Scottish Sheriff Court Decisions

 

 

 

 

SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH
	F1269/14 2015SCEDIN43 JUDGMENT   of   SHERIFF P A ARTHURSON QC     in causa   DH Pursuer   against   GH Defender   ___________

Pursuer:  Malcolm;  bto

Defender:  McAlpine;  Sheehan Kelsey Oswald

 

Edinburgh,     1 April 2015

The sheriff, having resumed consideration of the cause:
Finds the following facts admitted or approved:

[1]        The pursuer, who is 38 years old, is the mother, and the defender, who is 36 years old, is the father, of two daughters, namely ZH, born 1 April 2010, and MH, born 29 October 2011. 

[2]        The parties were married on 4 April 2008 in New York City, New York, USA.  Both children were born in New York City, New York, USA.  The children lived in the USA from birth until 25 August 2013 when they relocated with their parents, the parties, to Edinburgh.  The children have both US citizenship and UK citizenship, and passports for each country.  The children are now habitually resident in Scotland by virtue of their residence following upon arrival in Edinburgh on 26 August 2013. 

[3]        The parties met when working together in Germany.  They subsequently relocated, before their marriage, to Toronto, Canada.  They thereafter moved to New York City.  Following their marriage, the parties initially resided together in New York City then purchased a property in Tuckahoe, New York State, in anticipation of the birth of ZH.  The property was close to the pursuer’s parents’ residence. 

[4]        In April 2011 the defender commenced work at Ernst & Young (EY) in the USA.  He was based in New York.  His employment required him to be absent from home sometimes as much as four days during the week.  In 2013, the defender secured a new position with a sister company of EY in the UK, also called EY. 

[5]        The pursuer was employed and worked full time in the USA before and after the birth of ZH and MH, until June 2012.  She worked full time in New York City and cared for the children alone when the defender was away.  After June 2012 she set up her own company and from February 2013 worked part time hours mainly close to home.  While in the USA the pursuer was the primary care-providing parent.  Since moving to Edinburgh in August 2013 the pursuer has returned to full time work, which she commenced on 1 November 2013.  She remains in full time employment with the same company in Edinburgh.

[6]        When living in the USA following the birth of ZH the parties employed a full time nanny and then entered a shared nanny arrangement.  From June 2011 the pursuer’s mother was paid by the parties to come to the parties’ home in order to provide child care based at the parties’ home.  The pursuer’s mother gave up her employment to provide this childcare initially for ZH and then for ZH and MH during weekdays.  She provided five days of childcare per week until April 2012.  From that date the pursuer’s father provided one day of childcare per week and the pursuer’s mother the remaining four days.  This arrangement pertained until February 2013.  The children developed a very close relationship and strong bond with their maternal grandparents over this period. 

[7]        Prior to leaving the USA in August 2013, the parties’ marriage was under strain.  They made a decision to move from New York, and, having considered many locations within the USA and globally, they agreed jointly to move with the children to Edinburgh.  The pursuer’s mother accompanied them to Edinburgh in August 2013 and spent three weeks with the parties and the children.  From autumn 2013 the children have attended the same nursery in Edinburgh on Wednesdays, Thursdays and Fridays.  On Mondays and Tuesdays the parties have employed a babysitter, FN, who has assisted with childcare based at the parties’ home from about 8.30am to about 5.30pm. 

[8]        In spring 2014 the parties attended counselling together for a short period.  The defender declined to continue.  From 7 August 2014 they started to sleep in separate bedrooms within their home.  They continued to do things together for the sake of the children for a period.

[9]        Up until the date of the proof in March 2015 the parties have continued to live in the same property but have lived separate lives.  From January 2015 the parties have, by mutual agreement, arranged to care for the children on an alternate days basis, from midnight to midnight. 

[10]      Neither party has family nor relations residing in Scotland nor in and around Edinburgh.  The pursuer’s family is all based in the USA.  The pursuer’s sister and niece live in Florida.  The defender’s parents together with his sister and her family live in Dorset, England.  The pursuer’s sister in Florida has on‑going health difficulties.  She lives in a three-bedroomed property owned by the pursuer’s parents. 

[11]      The pursuer is a US national.  She entered the United Kingdom in August 2013 on the basis of a spousal visa, which was issued on the basis that she was in a genuine and subsisting marriage and intended to reside here with the defender, her spouse.  Since separation she has applied for discretionary leave to remain in the United Kingdom on the basis that she is a parent whose children are UK nationals and resident in the UK.  That application is still to be determined.  If discretionary leave to remain is granted, and the pursuer remains in the UK, after a period of 10 years she could apply for permanent leave to remain.  In terms of current Home Office policy, discretionary leave to remain is granted for periods of two years and six months. 

[12]      In early October 2014 the pursuer embarked on a new relationship with a work colleague.  As at the date of proof that relationship was continuing.  She did not disclose the existence of the relationship to the defender.  In late October 2014, when the defender was working and was staying away from home overnight due to his employment, the person with whom the pursuer was having a relationship stayed overnight at the parties’ home and met the children over breakfast, all without the defender’s knowledge.  On 3 November 2014 the defender discovered the existence of the pursuer’s extra-marital relationship.  On 8 November 2014 the defender advised the pursuer that he wanted to divorce. 

[13]      The property in which the parties have resided since August 2013 is spacious and comfortable.  It is rented by the parties until August 2015.  The defender was successfully reference-checked for the current lease.  The landlords of the property in which the parties reside are content for a new lease to be signed in the name of the defender for an initial period of 12 months pending another successful reference check. 

[14]      The defender works on a consultancy basis.  He is based at and works from home when he is not travelling.  In 2015 he has not required to stay away overnight due to his employment.  The last occasion in which he had to stay away overnight for more than one night was in September 2014.  The pursuer works from 9.00am till 5.00pm full time in an office in close proximity to the parties’ apartment in Edinburgh.  Since relocating to Edinburgh in August 2013 the travel commitments of the defender in connection with his employment have reduced significantly. 

[15]      Both parties are involved in all aspects of the children’s practical day to day lives and care needs.  The defender organised a dentist for the children on their relocation to Edinburgh.  From August 2013 the parties have jointly shared the care of the children on a substantially equal basis.  From January 2015 that care has been operated by the parties’ agreement on an alternate days basis without material difficulty. 

[16]      In late November 2014 the pursuer raised proceedings in the Court of Session seeking interdict in respect of the children’s passports, an order for residence, and a specific issue order authorising her to relocate with the children to Florida, USA.  The defender first learned of the pursuer’s relocation intentions when a Summons was served upon him by messengers-at-arms at the parties’ residence on 27 November 2014.  The proceedings in the Court of Session were accordingly raised within a few weeks of the defender discovering and confronting the pursuer about her said extramarital relationship. 

[17]      The pursuer’s mother resides with the pursuer’s sister in PV, Florida, in a three bedroom property owned by the pursuer’s parents.  The pursuer’s mother lives in one bedroom, her sister in another, and her niece in the third bedroom.  The pursuer’s parents own and have as their principal residence, a property in New York State which as at the date of proof had not been sold.  They own no additional property in Florida.  The pursuer has obtained no letter of admission from a school in PV, Florida, nor confirmation of a fixed school place for ZH.  She has not consulted the defender at any time in respect of the education of the children in Florida.  She has no fixed employment to move to, and accordingly no source of income, in Florida.  In the course of the proof, having completed her evidence on 17 March 2015, the pursuer obtained overnight via the internet a reservation for a two bedroom unit in Florida.  She has not seen the property in person.  She has not signed any lease.  On the basis of residence at this property being in due course established, a place would be made available at a well-regarded school in the relevant county in Florida. 

[18]      The parties earn together a sum in excess of £100,000 gross per annum.  Notwithstanding that, they are in financial difficulties.  The pursuer’s parents have funded these proceedings in the sum of about £100,000.  They are prepared to provide support for the pursuer and the children in the event of a move to Florida.  They have the resources to do so.  The defender’s parents are able and willing to provide support for the defender and the children in the event that they continue to live in Edinburgh, including supporting the defender in the current rental property and thereafter purchasing an investment property in Edinburgh which they would rent to him at a subsidised rate and thereafter a market rate. 

[19]      The pursuer is a well-regarded employee at her employment in Edinburgh and has a social network based around her employment.  She attends the gym and goes rock climbing.  She socialises with friends on a regular basis.  She has travelled for personal purposes since the parties relocated to Edinburgh, to Norway and to the USA. 

[20]      The children have a close and loving relationship with the pursuer’s parents, as they do with the defender’s parents.  Both sets of grandparents have made considerable efforts to remain in contact with the parties while they have lived in Edinburgh.  In particular the pursuer’s father and the defender’s father have a warm and cordial friendship.  Prior to November 2013 the parties enjoyed family outings and time together within Edinburgh, visiting parks and museums with the children.  The defender has taken the children to ballet classes each Saturday morning from January 2014.  Both parties are proficient cooks.  Both parties have continued to reside in family with the children since their respective births up to and including at the date of proof.  The parties enjoyed holidays with their close friends CG and HG in Islay in April 2014 and in York in December 2013.  The parties and the children, together with the pursuer’s parents and the defender’s parents and his sister and her family, went on holiday together to France in summer 2014.  This joint holiday was arranged by the defender’s father.  

[21]      On 12 February 2015 both parties attended the children’s nursery in Edinburgh to collect the children, one of whom was unwell.  The pursuer filmed their return journey home with the children.

[22]      Additional or emergency childcare is available in Edinburgh from the babysitter, FM, on a paid basis, and from the parties’ friends, CG and HG.  HG in 2015 will embark on maternity leave and is willing and able to assist both parties at any time in connection with the children.  The children have a warm and loving relationship with CG and HG and call them aunt and uncle. 

[23]      The defender has no employment to go to in Florida, USA.  He has no accommodation there. 

[24]      Relocation to Florida would substantially restrict contact between the children and the defender.  It would further have a detrimental impact on any contact between the children and the defender’s parents and wider family. 

[25]      There is no pressing need for the pursuer to relocate to Florida.

 

Finds in fact and law:

[1]        That it is in the best interests of the children ZH and MH that they reside, albeit in separate households, with the pursuer and with the defender. 

[2]        That it is not in the best interests of the children ZH and MH that they relocate to Florida, USA, with the pursuer. 

 

Therefore:
[1]        Sustains the pursuer’s first plea-in-law and makes a residence order in respect of the children ZH and MH in favour of the pursuer on an alternate weekly basis and for half of all school holidays;  quoad ultra repels the pursuer’s second, third and fourth pleas-in-law; 

[2]        Sustains the first and second pleas-in-law for the defender;  sustains in part the third plea-in-law for the defender ;  and makes a residence order in respect of the children ZH and MH in favour of the defender on an alternate weekly basis and for half of all school holidays;  quoad ultra repels the defender’s third plea-in-law in part, and repels the defender’s fourth, fifth, sixth, seventh, eighth, and ninth pleas-in-law as not insisted upon; 

[3]        Refuses the specific issue order as second craved for the pursuer to allow the pursuer to remove the children from Scotland and relocate to the USA;

[4]        Dismisses parties’ remaining craves as no longer sought;

[5]        Reserves all questions of expenses, appoints parties to be heard thereon and assigns 14 April 2015 at 9:30am within the Sheriff Courthouse, 27 Chambers Street, Edinburgh, as a diet therefor; 

and

[6]        Directs the sheriff clerk to release all passports held by her pertaining to ZH and MH within seven days hereof into the hands of the defender or his solicitors.

 

NOTE
Background

[1]        The history of the parties’ pre-2013 relationship is set out in the above findings in fact.  They made a joint decision to move to Edinburgh with their children in August 2013.  The marriage encountered difficulties.  The parties ceased sharing a bedroom in August 2014.  In October 2014 the pursuer embarked upon an extramarital affair.  The defender found out about that affair in early November 2014 and advised the pursuer that the marriage was over on 8 November 2014.  The parties have continued to reside in the same property in Edinburgh with the children.  Since January 2015 they have operated an alternate day-care regime running from midnight to midnight each day.  Both parties are US citizens.  The pursuer was born in the USA and the defender was born in England.  Both parties have full time jobs in Edinburgh.  In late November 2014 the defender received service of a Summons intimating to him for the first time that the pursuer was seeking to relocate with the children to Florida.  In December 2014 the action was remitted by the Lord Ordinary to Edinburgh Sheriff Court for disposal.  Some dates for a prospective proof were offered in June and July 2015.  Those acting for the pursuer formally requested an earlier diet.  I accordingly heard a proof over a continuous period of six days running from 16 March to 23 March 2015.  The expedited nature of the diet accorded no opportunity to the court to case manage the action prior to appointment of a proof.  Both parties were represented at the proof, with considerable ability and professionalism, by counsel.

[2]        At the proof the pursuer gave evidence on her own behalf.  Her counsel led evidence further on her behalf from each of her parents and from two work colleagues.  The defender gave evidence on his own behalf.  His counsel led evidence on his behalf further from the parties’ long term Edinburgh babysitter, FN, from the defender’s father and from the parties’ friends, CG and HG.  Many affidavits were also lodged and effectively agreed in terms of joint minutes tendered to the court on various dates during the proof. 

[3]        The principal issues for determination by the court were accordingly the issues of residence and relocation. 

 

The evidence adduced for the pursuer

[4]        The pursuer spoke in detail about the various household arrangements pertaining to the parties’ lives in family in New York and in Edinburgh.  She spoke of problems in the marriage prior to the move, which she categorised as, on the defender’s part, a lack of interest and focused attention on the family.  She described the defender’s work travel commitments in detail and produced a schedule detailing his periods of absence from home.  She spoke in detail about the daily care responsibilities which she held in respect of the household.  She described a family calendar as a management tool for the family.  Throughout her evidence she painted the defender as an absent spouse and an absent father.  She described him, in terms, as a playmate for the children during the brief periods in which he was in the family home and as unwilling to participate in the parties’ marriage.  She described no substantial change in these arrangements following the move to Edinburgh, which parties had embarked upon in order to improve their quality of life, by, for example, reducing their daily commute, his travel commitments, and maintaining a cultured city environment for their children.  She presented herself as lonely and largely friendless within Edinburgh, although she accepted that she enjoyed her job and was in the process of forming friendships through her employment.  She described herself as suffering from stress.  An agreed medical report from her GP described low mood and anxiety from May 2014 being directly related to stress at home and on going divorce proceedings.  There were no such proceedings at that time, of course, and indeed there was no crave for divorce in the various craves presented by parties to the court.  She described going to the gym for a period in order to build up endorphins.  She spoke highly of the parties’ rented accommodation in Edinburgh, it being a four bedroom property with a very large living room, three bathrooms and a WC.  She described the affair she had embarked upon in October 2014 and the deterioration of the parties’ relationship since the defender found out about that in November 2014.  She made much play in her evidence of an incident when both parties attended the children’s nursery on the afternoon of 12 February 2015 to collect the children due to MH becoming unwell.  Although not in her pleadings or founded upon in submissions by her counsel at the close of the proof, she alleged an assault by pushing on the part of the defender which she described as aggressive, rough and scary.  The pursuer had filmed the parties walking home that afternoon through the busy streets of Edinburgh with children crying.  This rather depressing footage was played to the court in the course of the pursuer’s evidence-in-chief.  In cross examination on this episode, the pursuer told counsel that she had filmed the defender holding the child with her camera phone in order to protect herself and her children.  It was entirely unclear how she hoped to achieve this by taking such footage.  Nevertheless, when asked whether she regretted her behaviour on 12 February 2015, she advised that she would do it again in a heartbeat.

[5]        With regard to the move to Florida, the pursuer spoke to a large amount of material which she had obtained from the internet about schools and accommodation.  When she gave evidence on 17 March she advised that she would be in a better position financially in Florida and that it would be beneficial to her children to be residing in a household with both of her parents.  She had researched the cost of flights that the defender could take to make occasional visits which at current rates ran from £420 to £630 return.  When it was put to her that there was no pressing need for the children to move to Florida, her response was to indicate that this underestimated the requirement of the core family unit.  She did not, of course, include the defender in the core family unit and specifically placed him when asked to do so in order of importance by counsel, at a position equal to her own mother in terms of significance in the children’s lives.  She accepted that she had not mentioned relocating to Florida to the defender and that the first that he would have known about the matter would have been service of the Summons upon him on 27 November 2014.  She did not seem at all troubled by this.  She was very keen to present herself to the court as bearing the burden of family laundry (a matter which she focused upon on multiple occasions throughout her evidence), dishes and shopping.  She accepted that the defender had extensive cooking abilities.

[6]        The pursuer justified her extra-marital affair by describing the defender’s complete abandonment of the marriage and her resulting loneliness.  She accepted that she did not tell the defender about the relationship or about her gentleman friend meeting the children over breakfast at the family home in late November when the defender was away for one night working in England.  She accepted that she had not consulted the defender in respect of schooling in Florida;  that there was no reserved placement of a school for ZH;  that she had no concrete job offer in the USA;  that she did not know how much she would accordingly earn while in the USA, if anything;  and that she had nowhere to live in the USA other than the said prospective rented accommodation which she had not yet seen, with of course the prospect of moving into a suitable family home with her parents once they had sold their own house in New York.  Throughout her evidence she described MH and ZH as “my children” or “my daughters”.  She marginalised the involvement of the defender in the children’s lives and proceeded to do the same when questioned about the involvement of the defender’s parents in the lives of the children, minimising the number of visits that had been made either to England to visit his parents or by them to visit the parties in New York or Edinburgh.  Notwithstanding the defender’s agents’ requests to see a financial schedule from the pursuer, this document was only made available on the Tuesday before the proof, and then was amended on the Friday before the proof.  I considered its contents to be highly speculative and flawed.  By way of example, the pursuer attributed to herself the whole of a credit card debt, notwithstanding her frank acceptance in her evidence that this was a joint matrimonial debt.

[7]        At the diet of proof on 18 March, all witnesses having been led on her behalf, counsel for the pursuer tendered a ninth inventory of productions with a variety of material which had been obtained overnight by the pursuer via email or the internet.  This included material showing that a two bedroom apartment was confirmed as reserved to her and a letter from the school in which she was hoping to enrol ZH confirming that this prospective address would form a potential basis for enrolment, subject to the signing of a lease and the actual taking up of residence.  I acceded to her counsel’s opposed motion to let the pursuer give evidence in addition on this new material.  It became clear during her additional evidence that she had endeavoured overnight to produce material in order to fill in significant gaps in her relocation case.  I concluded nevertheless that in reserving the apartment without signing the lease she had effectively made what can only be considered to be a de facto hotel reservation at a property in Florida which of course she had not seen for herself, in order to produce a letter from the school, which in turn was itself a very conditional and speculative document.  She further disclosed in this additional examination that her parents had paid £100,000 towards the current proceedings. 

[8]        I found the pursuer to be by far the least impressive witness at the proof.  I considered her to be lacking in credibility in certain respects in so far as her evidence conflicted materially with the evidence of the defender and his witnesses, whose evidence I preferred.  For example, I consider that there was no assault by the defender by pushing her on 12 February 2015.  Further I find it well established on the evidence that the defender has acted as joint carer of the children from the move to Edinburgh to date.  I consider that she has minimised to an extreme level what his true contribution has been and is to the family.  I make one further observation on the pursuer before moving on to deal with other witnesses.  She was present throughout the whole of the evidence in the case.  It was of particular note that she displayed no emotion as she gave her evidence or as she listened to the occasionally highly emotional and plainly moving evidence of others.  I formed a view of her as inflexibly determined in her pursuit of her relocation case in this litigation.

[9]        I can deal with the other witnesses led on behalf of the pursuer in short compass.  The pursuer’s parents, who are the children’s maternal grandparents, gave evidence on her behalf.  I found these witnesses to be impressive, fair, compassionate and truthful witnesses, who made a very favourable impression upon the court.  The pursuer’s mother described both parties as good parents and the defender as an active father.  She was aware of her daughter’s affair.  The children love their father very much but see their mother as being in charge of the household.  She agreed that the two most important figures in the children’s lives were the pursuer and defender.  For the children to move to Florida without their father, she observed, whilst she supported it, would be heart-breaking.  She accepted that the children have a good life in Edinburgh.  The pursuer’s father was a particularly thoughtful and fair witness.  He spoke, as did the defender’s father, of his close and warm continuing friendship with the other grandfather.  He described his financial reserves and plans to support the pursuer’s rented accommodation in Florida before purchasing a property in which they could all live in PV, Florida.  He confirmed that the defender is an active and involved father and that the children love their father.  He knew nothing of the pursuer’s affair.  The pursuer’s parents made such a positive impression on me that I can only hope that, notwithstanding the determination of the court, they will continue to be as much involved as possible, and indeed even to a greater degree than they have been to date in the lives of their young grandchildren. 

[10]      Two work colleagues gave evidence for the pursuer and described their friendship with her, her sociability and activities of rock climbing and going to the pub after work.  They confirmed that she was very highly regarded at work.  I found them wholly credible and reliable. 

The evidence adduced for the defender

[11]      The defender described his working history and family life in the USA and in Edinburgh.  In the USA he confirmed that he changed nappies, did bath time, cooking, bedtime routines and shared responsibility for the children.  His evidence was that the decision to leave the USA was a joint one and he spoke highly of the pursuer’s research abilities in assessing the location of their move from the USA, stating “God bless my wife, everything goes into spread sheets”.  Throughout his evidence he spoke warmly of the pursuer, praising her cooking and relationship with and care of the children.  Since moving to Edinburgh his time away from home had reduced significantly.  He had prepared a travel schedule himself based on his work records.  As the evidence moved on, and in submissions, this was the only document founded upon by either counsel and I consider it accurate and reliable.  His time away from home had accordingly clearly reduced considerably since moving to Edinburgh and it was of note that he had last been away for a period in excess of one night, for two nights, in early September 2014.  In 2015 he had not stayed away overnight at all in connection with work, making occasional day trips.  He spoke to the EY flexible working policy documents produced, all as referred to in the agreed affidavit of his work counsellor, AH.  I was impressed with the content of that affidavit which chimed entirely with the defender’s evidence on this matter.

[12]      The defender spoke in detail of taking the children to ballet each Saturday since January 2014 and of the children’s excellent relationship with family friends, CG and HG, known as aunt and uncle.  At no time did he depart from his position with regard to the pursuer to the effect that she has a loving and caring relationship with the children.  Notwithstanding that, his position was that from August 2013 the parties had effectively operated a joint care arrangement for the children.  He described his shock and dismay at discovering the pursuer’s extra-marital affair in early November 2014.  He had given the children’s passports to CG and HG for safe keeping following that discovery.  At all times the pursuer had been aware of this.  He described his additional shock at learning of the pursuer’s relocation proposal when a Summons was served upon him at home on 27 November 2014.  He expressed considerable regret with regard to the nursery incident of 12 February 2015, and accepted that it did not paint him in a good light, saying that this was not the person that he was or wanted to be.  This stands in direct contrast to the pursuer’s approach to this incident. 

[13]      The defender spoke with considerable emotion when he described the prospect of his children moving to Florida.  He would be a visitor, in his words “a seagull flying in for a moment”.  He would not be able to see them as he has done throughout their lives almost every day.  He would lose his role as the children’s father.  The children would not know him as their father.  In Edinburgh, in contrast, he had the support of his parents to continue in the current property, which the letting agents had confirmed to him would be available subject to reference checks which he had already passed before.  He confirmed that the pursuer and he had registered ZH at a particular primary school in Edinburgh.  The current babysitter, FN, would continue to be available to provide support as would his friends CG and HG.  A telling piece of evidence came at the end of his re-examination.  He had been asked in cross-examination about being away with work on ZH’s birthday.  He advised that he had been away for the day but not overnight.  When asked by his own counsel in re-examination whether on that date his wife had been working, it would have undoubtedly been an easy matter for him to advise that she had indeed been working, but his response was that he honestly could not remember.  I found the defender to be wholly credible and reliable in his evidence before the court.  I considered him to be a humane, competent, dignified and loving father and a hurt but nevertheless a respectful and even affectionate husband to the pursuer. 

[14]      The other witnesses led on behalf of the defender can be dealt with in brief terms.  FN confirmed that since August 2013 the children did not have one parent as their primary carer and that the defender was involved in all aspects of the children’s care.  When FN arrived to begin work at 8:30am at the parties’ house, sometimes the pursuer would not be there, but the defender would be.  She described the children hanging around the leg of the defender in affectionate and moving terms.  She told the court that in the event of a move to Florida, this would destroy the children as well as their father. 

[15]      The defender’s father gave evidence.  I found him to be warm, generous and genuine as a witness and was very impressed indeed with the prospect of his continuing involvement in the lives of the children as grandfather.  He spoke of his friendship with the pursuer’s parents and in particular her father, and of the various visits made by him and his wife to the USA and to Edinburgh, and their visits in turn to them in Dorset.  He spoke enthusiastically of the joint family holiday in France in the summer of 2014 and of another family get together in Ireland together with birthday celebrations.  The absence of the defender in the children’s lives in the event of a move to Florida was described by him as representing the end of the world to the children, who would not comprehend it.  He indicated that he was able and willing to provide for the continued rental of the parties’ current home with a view to purchasing an investment property in Edinburgh which the defender and the children could live in at a subsidised, and then in due course a market, rate.  He spoke in detail of the practical input to the children’s lives so far offered by the defender, observing, while at the same time not seeking to diminish the role of the pursuer as their mother, that she was not a natural mother. 

[16]      Finally, evidence was led on behalf of the defender from the parties’ close friends, CG and HG.  CG had been best man at the parties’ wedding.  He spoke of holidays together in December 2013 in York and April 2014 in Islay.  CG described the defender as the primary care giver for the children, as he observed matters.  He described in eloquent terms the active social life of the pursuer in Edinburgh.  He described the discovery by the defender of the pursuer’s extramarital relationship in detail and spoke to the support that he and his wife had offered and were prepared to continue to offer the defender and the children and indeed the pursuer and the children, in the future.

[17]      HG was a particularly impressive witness.  She described the meetings for breakfast and coffee of the two families following the Saturday dance classes.  She described a close relationship on her own part with the pursuer and was vehement that the parties had not separated in August 2014.  It was clear to her that there were marital issues, but there was no talk of separation in her conversations with the pursuer.  She had placed a posting on Facebook about the pursuer’s extramarital affair, which she accepted had caused a breakdown in her relationship with the pursuer, but she was hopeful that over time that could heal and was prepared to offer any assistance possible to the parties and the children in regard to their childcare needs.  She herself would be on maternity leave shortly in 2015 and would be even more available.  She broke down in court when the relocation proposal was put to her, stating that this was very upsetting to think of and that it would be very detrimental to the children’s development and wellbeing.

[18]      I assessed the commitment of CG and HG to in particular the defender and the children as utterly genuine.  They spoke of a friendship that had stood the test of time and of generous practical support which they were prepared to offer.  I consider that they did not give evidence simply out of loyalty to the defender, but rather that there was instead a whole hearted commitment to the children at the core of the evidence presented by them to the court. 

[19]      A variety of affidavits were referred to in the joint minutes of parties.  I do not consider that these have, with the exception of the defender’s work counsellor, AH, assisted much with the issues before the court.  I note, however, in passing, that in the affidavit of the pursuer’s sister, MH, at paragraph five, she described the parties as “wonderful parents who love their children unconditionally”.

 

The law and the submissions of parties

[20]      Both counsel helpfully produced lengthy written submissions.  There was no dispute between counsel in respect of the applicable law, which is now well settled.  The welfare and best interests of the children concerned are paramount, and fall to be judged without any preconceived leaning in favour of the rights and interests of others:  M v M 2012 SLT 428 at paragraph [9].  A party seeking an order in respect of relocation must undertake a dual burden imposed by section 11(7) of the Children (Scotland) Act 1995 of 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:  M v M, supra, at paragraph [57].  The decision of Sheriff Morrison QC in M v M 2008 FamLR 90 was referred to with approval by both counsel as a welfare-centred, presumption-free factor-based approach.  Reference was further made by counsel to the Washington Declaration on International Family Relocation 2010, to S v S 2012 FamLR 32, and to various other first instance sheriff court judgments.  The decision of the Lord Ordinary in CG v JG [2014] CSOH 88 was also canvassed between parties.  The pursuer’s counsel founded upon it for authority for the proposition that matters of relocation could be determined initially as a matter of principle in circumstances of urgency, with documentary evidence being permitted to follow to establish any outstanding matters before an actual order was made by the court.  Counsel for the defender, who had appeared in that case, emphasised its uniqueness, pointing out that the documents then sought were documents which undoubtedly, and by the agreement of parties, existed, but had for unknown reasons not actually been made available to the court before the order was made.  This was a very different situation from the rather diffuse and wholly speculative arrangements presented to the court on behalf of the pursuer with regard to relocation to Florida, he submitted.  This background to that case was not challenged by the pursuer’s counsel, and I too viewed CG as a case unique to its own circumstances. 

 

Submissions for the pursuer

[21]      Counsel for the pursuer accepted at an early stage in her submission, having reviewed the authorities, that the case before this court is distinct from any other relocation request considered by other courts in the authorities.  Put short, it is, on counsel’s account, unprecedented for a relocation request to originate from a party living in family with the other party and children, as in this case these parties have done and continued to do even at the date of the proof.  She accepted that it was normal for there to have been a separation and established pattern of residence and contact, and that these factors did not pertain in this case.  She submitted, however, that whatever happened next in the lives of the parties and the children would represent a significant change for the children and that accordingly a move to Florida would have less of an impact on them than in the ordinary relocation case.  Counsel focused upon the travel arrangements of the defender in his employment which she described as client-based, submitting that the pursuer had been the principal carer in Edinburgh from August 2013.  Any shared care arrangements ran the risk of more travel on the part of the defender and had to be seen in the context of the deteriorating relationship, a lack of trust between them and an inability to communicate and work with each other.  The pursuer was content, in the event of relocation being granted, to accede to the defender’s crave for contact on that basis in full and would seek to foster and encourage further and more extensive contact in the event of relocation being granted.  In the event that the parties remained in Scotland, the pursuer was not opposed to regular contact but suggested that this should take place every weekend, in the event that a residence order was made in her favour.  It was proposed on her behalf that there should probably be a split of summer holiday contact in the event that parties remained in Scotland.  Counsel invited the court to appoint a child welfare hearing to determine the matter of contact following upon resolution by the court of the issues of relocation and residence. 

[22]      Counsel addressed the court in more detail on relocation, observing that this was not a standard relocation proposition in respect that the children had been born in the USA and that both parents have US citizenship, the parties having worked and lived in the USA until August 2013.  The children had spent most of their lives in the USA.  In the UK the childcare was bought-in, but, in contrast, support would be available through the pursuer’s family on a more flexible basis in the USA.  The current status quo of alternate day care was simply not workable.  There were financial and childcare problems in the UK and it was not unreasonable for the pursuer to seek relocation.  With regard to the effect of any relocation order on the absent parent, as there are no pre-existing arrangements in place, a contact regime could be created to build upon the substantial but inevitable change which was coming in any event into the children’s lives.  Although Florida represented a long trip, this was at least not New Zealand, counsel observed.  There were no family ties in Edinburgh and contact could continue in the future with defender’s parents at the same level as it had been to date.  There was significant gain to the children in respect of their relationship with the maternal grandparents who had maintained contact with the family throughout their time in Edinburgh.  The children had not formed attachment-type relationships within Edinburgh and were at an age to be highly adaptable, having spent a rather limited time in Edinburgh.  The effect of refusal of the relocation order would have an adverse impact on the pursuer’s health.  Any school enrolment would be subject to one of the parties obtaining accommodation in a relevant catchment area.  The pursuer had access to no other state support in the UK, not being a UK citizen.  This was contrasted by counsel with the prospective position in Florida in respect of support and economic prospects. The grant of orders for residence and for relocation would be in the best interest of the children, counsel submitted. 

 

Submissions for the defender
[23]      Counsel for the defender submitted that it would be open to the court in terms of section 11 of the 1995 Act to grant a residence order in favour of a pursuer for certain periods and a residence order in favour of a defender between certain periods.  He emphasised that this was not a standard relocation case.  In this case both parents had always been living in family.  The parties had decided to relocate in the UK in the full knowledge that there were no family members in the Edinburgh area.  There had been bought-in care from the birth of the first child in the USA, including from the maternal grandmother.  The children would lose, in the event of relocation being granted, all knowledge of persons and their life within the United Kingdom as well as effectively losing their father.  Relocation would effectively constitute the removal of the children from an established family home.  There was no evidence that ZH would not have a place at a school in Edinburgh.  Counsel addressed the chapter of the case involving the pursuer seeking and being allowed by the court to give evidence in addition.  It was clear that the pursuer had been concerned by the gaps made in evidence in her relocation case and had simply set out overnight to obtain pieces of paper in order to tick what she saw as a variety of empty boxes.  This approach went to the heart of fairness between the parties in proceedings, notwithstanding that the court was balancing issues of welfare of the children.  The pursuer had sought and obtained an expedited proof, and yet required to come back for a second bite at the cherry in giving her evidence in order to improve her prospects.  Counsel invited the court to ignore that second chapter of evidence in its entirety.  I observe that I have decided not to take that course, but to take the whole evidence laid before the court into account. 

[24]      Counsel submitted that the move to Florida was not reasonable.  It was not made in furtherance of the pursuer’s extra-marital relationship, nor to develop any family unit.  In reality parties had worked an extreme form of shared care regime from the beginning of January 2015 and there was no evidence that the children were suffering in respect of that.  The pursuer had herself averred in article 4 of her pleadings that:  “The pursuer can continue to provide the level of care that she has done for the children whether here or in the USA.”  There was no clear information in respect of her Florida employment.  The affidavit from her employer was deliberately vague with no firm commitment evident.  There remained a degree of uncertainty in respect of her accommodation and it was truly extraordinary that at the end of the pursuer’s first examination not one of the proposed adults in the putative children’s household had accommodation in Florida, namely the pursuer or her parents.  The pursuer’s overnight attempts to obtain such material represent a failed attempt to remedy the problems and constituted instead a shallow effort to secure on paper an address in order to obtain a school place.  The proposed apartment had not been visited by the pursuer or her parents.  The proposed move to Florida was simply an immediate reaction to her extra-marital relationship being discovered by the defender in November.  The pursuer had tendered misleading schedules in respect of her financial situation.  As a matter of substantive law she would have recourse as a resident to the Child Support Act 1991 Schedule 1.  Any motive spoken to by the pursuer was simply inadequate to uproot the children and absent their father from their lives, simply to further her career or be better off financially.  Counsel noted, as I noted myself, the pursuer’s repeated use of the phrase “my children”.  It was clear that in her view ZH and MH were her children and that she would make the decisions. 

[25]      The pursuer had massively overstated the defender’s work and travel commitments.  Counsel founded on the evidence of FN as presenting an entirely independent view from within the matrimonial home.  In that regard FN had presented a fundamentally different picture from that presented by the pursuer.  It was a grave cause for concern that the pursuer had clearly in her evidence been saying whatever she thought required to be said in order to secure her own desired outcome.  The evidence of the defender’s father was clear in respect of ongoing plans for contact with the paternal family.  Any relocation to Florida would effectively render contact unsustainable.  Contact could only be minimal.  The cost of travel was highly significant.  It would be a significant exercise to ferry two grown children back and forth across the Atlantic.  The effect of the move on the children could only be detrimental.  The defender has been a constant in the children’s lives and was even at the date of proof a resident parent involved actively in cooking, bedtime routines, nursery and with dance teachers, other parents and family friends.  The pursuer’s entire evidence had been an exercise in minimising the defender and marginalising his involvement.  Counsel voiced concern that the pursuer would simply carry on with this behaviour in the event that relocation was granted.  In the event that the court sent the children to Florida, any enforcement of a contact order would require to take place through the courts in Florida.  Looking at the pursuer’s evidence as a whole, containing as it did a false allegation of violence, extreme minimisation of the role of the defender and the defender’s parents and acceptance of lack of consultation with the defender, it was clear that any commitment from the pursuer to contact could not be counted on by the court. 

[26]      Counsel submitted that the proposed move to Florida was wholly unilateral and unplanned.  The children would lose their home, friends, life in Edinburgh and their father.  In the circumstances of this family, both parents work and care for the children.  It was absurd for the pursuer to describe a family calendar as a household management tool, and it beggared belief that the pursuer would enter a shared care arrangement, as she has done since January 2015, by agreement if the defender was, as she portrayed, simply a playmate for the children.  The court accordingly required to assess the impact of refusal of any relocation order on the pursuer through a prism of shared care with both parents continuing to reside in the family home, as opposed to the situation where one party held a residence order and was seeking to relocate. 

 

Discussion and decision
[27]      I have come to the view in this case that the grant of the specific issue order for relocation craved on behalf of the pursuer would be entirely inappropriate and indeed contrary to the best interests of the children.  The pursuer has never lived in Florida and it is accordingly quite wrong to see this proposal as a return home to the USA.  Florida is not New York City, with all the prior social networks, work involvement and indeed family support enjoyed there by parties in past years.  The pursuer is instead seeking to move to an entirely new location to an apartment that she has reserved but has not seen in order at some future undetermined time to live with her parents whose primary home remains in New York State, and to enrol ZH in a school which requires further and as yet inchoate steps to be taken by the pursuer to secure a place. Indeed, in her own evidence the pursuer did not seem to know whether she required to sign the proposed lease in Florida or whether could do so in the UK.  On the matter of employment, at best the pursuer hoped for the possibility of continued employment but even that possibility including rates of income and the location of that work was on the evidence entirely speculative and far too remote for this court to found upon in granting the order sought on her behalf.  I had no confidence in the solidity of any of the pursuer’s relocation plans.  They were quite literally changeable overnight.  The unreasonableness of the order sought by the pursuer can also be seen to be related to the unprecedented nature of this application, namely that never before has any Scottish Court been asked to make such an order in circumstances where both parents are resident in the family home and where there is no established pattern of residence and contact, let alone the clean break of a divorce.  I conclude that relocation is not a reasonable proposition on the evidence before the court in this case. 

[28]      In respect of the pursuer’s stated motive for relocation, the pursuer spoke of this in generalities, such as Florida being the place where she could give most to her children and where her children could be best served with a core home with grandparents and a cohesive family unit.  Accordingly, I consider that I require to look beyond the pursuer’s stated position to ascertain her motive.  On the evidence as a whole led on her behalf, I consider that her foremost motive must be a financial one.  The financial schedule produced by her I have found to be unreliable.  Standing the speculative nature of the pursuer’s prospective accommodation and employment in Florida, any such schedule would in any event be worthless.  The financial motive is accordingly in my view one which finds no proper basis in the evidence. 

[29]      I do not propose rehearsing at length the evidence of witnesses in affidavit form or in parole evidence in respect of the importance of contact between the children and the defender.  The impressive and independent witness FN, who has cared for the children since the autumn of 2013 for two days per week in the family home, observed that such a move would destroy the children.  The defender’s father astutely observed that they would simply not comprehend it, adding that the children are devastated if the defender is away even for a few days.  In his view, relocation would mean the end of the world for the children.  Perhaps even more astutely, the impressive HG observed, through her visible distress in court, that such a move would be very detrimental to their development and wellbeing.  I have to agree with all of these observations, having heard the pursuer and the defender giving their respective evidence.  The defender’s track record, on evidence which I accept, is one of an active and caring parent in every aspect of the children’s lives. 

[30]      Although not as significant as the other considerations before the court, nevertheless I consider that the detrimental effect upon the children’s relationship with their paternal grandparents in the UK further weighs against the merits of the relocation order craved on behalf of the pursuer.  I have already given my assessment of the defender’s father as an important figure in the children’s lives, particularly prospectively, as indeed I have of the pursuer’s parents. 

[31]      It is difficult to make a proper assessment of the extent to which the children could gain from a relationship with the pursuer’s parents as a result of the move.  Historically it is true that the relationship in the USA, when the children were infants, was of good quality and that the pursuer’s parents to their immense credit have continued to make considerable efforts to be involved in the children’s lives.  They have indeed played a very significant role in the children’s lives to date.  Other family members such as the pursuer’s sister and brother, who provided an affidavit, are all based in the USA also.  The difficulty for the court is that the proposed relocation arrangements are so speculative and all accommodation, schooling and prospective income for the defender so remote that I do not consider that I can make an appropriate assessment of the future in the USA, albeit as I decline to do so recognising the historical positive involvement of the pursuer’s parents in the lives of the children. 

[32]      In considering the effect of the proposed move on the children, I observe that I have already largely addressed this matter.  The children would be removed by the pursuer from an established family home in Edinburgh with friendships and ties with persons such as CG and HG.  They would indeed lose all knowledge of the UK and, in my view, having considered the evidence, would suffer permanent material damage through the effective loss of their father as a meaningful figure in their lives.  When I asked the pursuer at the end of her first chapter of evidence about what she would say to the children a year or two hence in the event that relocation was granted, she paused at length and although she stated that this had weighed on her mind, I gained the distinct impression that she was thinking about it for the first time in response to the question from the court.  The only answer that she gave in response was that this would require to be a joint conversation.  Bearing in mind the lack of consultation before and throughout these proceedings about the proposed relocation, accommodation and school arrangements in Florida with the defender, I would be highly sceptical about the pursuer’s intentions to involve the defender in any such exercise. 

[33]      As I consider the effect of refusal of relocation on the pursuer, it is of note that the pursuer is of course not a parent with a residence order seeking to relocate.  The factual background in considering this aspect is accordingly one of shared care in which both parents have throughout the children’s lives and even at the date of proof continued to reside in family with the children.  In my view this background significantly mitigates the effect of this matter in so far as it could tell against refusal.  The pursuer’s counsel made an argument about her client’s future health.  There was no evidence before the court to support that. 

[34]      Having heard the whole evidence, I have no hesitation in concluding that the relocation proposal is wholly without merit.  It lacked any elements of planning and consultation at its initiation and when it came before the court for proof.  The pursuer was in terms inviting the court simply to send the children to a place where employment, income, accommodation and schooling could simply be wished into reality by the will of a determined pursuer.  In the context of parties who have lived in family with their children and even now continue to do so in the family home, the proposal advanced for relocation was so weak that I am bound to express that I am concerned that it was allowed to reach proof at this court at all, let alone on an expedited basis. 

[35]      On the issue of residence in Scotland, the pursuer will not be left bearing the burden, as she put it, of care.  Sharing residence of the children, albeit in separate households, will be the committed and capable figure of the defender.  I accept that he will very occasionally require to travel in connection with his work.  He does not, however, operate as a member of the armed services, going on tours of duty, nor is he away at sea in the Merchant Navy or as a submariner.  On the evidence which I accept, he will be able to address childcare priorities with the help of FN, CG and HG.  Shared care has, of course, worked in the difficult circumstances of a midnight to midnight alternate daily arrangement since the beginning of January 2015.  In these circumstances, I am confident that the shared care regime which I am establishing in making this order for joint residence, will work in the best interests of the children. 

[36]      Accordingly I determine that the refusal of relocation is in the best interests of the children and further that it is in the best interests of the children that they reside on an alternate weekly basis with each of the parties by way of a formal residence order from this court, with an equal division in school holiday residence.  I make these orders on the basis of the evidence that I have heard in its totality and my impressions of the witnesses and their credibility and reliability on matters germane to the issues before the court.  I do so having regard at all times to the welfare and best interests of the children as the paramount consideration in my determination of the issues that the court is charged with.  Much of the evidence led on relocation has informed my view on residence.  The status quo is one of established joint care, with support.  I am not persuaded that this should change.  The parties are highly educated, intelligent, competent and loving parents.  There is substantial support available to the family in Edinburgh, and considerable goodwill among extended family members.  Indeed, it is to be hoped that all persons of goodwill within both sides of the children’s extended family will assist both the parties and the children in practical matters such as accommodation.

 

Disposal

[37]      I accordingly refuse the pursuer’s relocation crave, and make residence orders in respect of the children in favour of each of the parties, as I have described.  I am content to leave the day and time of the weekly change to their mutual good sense.  A post-proof child welfare hearing is not appropriate or required.  I accordingly make final orders on all craves and pleas-in-law, save the question of expenses. 

[38]      It is my understanding that the passports of the children were lodged when the matter was remitted from the Court of Session with the sheriff clerk.  I direct the sheriff clerk to release the passports within seven days of this judgment into the hands of the defender or his solicitors.

[39]      Finally, on the joint motion of counsel, I have reserved all questions of expenses and can be addressed upon these as and if required on the date which I have assigned for a hearing thereon in the accompanying interlocutor.