Judge refuses mother’s bid to relocate from Scotland to England with son against father’s wishes

A judge in the Court of Session ruled that a residence order providing that the child reside with the mother was “neither necessary nor appropriate” and that there were “no compelling reasons” to make a specific issue order entitling her to move south of the border with the estranged couple’s son.

Lady Wise heard that the parties in the case were married and although they no longer lived together as husband and wife they continued to share their former matrimonial home on the outskirts of Edinburgh.

The pursuer GL and defender JL were married in October 2013 and had one child together, namely OJL, who was born on 14 February 2015.

However, the parties’ marriage became unhappy during the early part of 2016 and by the end of May 2016 they knew that their marriage had irretrievably broken down, but they were unable to agree arrangements for the care of their son

The pursuer, who was born and brought up in England but had been habitually resident in Scotland for some years, decided that she would like to return to Bromsgrove, south-west of Birmingham, to be nearer her parents and other extended family.

She raised proceedings seeking both a residence order providing that the child reside with her and a specific issue order entitling her to remove O from Scotland for the purpose of him residing with her in England.

But the defender, a partner in a law firm who was born and bred in Scotland and habitually resident here, opposed both orders, arguing that it would not be better for O for those orders to be made than for no orders to be made at all and that his welfare would better be served by him staying in the Edinburgh area and being looked after by the parties, albeit separately.

Following a six-day proof during which both parties and family members on both sides gave evidence, the judge declined to make the orders sought.

In a written opinion, Lady Wise said: “In this case, I find that there are no compelling reasons for O to be taken to live in Bromsgrove. On the contrary, there is a compelling reason for him to continue to live in the Edinburgh area, namely that it is the only way in which he will continue to maintain and develop a meaningful relationship with both of his parents now that they are separated.

“There is no reason, taking O’s interests as the paramount consideration, for his relationship with his father to be limited to the times that defender makes expensive trips down south for short weekends or stays with him once per month in Edinburgh. If the child stays in the Edinburgh area his care and upbringing can be reasonably shared between the parties.

“The pursuer will spend more time with him during the week as has always been the case since he was born. The defender will be able to see his son at some point during the week and spend large chunks of time with him at the weekend in relaxed and familiar surroundings.

“From a child-centred perspective, it would be far better for O to move between his parents’ homes once they are physically separated in a manner that does not require significant planning and travel. In the fullness of time he will be able to do so flexibly if both remain in the Edinburgh area.

“It would be impossible for the defender to play an active role in the O’s educational upbringing were his son to live in Bromsgrove. Attendance by his parents at nursery meetings, school parents’ evenings, sports days and the like are events that are already not too far away in the life of this young child. The opportunity is there for both parents to attend such events, either separately or together, if he remains in the Edinburgh area.

“A further factor supporting the conclusion I have reached is that, even if the pursuer’s proposals for contact were sufficient for there to be some form of meaningful ongoing relationship between the defender and his son, I have no confidence that the pursuer and her family would facilitate that contact in the longer term. The pursuer and her mother expressed such negative views of the defender and his rationale for involvement in his son’s life that I consider it likely that they would not be well motivated towards honouring the contact proposed.”

She added: “Once the evidence is scrutinised, it ought to be clear what the welfare of the child demands. In this case, having regard to the conclusions I have reached from the evidence I am in no doubt that the welfare of this child requires refusal of the order sought by the pursuer to remove him to Bromsgrove. The decision is not finely balanced; it is the inevitable result of there being no factors from a child welfare perspective militating strongly in favour of change and one very significant factor supporting the status quo.

“The effect of my decision to refuse the order sought by the pursuer is that O will have two homes within reasonably close proximity to each other. He will spend time with each parent…He will continue to spend time with both his maternal and paternal extended families.

“In short, there is nothing in Bromsgrove for O that is not available in Edinburgh to the extent allowed by the current arrangements. Conversely, the absence of regular routine contact with his father that is available in Edinburgh would not be available in Bromsgrove and that is something that O’s welfare requires.”

In refusing to make the residence order, the judge also observed that the pursuer seemed to misunderstand the nature of a such an order.

“It would not give her the right to take important decisions about O’s care and upbringing, including his education, without reference to the defender,” Lady Wise explained.

“Residence orders are appropriate when there is a genuine disagreement about with whom a child should live. In this particular case, the defender has accepted from the outset that, at this stage in O’s young life, it is appropriate for him to spend more time with his mother, who is not currently working, than with his father. Accordingly there is no real dispute about residence.”

She continued: “There are good reasons for not making a residence order in this case. The absence of a residence order will send a signal to the pursuer that neither party has ultimate authority over this child. O is not a prize to be won or lost in this contest. He is a little boy with two parents whose ongoing involvement in his life he has come to expect insofar as a 2 year old child has any expectations.

“The parties will simply have to work together as best they can to ensure that O is not exposed to any ongoing animosity between them. I am confident that they both care so deeply for their child that they will be capable of putting his interests before their own in this respect. By and large they have managed to do so while living under the same roof but separated. It is to be hoped that a more comfortable modus vivendi for all will be achieved following the conclusion of these proceedings.”

The judge added: “Having concluded that a residence order is neither necessary nor appropriate, I consider it would be best if the parties could agree the specific hours and dates of contact without the imposition of an order. If they are unable to do so I will pronounce an order reflecting the general conclusions I have just reached.”