Sheriff Appeal Court refuses challenge to order allowing mother of six-year-old with chronic illness to relocate to Dublin

About this case:

• Citation:
  [2022] SAC (Civ) 24
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Nigel Ross

AD, the defender and appellant, argued that the sheriff had ignored evidence concerning the pursuer’s employability and the viability of her relocation plan. The pursuer and respondent, JF, had moved from Ireland to Scotland to be with the pursuer in 2013 and sought to relocate to be closer to her family.

The appeal was heard by Sheriff Principal Nigel Ross and Appeal Sheriffs Thomas McCartney and Wendy Sheehan.

Employment opportunities

The parties’ son was born in 2016, and both parties had parental rights and responsibilities in relation to him. Following the departure of the defender from the family home in 2019 he had exercised overnight contact on two weeknights and every second weekend. The child had a close and loving relationship with both parents.

The child’s chronic health condition required medication as well as fortnightly hospital appointments that took approximately five hours each. The pursuer took the child to most of these appointments and prioritised his needs over her own employment, which resulted in her redundancy in May 2021. In January 2021, the pursuer sought the defender’s consent to move with the child to Dublin to be near her family. Due to the termination of her employment, she was in financial difficulty, and it was unclear where she and the child would live if she remained in Scotland.

It was averred by the pursuer that she would have family support sufficient to return to full-time employment were she to relocate, and that there were well-paid employment opportunities available to her in Dublin. On the other hand, the defender had no proposals to give her additional assistance and his mother, whom he proposed would take the child to hospital appointments in his stead, refused to speak to her.

On appeal, the defender argued that the sheriff had erred in finding that the pursuer would remain unemployed if she remained in Scotland. He asserted that the pursuer accepted in evidence that she had not looked for work, that such jobs were available in Glasgow, and that that remote working would be possible.

The defender’s second ground of appeal was that the sheriff had attached insufficient weight to his relationship with the child and the speculative nature of the pursuer’s employment in Ireland and timescale for obtaining a home there. Further, the sheriff had given undue weight to the pursuer’s claim that her mental health would improve and that this would have a positive impact on the child.

Logically irrelevant

Sheriff Principal Ross, delivering the opinion of the court, said of the first ground of appeal: “As presented, it is no more than a subjective view elevated to a submission of fact. It is unsupported by any extract transcript of the evidence, so this court is unable to address the context and accuracy of the ‘evidence’ referred to. Further, even if this evidence is correctly represented, no effort was made in submission to examine the sheriff’s findings on these points, whether to demonstrate the point or to place the alleged facts in context.”

He continued: “The hypothetical availability of jobs in Glasgow is logically irrelevant where the pursuer is unable to take up such employment while looking after the child. Remote working is not a licence to take time off, and is irrelevant for the same reason.”

Turning to the second ground, Sheriff Principal Ross observed: “The child’s accommodation is inextricably bound up with that of the pursuer. The effect of events is the status quo cannot be maintained, because the pursuer can no longer afford their house. The child’s accommodation is therefore unknowable. The household at present is two people; upon relocation the household will expand to include two grandparents and, temporarily, an aunt, with all of whom the child has good relationships.”

He went on to say: “The sheriff found that the pursuer will likely remain unemployed as long as the child has to attend fortnightly hospital appointments. This is an arrangement that the defender has never made an effort to accommodate. His offer of his mother’s help is inadequate and, in the circumstances of her not speaking to the pursuer for in excess of one year, unrealistic. This is in stark contrast to the high level of care and attention the child would receive in Ireland, which has the additional benefit of freeing up the pursuer to pursue a well-paid, full-time job, and the rewards that will bring.”

Sheriff Principal Ross concluded: “Even if this assessment were wrong, and the sheriff had not dealt with the points, the defender still requires to demonstrate that the sheriff’s decision was ‘plainly wrong’. The appeal does no more than place emphasis on certain factors which, even assuming the evidence was before the sheriff, is not a sufficient exercise to support the appeal. We would require to be persuaded that these factors were so important that they effectively demonstrated that the sheriff’s decision was the wrong one. This appeal falls far short of that.”

Both grounds of appeal were therefore refused.