defender's motivation is genuine and borne out of a desire to give IL the best life possible. I think that it is appropriate to attach weight to the Defender's desire to relocate. Further, it is also appropriate to consider the effect that remaining in Scotland would have on IL. Due to her age and the fact that her most important relationship is with the Defender, her interests and welfare are linked to those of the Defender in these circumstances. I do not consider that it is likely that the Defender will obtain (were she to remain in Scotland) anything like the level of emotional, social and practical support which she would have were she to relocate to Canada. Her present levels of stress and anxiety are likely to persist and this cannot be in IL's interests in my view. I attach less weight to the Pursuer's relationship with IL. It is an important relationship and one which should continue but given her age she is unlikely to miss him acutely in my view, nor is she likely to miss his family significantly. Through a commitment to regular visits - to Scotland by the Defender and to Canada by the Pursuer - quality contact time can be maintained albeit on a less regular basis than currently takes place and a relationship can be continued and strengthened between father and daughter.

 

[48] It is true that no presumption applies in a case like this that the court should follow the reasonable plans of the resident parent. In paragraph 53 of SM v CM, the court outlined an example of a situation where significant or even dominant weight can incidentally attach to reasonable relocation plans. Although the example given by the court relates to a parent who obtained a significant job opportunity overseas, I do not consider that the court was restricting the factors which could be prayed in aid of a reasonable move. It seems to me that moral, emotional and practical support are just as important to the happiness of a family and in this case, I consider that it is much more likely that the Defender and IL will be happier, better cared for and supported in Canada.

 

[49] IL has a relationship with her father's family but a limited one in my view given the nature of the current contact arrangements although I do not doubt their love for her. Through her regular visits to the UK - and any travel they can make to Canada - I consider that these relationships can be maintained.

 

[50] Parties wished to address me at a later stage in relation to contact as I have said and I am sure that Internet/Sykpe contact will be appropriate on a weekly basis. I accept that it is not perfect but it will allow the relationship between the Defender and IL to be maintained and perhaps developed.

 

[51] In all the circumstances, I consider that the order sought should be made. In making the order, I have regard to the welfare of IL as a paramount consideration. It is in the interests of IL that this order be made. Through the relocation to Canada, she and her mother will be much better supported than they are at present. Her relationship with her father can be maintained in my view. In these circumstances, I consider that it is better for IL that the order be made than that no order should be made.

 

Conclusion

[52] For the reasons set out above, I have granted the Specific Issue Order sought by the Defender. I have put the case out for a hearing on both contact and expenses.