Scottish Sheriff Court Decisions

SHERIFFDOM OF TAYSIDE, CENTRAL AND FIFE AT FALKIRK

[2016] SC FAL 2

F13/13

JUDGMENT

 

by

 

SHERIFF JOHN K MUNDY

 

in the cause

 

K W

 

Pursuer and Minuter;

 

against

 

D G

 

Defender and Respondent:

 

Act:   Mrs Clark, Advocate; 

Alt:   Mrs Hughes, Advocate

 

 

Falkirk, 12 August 2015

 

The sheriff having resumed consideration of the cause:

FINDS IN FACT

[1]        The parties are the parents of B born on 4 May 2010. The pursuer KW is the mother, and the defender DG, the father of B. The pursuer is 28 years of age and the defender is aged 32.

[2]        The material facts relevant to the application for relocation of B and the decision thereon on 12 February 2014 in the principal action are set out in the Note issued by me on 6 May 2014, which is repeated herein brevitatis causa.

[3]        Since February 2014, when the application in the principal action for relocation was refused, the shared care arrangement between the parties in relation to B has continued substantially on the same terms, the defender having care of B for 6 out of 14 days on a two weekly cycle. There have been some changes in the practical arrangements. When travelling between Scotland and Hampshire, the pursuer now travels by air rather than driving.  Further, B now goes to nursery school in Falkirk on a Wednesday in addition to a Monday and a Tuesday.

[4]        The pursuer has been diagnosed as experiencing an Adjustment Disorder (DSM- 5) which is directly related to her concerns over the welfare of her daughter B, the current proceedings and her internal conflicts regarding her position in relation to the care of her daughter. 

[5]        The pursuer is unable to tolerate the thought of “abandoning” her daughter but also unable to contemplate living in Scotland or living apart from her current partner KM whom she is due to marry in August 2015. 

[6]        The pursuer is unlikely to experience any significant improvement in her psychological condition until she achieves a resolution, agreed alternative arrangement or “closure” to the event.

[7]        The pursuer was seen by Dr Gary MacPherson, Consultant Forensic Clinical Psychologist on 16 September 2014 and again on 27 April 2015.  As at September 2014 her symptoms included low mood, problems with sleep, tearfulness, hopelessness, nightmares and generalised anxiety to the detriment of her health and social functioning.  Between September 2014 and April 2015 there had been a modest decline in the pursuer’s functioning. 

[8]        As a result of the decision in February 2014 to refuse the pursuer’s application for relocation, she was devastated. 

[9]        B has not been affected by her mother’s health problems.  Further, the pursuer’s health problems have not affected her ability to care for B. 

[10]      The pursuer attended a GP, Dr Robert Scott on 16 December 2014.  In his opinion the chest pain reported by the pursuer was secondary to her life stresses.

[11]      In December 2014 the pursuer and her partner KM moved house to another address in Hampshire.

[12]      The accommodation supplied by MH, the pursuer’s sister in Callander for the purpose of the shared care arrangements while B is in Scotland will not be available in future for care arrangements, due to certain personal and health difficulties.

[13]      The relationship between the pursuer KW and her sister MH has become strained.  The relationship between the pursuer and her mother in Tullibody has deteriorated. However, it is likely that the pursuer will, with the support of her partner, KM, be able to secure accommodation in Scotland for the purpose of care arrangements.

[14]      The pursuer’s ability to work or to seek employment has been compromised by the decline in her health.  The principal cause is the adjustment disorder.  Her capacity to work is likely to increase with improvement in her psychological condition.  The pursuer is at present unable to work in a full time job, but might be able to work part-time.  If the pursuer recommenced work that could build up her experience and confidence. Following the refusal to grant relocation in February 2014, the pursuer was offered a position by a financial services company in Stirling but declined the offer as she felt unable to work in the same department as the pursuer, his partner CMcC and another individual.

[15]      In the event that the pursuer’s application for relocation is refused, the pursuer has no intention of returning to live in Scotland. 

[16]      As regards B’s education, the pursuer and the defender DG have visited a number of schools in the areas local to where DG lives. By agreement B was enrolled in a primary school in the catchment area of B’s residence in Falkirk, prior to a deadline in January 2015. However, the parties are agreed that a different school in the Dunblane area would be the preferred school for B having regard to her best interests should the application to relocation be refused.  A placing request for B to attend that school to enter P1 in August 2015, has been approved.  In choosing a school the defender fully involved the pursuer and arranged for them to visit various schools in the local area.  He has gone to great lengths to involve the defender in this regard.

[17]      Following their move to a new address in Hampshire in December 2014 KW did not investigate local schooling for B at that time.  She researched schooling a few weeks prior to the proof in this case following discussions with her solicitor.  Two schools have been identified by her, namely a local authority school, a five minute walk from the pursuer’s home and an independent fee paying prep school which is about a mile and a half away.   The pursuer’s preference is for the latter. The fees for that school, would be around £7,500 per annum. The defender was not consulted about choice of schooling in Hampshire.

[18]      The defender DG and his partner CMcC intend to relocate to the Dunblane area.  To that end they intend to sell their current properties.  They have taken preliminary steps to do so.  Should B attend the preferred school this would involve a journey of around 25 minutes from the defender’s current house in Falkirk.

[19]      If B were to relocate to Hampshire then she would begin school there in September 2015. 

[20]      There are good educational opportunities available to B both in Hampshire and in Scotland. 

[21]      B has continued to attend nursery school in Falkirk. 

[22]      Both the pursuer and the defender continue to offer stable and secure environments for B. 

[23]      B continues to have a close and loving relationship with both the pursuer and the defender and it continues to be important and in her best interests that she continues to have substantial contact with both parents.

[24]      B continues to have a close relationship with her family on the paternal and maternal side.  Relocation of the pursuer with B would result in substantially reduced contact with her extended family.

[25]      If the pursuer were permitted to relocate to Hampshire with B then the close and loving relationship between B and her father would be substantially affected.

 

FINDS IN FACT AND LAW

[1]        It has not been demonstrated on the evidence, having regard to the welfare of B as the paramount consideration, that there has been a change in circumstances such as would justify a variation of the order of 12 February 2014 refusing relocation. 

[2]        In the circumstances it would be in the best interests of B to live in Scotland with her father DG, the pursuer KW having as much contact as is practicable.

 

THEREFORE repels the pursuer’s plea-in-law in the Minute to Vary No. 24 of process and refuses said minute; appoints the cause to a hearing on a date to be afterwards fixed to address the question of contact between the pursuer and B and to dispose of all questions of expenses.

 

NOTE:

Background and procedure

[1]        This is a minute to vary the court’s interlocutor of 12 February 2014 in terms of which I refused the pursuer’s application for a specific issue order to allow her to relocate with her daughter B to Hampshire.  That was an ex tempore judgment following an evidential child welfare hearing, there being a final interlocutor on 25 February 2014 when the defender’s crave for a residence order was dismissed as being unnecessary.  The decision was appealed by the pursuer to the Sheriff Principal and as a consequence I issued a note on 6 May 2014 containing my reasoning and including findings in fact.  The Note is a useful starting point for the present application. On 20 May 2014 the Sheriff Principal refused the appeal and adhered to my interlocutors of 12 and 25 February 2014.

[2]        This is not the first application to vary the order that I made in February 2014.  On 13 August 2014 the pursuer lodged a minute for variation seeking to permit relocation and this forms No.23 of process.  After sundry procedure at a hearing on 19 September 2014 I dismissed the minute essentially on the basis that it was premature and manifestly irrelevant.

[3]        The present application to vary and to permit relocation to Hampshire was lodged on 3 March 2015 and forms No.24 of process.  Following the lodging of answers and adjustment a record was prepared, the last record being No.30 of process which was tendered at the Bar on the first day of the proof relating to this minute. 

[4]        Prior to the proof there was sundry procedure.  A proof was allowed by me on 26 May 2015.  At the hearing on that day the agent for the defender sought to maintain this minute was not competent as it did not disclose a material change of circumstances relating to the child but that if an evidential hearing was to be fixed all questions of competency and relevancy should be reserved.  The pursuer’s agent sought an evidential hearing.  I decided to allow a proof on the minute and answers reserving all questions of competency and relevancy meantime – in effect a proof before answer on the minute.  Unlike the earlier minute No.23 of process, there appeared to be more substance in the averments and I was not prepared to dispose of it without proof.  I assigned 9 June 2015 as a case management hearing in terms of rule 33AA.2 of the Ordinary Cause Rules.  I was concerned to focus parties on the issues that were relevant to determination of the application rather than peripheral issues, which had been a concern of mine when hearing the original application.  I refer to paragraph [5] of my note of 6 May 2014 in which I referred to the observations of Lord Reed in B v G (S) 2012 SLT 839 at para 21 et seq. On 9 June 2015 I made an order as to preparation and directed that affidavits were to represent the evidence in chief of each of the witnesses called to give oral evidence. However, I first had to deal with a motion on behalf of the pursuer at the bar to recuse myself from the case on the basis of an assertion that I had made an observation at the previous hearing on 26 May 2015 to the effect that I may be struggling to keep an open mind in this case.  The solicitor appearing for the defender had no recollection of an observation to that effect and neither had I.  There would seem to have been a misunderstanding on the part of the pursuer’s solicitor following a discussion on 26 May as to the identity of the sheriff who would be hearing the proof.  It was indicated at that time on behalf of the pursuer that it might be better for the matter to be looked at with a “fresh pair of eyes”.  Apart from that observation I understood that both parties were at that stage content that I heard the proof. I refused the motion.

[5]        The proof proceeded on 23 June 2015 and on that day oral evidence was led.  In addition affidavits and productions were before the court for its consideration.  The pursuer’s proof consisted of evidence from the pursuer KW, her sister MH, her partner KM and Dr Gary MacPherson, Consultant Forensic Clinical Psychologist.  The defender’s proof consisted of evidence from the defender DG, his partner CMcC and the affidavit of his mother VG, who was not called upon to give oral evidence.  In the event I extended some latitude to the parties, particularly the pursuer, and allowed some questioning in chief to supplement the affidavits that were lodged.  The proof was adjourned to a second day for submissions to 1 July 2015 at 2pm.  The pursuer’s submissions lasted the afternoon and therefore we had to adjourn to a third day, 7 July 2015 for the submissions on behalf of the defender and those were heard on the afternoon of that day.  I then reserved judgment.

[6]        At the proof the pursuer was represented by counsel, Mrs Clark, and the defender by counsel, Mrs Hughes.

[7]        Mrs Clark submitted a document “Outline Submissions” and supplemented this with oral submissions.  Mrs Hughes made oral submissions. 

 

The issues

[8]        The contention on behalf of the pursuer was that since February 2014 there had been a material change in circumstances and that relocation was now in the best interests of B.  I should therefore grant a specific issue order allowing this.  This is what is sought in craves 1 and 2 of the minute.  The changes put forward related essentially to the pursuer’s health and changes in her family circumstances. She had been diagnosed as suffering from an adjustment disorder (DSM-5) and as a consequence her physical and psychological condition had declined.  She was as a result unable to secure employment and fund accommodation in Scotland.  Further, accommodation was no longer going to be made available to her at the home of her sister MH in Callander.  The previous decision, it was contended, was predicated on her being able to return to Scotland and she was no longer able to do so.  The position taken on behalf of the defender was that no material change had been demonstrated relevant to the best interests of B.

 

Summary of evidence 

[9]        During her evidence the pursuer was clearly upset and distressed.  She was often tearful.  She spoke of the devastating effect that my decision had had upon her.  She was clear that if relocation were not permitted then she would not come to live in Scotland but would be staying in Hampshire with her partner KM whom she planned to marry on 8 August 2015.  Her ability to care for B had not been affected by her condition although it was possible that B would pick up on her anxiety.  She emphasised that if B were allowed to go to school in Hampshire then there would be an additional 20 days holidays which would allow DG to have even more contact with B.  She spoke of her inability to obtain or even contemplate employment at this stage given her health.  The extent of the pursuer’s distress while giving evidence was considerable particularly when contemplating being separated from B or the prospect of living in Scotland away from KM. She confirmed that she would now agree to B going to the preferred school in the Dunblane area if relocation were refused. She indicated the difficulties in accommodation in Scotland for the purposes of the care arrangement.  In her evidence MH confirmed that accommodation could not continue to be made available to her sister for the purpose of a care arrangement due to personal circumstances affecting herself and her husband.  KM gave evidence in a straightforward manner.  He confirmed their shock at my decision to refuse relocation in February 2014.  He also confirmed what the pursuer says in her affidavit that she no longer got on with her mother in Tullibody.  Dr MacPherson gave evidence under reference to his reports dated 18 September 2014, 2 May 2015 and his letter of 2 June 2015.  His evidence formed the basis of the findings in relation to the pursuer’s adjustment disorder.  This was not clinical depression but a disorder associated with her present predicament and if the circumstances giving rise to that predicament disappeared then the disorder would likely resolve.  In examination in chief he was asked whether allowing the pursuer to relocate to Hampshire with B would resolve the situation and he indicated it would be likely.  He was not asked what the consequences would be in terms of resolution if the relocation order were refused. As for the pursuer’s ability to work, Dr MacPherson indicated that while he could not see the pursuer doing a 9 to 5 job, he could envisage her working a few hours in order to build up her experience and confidence.

[10]      The defender DG gave evidence in a straightforward manner.  He recognised and acknowledged the pursuer’s difficult position and that B had strong bonds with the pursuer and KM’s family in Hampshire as well as strong bonds in Scotland.  He felt that the bonds were stronger in Scotland as the extended family lived here.  He confirmed that for his part he would be devastated if relocation were permitted.  It would in his words be “heartbreaking”.  He had adjusted his pattern of work to fit in with the arrangements for dropping off and picking up B at nursery in Falkirk.  His employer had allowed him considerable flexibility.  He confirmed that the preferred school in the Dunblane area was an appropriate school.  He had consulted with the pursuer on schools in the area.  He had not been consulted regarding any research into schools in Hampshire.  It is clear that he went to great lengths to involve the pursuer in the decision making process as to schools.  CMcC gave evidence in support of the defender’s position in line with her affidavit lodged in process and confirmed in particular B’s strong family ties in Scotland, as does the affidavit of the defender’s mother VG.

 

Submissions

[11]      As indicated Mrs Clark lodged a written submission and it is lodged in process. I do not think it necessary to repeat that in detail, suffice to say that I took full account of those submissions as supplemented by the oral submissions on behalf of the pursuer.  In summary, it was submitted that there was a material change of circumstances justifying a variation of the order that I had previously made and further that relocation would bring benefits in that there would be an additional 20 days holidays which could be used for the benefit of the defender.  Central to the submissions was the declining health of the pursuer which it was said was not merely an expression or disappointment in a decision but went far beyond that and far beyond the circumstances envisaged in the case of M v M 2012 SLT 427 which clarified the psychological and emotional impact of refusal on the mother was not to be regarded as a critical factor.  Her health issues compromised her capacity to work and live in Scotland, my previous decision being predicated on that hypothesis that she would return in the event of refusal of relocation. Counsel referred to the criteria set out by Sheriff Morrison in M v M 2008 Fam LR 90.  In relation to the factors, particular emphasis was placed on the amount of contact that could be given to the defender in the event of relocation being allowed.  It was also submitted that the relationships the child had with the wider family could not be given primacy over her relationship with her mother and that it could not be in the interests of the child to preserve those relationships at the cost of her maternal relationship. The accommodation difficulties in Scotland were founded upon. Mention was also made of the defender’s proposal to relocate to the Dunblane area and the likely disruption to the child that would cause.

[12]      For the defender Mrs Hughes submitted that the minute should be refused.  She argued firstly that it had not been demonstrated that there had been a change of circumstances.  Secondly, the pursuer had not in any event discharged the evidential onus upon her to establish such a change.  Thirdly, the court could not in any event be satisfied that the minute should be granted having regard to the best interests of B.  She referred to the statutory provisions in the Children (Scotland) Act 1995 including section 11(2)(e) providing for a specific issue order and section 11(7)(a) referring to the paramount principle and also the “better than not” requirement.  Under reference to the case of X v Y 2015 Fam LR 66, she submitted that a material change of circumstances was necessary.  She then referred to Butterworth’s Scottish Family Law Service at paragraph [C702] to the effect that a “change of circumstances is usually required before a section 11 order may be varied”.  She made a point that according to the evidence there had only been a modest decline in the pursuer’s condition between September 2014 and May 2015.  The previous minute had been refused in September 2014.  Pausing there, I am inclined to the view that the relevant starting point is in fact February 2014 when the matter was last adjudicated.  Mrs Hughes also referred to the evidence of Dr MacPherson to the effect that the pursuer’s condition would likely improve on “resolution” of the current predicament.  I was not entitled to conclude that only resolution in favour of the pursuer would do in this respect.  If that were the inference to be drawn from the evidence then the matter would require to have been put forward bluntly and clearly to Dr MacPherson.  It was submitted that it would not be right to conclude that changes or improvements in the pursuer’s health fell to be dictated by or dependent upon the presence of the child.  One had to consider the best interests of B, not the pursuer.  I was urged to have regard to the whole of the evidence of Dr MacPherson in the context of his reports.  That evidence did not address the welfare of the child.  The pursuer did not offer to prove a material change which was relevant to the interests of B. 

[13]      As to the issue of evidential onus Mrs Hughes founded on the case of SM v CM [2011] CSIH 65 (also reported M v M 2012 SLT 427, supra).  It was submitted that there was a dual burden in terms of evidential onus for the pursuer to satisfy and that of showing (1) that relocation would actually be in the interests of the child and (2) that from the child’s perspective it would be better for a specific issue order to be made by the court than no order to be made at all (paragraph [57]).  She also referred to the case of S v S 2012 Fam LR 32, an Inner House case supporting the idea that while there may be no strict legal onus of proof in cases such as this, there was an evidential onus (per Lord Emslie at paragraph 10).  Reference was also made to Donaldson v Donaldson [2014] CSIH 88, another Inner House case where reference was made by the court at paragraph [27] to the “presumption free” approach to the effect that it is wrong to proceed on the basis that there is a rule that the most crucial assessment required is as to the effect that a refusal of the relocation application will have on the applicant.  On this theme reference was also made to the Court of Appeal case of K v K [2012] Fam 134.   As to the offer of extra school holidays if the pursuer were allowed to relocate with B to Hampshire, it was submitted that this was a misconceived argument.  The position had to be looked at from the best interests of the child and the idea that the benefit to the father of extra contact should predominate over the child’s education was misguided.  B was central to DG’s life.  B was not a crutch, a tool or saving grace.  Mrs Hughes also referred to the “Washington Declaration on International Family Relocation:  The Future?” of March 2010 with a view to suggesting that the reference as a relevant factor of “pre-existing custody and access determinations” meant that previous procedure in this case was relevant to my determination. 

[14]      It was an agreed position between the parties that if relocation were to be refused then the child would be attending the preferred school in the Dunblane area.  This was relevant to an outstanding motion (7/1 of process) in the parallel proceedings at the instance of the defender DG against the pursuer KW.  That would be dealt with following my determination in this case.  It was further agreed that whatever the decision there would have to be discussion regarding contact for the non-resident parent.  It was a joint position that all questions of expenses should be reserved meantime.

 

Discussion

[15]      At the outset it is important to recognise the relevant statutory provisions.  Section 11 of the Children (Scotland) Act 1995 provides for the court orders that can be made in an action relating to parental responsibilities and parental rights.  Section 11(2)(e) provides that a court may make an order regulating any specific question which has arisen or may arise in connection with such an application – a “specific issue order”.  Section 11(7) provides inter alia that in considering whether or not to make an order 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 none should be made at all.  Section 11(13) provides that any reference in the section to an order includes a reference inter alia to an order varying or discharging an order.  Accordingly the welfare principle applies in this application as the paramount consideration.  The principle also underlies the approach that the court should take in considering an application for relocation, being an application for a specific issue order.  The criteria set forth by Sheriff Morrison in M v M 2008 Fam LR 90 are relevant for consideration, as also the dicta in the other case of M v M 2012 SLT 427 which clarified that the psychological and emotional impact of refusal of such an order on the mother is not a critical factor as suggested in the English case of Payne v Payne 2001 2 WLR 1826.  This “presumption free approach” was recognised by the court in Donaldson v Donaldson [2014] CSIH 88, per Lady Smith at paragraph [27].  Further, in the case of K v K [2012] Fam 134  the Court of Appeal made it clear that the approach set forth in Payne did not apply in cases where there was shared care. As regards onus, it is quite clear from the Inner House decision in White v White 2001 SC 689 there is no legal onus of proof in such cases.  Such a question does not arise.  It may be that there is an evidential burden in the sense of a requirement to lead some evidence on an issue so that the issue can be open for consideration by the court, but once evidence has been led questions of onus tend to evaporate. I refer to the dicta of Lord Clyde in Sanderson v McManus 1997 SLT (HL) 55 at page 65.  As for the suggestion under reference to the Inner House case of M v M that there is a dual burden on the pursuer in such a case firstly to demonstrate that relocation would be in the best interests of the child and secondly that from the child’s perspective it would be better for a specific issue order to be made by the order than no order be made at all, those were obiter remarks.  As was pointed out by Lord President Rodger in White v White at page 699 this second limb of the statutory test is designed to give effect to Parliament’s view that, whatever possible, matters should be regulated by the parties without the intervention of the court.  In other words, orders should not be granted where it is unnecessary to do so.  Where parties remain at issue on the question to be resolved, an order will inevitably be required if the court is in favour of the applicant. In such a situation, there is in my view no additional onus of any sort.

[16]      But there is of course another factor which is relevant to the instant case.  This is an application to vary the order I pronounced in February 2014.  It appeared to be accepted by both sides that a material change of circumstances was necessary before the order could be varied.  That may be the practical approach in many cases.  However, I do not think it appropriate to couch the test in those terms as it is suggestive of a legalistic and almost mechanistic approach to an issue which has at its heart the welfare of the child. I would prefer to say that for an order under section 11 to be varied it may normally be expected that there is a change of circumstances which bears upon the issue of where the best interests of the child lies.  That said, even if there is such a change; it must remain in the discretion of the court to grant or refuse the order having regard to the welfare principle.

[17]      Given that my original decision was made in light of the factors set forth by Sheriff Morrison in the case of M v M it must of course be relevant to consider any change in light of those relevant factors. 

[18]      Turning to the facts of this case, I have set out what I consider to be the facts material to the decision in my findings in fact.  In doing so, I have had regard to the whole evidence both in the form of affidavits as supplemented by oral evidence.  The parties have continued to have shared care of B on substantially the same terms, the defender having care of B for 6 of 14 days in a two weekly cycle. There have been some changes: the pursuer now travels by air instead of by car. Also, B has been attending for an additional day – a Wednesday – at nursery in Falkirk (by specific issue in the parallel case of DG v KW ref F31/13 made on 19 September 2014). As regards the witnesses who give oral evidence I thought them to be generally credible and reliable, their stances understandably coloured by their own views as to what should happen in this case.  The issues to be resolved did not in essence turn on questions of credibility and reliability.  Clearly, both parents have a close and loving relationship with B.  However, I considered that the defender had a more mature and balanced approach in considering the best interests of B. By way of example, he went to considerable lengths to involve the defender in choice of school in the Falkirk and surrounding area. The steps he took are set out in detail in his affidavit. By contrast, the pursuer did not consult with the defender as to choice of school in Hampshire following her house move, which was in any event a rather belated investigation following discussions with her solicitors. Further, the feeling I got from the pursuer’s oral evidence and the content of her affidavit evidence was that she is preoccupied with her own feelings and situation rather than looking at the situation from the perspective of what is in the best interests of B. It seemed to me that the pursuer was overwhelmed by the current situation. Her presentation and current health problems might have given rise to a concern as to her ability to care for B were it not for the fact that the evidence was that her capacity in that regard was unaffected.  Dr MacPherson gave evidence in a straightforward and balanced manner and I accepted it.  On his evidence the pursuer’s symptoms would be likely to improve on resolution of the current situation.  No doubt, that would be aided by relocation being allowed and he indicated as such. However, no other options as to “resolution” were put to him.  Accordingly it is open for consideration as to whether or not a resolution in favour of the defender might also help the pursuer to overcome her health problems. I do not think it accurate to simply conclude that only resolution in favour of the pursuer would suffice and Dr MacPherson did not say that in his evidence. There was some discussion during submissions as to what precisely Dr MacPherson said in this regard and I requested the notes of his evidence to be extended. His position is recorded at pages 11 to 13 of the Extract of Evidence. He gave his evidence clearly and carefully. His fundamental position was that a resolution, agreed alternative arrangement or “closure” was necessary before there was a significant improvement in the pursuer’s psychological condition. He stated as much in his report of 18 September 2014 at page 9, his report of 2 May 2015 at page 2 and his letter of 2 June 2015, page 2. It is important that his evidence is looked at as a whole. The letter confirms also that there is anxiety in relation to the current proceedings. But even if only resolution in favour of the pursuer would aid her symptoms, which is not established, I have considerable sympathy for the argument put forward on behalf of the defender that the matter could not be determined on the basis of what would be good for the pursuer’s health.  It is after all the interests of the child with which we are concerned as the paramount consideration.  While there was a hint in the pursuer’s evidence that her daughter might pick up on her anxiety, there is no other evidence that B has been affected. As has been noted from the authorities, the effect of the outcome on a parent cannot be a critical factor, particularly where there is a shared care arrangement.  There may be cases where circumstances affecting a parent may be relevant to the welfare principle.  For example there may be cases where the mother of a child needs protection from abuse from the other parent and statute has acknowledged this situation by virtue of the provisions in section 11(7A) of the 1995 Act. This is not such a case.  So while the effect on a parent of the refusal of an order might be relevant to some extent as being perceived generally to be relevant to the welfare of a child, it should not in my view be accorded disproportionate weight in this case, as against the other factors which bear on the paramount consideration. 

[19]      I dealt with the M v M (Sheriff Morrison) factors in my note of 6 May 2014 from paragraphs [13]-[23].  The issue for me is whether there has been a change having regard to those factors.  The critical factor relied upon by the pursuer is the effect of the refusal of the order on her.  Her adjustment disorder has been noted.  This has compromised ability to gain employment and so, it is said, return to Scotland. Dr MacPherson has supported that notion though he held out some hope that the pursuer may be able to work on a part-time basis and build up experience and confidence. It would seem that opportunities have been available as she was offered a job with a financial services company in Stirling  following the refusal of the application for relocation in 2014, an offer she declined.  It is said that this outcome in terms of her reaction was not foreseen at the time the order was granted in February 2014.  However, this has to be seen in the context of my acknowledgement at paragraph [21] of my Note of the pursuer’s evidence that she would be devastated if the order were not to be granted.  I took that into account when I made my decision.  It may be that the outcome for her has been worse than anticipated but that cannot be a determinative or even a critical factor in this case, the context being a shared care arrangement hitherto.  I say this in recognition of the position taken by the pursuer that even in the event of her application being refused she would not under any circumstances return to Scotland.  This will no doubt have an effect on the relationship between mother and child if the child stays in Scotland as a result, just as the relationship between father and child would be affected if B went to live in Hampshire with her mother. By taking this stance, the pursuer has forced the issue and something has to give, as it is accepted that the present shared care arrangement cannot continue.  The argument that the primacy of the mother and child relationship should prevail over B’s relationship with the wider family ignores the relationship between father and child. The fact that the wider family, with whom B has a close relationship, live in Scotland is an additional and important factor which I must take into account. So while the assumption upon which I proceeded in February 2014 that the pursuer would return to Scotland in the event of refusal of relocation no longer applies, the presence of the defender and wider family in Scotland are factors to which I have attached considerable weight.

[20]      As far as the supposed difficulties in relation to accommodation for the pursuer in Scotland are concerned, I do not find those to be a sound argument in support of the application. It is not the reason for the pursuer’s decision not to return to Scotland. She is simply unable to contemplate the notion of living in Scotland. Of course, any accommodation difficulties could affect her ability to exercise contact with B should the relocation order be refused. However, I find it hard to accept that the pursuer could not obtain some accommodation in Scotland for that purpose.  Her partner with whom she is to be married appears to be a man of reasonable financial means.  They are prepared to send B to a fee paying prep school in Hampshire in preference to a State school.  While accommodation may not be available in her sister’s house in Callander, it seems to me that the pursuer could make alternative arrangements.  There was a hint in the evidence that her parents in Tullibody were not in the best of health but there was little detail of that.  It seems that, unfortunately, the pursuer may have fallen out with her mother.  I would have thought that fences could be mended in the interests of B.  In any event, it seems to me that with the support of KM, the pursuer would be able to secure some accommodation for the operation of care arrangements. All in all, I do not consider that there is any substance to the supposed accommodation difficulties.

[21]      It was put forward that B would have greater school holidays in Hampshire and that 20 days additional contact could be made available to the defender.  There was oral evidence about that and evidence in the affidavits.  If correct, I do not consider that it takes away from the essential proposition that a relocation to Hampshire would be bound to substantially affect the relationship between the defender and his daughter and it was this that underpinned my judgement on the last occasion. Further, the suggestion seemed to be made from the point of view of the benefit to the defender. I agree with the submission on behalf of the defender that that is the wrong approach and suggests a lack of focus on the paramount consideration.

[22]      An additional point made by the pursuer and introduced by adjustment late on was that the proposal by the defender and his partner to relocate to the Dunblane area was somehow adverse to the interests of B.  I am afraid that I failed to see the force in this argument, particularly where the pursuer agreed that the preferred school in that area would be the best school if relocation were not permitted. In those circumstances, it makes sense for the defender and his partner to move to the Dunblane area.

 

Decision

[23]      In summary, while there have been some changes in circumstances since the order I made in February 2014, principally the deterioration in the pursuer’s health, I am not persuaded that those changes are such as to lead me to a conclusion in favour of granting the application having regard to the welfare of B.  I have accordingly decided to refuse the minute.

[24]      This is a very unfortunate case.  It is perhaps of some comfort that B does not appear to have been affected by it, perhaps in part due to her young age but also because both parties have been protecting her from it, for which they are to be commended. I appreciate that, in light of the pursuer’s stance, the practical consequence of this judgment is that B will remain with her father in Scotland.  In those circumstances there will, by agreement, be contact between B and her mother.  There will be as much contact as can reasonably be had given the distances involved between mother and child.  I anticipate that there will be an opportunity once per month for the pursuer to travel to Scotland and also a further opportunity in that month for B to travel down to Hampshire to see her mother. That seems to have been agreed. Much depends on how easy this is to achieve and of course regard must be had to B’s education.  There is of course the opportunity, as recognised by Dr MacPherson in his report of 2 May 2015 and explained by him to the pursuer, through social media, such as Skype and Facetime for parent and child to keep in regular contact. I hope and trust that, in the interests of B, parties will be able to come to an early agreement on how contact is to work and that they are able to move on with their lives and put this litigation behind them. The pursuer’s health issues have caused me concern in coming to this very important decision. I express the hope that the resolution of these proceedings does indeed bring about an improvement in that regard.

[25]      As agreed, I will put this case out for a hearing so that contact arrangements can be discussed and I will reserve all questions of expenses in the meantime.

 

Note:

The parties having been unable to agree arrangements for contact, an order was pronounced on 14 December 2015 providing that B was to have contact with the pursuer every second weekend in Hampshire, with contact being shared during school holidays. The action at the instance of the defender seeking inter alia an order for residence was dismissed. It was a matter of agreement that a residence order was unnecessary.