SHERIFFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW

 

F857/11

JUDGEMENT

of

WENDY SHEEHAN, Sheriff of Glasgow and Strathkelvin

in the cause

 

SP

PURSUER

against

 

BM

 

DEFENDER

                                                                        

 

Act: Anderson

Alt: Moss

 

 

GLASGOW, 17 July 2012. The sheriff, having resumed consideration of the cause, finds the following facts admitted or proved:

 

(1)               The pursuer (now aged 32 years) and the defender (now aged 34 years) were involved in a relationship of approximately 15 years duration ending on or about 10 September 2010.

 

(2)               There are three children of the relationship, namely CP, born 29 August 2000 ("C"), AP, born 16 September 2004 ("T") and AP, born 4 December 2006 ("A") (hereinafter referred to as "the children"). Numbers 5/1/1, 5/2/2 and 5/3/3 of process are extracts of their respective birth certificates.

 

(3)               The pursuer is named as the children's father on each of their respective birth certificates. He has parental rights and responsibilities in respect of A. The parties have entered into a joint minute, number 16 of process, in terms of which they are agreed that an order should be granted conferring parental rights and responsibilities on the pursuer in relation to the children C and T.

 

(4)               The parties cohabited throughout the children's lives until October 2010. At the point of their separation C was aged 10 years, T was aged 6 years and A was aged 3 years.

 

(5)               Both parents were both involved in the day to day care of the children during their relationship. The pursuer was employed as a signal and telecommunications engineer with Network Rail. He remains in this employment and is required to work shifts. The defender was employed as a customer services advisor with Abbey National plc. She worked part time after the births of the children and gave up this employment shortly after the parties' separation. The defender has been the children's primary carer throughout their lives. The pursuer took on the role of main breadwinner for the family. The pursuer was involved in all aspects of the day to day care of the children during the parties' relationship tending to their physical needs, spending time with them and becoming involved in their education and activities. The parties jointly provided the children with an excellent standard of care.

 

(6)               The parties reached the decision to separate on or about 10 September 2010. By that stage the defender had met and formed a relationship with CC who resides at 70 Meadowlands, Downpatrick, County Down, Northern Ireland. The parties continued to cohabit until October 2010 when the pursuer moved into his parents' home. Shortly thereafter the defender moved to the address in the instance.

 

(7)               The pursuer's parents, RP and EP, reside at 70 Longstone Road, Cranhill Glasgow. RP is employed as a painter and decorator and works between 8 am and 4 pm each day. EP is employed as a catering assistant at St Maria Goretti Primary School. She works from 7.45 am until 1.45 pm each day during school term time. All three children attend St Maria Goretti Primary School. EP has daily contact with them and has day to day knowledge of their progress at school. During the parties' relationship she provided after school care for the children several days a week.

 

(8)               The pursuer's parents have a four bedroom house. Following the parties' separation they cleared two bedrooms for the pursuer's use. The pursuer initially exercised contact with the children three times a week from after school/nursery until approximately 6 pm. During the last 12 months the pursuer has exercised contact with the children each Monday and Wednesday from 3.30 pm to 6.30 pm and each alternate weekend from Friday at 3.30 pm until Sunday at 6.30 pm. The pursuer has also exercised holiday contact with the children. Contact arrangements have been made by agreement between the parties who have been able to communicate and co-operate in a child centred way. Said contact has operated consistently and regularly save for occasional swaps of dates and times which the parties have agreed between themselves. The children have enjoyed and benefitted from said contact.

 

(9)               The defender resides at the address in the instance. It is a three bedroom property with a garden situated less than ten minutes drive from the children's school and is also close to the pursuer's home. The lease over this property runs until the end of August 2012. The defender has the option to renew the lease but may choose not to do so as in the event that she remains in Glasgow she intends to seek larger accommodation for herself and children.

 

(10)           The defender is a devoted mother who has continued to provide the children with an excellent standard of care following the parties' separation. She seeks the permission of the court by way of specific issue order to relocate to Northern Ireland with the children. In the event that this order is not granted she will remain resident in Glasgow. The parties agree that it is the best interests of the children to continue to reside with their mother.

 

(11)           The children attend St Maria Goretti Primary School, Glasgow. C has just completed primary 7 and has been enrolled to attend St Andrews RC Secondary School in August 2012. She has attended a 3 day introductory visit to this school. Several of her friends from primary school will be starting there in August. T has just completed primary 3 and A has just completed primary 1. The children's school report cards are produced as numbers 5.6, 5.7 and 5.8 and numbers 6.8  ‑ 6.14 of process the terms of which are agreed to accurately reflect their progress at school. They are all doing well both academically and socially at school. The said schools provide an excellent standard of education. The children are happy and settled there. Both parents receive copies of the children's report cards and attend parent's nights wherever possible. The pursuer and his mother assist the children with completion of their weekly homework each Monday. Both parties are committed to the children's education.

 

(12)           The children are involved in a number of extra curricular activities. In particular; all three children attend Girls Brigade at Cranhill Church, C and T attend dance classes and T and A attend swimming lessons each Sunday morning which are arranged and paid for by their paternal grandparents. The defender takes the children to dancing and Girls Brigade. Both parents are supportive of the children's activities and attend competitions/shows etc whenever possible. The children are physically active and enjoy outdoor trips, walking and cycling with both parents.

 

(13)           The parties are able to communicate and share information in relation to the children's health and wellbeing. The pursuer has been able to support the defender in relation to certain medical and dental appointments for the children and in particular has taken C to her orthodontic appointments in recent months.

 

(14)           Both parties are from Glasgow and have close and supportive family networks in the area. The defender's mother, CD, resides at 32 Elmslie Court, Baillieston Glasgow which is very close to the defender's home. She has a close relationship with the children and sees them at least once a week. The defender's sister also lives nearby and has a good relationship with the children. The pursuer lives with his parents. His mother has a particularly close bond with the children and has had a great deal of day to day involvement with them throughout their lives. The pursuer's sister, KP, has two children the elder of whom, A, is aged 11 years and is in C's year at school. The pursuer's mother collects A after school and consequently the children have contact with A and his mother, KP, at least 5 days a fortnight. They have a close relationship with KP and her partner SM. C confides in KP and has an interest in running which she shares with SM. The pursuer's sister, AF, is a maths teacher at Shawlands Academy. She is married to GF and they also have a close relationship with the children who they see on a very regular basis. The children benefit from their close and loving relationships with both parent's families.

 

(15)           C is a mature and articulate child who will be 12 years old on 29 August 2012. She is a quiet girl who finds it difficult to form new peer relationships and has a handful of close school friends to whom she has remained loyal for a number of years. She enjoys her dance classes and has a talent for running. She recently participated in a fun run and is keen to join a running club. She enjoys watching films, shopping and baking with her mother. Her relationship with her mother can be difficult at times and she has taken some time to adjust to the separation and to accept her mother's new partner. She has a very close relationship with her father and both she and all of her family regard her to be "a daddy's girl". She confides in her father and seeks his advice when she is upset. She speaks with him every day. They have shared tastes in books, films and activities such as visiting museums. C has expressed a clear, consistent and reasoned view that she does not want to relocate from Glasgow. Neither party have sought to influence her views. She wishes to maintain her close relationship with her father, her school friends and her extended family in Glasgow.

 

(16)           T will be 8 years old on 16 September 2012. She is a boisterous, outgoing and physically active child. She has a close relationship with both parents. She is not of sufficient age and maturity to express a view on the question of whether she wishes to relocate to Belfast or to fully understand the repercussions of a decision to relocate.

 

(17)           A is aged 5 years and is a self contained child who will often be happy playing by herself, drawing or in the one to one company of a family member. She took a little time to settle into primary one but is now happy and settled with friends in her class at school. She mixes easily with other children. She has a loving relationship with both of her parents. She is not of sufficient age and maturity to express a view on the question of whether she wishes to relocate to Northern Ireland or to understand the repercussions of a decision to relocate.

 

(18)           The pursuer in involved in a relationship with CT who is employed as a paramedic and lives in the Partick area of Glasgow. The children have met CT and get on well with her. She has been present during some of the pursuer's contact with the children in recent months and they have stayed overnight at her home. They have not formed a close bond with her at this stage. The pursuer does not cohabit with his partner and has no intention of so doing in the immediate future.

 

(19)           The defender has been involved in a relationship with CC for approximately two years. It is a committed relationship. The defender and CC spend every weekend and regular holiday periods together. They speak to each other daily and wish to be able to cohabit as a family with the children.

 

(20)           CC is a self employed joiner. He has run his own business for many years. He has contacts with RFB Development and Energy Efficient Homes Ireland from whom he derives regular work. His income from his business for the 12 months ending 5 April 2012 was £14,302. He is able, in addition, to put certain motor expenses, telephone and mobile phone bills and household expenses through the business. He employs additional labour on a casual basis during busy periods. The defender and CC have considered the possibility of CC relocating to Glasgow. He would find it difficult to establish a similar business in Glasgow without any contacts in the current economic climate. He may be able to obtain salaried employment as a joiner in Glasgow but such employment is difficult to obtain on a regular basis in the current economic climate and would be less well remunerated than his current business. CC also owns two investment properties which have buy to let mortgages over them and are rented out. He maintains and manages these properties himself and derived income of £4,358 from them in the year to 5 April 2012.

(21)           CC is the owner occupier of a three bedroom house with a garden at 70 Meadowlands, Downpatrick, County Down, Northern Ireland. The property is mortgage free and would provide a suitable home for the children.

 

(22)           CC has a reasonable relationship with C and a very good relationship with T and A. He is supportive of the defender and also of the pursuer's relationship with the children. He has behaved in a child centred way throughout his relationship with the defender. He would be a good step parent to the children if given the opportunity. He is committed to their welfare and cares about their happiness.

 

(23)           CC has a close network of family members who live very close to his home. He has five siblings and has a close relationship with them, their partners and children. His parents are also close by. His sister, K, works at the local primary school and at the local youth club and would be well placed to help the children settle into the local area. His family would be well placed to develop good relationships with the children and provide support to the defender and the children in Northern Ireland.

 

(24)           The defender has secured places for the children at St Patrick's Primary School, Legamaddy and St Marys High School. She has visited these schools. Both schools would provide the children with an excellent standard of education and are close to the defender's partner's home.

 

(25)           The defender has researched the availability of extra curricular activities in the local area. The children would be able to continue to enjoy all of the activities which they currently participate in if resident in Northern Ireland.

 

(26) Travel between the pursuer's home in Glasgow and CC's home in Northern Ireland involves either a journey by car and ferry or by means of car and a flight. The car journey between CC's home and the ferry terminal in Northern Ireland involves a journey time of approximately 45 minutes to one hour. The ferry trip takes 2 hours 15 minutes and the ferry cost for the three children is approximately £96. The defender is prepared to drive the children to the ferry terminal and to accompany them on the ferry to Cairnryan at her expense. The car journey from Cairnryan to the pursuer's address in Glasgow takes approximately 1 hour 45 minutes to 2 hours and is a journey of 79 miles. The petrol costs for this journey are in the region of £35 in each direction. The total journey time between CC's property in Northern Ireland and the pursuer's property in Glasgow is between 4.5 and 5 hours. This would be a viable option if the children were attending for a holiday period in Glasgow but not for a weekend given the time and distances involved. There are two airports in the Belfast area and a total of seven flights per day to Glasgow. The flight time is only 40 minutes and the travel time by car to the airport at either side of the journey is in the region of 30 minutes. The cost of flights is variable but affordable, particularly if booked well in advance. Providing flights are booked some time in advance and dates can be agreed between the parties, the defender is prepared to pay the flight costs for the children to travel to Glasgow in order to enable them to spend time with their father.

 

(27) The pursuer pays child support for the children on a voluntary basis in the sum of £360 per calendar month. Said sum was assessed by the Child Support Agency. He intends to continue to pay £360 to the defender for the maintenance of the children regardless of whether they remain resident in Glasgow or in Northern Ireland. He has limited income and the costs of travel for contact if said costs involved paying for ferries or flights would be prohibitive to him given his limited resources and his other outgoings including maintenance for the children. He is able to meet the cost of travel from Cairnryan to Glasgow by car and from Glasgow Airport to his home by car in order to facilitate contact. He has access to a vehicle for this purpose.

 

(28) If the children are resident in Glasgow they will continue to have contact with their father each Monday and Wednesday from 3.30 pm until 6.30 pm and each alternate weekend from Friday at 3.30 pm until Sunday at 6.30 pm. The pursuer seeks a contact order in these terms. In addition the pursuer seeks contact with the children for 2 weeks during the school summer holidays, one week during the school Christmas holidays and one week during the school Easter holidays. In the event the children are resident in Northern Ireland the parties are agreed that the maximum contact which could operate successfully given the distances involved would be for two separate periods each of 2 weeks during the school summer holidays. During one of those 2 week periods the pursuer would be required to work and the children could be cared for primarily by his mother. In addition, contact would take place for a long weekend during the school Easter holidays, a long weekend during the school October holidays commencing in October 2013 and for a number of days during the school Christmas holidays. Within months where there is no holiday period the pursuer would exercise contact with the children between Friday and Sunday once per month. The Irish school holidays are as set out in number 6/5/26 of process.

 

(29) The current arrangements for the children's care and upbringing and specifically for their residence with the defender and contact with the pursuer have operated very successfully for the last 12 months. These arrangements have served the best interests of the children to date. The children have secure, stable and loving relationships with both the pursuer and the defender. The current arrangements provide predictability and stability for the children. The pursuer is an exceptionally committed father and has prioritised the children's needs in organising his other commitments. The proposed relocation to Northern Ireland would result in a very significant reduction in the level of contact which the pursuer exercises with the children and also a significant reduction in the level of participation which the pursuer plays in the children's day to day lives. Each of the children would greatly miss their regular and consistent contact with their father if they were to relocate to Northern Ireland.

 

(30) The children benefit greatly from their close and loving relationships with extended family on both their maternal and paternal sides. The children's extended family participate to a large extent in their day to day lives and they also derive significant benefit from this. The proposed relocation to Northern Ireland would result in a very significant reduction in the level of the children's contact with their extended family.

 

(31) The defender has undertaken to allow daily telephone or Skype contact. The pursuer and his family would avail themselves of the opportunity of this contact. Indirect contact of this type is significantly less advantageous to the children than regular and direct contact with their father and extended family.

 

(32) There would be disruption to the children's schooling and peer relationships if they relocated to Northern Ireland.

 

(33) Relocation to Northern Ireland would not be in the best interests of the children and it would not be better for the children that a specific issue order is made than that no order is made.

 

 

Finds in Fact and Law:

 

(1) That it is in the best interests of the children C, born 29 August 2000 and T, born 16 September 2004, that an order is made imposing upon the pursuer parental rights and responsibilities in terms of sections 1 and 2 of the Children (Scotland) Act 1995.

 

(2) That it is not in the best interests of the three children, C, T and A, for a specific issue order to be granted allowing the defender to remove the children to reside with her in Northern Ireland.

 

(3)               That it is in the best interests of the children to exercise direct contact with the pursuer each Monday and Wednesday from 3.30 pm until 6.30 pm, each alternate weekend from 3.30 pm on Friday until 6.30 pm on Sunday and for a holiday period of two weeks during the school summer holidays, for one week during the school Easter holidays and for one week during the school Christmas holidays at times to be agreed between the parties and it is consequently in the best interests of the children that a contact order in these terms is granted in favour of the pursuer.

 

 

 

THEREFORE:

Sustains the pursuer's second, fourth and sixth pleas-in-law; quoad ultra Repels the remaining pleas-in-law for both parties; Grants an order imposing upon the pursuer parental responsibilities in terms of section 1 (a),(b) and (c) in order to exercise the parental rights as defined by section 2(a), (b), (c) and (d) of the Children (Scotland) Act 1995 in respect of the children C, born 29 August 2000 and T, born 16 September 2004; Grants an order providing that the pursuer will be entitled to exercise direct contact and personal relations with the children C, born 29 August 2000, T, born 16 September 2004 and A, born 4 December 2006 from 3.30 pm to 6.30 pm each Monday and Wednesday; each alternate weekend from 3.30 pm on Friday to 6.30 pm on Sunday; for two weeks during the school summer holidays and one week during each of the school Easter and Christmas holidays; Dismisses the pursuer's first, second and fourth craves and the defender's first and second craves; Reserves all questions of expenses

 

 

 

NOTE:-

 

The Issue

[1] The issue in this case is whether the defender should be able to take the parties' children, C aged 11, T aged 7 and A aged 5, to live in Northern Ireland. The issue was raised by way of a crave by the defender for a specific issue order under section 11(2)(e) of the Children (Scotland) Act 1995. In the event that the defender is not successful in securing this order there is no question of her relocating to Northern Ireland without the children. She would, in that event, intend to remain in Glasgow and consequently there was no dispute between the parties as to where the children should live the defender having been their primary carer throughout their lives and having provided them with an excellent standard of care which meets all of their physical and emotional needs. Parties were agreed that no order was required in relation to residence.

 

[2] The parties were in a relationship for approximately 15 years ending on or about 10 September 2010. The pursuer is the father of all three children and is named on their birth certificates (numbers 5.1-5.3 of process). He has parental rights and responsibilities in relation to the child A, born 4 December 2006. The parties entered into a joint minute, number 16 of process, in which they agreed that an order should be granted by the court imposing upon the pursuer parental rights and responsibilities in relation to the elder two children, C, born 29 August 2000 and T, born 16 September 2004.

 

[3] The parties were also agreed as to the appropriate arrangements for the pursuer to exercise contact with the children in each scenario, namely firstly if the children remain resident in the Glasgow area and secondly if they are permitted to relocate to Northern Ireland. (The relevant arrangements are set out in finding in fact 28.) Both were agreed that it was appropriate for the court to regulate the contact and for an order to be issued in the agreed terms.

 

[4] The proof was consequently confined to the issue of the defender's application for a specific issue order to enable her to relocate to Northern Ireland with the children. The defender was ordained to lead at the proof. I heard evidence from the defender, CD (the defender's mother) and CC (the defender's partner). Affidavits were lodged from these witnesses, numbers 18, 19 and 17 of process respectively and were supplemented by evidence led both by way of examination in chief and cross examination. The terms of the productions lodged for the defender numbers 6.1-6.26 of process, were also agreed. I heard evidence from the pursuer, EP (the pursuer's mother) and KP (the pursuer's sister). Affidavits were lodged by these witnesses, numbers 13, 15 and 14 of process respectively which were supplemented by evidence led both by way of examination in chief and in cross examination. The terms of the productions lodged for the pursuer numbers 5.1-5.13 were also agreed. The parties' agents are to be commended for the thorough, focused and sensitive manner in which they conducted this proof. The parties wished a decision on the issue of relocation to be reached during the school summer holidays in order to ensure security and stability for the elder child C before embarking upon her secondary education. The parties and their agents co-operated together in order to focus the issues and lodge relevant productions with the court the terms of which were agreed. The scope of evidence in this case was greatly reduced in consequence both of the matters that could be agreed between the parties and the reduction in the time required for examination in chief of the witnesses in consequence of the affidavits lodged.

 

[5] Both parties have an extremely close bond with the children and have been able to prioritise the children's welfare throughout their lives and throughout the conduct of these proceedings. Despite the fact that the subject matter of this proof is an very important one to both parties and both were at times very anxious and emotional throughout the conduct of the case, both they and their witnesses are to be commended for the composed, measured and child centred way in which their evidence was given in this case. There was a marked absence of any acrimony or criticism of either party by the other or their witnesses. This has made the focusing of the issues in this case and the determination of the best interests of the children a significantly easier task.

 

The Law

[6] Statutory guidance is to be found in section 11 of the Children (Scotland) Act 1995 subsection (1) of which allows the court to make a wide range of relevant orders by virtue of subsection (2):

"The court may make any such order under subsection (1) above as it thinks fit; and without prejudice to the generality of that subsection may in particular so make any of the following orders -...

(b) an order -

(i) imposing upon a person (providing he is at least 16 years of age or is a parent of the child) such responsibilities; and

(ii) giving that person such rights;

(c) an order regulating the arrangements as to -

(i) with whom; or

(ii) if with different persons alternately or periodically, with whom during what periods,

a child under the age of 16 years is to live (any such order being known as "a residence order");

(d) an order regulating the arrangements for maintaining personal relations and direct contact between a child under that age and a person with whom the child is not, or will not be, living (any such order being known as "a contact order");

(e) an order regulating any specific question which has arisen, or may arise, in connection with any of the matters mentioned in paragraphs (a) to (d) of subsection (1) of this section (any such order being known as "a specific issue order");"

 

Section 11(7)

"...in considering whether or not to make an order under subsection (1) above and what order to make, the court -

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

 

Section 11(7) of the 1995 Act therefore stipulates three factors that the court must consider, namely that the welfare of the child concerned is the paramount consideration, that the court must not make an order unless it will be better for the child that the order be made than that none should be made and that the court, taking into account the child's age and maturity, must have regard to the views of the child.

 

[7] I was referred to the case of SM v CM (2011) CSIH 65 No XA10/11 dated 12 October 2011 as authority for the approach to be taken by the court namely that there is no presumption, rule or principle in favour of the rights and interests of either parent which would distort or override the court's judgment as to where and the circumstances of an individual case the welfare and best interests of the children may be thought to lie.

In that case the court also commented that in certain cases an approach identifying the factors which ought to be considered may be helpful in determining where the best interests of the children lie and specifically approved approach taken by Sheriff Morrison QC in the case of M v M 2008 FamLR 90 in that regard.

 

[8] I was referred to the decision of SM v CM at paragraph 53:

 

"We acknowledge, of course that there may be cases in which significant - even dominant - weight would incidentally attach to the reasonable relocation plans of a resident parent. By way of illustration, a remarried mother in a stable and settled household might have little option but to consider a move abroad, or to a different part of the UK, for legitimate family or employment reasons. The proposed move might offer the children demonstrable advantages. They may be of an age and maturity to support it for themselves. Continuing contact arrangements might not be a major issue. In such circumstances the court might well be inclined to support the mother's freedom to take the course proposed; standing in the way of such a move might evidently risk adverse consequences for the mother and for others in the household and a conclusion along these lines might more easily be reached if for instance, the children were not thriving in their present school or were at an age when a change of school was in any event inevitable. In other cases, however, the position might be quite different, with a proposed move having much less to commend it and there being strong countervailing factors. Here, the question is whether the defender, while still married to the pursuer, should have free reign to develop a new relationship which may or may not ultimately lead on to a settled family life for which she and MM both hope. On the evidence potentially significant risks arise for the children, and especially D, from what is in contemplation and we think that senior counsel for the pursuer was well founded in submitting that, but for the defender's wish to set up home with MM, there would be no question of removing either child from familiar, settled and happy surroundings. What matters, in this as in any case, is that the welfare of the children must at all times be the paramount consideration, and the wishes and interests of either parent must receive no greater weight than they truly deserve in the circumstances."

 

Their Lordships commented in overturning the decision of the sheriff and the sheriff principal in this case that the sheriff gave "excessive weight to the notion that the reasonable proposals of a resident parent should not prima facie be restrained". They further commented that this approach relegated the children's interests to "second place behind those of the defender herself" and that this reflected an inappropriate approach. Their Lordships stressed in paragraph 57 that the defender must undertake the dual burden imposed by section 11(7)(a) of the 1995 Act showing (i) that relocation would actually be in the best interests of the children and (ii) that again from the children's perspective it would be better for a specific issue order to be made by the court than for no order to be made at all.

 

[9] I was also referred to the cases of:

 

M v M 2008 FamLR 90;

KM v MG, a decision of Sheriff Reith QC at Edinburgh Sheriff Court on 15 April 2010;

FM v CM (2011) CSIH No 65;

GD v EK, a decision of Sheriff Holligan at Edinburgh Sheriff Court on 4 May 2011;

SMC v JMC, a decision of Sheriff McFarlane at Kilmarnock Sheriff Court on 10 November 2010; and

LC v KM, a decision of Sheriff Halley at Stonehaven Sheriff Court on 6 December 2011.

 

Submissions were focused on the factors set out by Sheriff Morrison in the decision of M v M 2008 FamLR 90 which both agents agreed to be pertinent to a determination of the children's best interests in this case. While I have read and carefully considered all of the above authorities I have also found the case of M v M to be of most assistance to me in setting out the relevant factors which I should consider in applying the welfare principle to the facts and circumstances of this particular case.

 

Background

[10] The pursuer and the defender, both originally from Glasgow, started their relationship when at school and remained in a stable and committed relationship for approximately 15 years. They have three children, C, T and A, who were aged 11, 7 and 5 respectively at the date of proof.

 

[11] In the early stages of the parties' relationship both were in employment the pursuer as a signalling and communications engineer with Network Rail (a job which he has remained in for 12 years and requires shift work) and the defender as a customer services advisor/data inputer with Abbey National. The defender took maternity leave when each of the children were born and returned to work only on a part time basis ceasing her employment towards the end of the parties' relationship. Both parties were very involved in the day to day care of the children. The defender was their primary carer as her working hours were shorter and she was more able to devote her time and attention to the care and the upbringing of the children during the pursuer's working hours. The parties were greatly assisted in the care of the children by their extended families and in particular by the pursuer's mother, EP, who is employed as a school catering assistant at the children's primary school and provided after school care every day before the parties' separation. She developed a close bond with the children.

 

[12] The defender and her mother gave evidence that the defender had been unhappy in the parties' relationship for some time before their decision to separate. She formed a relationship with CC shortly before the parties' separation. That relationship is now one of 2 years duration.

 

[13] Despite the circumstances of the parties' separation they managed to make arrangements for the children in an amicable and child centred manner. In October 2010 the pursuer moved in with his parents. They required to clear space for him and in the initial months following the parties' separation he exercised non-residential contact with the children after school several times a week for a period of hours. For the 12 months prior to proof he has exercised contact with the children each Monday and Wednesday from 3.30 pm until 6.30 pm and each alternate weekend from 3.30 pm on Friday until 6.30 pm on Sunday. There has never been any difficulty about contact and it happened consistently and reliably. This is evidence both of the pursuer's commitment to the children and the defender's commitment to supporting his ongoing relationship with the children.

 

[14] The defender's partner, CC, resides at 70 Meadowlands, Downpatrick, County Down, Northern Ireland. He has lived in that area throughout his life and has a close extended family network nearby. He is a self-employed joiner and has been in that line of work for 17 years. He has established contracts with two local companies and receives regular work from which he derives a steady income. He is able to employ casual labour during busy periods. He owns a three bedroom property mortgage free and two further investment properties with buy to let mortgages from which he derives an income. He is financially secure and has a comfortable lifestyle. He is able to provide the defender and the children with a suitable home and to support them.

 

[15] The defender and her partner travel between Glasgow and Northern Ireland each weekend. During the weekends in which the children are with their father the defender travels to Northern Ireland. During the weekends where the children are with their mother CC travels to Glasgow. They also spend significant holiday periods together sometimes in Glasgow and sometimes in Northern Ireland. They both have a very strong commitment to their relationship which they wish to develop and to live together as a family with the children.

 

[16] CC was an impressive witness. He presented as thoughtful and child centred. It was evident that he had carefully considered the implications of cohabiting with the defender and that he genuinely cares about the welfare of the children. He does not seek to undermine the pursuer's role as the children's father in any way and is supportive of contact to the point of financing travel arrangements and assisting with them himself.

 

[17] The pursuer would not intend to seek employment initially if allowed to relocate to Northern Ireland. She may assist her partner with certain administrative aspects of his business but would largely be financially dependent upon him save as to the maintenance paid for the children by the pursuer and child benefit. Once the children had settled she would intend to seek work in Northern Ireland. She considers her best option in terms of employment is to complete a course she previously started to qualify as a driving instructor and to offer driving lessons within the local community.

 

[18] While the defender and her partner have not yet cohabited and the longest period they have spent together as a family is approximately 4 weeks, their relationship does appear to be of a permanent and lasting nature and I am satisfied that they had carefully considered the step of living together before making this application. While there is obviously an element of the fact that the new arrangement is untested and that the defender is placing herself in a vulnerable position as her home and financial security would be dependent upon her partner, I was not unduly concerned regarding this aspect of the case given the impression which I formed of both the defender and her partner during their evidence.

 

[19] The pursuer did not choose to separate from the defender. He was upset when the parties separated and found it difficult to adjust to not having daily contact with the children. The children are his priority and he has a very close bond with them. His family gave evidence that he "would not know what to do with himself" if the children were to move away from Glasgow. He was anxious and at points tearful during the course of the proof. His family also have a very strong attachment to the children and were equally emotional at the prospect of the children relocating to Northern Ireland.

 

[20] The pursuer continues in his employment as a signal and communications engineer for Network Rail. He works shifts and has 4 weeks annual leave together with 5 additional floating days in each year. It can be difficult for him to secure certain weeks of annual leave in advance as his shift pattern can be subject to change. He presently lives in his parents' home. While he is in a relationship with a new partner who he spends several nights a week with he has no present intention to cohabit with her in the foreseeable future and is prioritising the children's needs ahead of his relationship at this juncture.

 

[21] The pursuer has very specialised employment. He briefly considered the option of relocating to Northern Ireland if the children were to move but quickly realised that his only possible source of employment where his expertise could be utilised would be to work for a railway company in Northern Ireland. His enquiries yielded information that those companies are fully staffed at present and indeed are currently embarking upon redundancies. He gave clear and straightforward evidence that he would be most unlikely to obtain employment in the Belfast area and would have no accommodation or family support there. It is quite simply not a viable option for him to move to Northern Ireland.

 

[22] There are significant benefits to the defender and her partner in relocating to Northern Ireland. CC has a large three bedroom home with a garden in a pleasant area and has a network of close family members nearby. The property is mortgage free and therefore he is able to offer the defender and the children a good standard of living from his income from his business and rental properties. The defender would be equally able to seek employment whether in Glasgow or Northern Ireland as her skills are transferable.

 

[23] CC has been able to generate a stable income from his business and has worked hard throughout his life. He has run his business for 17 years and worked consistently throughout that time. It was his clear evidence that he would not relocate to Glasgow unless he could secure a means of obtaining employment and supporting himself. Given his work history, that seems an entirely reasonable stance for him to take. It was his evidence that it would be difficult for him to start up a business or to find regular employment in Glasgow in the current economic climate. He accepted that he had not ruled this option out but simply that he would find it to be extremely challenging and significantly more difficult for him than remaining in Northern Ireland. In addition, in order to obtain accommodation in the Glasgow area he and the defender would either require to rent property which is an overhead they would not have in Northern Ireland or he would require to consider selling properties in Northern Ireland at a time when the market is at a low ebb and he would not recoup the investment he has put into the properties. This would result in a lower standard of living for himself and the defender than if they were resident in Northern Ireland.

 

[24] It was the evidence of both the defender and her partner that if not permitted to relocate the status quo would continue with them travelling between Glasgow and Northern Ireland for a period while they reconsidered the options open to them to live together as a family.

 

[25] Travel by car and ferry which is the most affordable option for travel between Northern Ireland and Glasgow involves a journey of approximately 5 hours. That is not a viable option for a weekend visit. Flights are expensive and would be affordable on a handful of times a year. The defender and her partner have demonstrated their commitment to contact both in offering to assist in transporting the children and in meeting the costs of travel. Nevertheless, the contact proposed if the children were to relocate involves one weekend a month with this being extended during holiday periods and indirect contact by telephone, Skype etc. This is a very significant reduction on the level of contact which the pursuer has for the children at the current time.

 

[26] If the children were to relocate to Northern Ireland, in my view both T and A, once settled in new schools with friendships and activities established, would find maintaining a close relationship with their father and extended family difficult. Children in that age group do not in my view maintain close relationships by means of telephone and electronic communication. The gap between holiday periods would be a long one for them and they would find the travel for weekends to be onerous. Their father would not have the same involvement in their day to day lives and in supporting the various aspects of their care and upbringing.

 

[27] At the suggestion of both parties I spoke with C in chambers on the second day of proof. C is a mature, articulate and assertive adolescent. She is well able to express her views and every witness, including the defender, confirmed that those views have remained consistent throughout a period of months and they have been expressed to a number of different members of her family. While C has a good relationship with both of her parents she is closer to her father. She has a very strong emotional bond with him and does not wish to relocate from Glasgow. She does not wish to leave her school and her friends. She is "very,very scared" at the prospect of starting a new school and forming new friendships and does not wish to be parted from her extended family and friends and activities in Glasgow. She has already refused to travel to Northern Ireland for certain holiday periods and would not find the transition to be an easy one. I am not persuaded that she would adapt and within a period of months be happy and settled in Northern Ireland and while at her age I do believe a relationship with her father and extended family would be easier to maintain by telephone and electronic means, in my view there would be a significant diminution in the quality of those relationships if she were to relocate to Northern Ireland.

 

[28] Turning to the various factors as set out in the case of M v M:

 

1. Reasonableness and motive

The defender has a legitimate motive to seek to relocate to Northern Ireland. She is in a stable and committed relationship with her partner. He owns a three bedroom mortgage free property which would provide an ideal home for the family. He has a stable business and source of income and is able to support the defender and the children. It is clearly a more straightforward option in terms of both employment and housing for the defender and her partner to live in Northern Ireland rather than Glasgow. From the defender's perspective as well as that of her partner the move does therefore seem entirely reasonable. However, the reasonableness of the move must be considered from the perspective of the welfare of the children. The defender accepted in her evidence that the reason for the move was to further the relationship with her partner, that there was no reason to move from the children's perspective and further, that there was no basis upon which she suggested that Northern Ireland would provide a better environment for the children than their current home in Glasgow.

 

2. The importance of contact with the pursuer

All three children have a very close and loving relationship with their father. He is involved in their lives on a day to day basis and takes an interest in their education, activities, friendships, health and welfare. They have a strong and affectionate bond with him. In so far as the younger children are concerned, I do think that the proposed relation and consequent substantial reduction in contact is likely to affect the bond they have with their father to their detriment and would certainly result in a diminution of the current relationship they have with him. In so far as C is concerned, she has an exceptionally close bond with her father and confides in him and seeks his advice and guidance on a regular basis. She regards herself as being closer to her father than her mother and her relationship with her father is very important to her. While she would be able to maintain daily telephone contact with him and communicate with him via email or Skype, in my view there would be a significant diminution in the quality of her relationship with her father.

 

3. Importance of children's relationship with family members

The children benefit from close relationships with extended maternal and paternal relatives. They have a particularly close relationship with their paternal grandmother who works at their school and has contact with them on a daily basis. She provided after school care for them on a daily basis before the parties' separation and continues to see them several times a week. She is involved in doing their homework with them every Monday and goes on family outings and activities with them. The bulk of the contact over the last year has taken place within her home. She has a close bond with the children. The children also have close relationships with their maternal grandmother, maternal aunt and paternal aunts and their partners. These relationships are much closer than in many families in that there is very regular contact and close bonds formed. In my view the defender has underestimated the importance of these relationships to the children and the valuable emotional support which they provide.

 

 

 

4. The extent to which contact between father and child can be maintained

I have set out above the proposed arrangements for contact in the event of relocation. In my view this represents a very substantial diminution in the level of contact which currently takes place and can only have a negative impact on the defender's relationship with the children. I am of the view that in so far as the younger children are concerned, they would ultimately settle in Northern Ireland and form new friendships, activities etc. In my view they would find a relationship with their father more difficult to sustain by means of telephone and electronic communication and may ultimately find the travel onerous and express a disinclination to travel to Glasgow for weekends. The pursuer would simply not maintain the same level of closeness and involvement in the children's lives based on extended holiday periods with them. He also has limited annual leave and limited availability to spend one to one time with the children. He would miss out in being involved in their day to day lives to the extent that he is under the current regime.

 

In so far as C is concerned, her very close relationship with her father would be damaged by a move and I think she would find this very difficult to adjust to and would suffer emotional harm in consequence of this change.

 

5. Extent to which the child may gain from family relationships as a result of the move

In certain relocation cases the party seeking the specific issue order seeks to relocate a country where his or her family are resident. In those circumstances extended family members offer additional support and emotional ties for the children. The defender has no family in Northern Ireland. Her partner is part of a close knit family who would offer support to both the defender and the girls. They would be an entirely suitable surrogate family with whom the children could form relationships. However, in my view this does not take the place of the children's extended family in Glasgow who have blood ties and existing very close relationships with the children I am unable to conclude that the propsed relocation would result in the children gaining relationships which would balance the of the loss of close family relationships there would be in consequence of this change in the children's lives.

 

6. The children's views

The parties were in agreement that T and A do not have sufficient maturity to express a view in these proceedings and have not expressed a desire to do so. The evidence, which was unchallenged, is that the children have enjoyed weekends and holidays in Northern Ireland and have been able to form friendships with other children and will settle relatively quickly following a move in a situation where close attention has been paid to finding a suitable school and enrolling them in activities they would enjoy where they will meet new friends. In my view the younger children would be unable to conceptualise the difference between being asked for their opinion on a holiday in Northern Ireland against a permanent move. Their views are therefore not relevant to my decision in this case against that context.

 

Both parties were in agreement that their daughter C was of a sufficient age and maturity to express a view and furthermore that she wished to do so. They were in agreement that she should be brought to court to speak with me. It is to their credit that my clear impression of C is that neither parent had attempted to influence her in forming these views and both had stressed to her that they would not be angry or upset with her no matter what view she expressed.

 

While C was nervous in speaking with me she is a composed, mature and articulate girl who had a very clear view that she did not wish to relocate to northern Ireland. She enjoyed having one to one time with her mother and engaging in activities such as shopping for clothes, baking or watching films. She has found the separation of her parents difficult to adapt to and tends to withdraw from her mother's company when CC is present as she feels the need to "give them space". She spends more time in her room at her mother's home than she does at her father's home as she is able to have more one to one time with her father during contact with him. She describes herself as "a daddy's girl" and said that whenever she is upset she calls her father and she often asks him for advice. She shares interests with him and it is very important to her to speak to him every day and say goodnight to him every night. She feels a strong loyalty to her father and has a strong affectionate bond with him.

 

Like many girls her age she is happy and settled at school with strong peer relationships. She mentioned her friends to me and is already aware which friends will be in her year group and which will be her particular class next year following a three day visit to St Andrews High School this term. Her cousin Aaron will also be in her year group. C described herself as "not very good at making friends" and "loyal". When asked about the prospect of starting a new school in Northern Ireland she said "I'm scared, really scared." She spoke with enthusiasm about her various extra curricular activities and with warmth about her extended family particularly her grandmother and her aunt, KP, with whom she has a close relationship. While it is clear that a child this age would be unlikely to want to change the status quo, in my view C was able to articulate very clear reasons for her views which have remained consistent over a significant period of time. The things that she had pointed out are all valid concerns and while I have no doubt that in time she would settle into a new school in Northern Ireland, I think she may find this more difficult than many children her age and that she would miss her father, extended family and friends with whom she has close relationships very much. I think here is every prospect that she would be unhappy both in the short and medium term following a move to Northern Ireland. Some weight must be given to her views in the context of weighing up the relevant factors in this case.

 

7. The effect of the move on the children

I am satisfied that a move to Northern Ireland would result in the children living in a suitable home environment where all of their needs would be catered for, attending schools that would provide a comparable standard of education to those in Glasgow and maintaining the extra curricular activities which they enjoy.

 

There would inevitably be some upheaval to their education and peer relationships in moving school. I am satisfied that T and A would cope with that and in the medium and longer term would not be adversely affected by a move in this context however, I am less satisfied that that would be the case with C given the reasons set out above.

 

The children's close and loving relationship with their father would be gravely impacted upon by a move as would their close relationships with extended family members. In my view the relationships that they may form with CC's extended family would not adequately compensate for this.

 

8. Best interests

I do not see how it can be regarded to be in the best interests of the children that they relocate to Northern Ireland or that it is better for them that an order enabling their relocation is made than that no order is made. While their home environment, schooling and opportunities in terms of extra curricular activities in Northern Ireland may be as good as those which they currently have in Glasgow, there will be inevitable upheaval and an element of risk in any move. Further and most importantly, the proposed relocation will result in a very significant diminution in the quality of their relationship with their father with whom they have a very close bond and with their extended family who all have close relationships with the children which are of significant importance to them.

 

I recognise that the proposed relocation would improve the quality of the defender's life and that of her partner and this in turn would reduce an element of stress and strain on her which consequently be better for the children. I also accept that the proposed relocation may result in stable accommodation and better financial prospects for the defender and her partner. However, I am unable to conclude that this provides a sufficiently strong reason to reach a view that it would be better for the children that the Specific Issue Order sought by the defender is better for the children than that no order is made when balanced with the other aspects of the children's welfare in this case.

 

 

 

Expenses

[29] I was asked to reserve the questions of expenses which I do. In the event that either party seek expenses from the other in this case a motion may be enrolled to come before me in due course.