Mother of girl with selective mutism unsuccessful in obtaining order to relocate her to Germany

Sheriff Ian Cruickshank heard evidence from MK, the pursuer, who sought a residence order and/or a specific issue order, and TDD, the defender, regarding the welfare of their child, ‘Alice’ (not the child’s real name), and ruled that it would not be appropriate to grant either order and that it would be in the child’s best interest to continue to have contact with the defender in both a residential and non-residential capacity.

The case was heard in Lerwick Sheriff Court. The pursuer sought a specific issue order in terms of the Children (Scotland) Act 1995 permitting Alice’s relocation to Germany, or a residence order stating that Alice was to live with the pursuer.

Facts

The parties were in a relationship from 2005 to 2014. Their child, Alice, was born in 2010 and was 8 years old at the time of the decision. Both parties held parental responsibilities for Alice, but she principally resided with the pursuer, her mother, a German citizen who worked as a self-employed veterinary surgeon in Shetland. The defender, her father, was employed as a farmer and self-employed crofter.

Alice was formally diagnosed with selective mutism, a severe anxiety disorder capable of being overcome by most children with treatment, in 2017. She received ongoing treatment with mental health practitioners in Shetland, but they did not have specific qualifications relating to selective mutism. The pursuer ruled out having specialists from the UK mainland come to meet with Alice on the grounds that it would only be for short periods and perhaps necessitate primary treatments not being delivered in Shetland.

The pursuer wished to relocate Alice to Recklinghausen, Germany, where a two-bedroom flat owned by the pursuer’s parents would be available to them. She also researched schools in the area and created a shortlist of schools she could put Alice into. Whilst English was Alice’s first language, she mainly communicated with her mother in German and could speak it relatively well, albeit with a British accent to German ears.

At the time of the application, the pursuer had no offers of employment in Germany but wished to continue in the same line of work. However, her parents promised to give her financial support to an unknown extent. The principal reason she wanted to relocate was because she believed her daughter would get better treatment for selective mutism in Recklinghausen, and she had already approached a particular therapist with specialist expertise who offered Alice a therapy place. Alice was also described as having good relations with her German family.

Regarding the defender’s relationship with Alice, the Sheriff heard that she got on well with her extended family on her father’s side, most of whom lived within a 5 mile radius of the area in which the defender lived. The defender enjoyed both residential and non-residential contact with Alice as of April 2019 and had shared interests with her in the form of farming, with Alice having her own small herd of sheep on the defender’s farm, and swimming. Residential contact was mostly limited to one-night stays.

The defender was prepared to travel to Germany on a 4-to-6 week basis, but had concerns about being away from his farming interests. He also did not speak German or know the Recklinghausen area at all and had concerns about how the relocation would affect Alice’s selective mutism.

In the event that Alice was not permitted to relocate to Germany, the defender sought extended periods of residential contact, which the pursuer did not believe was in Alice’s best interests.

Decision

Sheriff Cruickshank found that it was in Alice’s best interest to remain in Shetland. Concerns were raised regarding the submission of evidence, particularly the evidence of German speakers appearing via video link with a provided interpreter, with the Sheriff saying that “I began to have some reservations as to whether questions were being interpreted verbatim.”

There were also issues with obtaining the views of the child in this case due to her age and selective mutism, with the Sheriff saying “Ultimately, having addressed this matter at length on various occasions prior to proof I concluded that in the particular circumstances of the case it was not practicable to obtain Alice’s views.”

Assessing the case as a whole, he said: “Considering the material placed before me there was insufficient or inconclusive material potentially capable to justify the making of the orders sought.”

Turning to the main reason given for the relocation, he added: “The primary factor pled in support of relocation was the availability of specialist treatment for selective mutism and the fact that the current treatment available in Shetland was both inadequate and ineffective. This is a factor which would potentially have attracted dominant weight but the material placed before me does not entitle me to do so.” On this basis, he concluded that the pursuer had failed to discharge the dual burden of evidence that the law demanded in relocation cases.

Regarding Alice’s relationship with the defender, Sheriff Cruickshank stated: ”I have assessed this as a strong and loving relationship. Moving forward it is of great importance. The defender appreciates his daughter’s condition and is trying to assist her with this. It is a relationship which, in Alice’s best interests, should continue to develop and must be promoted now and in the future.” He did not accept that the current contact routine was enough, and concluded “On the evidence presented to me Alice continues to enjoy contact and the time has come for periods of contact to be extended. In all respects contact is best promoted with Alice continuing to reside close to the defender in Shetland.”