Father wins legal fight to prevent former partner taking daughter to live in Northern Cyprus

Lady Wise
Lady Wise

A father-of-one has successfully challenged an attempt by his former partner to remove their daughter from Scotland and take her to live in Northern Cyprus.

A judge in the Court of Session refused to grant the specific issue order and residence order sought by the mother after ruling that it would be in the five-and-a-half year-old girl’s “best interests” to remain here.

‘Better lifestyle’ 

Lady Wise heard that the pursuer “MCB” and the defender “NMF”, who are both Scottish, were never married but were involved in a relationship for some years and lived together for about a year following the birth of their child, “Holly”.

Her 43-year-old mother, the defender, wished to remove Holly from Scotland, where she has lived since birth, and take her to live in North Cyprus with the defender’s mother, who retired there from Scotland, to achieve a “better lifestyle”.

NMF, an unemployed medical receptionist, sought a specific issue order entitling her to remove Holly from Scotland to live in North Cyprus and also a residence order.

The pursuer, Holly’s father, raised these proceedings to prevent Holly’s removal to North Cyprus pending a full hearing.

MCB, a 43-year-old stockbroker, opposed both orders and was seeking the regulation of contact between him and Holly.

The central dispute involved a comparison between Holly’s current circumstances and those in which she would be likely to live in North Cyprus.

Ultimately there were seven areas in which there were disputed issues to resolve, namely, the defenders employment prospects, accommodation, education, childcare, financial situation, family relationships and maintenance of contact and environmental factors.

‘Strong bond’

After hearing a proof over four days, the judge ruled in favour of the father and made no order.

In a written opinion, Lady Wise said: “I have balanced the various relevant factors for and against relocation to Cyprus for Holly having at the forefront of my mind the need to have her welfare as the paramount consideration I conclude that she enjoys a settled life here in Scotland where she benefits greatly from close family relationships on both sides. She attends an excellent local school and is developing friends and interests independent of her home life in a manner entirely appropriate for a child of her age.

“Her mother, who has been her primary carer since birth, wants to achieve a better lifestyle for herself and for Holly and her brother. She has an idea that she can do that by moving to North Cyprus, but she has not proved the existence of a specific job offer and her children would require to travel some distance each day if they are to be educated within an English speaking system.

“The cost of that English speaking education would be disproportionately high in comparison with the defender’s likely earnings, even if those were in the region of £ 20,000 - £25,000 per annum, which I have found has not been proved.”

The judge considered that the likely diminution of the “strong bond” that had developed between Holly and her father was the “single biggest factor” militating against granting permission to the defender to relocate.

She explained: “Her relationship with her father, which both sides accepted was vital to her, would be reduced to holidays. Further contact through skype and similar means of communication is far less satisfactory than physical contact. It may be the best available option for some relationships, but there is no current pressing need for Holly’s relationship with her father to be limited to that.”

Child’s best interests

The judge also rejected the defender’s assertion in her affidavit that a move to North Cyprus was “entirely based around absolute necessity for us”, adding that the defender had not yet explored sufficiently the ways in which she could improve her current situation without leaving the country.

Lady Wise said: “In conclusion, I consider that Holly’s best interests would best be served at the present time by her remaining in Scotland. I cannot conclude that it would be better for Holly to grant the defender the order she seeks than to make no order at all. In those circumstances I will refuse to make the specific issue order sought.

“Counsel for the defender very properly accepted that the residence order she concluded for was only really necessary in the event of a move to Cyprus as documenting the position in a way that the defender could use in the event of any future dispute. Accordingly, I would not intend to make an order for residence.

“Parties were agreed that they would be likely to be able to agree on the specific terms of ongoing contact, including holiday contact following a decision in principle on the issue of relocation being made. Accordingly, before making any formal orders, I will fix a by order hearing so that I can be addressed on that matter and also on any question of expenses.”

© Scottish Legal News Ltd 2018

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