JM v GF [2016] ScotSC 32 (19 April 2016)

SHERIFFDOM OF TAYSIDE CENTRAL AND FIFE AT PERTH

[2016] SC PER 32

F103/15

JUDGMENT

SHERIFF SG COLLINS QC

in the cause

Pursuer

Against

Defender

Act: Harding, Thorntons

Alt: Wilkinson, Drummond Miller WS

PERTH, 8 January 2016

The sheriff, having resumed consideration of the cause:

FINDS IN FACT:

1. The pursuer is 34 years of age and is the father of IM, who is now four and a half years old. The defender is 33 years of age and is IM’s mother. The pursuer has full parental rights and responsibilities in respect of IM.

2. The parties were in a relationship from around 2001. But by 2011 the defender’s relationship with the pursuer was not a happy one for her. From her perspective it was characterised by aggression and controlling behaviour on the part of the pursuer. They had earlier become engaged but she never really wished to marry him. Nor did she want a child by him, but following IM’s birth she took to motherhood and became her principal carer.

3. The defender’s difficulties in her relationship with the pursuer continued, however. By September 2013 she had decided that she wanted IM to grow up in a happy family environment, and that her relationship with the pursuer could not provide this. She therefore ended the relationship.

4. The pursuer, on the other hand, failed to recognise the extent of the defender’s unhappiness, and failed to see the separation coming. It was a great shock to him. From his perspective the defender had given as good as she had got in the relationship. They had had ups and downs, as he saw it, but that these were normal. He had been overjoyed to become a father and wanted the parties to continue living together as a family. He could not accept that the relationship was over. He still cannot fully accept it.

5. Both parties (and their families) are originally from the Ayrshire area. Although separated from September 2013, they continued to live together until December 2013, when the defender moved with IM to a property in Seamill, Ayrshire. This was about 10 minutes’ drive from the parties’ house in Saltcoats, where the pursuer continued to live. Following the separation the defender proposed and the pursuer agreed that IM would reside with the defender, and that the pursuer would exercise residential contact every alternate weekend. They also agreed that the pursuer would have non-residential contact with IM one evening per week.

6. IM has resided with the defender since the separation. She is IM’s primary carer. Parties are agreed that IM will continue to reside with the defender regardless of the outcome of the present proceedings.

7. Although the pursuer agreed to these residence and contact arrangements, he was not happy with them. Principally he still hoped for a reconciliation with the defender, but in any event he wanted greater contact with IM, even shared care. Both these factors tended to result in him attending at the defender’s new property, both invited and uninvited, and from the defender’s point of view to outstay his welcome when there. The defender, having moved to Seamill as a means of extricating herself from the relationship and establishing an independent life for herself, felt under pressure as a result.

8. Furthermore, the parties’ relationship with each other continued to be marred by friction and argument. In particular on 3January 2014 they had a heated and prolonged argument when the defender came to the former family home to collect IM after a period of residential contact with the pursuer. Matters escalated to the extent that the police were called. The defender subsequently made an allegation that the pursuer had assaulted her. He denied this. He claims, in effect, that she assaulted him. The defender was questioned by the police but no charges were brought. Enquiries by the social work department did not lead to any intervention in relation to IM.

9. In the light of these matters the defender consulted solicitors, who wrote to the pursuer on 13 January 2014. The defender did not wish to restrict contact between the pursuer and IM, but proposed that the existing contact arrangements be put on a more formal basis with a view to entering into a written agreement. As stated in her solicitor’s letter, the defender did not wish the pursuer to attend at her home, nor for her to attend at the former family home, until matters had settled.

10. The pursuer did not instruct solicitors to reply to this letter. No written agreement regarding contact was entered into. Instead, for a period, contact handovers were carried out by third parties, and in particular the defender’s parents. The parties did not meet again until around the end of February 2014. To an extent matters settled between them, but even so their relationship continued to be a strained, stressful and unpleasant one for both of them. The pursuer continued to struggle to accept that the relationship was over, and to some extent sought to use contact with IM as a means to also have contact with the defender. She felt threatened and unable to get on with her life as she wished. She decided to move away from Ayrshire so as to distance herself from the pursuer.

11. The defender had been employed by the Scottish Ambulance Service since 2008. It was a secure, professional, job. She now sought alternative employment outwith Ayrshire. She identified a fixed term post with NHS Tayside, based in Blairgowrie. However the defender had no family or friends in Blairgowrie. She had no other connection with the area. Accordingly she travelled to Blairgowrie and researched accommodation and nursery placements for IM. Having satisfied herself as to these matters she applied for and was offered the job.

12. The defender then told the pursuer that she and IM were moving to Blairgowrie. The pursuer was shocked. Still hoping for a reconciliation he suggested that he too move to Blairgowrie. The defender made clear that she did not want that to happen. She did not however want to stop the pursuer from continuing to have contact with IM. She proposed that a modified form of the existing contact arrangements continue. She proposed that IM travel every alternate weekend to Ayrshire to stay with the pursuer, with a handover in Stirling or Glasgow. Additionally she would bring IM to Stirling midweek for a couple of hours so that the pursuer could have dinner with her.

13. The pursuer was very unhappy with the defender’s proposed move to Blairgowrie and with the proposed new contact arrangements. He consulted solicitors, but in the light of the advice which he received he felt that he had to agree to these changes. In any event he did not take legal proceedings to seek to prevent them. Accordingly the defender and IM moved to Blairgowrie in July 2014.

14. The arrangement for alternate weekend residential contact between IM and the pursuer in Saltcoats has continued since then. However in around November 2014, the defender proposed stopping the Stirling midweek contact. She argued that the weather had been poor, and that it was a long journey for IM in the middle of the week for only a couple of hours contact. The pursuer was unhappy about this, but again agreed to it, and did not seek to take legal action to prevent it or to secure alternative contact arrangements.

15. The distance by road between Saltcoats to Blairgowrie is just over 100 miles. By car, the journey takes about two and a half hours, excluding any stops, subject to traffic conditions. IM therefore has spent at least 5 hours travelling for each weekend contact visit to the pursuer since July 2014.

16. Having started living and working in Blairgowrie the defender quickly felt lonely and isolated. She found it difficult to integrate into a small community, particular when she was generally either working or caring for IM. She had no family or other social supports nearby. She did not make any good friends. However she wanted to find a new relationship to enable IM to be brought up in a family environment. Accordingly the defender signed up with an internet dating agency and sought to find a new partner. She made contacts with a few individuals, including one in Aberdeen, but nothing came of these.

17. In October 2014 the defender was contacted via the internet agency by PC. PC is 44 years old and he lives in village P, Cornwall. They quickly felt attracted to each other. They started frequent contact by phone, text and FaceTime. In November 2014 the defender travelled to Bristol and they met for the first time, spending the weekend together. They both wanted to pursue and develop their relationship.

18. PC has three children, JC aged 15, MC aged 14, and RC, aged 9. JC lives with him 90% of the time, and he shares care of his other two children equally with his ex-wife, who lives near to him in Cornwall. Accordingly PC is unable to relocate to Scotland.

19. In around January 2015, following a visit to PC in Cornwall, the defender decided that she wished to relocate there, with IM, in order to pursue her relationship with PC. She notified the pursuer of this wish, through letters from her solicitor, in March 2015. She sought agreement to the move, and made proposals for continuing contact between IM and the pursuer. These were the subject of discussion at a meeting attended by the parties and their solicitors.

20. The pursuer objected and objects to IM relocating to Cornwall. He instructed the present proceedings with a view to preventing this, and on 9 April 2015 the defender was interdicted ad interim from removing IM from the Sheriffdom of Tayside Central and Fife. That interdict was recalled on 17 April 2015 on the basis that the defender provided an undertaking to the Court not to remove IM furth of Scotland, and not to relocate IM further from the pursuer than Blairgowrie, without the prior permission of the pursuer or order of the court. The defender has abided by that undertaking and fully and properly engaged with the legal process throughout.

21. The defender and PC have a strong and genuine affection for each other and are committed to living together and developing their relationship. They have maintained the relationship by means of frequent visits throughout 2015, with the defender repeatedly travelling to Cornwall and PC to Blairgowrie, and by daily or near daily contact by phone, text or FaceTime. They have maintained a strong commitment to each other throughout the stresses and strains of this court process. It is likely that their relationship will endure for the foreseeable future, and would further develop in strength and stability were the defender and IM to move to Cornwall to live as a family with PC.

22. PC first met IM when she and the defender went to Cornwall for a two week holiday in January/February 2015. They met again on a week-long holiday to Stoke on Trent in February/March 2015. Since then IM has travelled with the defender to Cornwall on six occasions, four times for weekends, and twice for one week. Additionally, PC has travelled to Scotland and seen IM on six further occasions, twice for weekends, twice for half a week, and twice for full weeks. In total, they have therefore had face to face contact for around 10 weeks, whether in Cornwall or Scotland.

23. On the first occasion when the defender and IM went to Cornwall they rented a cottage near where PC lives. Since then they have both stayed at PC’s house in village P on each occasion.

24. On those occasions when the defender has travelled to Cornwall she has met, lived with, and had regular contact with PC’s children, extended family and friends. On those occasions when IM has travelled to Cornwall she has had similar contact.

25. The defender’s parents and sister live in Ayrshire. PC met them for the first time on a visit to Scotland in May 2015. The defender’s parents have since travelled to Cornwall and visited PC’s home in village P. Face to face contact between all these parties has been supplemented by FaceTime, messaging and phone contact throughout the year.

26. The defender and PC have developed very good relationships with each other’s children, and their respective children have developed good relationships between themselves. Genuine mutual affection has developed and continues to develop, through face to face contact and regular Facetime and messaging contact. In particular PC and his children have become very fond of IM, and she of them. They have welcomed her into their family when she has been in Cornwall and want her to come and live with them. IM is happy and relaxed in their company. She now talks about them and misses them when she is not in Cornwall, and sends picture messages to them via her iPad.

27. The defender and PC have developed very good relationships with each other’s extended families. Again, genuine mutual affection has developed and continues to develop. After initial concerns on both sides, arising from the physical distance between them and the manner of their meeting via the internet, there is now clear and unqualified support for their relationship from their respective families.

28. During her visits to Cornwall IM has met and begun to develop relationships with some of PC’s wide circle of friends, in particular though the focus of the local cricket club in which he is very actively involved. Through this IM has met and begun to develop friendships with some children of PC’s friends, and has enjoyed spending time with them. One such child is the same age as IM and has just started at C Infant School in village P.

29. IM has now lived in Blairgowrie for nearly 18 months. After arrival there in July 2014 she was enrolled full time in two nurseries, three days per week at A nursery, and two days at B nursery. She remains in these nurseries. She is recognised in the reports of both as a bright, happy, outgoing and confident child, who enjoys her time at nursery and is enthusiastic in taking part in learning activities. She is also recognised as adaptable and independent, having settled well, formed good relationships with staff, and having had no trouble in forming friendships with other children.

30. Given her age IM would, if she continued to live in Scotland, require to leave both nurseries in the summer of 2016 and start at a primary school without connection or continuity to her present nurseries. This would inevitably involve elements of change and uncertainty for her.

31. Out of nursery IM’s social life and activities in Blairgowrie are presently very limited. She spends her evenings with the defender during the week. She has never had a friend home for a play date nor significantly socialised with other children out of nursery. She enjoys drawing, singing and dancing, puzzles and drama, in particular, but has not been enrolled by the defender in any classes or groups outside nursery to promote these interests.

32. IM generally keeps good health and has no physical or mental disablements. She is currently registered with appropriate GP and dental practices in Blairgowrie.

33. IM presently lives with the defender in a private rented property in Blairgowrie. It is suitable accommodation for them both. It is occupied pursuant to a six month lease which is due to come to an end on 14 January 2016. It is uncertain whether the landlord wishes to recover possession of the property on that date or would be content to renew the lease for a period or periods. In any event the lease documentation bears to be in English form, so there is a question mark as to whether it is in reality a Scottish short assured tenancy which could be terminated at will by the landlord.

34. The defender currently earns just over £1000 per month. Her present employment is with the National Health Service and pursuant to a fixed term contract which comes to an end on 13 January 2016. Although this contract has been renewed previously it will not be renewed again. Accordingly the defender will be unemployed from this date.

35. The defender has been employed throughout adult life. She is highly intelligent and well qualified, having a first class honours degree in fashion design and business management. She has done a range of management and professional jobs and has extensive experience of working in the health service. She can provide a very positive reference from her present employer. Accordingly she has good prospects of securing new employment, within a reasonable time, at a comparable salary to that of her present job.

36. The defender does not wish to continue living in Blairgowrie. Were she to remain in Scotland following these proceedings she would give up her current lease and look for employment elsewhere. She would not move back to Ayrshire, and is unlikely to move to a location which is significantly closer to Saltcoats, and the pursuer, than she is now.

37. Accordingly it is at present uncertain where and in what accommodation IM and the defender would be living if they were to continue to reside in Scotland. It is also uncertain what employment the defender would have, and thus what income she would have with which to provide for IM. It is also uncertain where IM would attend nursery, but a change to a new nursery is likely. It is also uncertain where, from August 2016, she will go to school. There will not be any continuity between IM’s present nurseries and any primary school which she might attend in Scotland. Furthermore IM, like the defender, would be required to make a fresh start socially wherever they were to reside in Scotland.

38. Village P is an attractive Cornish coastal village, located in an area popular with tourists due to favourable climate and pleasant scenery. PC owns a modern, comfortable four bedroom detached house in this village. Were the defender and IM to move to Cornwall they can and would live with him and his children there. On each occasion when IM has stayed at PC’s house she has slept in the same bedroom, and were she to move to village P this room would become her bedroom. She has not shared it up to now and would not have to share it were she to live there. IM has enjoyed staying in PC’s house during her visits to Cornwall. It would be appropriate accommodation for her, and is already familiar to her.

39. Should IM move with the defender and live with PC they would become part of his family and household. PC and his children all want them to do this. They are a welcoming, lively and happy family, and IM has enjoyed staying in this environment. She would enjoy and benefit from living in it.

40. Cornwall Council has confirmed to the defender that a place is available for IM at C Infant School and will be held open until 18 January 2016. This school is within walking distance from PC’s house. PC attended it. It is rated as a good school in the latest Ofsted report. IM has already visited the school with the defender. IM liked the school and appeared excited by the prospect of going there.

41. C Infant School is educationally appropriate for IM. She would have no significant difficult rapidly integrating into this school and making new friends, given in particular her age, personal qualities, and stage of development. She would enjoy and benefit from being educated there. Systems are in place within the school which would ease her transition into it, even if she were to start in January 2016 rather than at the start of the school year.

42. If IM were to start at C Infant School in January 2016, under the English education system, she would remain there until aged seven years and then progress to D Academy until aged 11 years. D Academy is adjacent to C Infant School and there would therefore likely be continuity for IM in moving to it.

43. There is a local Rainbows group in village P which would be suitable for IM to attend if she lived there. The daughter of one of PC’s friends already attends this group. IM has already met and made friends with her. Another of PC’s friends runs a local dance group, and again this would be a suitable and available activity for IM were she to live in village P, and from which she would likely enjoy and benefit socially. There are many other opportunities for social and recreational activities for IM in the local area.

44. The defender has already started to make friends and establish social support networks in village P, through PC’s family and friends. As a result IM has met some of their and their friends’ children, and begun to make friendships with them. In the summer much of this social activity has centred around the cricket club, and IM has enjoyed time spent there, playing with other children.

45. Should she relocate to Cornwall with IM, the defender will seek employment within commuting distance of village P. She has already made a number of appropriate job inquiries, including through PC’s friends and relatives. Given her qualifications and experience she has good prospects of securing employment at a comparable salary to her present salary, within a reasonable time, whether in the health service or otherwise. Her prospects of securing such employment, and by this means to continue to provide for IM as at present, are not materially worse than they would be if she were to remain in Scotland.

46. Both PC and the defender’s parents have agreed to provide financial support to the defender and IM while the defender looks for work. PC has a net income of more than £2,700 per month from secure employment and is willing and financially able to provide for them. The defender also receives £200 per month from the pursuer by way of maintenance for IM, and child benefit of around £82 per month. As a household, PC and the defender would have significant disposable income after payment of bills and other regular outgoings. The defender’s parents have agreed to contribute a total of £1,000 per month to assist the defender while she looks for work. They anticipate that they will be able to afford this for six months, although they have put no fixed time limit on it.

47. Given the financial support from PC and from her parents, the defender would in the short term be if anything better able to provide financially for IM’s welfare and maintenance were they to move to Cornwall, even pending her finding employment there. It is however likely that the defender would find employment, within a reasonable period and at an income comparable to her present income, thus securing and increasing her ability to provide financially for IM in the longer term.

48. When the defender finds full time employment in Cornwall appropriate child care facilities would be available for IM for periods outwith school hours. In particular C Infant School has a breakfast/afterschool/holiday club for working parents, at the same location as the school itself, in which a place could be found for IM. Additionally the defender would be able to access help from PC’s friends locally who also have young children, and also from his mother. She lives locally, is already known to the defender, is not currently employed, and has already offered to help the defender in this regard.

49. A place is available for IM at a local GP surgery should she move to village P. Her name has been placed on a waiting list for a local dental surgery.

50. Given her age, level of maturity, and her confident and outgoing personality, IM would adapt quickly and well to living in village P. She has enjoyed visiting. The place where she would live, and a number of the people whom she would come into contact with, are already known, or beginning to be known, to her. She would enjoy and benefit from living in village P, in a stable happy family unit with the defender, PC, and his children.

51. IM has a very good relationship with the defender. They love each other. IM enjoys and benefits from residing with the defender. The defender would be very upset if IM were not permitted to relocate. The defender would not move to Cornwall without her. She would intend to seek to maintain her relationship with PC, but it would be put under further significant pressure, with no obvious means to enable them to develop the relationship by moving to live together as a family. The defender would be very unhappy. This would likely impact adversely on IM as well, affecting the quality of her relationship with the defender, and causing her some upset and unhappiness too.

52. The pursuer continues to live in Saltcoats. He is employed full time by a local authority college and also does a second job, part time, several evenings a week. His family and friends live locally. He lives alone and apart from IM has no other dependents.

53. IM has a very good relationship with the pursuer. They love each other. IM enjoys and benefits from contact time spent with the pursuer.

54. Should IM not relocate to Cornwall, the present contact arrangements would continue. IM would continue to travel to Saltcoats for weekend contact once per fortnight, from wherever she and the defender were living in Scotland. As they would not be living significantly closer to Saltcoats than at present IM’s total time spent travelling for contact would not be significantly less than at present.

55. The defender is supportive of IM maintaining and strengthening her relationship with the pursuer. She firmly believes that it is in her and IM’s best interests to move to village P, but subject to that she is honestly committed to IM continuing to have regular and meaningful contact with the pursuer. She would abide by any order for continuing contact put in place by the court. PC is also fully supportive of IM continuing to have contact with the pursuer, and keen to support the defender in facilitating this contact.

56. If IM were to move to village P, face to face contact with the pursuer could be maintained by either her travelling to Scotland, or the pursuer travelling to the south west of England. Both raise practical difficulties in relation to the physical distance, travelling time, and cost. However viable practical arrangements can be made to overcome or at least minimise these difficulties, such that IM could continue to have regular and meaningful contact with the pursuer.

57. In order for IM to travel to Scotland, the defender would be able to drive her from village P to Bristol, a distance of around 140 miles, or two and a half hours by car. They could then get a flight to Glasgow airport, with a flying time of around 1 hour 15 minutes. The distance from Glasgow airport to Saltcoats is around 20 miles, a travel time by car of around 30 minutes. The total travel time is therefore about 5 hours each way, subject to road and air traffic conditions.

58. Flights between Bristol and Glasgow airports are frequent and, if booked in advance, relatively inexpensive. The cost of return flights for both the defender and IM, travelling out on Friday afternoon and back Sunday evening as outlined above, are presently around £55 in total. The defender, even in the absence of finding full time employment in Cornwall, could afford the cost of such travel, standing the financial assistance available to her from her parents and PC.

59. Scheduled flights are also available from Exeter airport to Glasgow airport and from Newquay to Glasgow. Taking such a flight would involve less driving time between village P and the relevant airport. Such flights are fewer in number, more expensive, and subject to seasonal variations.

60. It would therefore be feasible for IM to travel from village P to Saltcoats in order for her to have residential contact with the pursuer during school holidays, flying from Bristol to Glasgow as outlined. Cornwall Council schools currently have a week’s half term holiday in February, more than two weeks at Easter, a week’s half term at the end of May/beginning of June, six weeks’ summer holidays in July and August, a further week’s half term holiday in October, and two weeks at Christmas. The defender is agreeable to IM having residential contact with the pursuer for half the school holidays and to make suitable travel arrangements for IM to facilitate this. This alone would mean six periods of residential contact per year: three of half a week’s duration, two of one week, and one of three weeks.

61. It would also be possible for IM to undertake the journey from village P to Saltcoats in order to have weekend contact with the pursuer during school term time. In order to do so she would have to leave school at 12pm on Friday afternoon and be driven by the defender to Bristol for a scheduled flight at 3.15pm. The pursuer could collect IM from Glasgow airport when she arrives at 4.30pm, or the defender could take her to the pursuer in Saltcoats for around 5pm. The process could then be reversed on Sunday afternoon with IM and the defender catching a scheduled flight back to Bristol at 4.50pm, and thus returning back to village P at around 8.30pm.

62. The proposal that IM leave school at 12pm on a Friday has been discussed with the headteacher of C Infant School, who has consented to such an arrangement for the time being, subject to certain conditions which will be kept under review. These conditions are that IM’s remaining attendances at school do not fall below 96%, and that her academic progress is not impaired, whether by tiredness or other contributing factors.

63. Although possible, such a weekend journey during term time would likely be tiring for IM. The short duration of the visit and the return to school on Monday would – unlike the situation in relation to visits during school holidays – give her very little recovery time. If such a journey were made frequently, and in particular every alternate weekend, it would likely impact adversely on the quality of IM’s contact with the pursuer, and on her schoolwork. Any novelty or benefit to IM involved in making the journey itself would also wear off. Such difficulties would be minimised by restricting such weekend visits to one per school term.

64. It would be possible for the pursuer to travel to the south west of England to exercise contact with IM. This could also be done so as to enable weekend contact during school term time. The pursuer could fly from Glasgow to Bristol on a Friday afternoon or evening and back on a Sunday evening. It should be possible for him to arrange the occasional Friday afternoon off work for this purpose.

65. If the pursuer were to fly to Bristol airport, he and IM could stay in a hotel in the Bristol area and have contact there. The defender is willing to bring and collect IM from Bristol for that purpose. Alternatively the pursuer could travel to Cornwall, stay in a hotel there, and exercise contact with IM in this locality. That would have the significant advantage for IM that she would not have to travel any great distance in order to have contact with the pursuer.

66. There is a plentiful supply of suitable attractions and activities in both the Bristol area and in Cornwall around which to structure a contact visit. Such attractions and activities are available both for payment and free of charge. In particular IM would likely enjoy and benefit from being able to show the pursuer those parts of the village P area with which she is already familiar.

67. For the pursuer to travel to exercise contact would involve additional costs for him, namely the costs of flights, airport parking, car hire, and accommodation for himself and IM. Those costs, even with reasonable economy and planning, are likely to be more than £300 per weekend trip. The defender is prepared to pay £200 to the pursuer to reduce the cost to him. She has discussed and agreed that with PC. They have budgeted for this cost and would be able to afford it. The pursuer has two jobs, is single, and has no other dependents. He could reasonably afford the balance of the cost of one trip to Cornwall, for one weekend, in each of her three main school terms, so as to exercise contact with IM.

68. The costs of paid attractions and activities in the south west of England are not appreciably greater than those in Ayrshire, nor is there a lesser supply of unpaid attractions. Accordingly the costs of attractions and activities would not be significantly greater than those currently incurred by the pursuer when exercising contact with IM in Ayrshire under the present arrangements.

69. Since the parties separated IM has had contact with pursuer via FaceTime. Currently there is no scheduled time for this form of contact. However it will typically happen around three times per week for a total of about half an hour. This is a valuable means of maintaining contact. Were IM to relocate to village P it would continue to be available at no less a frequency than currently. She has her own iPad and knows how to use FaceTime on it. It would be preferable if pre-arranged times were agreed during which the pursuer and IM could have contact by this means. It would remain open to the pursuer to communicate with IM by letter, text or other social messaging.

70. C Infant School has an interactive learning diary for parents, including photos, and examples of pupils’ work. The pursuer would be able to access this through the website and thereby keep in touch with IM’s school progress.

71. Since the parties separated, IM has continued to have contact with the pursuer’s family, in particular his mother and her partner, and his brother. IM is close to them and enjoys contact with them. It is of benefit to her. However it is relatively limited. IM regularly visits and spends time with the pursuer’s wider family in the course of her weekend contacts with the pursuer. However the pursuer’s family have no contact with IM independently from her contact with the pursuer. Apart from the pursuer’s mother’s very recent trip to IM’s Christmas show with the pursuer in December 2015, none of the pursuer’s family have ever been to Blairgowrie to see her. They have not sought nor made any FaceTime contact with her, although the defender would be happy for them to do so. They have not sent presents or cards in the post. They have had no contact with the defender enquiring about IM’s well being or development.

72. If IM were to move to village P, the pursuer’s family would continue to have contact with her whenever she came to Scotland to have contact with the pursuer. Although they would not have contact with IM during any contact visits by the pursuer travelling to Cornwall, it is reasonably open to them to travel to visit IM themselves if they wish to do so, and the defender would be willing to assist them in this.

73. Since the parties separated, IM has continued to have contact with the defender’s family, and in particular her mother, father and sister. IM is close to them and enjoys contact with them. They currently see IM whenever the defender takes her to Ayrshire, perhaps once a month. They also occasionally have FaceTime and messaging contact with IM. The defender’s parents have also already visited village P in Cornwall for a holiday and intend to do so again regularly in the future should IM relocate there with the defender. They are fully supportive of IM relocating with the defender to Cornwall, and do not anticipate any significant reduction in their contact with IM in this event.

FINDS IN FACT AND LAW:

1. That is in the IM’s best interests that a specific issue order be made under section 11(2)(e) of the Children (Scotland) Act 1995 to allow the defender to relocate IM to Cornwall, United Kingdom;

2. That it is in IM’s best interests that she continues to have contact with the pursuer;

3. That it is better that a specific issue order and an order for contact be made than that no orders should be made at all.

THEREFORE:

Sustains the fifth plea in law for the defender and the fourth plea in law for the pursuer; repels all remaining pleas for both parties; grants the second crave for the defender and makes a specific issue order allowing the defender to relocate the child of the parties’ relationship, IM, to Cornwall, United Kingdom; grants the pursuer’s third crave, but only to the following extent: (a) that he shall be entitled to residential contact with the said child (i) for one half of each of her school holidays (being three, week-long, half term holidays in February, May/June and October; two, two week-long, holidays at Easter and Christmas; and one, six week-long, holiday in July/August); the precise dates and times of such contact to be as agreed in advance between the parties; drop off and collection of the child to be by the defender at the pursuer’s home in Saltcoats or at such other location as agreed in advance between the parties; (ii) for one weekend in each of the three main school terms (spring, summer, autumn) each year, the precise dates to be agreed in advance between the parties; drop off of the child to be by the defender at 5.30pm on Friday with collection by her at 3.30pm on Sunday; said drop off and collection to be at the pursuer’s home in Saltcoats or such other location as agreed in advance between the parties; (iii) for one weekend in each of the said three school terms each year, the precise dates to be agreed in advance between the parties; drop off the child to be by the defender at 6pm on Friday at Bristol airport, or alternatively at 8.30pm at village P, Cornwall, and collection to be by the defender at 5pm on Sunday at Bristol airport, or alternatively at 3pm at village P, Cornwall, again as agreed in advance between the parties; (b) that the pursuer shall be entitled to indirect contact with the child by means of phone or FaceTime at least three times per week throughout the rest of the year, and to text, email or write to her without restriction; refuses all other craves for both parties; finds no expenses due to or by either party; and decerns.

NOTE:

Introduction

1. I heard proof and submissions in this matter over five non-consecutive days in November and December 2015. Parties were agreed from the outset that the principal issue for determination was whether or not I should grant a specific issue order in terms of section 11 (2) (e) of the Children (Scotland) Act 1995 to allow the defender to relocate the child of the party’s relationship, IM, to Cornwall, United Kingdom. In the event that I was minded to grant the specific issue order sought, a further question arose as to whether an order for contact in favour of the pursuer should be made and if so in what terms. In the event that I was not minded to grant the specific issue order, the pursuer sought interdict in terms of his first crave to prevent the defender from removing or attempting to remove the child from the Sheriffdom following the conclusion of this action. Neither party sought an order for residence and were agreed that IM shall reside with the defender, either in Scotland, or in Cornwall, dependent on the outcome of the principal issue.

2. The defender led at the proof. I heard oral evidence from the defender herself, PC (her new partner), JF (her mother), DW (her sister), AS (manager of A nursery in Blairgowrie), RP (head teacher of C Infant School in village P, Cornwall) and NI (a longtime friend of PC who is married to his cousin). I then heard evidence from the pursuer himself, from KM (his mother), DW (his mother’s partner of eight years), and from DM (his brother). I then heard detailed submissions from both agents and reserved judgment. I am grateful to both Mr Harding and Miss Wilkinson for the thorough, helpful and professional manner in which they presented their respective parties’ cases.

The law

3. There was no real dispute about the applicable law. Section 11(1) of the 1995 Act provides that:

“(1) ... An order may be made under this subsection in relation to – (a) parental responsibilities; (b) parental rights…”

Section 11(2) provides that:

“The court may make such order under subsection (1) as it thinks fit; and without prejudice to the generality of that subsection may in particular so make any of the following orders –

…(e) an order regulating any specific question which has arisen, or may arise, in connection with any of the matters mentioned in paragraphs (a) to (d) of subsection (1) of this section (any such order being known as a “specific issue order”);

Section 11(7) provides that:

“… In considering whether or not to make an order under subsection (1) above 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 that none should be made at all…”

Section 11(7)(b) contains provisions in relation to ascertaining the views of the child, but parties in the present case were agreed – correctly – that given IM’s very young age and level of maturity it would be inappropriate to seek to ascertain her views on the proposed relocation or to have regard to any views which she might express.

Section 11(7)(D) provides that:

“Where – (a) the court is considering making an order under subsection (1) above; and (b) in pursuance of the order two or more relevant persons would have to co-operate with one another as respects matters affecting the child, the court shall consider whether it would be appropriate to make the order.”

4. Accordingly where, as here, a parent wishes a specific issue order permitting relocation of a child within the United Kingdom, the welfare (‘best interests’) of the child is the paramount consideration, and an order permitting such relocation must not be made unless it is better for the child that it be made than not made. There are now many reported and unreported examples of such cases from the Sheriff court, a number of which I was referred to by parties’ agents, but ultimately each case falls to be determined on its own facts and circumstances. What is clear however is that there is no presumptive rule or guideline tending to favour the wishes or interests of either parent, and the weight to be given to such wishes or interests must, as with any other factor, be given such weight as the court deems appropriate in the particular circumstances of an individual case: M v M 2012 SLT 428, paragraph 9. There is no strict legal onus of proof in cases such as this, but there is an evidential burden on the party seeking to alter the status quo to furnish the court with material potentially capable of justifying the making of the relevant order: S v S 2012 Fam LR 32, paragraph 10.

5. Inevitably, the facts and circumstances of each case will differ to some extent, and there is no statutorily prescribed set of factors which the court should take into account in deciding where the best interests of the child will lie, nor any prescribed hierarchy of such factors. Subject to such guidance as exists within the structure of the 1995 Act, and the authoritative pronouncements of the Inner House of the Court of Session in the two cases just referred to, it is very much a matter of judgement for the Sheriff to reach on the basis of the material placed before him or her: AB v CD 2012 WL 1191080 paragraph 8, citing GD v EK 2011 WL 2039813. In M v M 2008 Fam LR 90 Sheriff Morrison QC did set out eleven factors which he considered relevant in that case, and these have gained a certain currency since. Indeed the solicitor for the defender submitted in the present case that they had the approval of the Inner House, at paragraph 15 of M v M, but I do not think that is so. It seems to me that in this paragraph Lord Emslie is simply narrating the submissions of counsel, rather than giving the Court’s formal imprimatur to Sheriff Morrison QC’s list of factors. But in any event as Sheriff Morrison QC himself later acknowledged (in G v G (unreported), Edinburgh Sheriff Court, 12 July 2013, paragraph 11), his list was not intended as a formal guideline, but simply factors which might (or might not) be relevant, and might (or might not) have to be considered, in any given case.

6. In my view, what cases such as the present require is a careful assessment and comparison, viewed objectively but from the child’s perspective, of the various merits and demerits to her of two possible outcomes: on the one hand if an order permitting relocation is granted, and on the other if it is not (cf. the approach of the sheriff upheld and approved in S v S: see paragraph 14). That involves looking into the future, at two different possible scenarios, but the court’s assessment must still be rooted in the evidence and any legitimate inferences drawn from it, and not on speculation or unduly wishful or pessimistic thinking. Unless the party seeking relocation can satisfy the court on the evidence which she has produced, viewed overall, that it is in the best interests of the child to make an order for relocation, the court must refuse it.

7. It is however appropriate to remember the wise words of Lord Fraser of Tullybelton in G v G (Minors: Custody Appeal) [1985] 1 WLR 651. Acknowledging that disputes involving parental rights and child welfare issues are notoriously sensitive and difficult to resolve, his Lordship observed that this was because:

“…in most of these cases there is no right answer. All practicable answers are to some extent unsatisfactory and therefore to some extent wrong, and the best that can be done is to find an answer that is reasonably satisfactory.”

See in similar vein S v S at paragraph 28. In disputed relocation cases it is unlikely that all conceivable factors will point in the same direction, either for or against the making of an order. To that extent there are likely to be at least some factors in relation to which the best interests of the child will not be advanced, whichever way the decision goes. What is necessary is to consider and weigh the relative merits and demerits to the child in relation to all relevant factors, so as to reach an overall judgment as to where her best interests lie.

8. The most obvious practical aspects of a child’s life which fall to be considered and compared, in relation to both possible future scenarios, seem to me to be the following:

a. Accommodation: where will the child be living?

b. Household: with whom will the child be living?

c. Money: what will be the financial means and resources of the parent with care of the child to provide for its upkeep and maintenance?

d. Education: where and how will the child be educated?

e. Social: what social or cultural activities will be open to the child out of school or nursery?

f. Contact between the child and its non resident parent: what, when and how will such contact take place?

g. Contact between the child and its extended family: what, when and how will such contact take place?

h. Indirect effect: will the child be positively or negatively affected because of the effect of the making or refusal of the order on its parents or others, and if so how and to what extent?

9. This is of course not intended to be an exhaustive list. But it seems sensible to me to consider whether or not each of these aspects of the child’s life will change, dependent on the making or refusal of the order, and if so how, and whether the resulting situation would likely be better or worse for the child. This must include, where the effect of the making of an order does involve significant change from the present, the effect on the child of coping with the transition, for example, between different schools, or different communities. But that too may be relative, for example if there would also likely be significant imminent change for the child in relation to its education even if the order were not made.

10. In relation to the aspect which I have called ‘indirect effect’, this typically is said to arise because the parent seeking the order would be so disappointed or upset by the refusal of it that the child would also suffer disappointment or upset contrary to its best interests. In some cases the argument goes further, for example by suggesting that the parent might suffer significant mental ill health, which would then impact adversely on her ability to provide a positive and happy household and family environment for the child. The flip side of this is the argument that the parent seeking relocation would be so overjoyed by the granting of the order that this would have a positive indirect effect on the child. In any event the fact that the parent who is the principal carer does not have a formal residence order is not relevant in this context: cf. DY v LY 2011 WL 6329165, paragraph 94.

11. I would acknowledge that this may well be a factor to consider, as long as the focus is kept firmly on the likely effect on the child, not its parent. And it should not be taken too far. While an emotional reaction by the parent – and thus indirectly the child – to the making or refusal of the order would be understandable, I consider that cogent expert evidence would likely be required before concluding that recognisable, long term mental health problems would result, let alone that there would be a significant psychological impact on the child. Further, it cannot simply be assumed that the child will suffer emotional indirect effect even if the parent would be very upset by having their hopes frustrated. The evidence may suggest that the particular parent likely could and would work to ensure that their own disappointment is kept from, and therefore does not materially affect, the child. And in any event it should be remembered that this factor may cut both ways: both parents are likely to be upset by losing. If a relocation order is granted then the non resident parent may also be adversely affected mentally or emotionally, thereby adversely affecting his ability to maintain high quality contact with the child. In short, this factor requires to be considered in a measured and balanced way, and kept within the limits of the available evidence.

12. The welfare of the child is paramount, but that does not mean that the wishes and interests of the parents are thereby wholly irrelevant. In M v M the Court was prepared to accept that there might be cases where the reasonable relocation plans of a parent might be given significant, even dominant weight: see paragraph 53. But it is difficult to understand how to apply this. If the proposed move is otherwise objectively in the best interests of the child, then it is not clear to me why poor motives or subjectively unreasonable relocation plans by the parent with residence (viewed from her perspective) should preclude it. On the other hand if the move is objectively not otherwise in the best interests of the child, then it is hard to see why the best of motives or a subjectively reasonable relocation plan should permit it.

13. And importantly it is necessary to remember that these cases only arise for determination because the non-resident parent has objected to the proposed move. The reasonableness or motive behind his objection may be just as relevant – or irrelevant – as that of the parent seeking relocation. A comparison and weighing of the reasons for each parties’ actions and intentions, involving as it may do a trawl through the rights and wrongs of their relationship with each other, seems to me to have the potential to distract from the paramount consideration of the welfare of the child, and is unlikely to be determinative of the case. At worst, it may allow impermissible presumptions to re-infect consideration of the issues (as seems to have occurred in M v M), and thus for the court to fall into error by failing properly to give paramount consideration to the welfare of the child. Again therefore this is a matter to be approached with caution and in a balanced way, having regard to the wishes and interest of both parties.

The witnesses

14. The relationship between the parties remains strained and difficult, and they have very differing views of the circumstances of their relationship, its breakdown and their contact since then. However although this provides background and context to the present case, the rights and wrongs of the parties’ various disputes and arguments in the past are in my view largely irrelevant to the issues which I have to decide. That is essentially because, whatever each may or may not have done to the other in the past, there is no dispute that it is in IM’s best interests to continue to reside with the defender and to continue to have contact with the pursuer. Accordingly I have not sought to make findings in fact to resolve many of the disputed events from the parties’ past relationship – notwithstanding the amount of court time which was devoted to examining them. I am satisfied that in this respect it is enough to note that both parties saw these matters very differently and tended to blame the other for the difficulties which arose.

15. Beyond this history, however, there was relatively little factual dispute between the parties. Subject to the following observations I was able to accept all the witnesses as generally credible and reliable on the issues directly relevant to the dispute – making due allowance for both sides’ rather obvious if understandable wish to present and interpret matters in the most favourable light from their point of view. The findings in fact made above reflect and are consistent with my overall assessment of the evidence allowing for this.

The defender

16. The defender came across as an intelligent, articulate, well-organised, and determined individual. However she did rather demonstrate an unwillingness to compromise, to accept the possibility that things might not work out as she wished, or to see things from the pursuer’s point of view. Her approach seemed to be that through exhaustive preparation, hard work and sheer force of will she can make things happen and people behave in the way that she wishes them to. So while the defender complained of the pursuer’s controlling behaviour towards her, and sought to some extent to portray herself as a victim of physical, verbal and psychological abuse, I rather agreed with the pursuer’s solicitor that she is very likely to have given as good as she got in their relationship, and in her own way to have been no less controlling than him. This does not mean however that she was not doing her best to tell the truth, at least as she saw it.

17. The pursuer’s solicitor criticised the defender’s attitude in forming and pursuing the relationship with PC as having been impulsive and hugely selfish, and in particular that she had put her own interests first, not IM’s. Particular mention was made of the fact that she chose to start a relationship with PC knowing that he lived in Cornwall, and her admission that she first consulted a solicitor in relation to a possible move to Cornwall in November 2014, having only met him once (and then in Bristol, not Cornwall). On one view, there is some force in this criticism, but it should be seen in the context of the defender’s determined attitude and approach just mentioned. In relation to IM’s best interests, the starting point is that she will continue to reside with the defender come what may: that much is agreed. Thereafter the defender’s logic was and is that it is firmly in IM’s best interests to grow up in happy family environment. She believed from an early stage that PC can provide this, and thus she considers that it will only happen if she and IM move to Cornwall to live with PC. She therefore cannot see any divergence between her best interests and IM’s, and ultimately if she is right about this then any perceived selfishness on her part may be somewhat beside the point for present purposes.

18. And even if the defender’s initial desire to move to Cornwall can be characterised as impulsive, there has been nothing impulsive about the subsequent very thorough preparation of the ground in order to turn that desire into a practical reality. In particular, the defender having decided that it is in IM’s best interests to move to Cornwall, she has gone to huge effort to try to make it so, across the whole range of practical issues affecting IM’s life. Her early consultation with a solicitor is therefore not so much an indication that she had already – impulsively – decided to try to move to Cornwall with IM at this point (in November 2014). It was rather a sensible means for her to explore the legal possibilities of them relocating if her relationship with PC were to develop as she then hoped.

19. This leads to a further observation about the defender’s evidence, namely the extent to which her conduct of this dispute has impacted on IM over the last year. Put shortly, the defender has – perhaps instinctively, perhaps with the assistance of her legal advisers, perhaps both – realised that in order for IM to be permitted to move to Cornwall the Court has to be satisfied (in short) that life would be better for her if she moved there than if she did not move. In many relocation cases that is hard to show, because if the child currently lives in stable circumstances, a move to a new part of the country may appear to be a step into a relatively uncertain and unknown future. As the court cannot gamble with a child’s future, a parent seeking an order such as in the present case faces an uphill struggle. She is typically faced with an unfavourable comparison between the ‘known knowns’, were the child’s status quo to continue, and the ‘known unknowns’, were it to relocate. What the present defender seems to have well recognised, however, is that a way to address this difficulty is to work to reverse this comparison. Firstly this involved removing and reducing the uncertainties for IM which would be involved in a move to Cornwall. Secondly it involved degrading (or at least not seeking to improve) the quality of IM’s current life in Blairgowrie by comparison. And thirdly it involved destabilising, and thereby increasing the uncertainties of IM’s life in Blairgowrie, were she not to move to Cornwall.

20. The real concern about this, it seems to me, is not the effort made to improve the picture of IM’s quality of life were she to move to Cornwall, but the apparent willingness – to an extent – to sacrifice her recent quality of life on that altar. Thus by repeatedly taking IM to Cornwall over the last year the defender has made the place and the people there familiar to her and so removed or reduced many of the uncertainties for her which would be involved in a move. But by taking her out of Blairgowrie every weekend over the same period, her quality of life there has been poor. And by presenting (or engineering, as the pursuer would perhaps have it) a situation when she will very soon be unemployed and without secure accommodation, she places IM in a situation where she faces an uncertain and unstable future were the order for relocation refused. Put another way, the comparison being created for the court is not between a stable and secure status quo for IM in Blairgowrie on the one hand, and a series of uncertainties following a move to Cornwall on the other, but more between an increasingly uncertain and unstable future in Scotland and an increasingly familiar and stable (or at least more stable) environment in Cornwall.

21. But where does all this go? Even if the defender can be criticised for ‘engineering’ all this, it does not mean that the making of the order sought would not be in IM’s best interests if in all the circumstances it otherwise would be. It may simply mean – and ultimately I am satisfied that it does mean – that the defender and her advisers have done what they required to do to establish that overall it would be better for IM that an order for her relocation now be made than not made.

22. A more specific criticism which the pursuer’s solicitor sought to make, however, was that the defender’s approach called into question her credibility and reliability on two critical points.

23. The first of these was the defender’s insistence that she was fully committed to maintaining contact between IM and the pursuer. It was not disputed that the move to Cornwall would only be in IM’s best interests if she could maintain contact with the pursuer. Where issue was taken was as to the viability of the defender’s proposals for contact and the extent to which she was honestly committed to maintaining them into the future were the relocation to take place. In this regard it was pointed out by the pursuer’s solicitor that the defender had moved IM to Blairgowrie, and had then stopped the midweek contact at Stirling. This suggested, it was submitted, that her elaborate proposals for continuing contact once a move to Cornwall was allowed would soon be altered and whittled away to suit herself.

24. The answer to this criticism, it seems to me, is threefold. In the first place the pursuer cannot now complain about the defender moving IM to Blairgowrie, or removing the midweek contact, when he did not take action at the time to try to prevent these changes. The fact is that ultimately he was prepared to agree to them. In the second place, the defender has as far as I can tell been scrupulous in her adherence to the legal process. She consulted solicitors at an early stage. She sought unsuccessfully to achieve relocation by agreement. Once these proceedings were raised she properly gave an undertaking not to remove IM from the jurisdiction, which has been honoured. She has respected the court’s authority in this matter throughout which suggests honesty and integrity and a likelihood that she will do so in the future. In my view she is in this respect far from the unreliable and untrustworthy defender described at paragraph 27 of M v M. In the third place, however, the granting of the order which the defender seeks is dependent upon the making for the first time of a formal order for contact in favour of the pursuer. The pursuer’s right to contact will be safeguarded by such an order. The defender must obtemper the contact order and I would expect her to do so. Much will then depend on the effort and commitment of the pursuer to maximise the quality of that contact. The more he puts into it, the better it will be for IM, and the more secure it will be for the future.

25. The second critical point was the likelihood or otherwise that the defender’s relationship with PC would endure. The defender would not admit of any doubt that it would endure, but it was submitted on the pursuer’s behalf that if it did not, then she and IM would find themselves homeless and alone in Cornwall. The defender and PC were still, it was said, in a ‘honeymoon period’, their contact had been more akin to holidays than the stresses and strains of everyday life, and they had never really known what it would be like to cohabit. Again, this point is not without some force, but again I think that there are answers to it.

26. In the first place, the defender and PC have been in a relationship for now well over a year. Overall they have spent many weeks living in the same house together during that time, and when apart they are in daily contact by a variety of media. That is more than many couples who decide to move in together, and then do so successfully. Secondly they have spent much of the year caught up in the present litigation, which has been bitter, stressful and hard fought on both sides. That has required, and demonstrated, a significant commitment to their relationship on the part of both the defender and PC. Yet in their evidence both remained unhesitatingly enthusiastic to be with each other and to find a way to make their relationship work come what may. In particular I am satisfied that the defender is committed to making the relationship work in part because she strongly believes that it would be in IM’s best interests for it to. Thirdly, both the defender and PC are mature and intelligent individuals who have experienced the ups and downs of previous long term relationships. They are not giddy teenagers falling in love for the first time, unable to conceive of the difficulties that they may face in the future or hampered in their ability to talk about and through them. Overall, then, they say that they are in love and committed to living together as a family, and ultimately I am prepared to accept that at face value. Of course I cannot predict whether their relationship will last forever, but on the basis of what I have heard it seems to me likely that it will endure for the foreseeable future, and that it will develop in strength and stability if the defender and IM are permitted to relocate to Cornwall.

27. Accepting as I do that the defender is honestly and reliably committed to IM maintaining contact with the pursuer the next issue for her was to put forward viable practical proposals by which that contact could be maintained. Again, considerable effort has been devoted to devising such a proposal and the defender spoke to it at length. In summary it was proposed that the defender would fly with IM from Bristol to Glasgow two weekends in every six, and that the pursuer would travel to Bristol or Cornwall one weekend in every six. Over and above that the pursuer would have additional contact with IM during the school holidays at times to be arranged.

28. I had no difficulty accepting that periodic travel by IM from Cornwall to Scotland for contact visits was feasible and affordable. The distance to travel is significant, but scheduled flights from Bristol to Glasgow are frequent, quick and relatively inexpensive. I was provided with the school calendar for C Infant School for 2016 and 2017, and it is apparent that if IM were enrolled there she would every year have three week-long half term holidays in addition to two two-week holidays at Easter and Christmas, and six weeks in the summer. Travelling as proposed in order to exercise contact for half of these periods (that is, for four days, one week or three weeks’ contact respectively) seemed to me to be realistic and not to impose too heavy a burden on IM. I also accepted that the pursuer could, without undue difficulty or expense, travel periodically to the South West in order to exercise contact with IM there.

29. However I was unable to accept the suggestion that IM should, in addition, make the journey to Scotland during school term times, two weekends out of every six. That seemed to me to be too much to expect of a young girl. This would involve a 10 hour round trip for the purpose of a contact visit lasting less than 48 hours, many times a year. Repeatedly I was told by the defender and her witnesses that this would be positively beneficial for IM, that she was used to travelling, that she would not be tired by it, that she was resilient, that it would be exciting for her, that far from adversely affecting her schoolwork it would be a positive opportunity for her to do homework, etc. I found this to be unrealistic, and the evidence did not become any more persuasive by being chorused by witness after witness. It seemed likely that this particular aspect of the proposal was driven by the defender’s aim of establishing that it would be possible to set up a travel arrangement with the effect that the pursuer would have almost exactly the same contact as at present – every alternate weekend – thereby drawing the sting of any objection by him that the duration and quality of his contact would be reduced by the relocation. In my view it was therefore driven more by a (misguided) view of what was necessary in order to win this case, than a proper recognition of what would be in IM’s best interests. Yes, it is certainly possible for IM to make the proposed weekend trip on occasion, but the sheer frequency suggested is likely to lead to fatigue on her part, which may reduce the value of the contact which she has with the pursuer, and also affect her schoolwork.

30. Accordingly I was unwilling to accept the evidence of the defender and her witnesses insofar as they suggested that it would be in IM’s best interest to travel to Scotland for contact two weekends in every six during school term times. However that does not mean that a lesser frequency of such contact visits would have the effect that the proposed relocation would not, overall, be in IM’s best interests.

31. The defender said that she would be “devastated” if she were not permitted to relocate with IM to Cornwall. She spoke of the stress of the court proceedings and how she had been signed off work as a result. There was no medical evidence led in this regard. However I had no doubt that the defender would indeed have been very upset in the short term by a refusal of the order which she sought, and the consequent effect on her ability to move to Cornwall and develop her relationship with PC. I was also prepared to accept that this may well have had some indirect impact on IM, at least to the extent that she too would be caused some unhappiness and upset by her mother’s being unhappy and upset. I was also prepared to accept, on the other hand, that there would be positive effects on both the defender and thus indirectly on IM should the order be made and the relocation proceed. The defender will be happier in her daily life, and that is likely to lead to a happier and thus more positive home environment for IM.

32. PC gave oral evidence over two court days, travelling twice to Scotland from Cornwall for this purpose. He came across as an intelligent, genuine, mature and open individual, who had fallen in love with the defender, was committed to her, and wished for her and IM to come and live with him in village P. His integrity or sincerity was not seriously called into question and I accepted him as a generally credible and reliable witness. He described the circumstances of his life, family, accommodation and work in village P. He corroborated the circumstances of the start and the progression of his relationship with the defender. He rejected the suggestion that they were somehow still in a ‘honeymoon period’ of their relationship. In a reference to the stress of the legal proceedings over the last few months he remarked that “no one would have a honeymoon like this”, the implication (which I accepted) being that they have already demonstrated a significant degree of commitment to each other.

33. PC spoke very positively and in detail about his and his children’s developing relationship with IM, including the many social interactions and trips which they have had in the village P area. He also spoke in similar terms about IM’s relationships with his wider circle of family and friends in village P. The picture presented was that he, his children and his wider family all loved IM, loved having her around, and were very positive about her moving to village P. He confirmed that the defender would have social supports in the area – for example genuine offers of help already made with regard to child care for IM.

34. PC also confirmed his financial position, and his willingness and ability to help support the defender and IM, even if – although he thought it unlikely – the defender did not soon find employment in Cornwall. He expressed himself as fully supportive of IM’s continuing relationship with the pursuer and that he was committed to help maintain this. He recognised that IM loved the pursuer, that the pursuer was her father, and he had no intention of taking IM away from the pursuer. As a father of children himself, and now separated from their mother, he fully understood the importance of this. He encouraged the pursuer to travel to visit Cornwall and to see for himself the benefits to IM from living there, and offered his support for this purpose.

35. PC also indicated that if the order was refused he thought that the defender would be devastated, he would be heartbroken, and that it would be detrimental to IM as well. He expressed himself as fully committed to helping give IM a happy upbringing. When asked to summarise what IM would gain from a move to village P, he suggested that she would get a happy stable family life, living in a circle of people of who are already fond of her, good schooling, and a happy mother to go with it. That seemed to me to a pithy and essentially accurate summary.

36. RP is the very experienced headteacher of C Infant School. He gave oral evidence by way of a video link from Cornwall. His evidence was clear, informed and helpful, and with one caveat I found it credible and reliable. RP confirmed that there was a place open for IM at the school until mid January 2016. He gave evidence that the school was rated as ‘good’ by Ofsted in its most recent report. He corroborated the defender’s evidence in relation to her and IM’s visit to the school, and the availability of pre and afterschool facilities. Having considered matters he was of the opinion that IM would have no significant difficulties in integrating into the school, particularly given her young age and stage of development as described in her recent nursery assessment reports. He was positive and enthusiastic about IM attending his school.

37. All this I was prepared to accept. Less convincing, in my view, was RP’s evidence regarding the proposed contact arrangement whereby IM would leave school early at 12pm on a Friday afternoon two weeks out of six. I do not doubt that he has indeed agreed to such a proposal for the time being, albeit that it will be subject to review dependent in particular on IM’s otherwise attaining good attendance and satisfactory academic performance. However I was not willing to accept his suggestion that this frequency of travel for IM was somehow desirable or could be positive for her, for example, because travel was exciting, that it would give IM something to talk to her friends about, that it would not be particularly tiring for her, or that it would give her a chance to do homework. It seemed to me that this evidence was given on the basis of a false impression, and undermined by it, namely that the decision to move IM to Cornwall was already agreed, and that the term-time travel proposal was therefore being put forward as an alternative to IM having no contact with her father, which would plainly be very undesirable.

38. Like RP, NI gave evidence via video link from Cornwall. She did so in a straightforward and open manner, and I was prepared to accept her evidence as generally credible and reliable. She is married to PC’s cousin and has known PC for 25 years. She lives in village P and is a registered children’s nurse. She spoke very positively to having seen the defender and PC together in village P half a dozen or so times over the year. She had no doubt that they have developed a close and committed relationship and that they are well suited to one another. NI also spoke to meeting IM on a number of occasions and of seeing her in PC’s company. She was of the view from what she had seen that they had a lovely relationship, that IM had really taken to him, and that she was already comfortable with him, for example, putting her to bed. She also confirmed that IM got on well with PC’s children, and had no anxieties about IM’s relationship with them were she to move in.

39. NI also corroborated PC’s evidence regarding the suitability of his accommodation for IM, and gave a positive reference for C Infant School (which her own three children had attended). She also spoke positively about the jobs market in the area from her own experience and those of others known to her. She was of the view that the defender would find it easy to get work, albeit that she might have to commute to Plymouth or Truro. NI also confirmed that she and PC were part of a large circle of extended family and friends in the area, who are close and spend a lot of time together. She undertook to be a good friend to the defender and to introduce her to others in this circle. She spoke very positively of IM’s social experiences when in village P. She was positive that IM would benefit from a move to Cornwall – as long as she could maintain contact with the pursuer.

40. JF, a legal secretary, is the mother of the defender. Subject to the general caveat that she was no doubt keen to help her daughter’s cause, I found her evidence to be measured and careful, and was prepared to accept it as generally credible and reliable. She spoke first to the circumstances of the parties’ relationship and its breakdown. She said – perhaps with the wisdom of hindsight – that she did not think that it had ever been a really happy relationship, and was not surprised that it had ended. She spoke to her and her family getting on well with the pursuer, and did not express any particular ill will towards him.

41. JF described IM as happy, healthy, intelligent and very adaptable; able to take everything in her stride. She spoke of a very close relationship between her and the defender, and also between her and the pursuer. She confirmed that the defender was supportive of IM maintaining contact with the pursuer. As for the defender’s relationship with PC, JF admitted that she and her husband had had initial concerns, in particular standing the means by which they met, but that having met him a few times they no longer had any concerns. She thought their relationship was very natural, with a strong bond, “as if they were made to be together”.

42. JF also gave evidence that she and her husband had travelled to Cornwall to visit in the course of 2015, and had seen the defender and PC interact there. She spoke in positive terms of what she had seen, contrasting it favourably with her memories of the defender’s relationship with the pursuer when they were together. She also reported favourably on seeing IM’s interaction with PC in village P, describing it as natural and comfortable, and speaking appreciatively of PC’s behaviour towards both IM and his own children. She reported IM as getting on very well with PC’s children and that to her eyes they appeared to have accepted her into their home and their family.

43. JF confirmed her and her husband’s willingness to support the defender financially were she to move to village P, to the sum of £500 each per month. This money was offered because she thought that the move was right for the defender and right for IM – and because they could afford it. She accepted that this financial commitment could not last for ever, but was very confident that the defender would soon find work in Cornwall. As for her and her husband’s contact with IM, JF expressed a willingness to travel regularly to Cornwall to visit – perhaps as often as once per month. They had already made this journey, at reasonable cost, which led her to conclude that the pursuer too, with reasonable economy, could travel to visit IM on a regular basis, particular if supported financially by the defender and PC in doing so. She could understand the pursuer’s concerns regarding maintaining ongoing contact with IM in Cornwall, but pointed out that “changes happen in life”, and it was within his capacity to adapt to those changes if he was prepared to work on it. She knew that the pursuer did not see that the move as being in IM’s best interests but she, JF, had no doubt that it was. Like the defender, she stressed the value to IM of being brought up in a happy family unit, rather than by the defender as a single parent.

44. Finally JF gave evidence that if the order for relocation were to be refused the defender would be devastated and that she would have concerns for her, and that there might – at least in the short term – be an adverse impact on IM as a result. JF fully supported the move for IM’s sake, and thought that she would settle in Cornwall without problems, and would be happy there.

45. DW is the sister of the defender. She is a qualified nursery nurse. With the same caveat that she was no doubt trying to support her sister I was prepared to accept her evidence as generally credible and reliable. Like her mother she gave evidence about the nature of the parties’ relationship and its breakdown. Unsurprisingly she too supported the defender’s version of events in this regard, for example how poor their relationship had become and how the pursuer was aggressive towards her. By contrast she spoke very positively about the defender’s relationship with PC, which she had witnessed first hand on a couple of occasions, and how happy this had made the defender. She spoke in very similar and positive terms to both the defender and their mother as regards PC’s relationship with IM. She confirmed the attention to detail and preparation which the defender had put into planning the move to Cornwall, and rejected suggestions that it was impulsive. If the move went ahead she felt that the defender would be much happier, and so would IM, with the whole family ethos and aura in PC’s household being more positive for her than at present. On the other hand she too felt that to refuse relocation would lead to great upset for the defender and likely indirect impact on IM. She too was fully supportive of the relocation and intended to keep contact with IM via Facetime and regular travel to Cornwall. She did not envisage any less contact between her family and IM than at present.

46. AS is a nursery manager at A nursery, one of the two nurseries in the Blairgowrie area which IM presently attends. She is IM’s key worker. She spoke to assessment reports lodged in process describing IM in very positive terms, both educationally and personally. She confirmed in particular that IM was an intelligent, outgoing, friendly and independent young girl who got on well with her peers and with nursery staff, and would have no significant educational or social difficulties moving to Cornwall and enrolling in a new school there. Insofar as the transition might be unsettling at first, AS pointed out that next year would be a year of transition for IM anyway, given that she would be leaving nursery and moving on to primary school. She had discussed the proposed move to Cornwall with the defender and met PC too on one of his visits to Scotland. Her assessment was that the proposed move would likely be a happy one for IM, and that she would quickly make new friends and settle in a new school. She also gave evidence that there would be an adverse impact on IM if she and her mother did not move, in that she was already aware that her mother was happy in Cornwall and not happy in Blairgowrie.

47. I had some reservations as to the extent that AS was truly as independent a professional a witness as she was presented. One of her answers in cross examination suggested that she was aware of the proposed contact arrangements being put forward by the defender after any move to Cornwall took place and was satisfied that they would ensure no loss of contact with the pursuer. She confirmed that this information came from the defender, but denied that they were friends or that they socialised. Nonetheless it suggests that she had been made aware of some information outwith the scope her professional responsibilities as key worker for IM, and that to some extent she may have been personally supportive of the defender’s position in this case. However this was not further explored in cross examination and I was not prepared to discount or hold as discredited the broad thrust of AS’s evidence summarised above on the basis of this matter.

The pursuer

48. The bulk of the pursuer’s evidence, in chief and in cross examination, related to the history of his relationship with the defender, and what he saw as the wrongful allegations made against him by her and her witnesses in this regard. On one level this is understandable, but as I had already made clear in the course of the defender’s evidence, the rights and wrongs of the parties’ relationship and its breakdown were no more than background to the main issue now to be resolved, and I was no more willing to make findings in fact in favour of the pursuer on the various disputes canvassed than I was willing to make them in favour of the defender. What was sufficiently clear was that the pursuer had not wanted the relationship to end, had struggled to come to terms with this, and to a significant extent – in my view – had still not done so.

49. The pursuer had no real direct knowledge of the circumstances of the defender and IM’s situation in Blairgowrie, nor their or PC’s situation in Cornwall, and so was unable to give relevant direct evidence on these matters. The main relevant issue on which the defender was able to give evidence was the issue of contact between himself and IM.

50. In this regard, and in the first place, I had no difficulty in accepting that the pursuer loved IM and she him, and that continuing contact between them was in her best interests. That was not in dispute. Nor did the defender dispute that it would not be in IM’s best interests to relocate to Cornwall unless she could continue to have meaningful contact with the pursuer, and thus that there were workable and realistic proposals whereby this could occur.

51. Secondly, there is no dispute but that since the parties separated in September 2013 the pursuer has had residential contact every alternate weekend, and that since July 2014 she has been brought from Blairgowrie to Saltcoats for that purpose. Non residential contact during the week took place until around November 2014 but not since. Further residential contact has taken place at holiday times.

52. Thirdly, the pursuer is very unhappy regarding this level of contact. He would have preferred IM to reside with him, or at least for him to have shared care. When it was put to him that he had agreed to the present arrangements – as there was no court order enforcing them – he complained that he had been left with “no choice” in the matter and that there was nothing he could do about it. I was not prepared to accept this. In the first place the pursuer has agreed in the joint minute that residence is not presently in issue and that IM will continue to reside with the defender, regardless of the outcome of the present case. In the second place, if the pursuer thought that he was entitled to more extensive contact he could and should have taken action through the court to seek it before now. The reality for the purposes of the present case is that if the order is refused the contact arrangements will remain broadly as they are at present. It is against those arrangements that the possibilities and proposals for contact were IM to move to Cornwall must be compared and contrasted.

53. Fourthly, the pursuer was very unhappy with the defender and IM moving to Blairgrowrie. Again he complained that he had had no choice about this, and had been given legal advice which led him to think that he would not have been able to prevent it. Again the reality is that he did not seek to take action to prevent this move through the court, and therefore has to be taken to have agreed to it. I do not know the full extent of the legal advice which he received, but in a number of respects the defender’s move to Blairgowrie now appears significantly more problematic as regards IM’s best interests than the proposed move from Blairgowrie to Cornwall. The move to Blairgowrie was very much a step into the unknown for the defender, and it clearly has not worked out particularly well for her or for IM. But the reality for the purposes of the present case is that the Court has to consider IM’s interests in relocating to Cornwall not as compared with living in Saltcoats prior to July 2014, but as against the reality of her life in Blairgowrie since then, and what her life will be like in the future if she does not relocate to Cornwall.

54. It seemed to me that the pursuer struggled to fully understand let alone accept these realities and thus to properly understand the nature of the decision which the court now has to make. It was apparent throughout his evidence that to some extent he was still hoping, if the relocation order was refused, that somehow the defender would return with IM to Ayrshire and that he would thereby have increased contact if not shared care. Alternatively, he suggested at one point that the defender could go to Cornwall and that IM could come and reside with him. In both respects the pursuer was rather deluding himself and basing his objection to the making of the order on the supposed existence of alternatives which are not before the Court. If the relocation order were to be refused IM will continue to reside with the defender, the defender and IM will not be returning to Ayrshire, and indeed they will not be moving to anywhere significantly closer to Ayrshire than they are at the moment. The amount of contact will not increase. It is therefore not a good objection to a proposal for contact post relocation – designed to secure virtually the same amount of contact as at present – to complain that he should have greater contact with IM or that she should be residing with him.

55. Fifthly, and in any event, the pursuer also rejected the defender’s proposals for contact were IM to relocate on the grounds that they would not work and that the duration and quality of contact would likely be reduced. His evidence on this was overly negative and characterised by a tendency to catastrophise. Where the defender would not accept that any part of her carefully constructed travel arrangements for IM could possibly go wrong, the pursuer had difficulty accepting that any part of them would go right: the car journey to Bristol would be delayed, the plane would be late, he would not be able to get Friday afternoons off work, IM would be so tired on Friday nights that contact would not be meaningful, he would not be able to afford to travel and stay in the south west for contact, etc.

56. I thought that some of these objections were not without some degree of validity, but they were significantly overplayed. Yes, there might sometimes be delays in the proposed travel arrangements, but generally they appeared workable. Yes, IM might be tired by travel, but to the extent that her contact trips should be less frequent than proposed, not that they could never happen. I was also quite unimpressed by the pursuer’s protestations that he could not get an occasional Friday afternoon off work for contact – he produced no evidence from his employers to that effect and as I understood it he had not even asked them about the possibility of time off. He works for a public body who may well have family friendly policies, but he has not taken the trouble to find out. Regrettably this evidence rather came over as if he thought his work was more important than contact with IM. And as regards the cost of his travelling to Bristol or Cornwall, he produced no evidence sufficient to counter the relatively modest costs produced by the defender. Nor did he produce evidence of his earnings or outgoings to seek to establish that he could not afford such costs, when on the face of it the fact that he is a single man with two jobs and no other dependants would suggest that he could.

57. Accordingly while I agree with the pursuer that the defender’s proposals for contact are over ambitious as regards frequency of travel for IM during term time, in an attempt to seek to replicate the present arrangements, in my view they are nonetheless with modification workable to the extent that meaningful contact between IM and the pursuer can be maintained notwithstanding a relocation to Cornwall.

58. The pursuer’s rather fixed and negative attitude to the proposed new contact arrangements reflected a rather poor attitude to aspects of the contact over the period that IM has been in Blairgowrie. As far as I could tell he had not sought to exercise contact by travelling and staying in the Blairgowrie area himself. If he was so concerned about the amount of travelling which IM was doing he could have gone to her, at least on at least some occasions, and stayed locally. That would likely have been in her best interests. Furthermore, he did not until the summer of 2015 make any contact with IM’s nurseries in Blairgowrie to inquire as to her progress, or attend parents’ evenings, etc. He was not able to offer an acceptable explanation for this failure. It is unconvincing for him to complain about being cut out of IM’s education by her moving to Cornwall when he has shown so little interest in being involved in it while she lived in Blairgowrie. And in any event, as found above, the pursuer will be able to access IM’s progress at C Infant School online, and is not prevented from making contact with her teachers there directly by phone or email.

59. Overall these features of the pursuer’s evidence seemed to me to reflect not so much a lack of love for or desire to have contact with IM, as a lack of imagination and willingness on his part to make an effort to maintain full and effective contact with her, in a manner which put her best interests first, and adapting to circumstances other than those which he saw as optimal, that is, having IM living with him or at least close to him in Saltcoats.

60. The pursuer’s solicitor, as noted above, sought to criticise the defender for being selfish in her approach and in putting her own interests before IM’s. The same criticism can however be levelled at the pursuer to some extent. As stated, he was unable to challenge or dispute the defender’s evidence to the effect that, in a number of important respects, there would be advantages to IM in relocating to Cornwall. But these aspects were rather ignored in favour of a focus on the effect on him and of his relationship with IM were she to be permitted to relocate. It again rather reflected, to my mind, the pursuer’s difficulty in accepting that IM’s best interests might lie other than living in the environment which he saw as appropriate, that is, in Ayrshire, with or near him and his family. To that extent his approach too was selfish, for it sought to put his view of how things should be for IM first and foremost, rather than looking at matters from her point of view. That is of course hard for him to do. For example, I have no doubt he is desperately sad that IM is not growing up in a happy, traditional family unit – that is, one with him as a major part of it. But that is not now going to happen. And it makes it particularly difficult for him to recognise or accept that her best interests could still lie in growing up in such a unit, one now involving PC and his family.

61. I have little doubt that the pursuer will be very upset by my decision in this case. Like the defender he claimed that the stresses and strains on him of the break up, and of these proceedings, had been considerable. But again no medical evidence was produced to suggest that any emotional or mental reaction to an adverse decision would go beyond short term disappointment. And I was not prepared to accept that there would be any appreciable indirect adverse impact on IM as a result.

62. The pursuer’s mother spoke to the history of the parties’ relationship, and on the pursuer as a father. No doubt keen to support her son, she said that she thought he was a wonderful father, and stressed how much he had always wanted to be a dad. She described a close bond between IM and the pursuer during contact visits. She accepted that she had had no contact with the defender since the separation, and that her own contact with IM was limited to those times when she was having residential contact with the pursuer in Saltcoats. She accepted that until very recently she had not sought to travel to visit IM in Blairgowrie or to attend her nursery school events. KM also reiterated her son’s concerns regarding the viability of the proposed contact travel arrangements, suggesting that IM would be tired by doing this on such a regular basis, and that this would affect her ability to enjoy contact. Like the pursuer, she thought that a move to Cornwall would drastically affect IM’s contact with the pursuer and that it would be in her best interests “to see her dad at least the way she sees him just now”. She agreed that IM would be best living with a happy stable family, but suggested that “she’s got that here – the people in Cornwall are not IM’s family – we are.”

63. I was prepared to accept KM’s concerns regarding the possible effects of very frequent term time travel on IM and on the quality of contact, but otherwise I was not prepared to accept her assessment of where IM’s best interest lay. Like the pursuer, she had no direct knowledge of IM’s life either in Blairgowrie or Cornwall. Like him, she had a rather fixed view of where IM should be living and whom she should be living with, which did not reflect the options currently on the table, and gave little or no credit to possible practical benefits to IM of living in Cornwall. Insofar as she otherwise made criticisms of the proposed relocation and contact arrangements, these tended to replicate those of the pursuer himself and I was not prepared to accept them from her any more than from her son.

64. DW is the partner of KM. His evidence was rather brief. He said he had seen no signs of problems in the parties’ relationship. He confirmed IM’s love for the pursuer and his for her. He too had no direct knowledge of IM’s life in Blairgowrie or village P. He would have preferred IM to continue living in Scotland, but he accepted that it would be best for her to live as part of a happy, stable family.

65. Overall DW was unable to add anything of significance to the evidence already given by the pursuer and by KM. While he was therefore no doubt trying to tell the truth as best he saw it, his evidence was of limited value. And it is telling that – like the pursuer’s other witnesses – he saw no difficulties in the parties’ relationship prior to the break up. There clearly were, from the defender’s point of view, considerable and indeed insurmountable difficulties in the relationship, and if DW, like the rest of his family, were unable to detect these it rather suggests that their involvement with the family was not as great as they might have thought, and that the value of their assessment of where IM’s best interest now lies may be rather less reliable than they believe.

66. DM is the pursuer’s brother. His evidence too was relatively brief. He too said that he had seen the parties’ relationship as “very good” and “very happy”. He thought that the pursuer was a “brilliant father”, which had pleasantly surprised him. He confirmed that the pursuer and IM enjoyed contact and did many activities together. He did not think that it was a good idea for IM to relocate to Cornwall, as he would not get to see her and it was too far away to travel on a regular basis. He thought that IM should stay closer to where the pursuer, he, KM and DW all lived.

67. Like the other members of the pursuer’s family, DM was no doubt trying to help the pursuer and doing his best to tell matters how he saw them. However he too was able to add very little to evidence already given by others. He too seems to have been rather blind to the defender’s obvious unhappiness in the relationship with the pursuer. And he is wrong to suppose that if IM relocates to Cornwall that he and the pursuer’s other family members would ‘not get to see her’. Cornwall is indeed a long way from Saltcoats, but there are viable practical proposals for contact visits. The suggestion that IM should return to live in or near Saltcoats is not currently an option. For all these reasons I found DM’s evidence to be of limited value in determining the central issue in this case.

Discussion

68. In the light of my consideration of the evidence of the witnesses, and the findings in fact which I have made, relevant aspects of the two alternative future scenarios can be considered and compared, firstly if an order permitting IM’s relocation were granted, and secondly if it were not.

Accommodation

69. IM currently lives in a two-bedroom, privately let flat in Blairgowrie. There is a legal question as to whether the defender has security of tenure there. But in the event that an order for relocation were not made, the defender would shortly give up the let of this flat and move elsewhere in Scotland. It is unclear at present where she will be moving, and accordingly unclear where IM will be accommodated. It is unclear whether any move would be to stable, long-term accommodation.

70. If an order for relocation were to be made, however, IM can and would move to live in PC’s house in village P, Cornwall. This is a modern, comfortable four-bedroomed detached house, privately owned by PC, which is available for IM, suitable for her, and familiar to her from a number of visits. Accepting as I do that the defender’s relationship with PC is likely to endure for the foreseeable future, his home will also provide stable long term accommodation for IM. This would be in her best interests.

Household

71. IM currently resides with the defender who cares for her as a working, single parent. In the event that the order for relocation were not be made, this situation would continue, wherever in Scotland IM and the defender were to be accommodated.

72. In the event that the order for relocation were to be made, however, IM would live with the defender, PC, and his three children, as part of a stable, welcoming, happy, and more traditional family unit. She likes and has good relationships with PC and his children, all of whom are now known to her. She has enjoyed staying with them in Cornwall and they are happy for her to come and live with them. She would enjoy and benefit from living and growing up in such a household. It would be in her best interests to do so.

Money

73. The defender is currently employed with the National Health Service with an income of around £1000 per month. However her fixed term contract is coming to an end and will not be renewed. She will therefore shortly be unemployed whether an order for relocation is granted or not. She will then look for full-time work, whether in Scotland or in Cornwall. She is highly qualified, highly employable and determined to find work. It is likely that she will find full time employment, within a reasonable time, at an income comparable to that which she has at present. The defender’s prospects of securing employment in Cornwall are not materially less than her prospects of so doing in Scotland. In this respect, therefore, her financial means and resources to maintain IM will be no better or worse if an order for relocation were made.

74. However if the order were to be made, and IM were to become part of PC’s household, he is willing and financially able to support her at an appropriate level pending the defender finding suitable employment in Cornwall. Furthermore, the defender’s parents are willing and financially able to support the defender at a level consistent with her present income, again pending her finding suitable employment in Cornwall. In this respect, therefore, the means and resources available to the defender to financially support IM will be greater, and more secure, if the order for relocation were made, than if it were not. This would be in IM’s best interests.

Education

75. IM is presently in Scottish nursery education at two establishments in the Blairgowrie area. In the event that the order for relocation were not to be made, she will shortly be leaving these establishments, and it is uncertain where she will then be educated. That is because the defender will shortly be moving away from Blairgowrie, to a location as yet unknown, and which is likely to depend on employment opportunity. There is therefore going to be disruption and uncertainty in IM’s educational process. Further and in any event, however, if she remains in Scotland she will require to enter primary school in August 2016. This will require further change and uncertainty for IM. There will be no continuity between her present nursery establishments and any primary school which she might attend.

76. In the event that IM were to relocate to Cornwall, however, she could and would attend C Infant School in village P. This is a good school. It is located very close to PC’s house, where she would be living. IM has already visited the school, and it therefore has some familiarity to her. IM appeared excited by the prospect of attending the school. She has already met and started making friends with at least one pupil there. In any event given her age, outgoing and confident personality, and level of development, she would have no significant difficulty in making the transition to C Infant School, socially and academically, and quickly settling in. IM would likely enjoy attending this school, and would benefit from so doing. It would be in her best interests to do so.

Social

77. IM’s social life in Blairgowrie outwith school since July 2014 has been very limited. To a significant extent this has been because she goes to Saltcoats every other weekend for contact with the pursuer, and has travelled to Cornwall and elsewhere on the other weekends. She has therefore no significant social life, friends or social activities outwith nursery. In the event that an order for relocation were to be refused IM would, as discussed, soon be moving to a different part of Scotland dependent on the defender’s job opportunities. She would continue however to travel to Saltcoats every other weekend, and she would likely continue to travel with the defender to Cornwall and elsewhere on the other weekends. It is therefore unlikely that the quality of IM’s social life or activities out of nursery would significantly increase wherever in Scotland she came to reside.

78. In the event that an order for relocation were made, however, IM would reside in village P and have greater opportunities to develop her social life and activities, in particular through PC and his wide circle of family and friends in the locality. She has already, in the course of her visits to Cornwall, developed very good relationships with PC and his children and these would likely develop positively and to IM’s benefit. She has also started to develop friendships with other children in the area, particularly through PC’s wider family and friends and his involvement with the local cricket club. Given in particular her confident and outgoing personality she would not have significant difficulties in making and developing friendships and adapting to living and socialising in village P. She would also no longer be travelling away from home at weekends as much as she does at present, and would therefore have greater chance to develop friendships and take part in activities outside school. There is no shortage of such activities for her in the village P area. All this would be in her best interests.

Contact with the pursuer

79. In the event that no order for relocation were to be made, the arrangements for contact between IM and the pursuer would remain broadly as they are at present. Given that it is presently unclear exactly where IM and the defender would be living in Scotland, it is however unclear precisely how these would operate. However in general terms it is likely that IM would still travel from her and the defender’s home to Saltcoats for residential contact every alternate weekend, and would have further contact with the pursuer during holiday periods. This would continue to involve significant amounts of regular travelling for IM, broadly similar to the present. Based on the pursuer’s reluctance to travel to Blairgowrie and to exercise contact in this area since July 2014, I consider that there is little basis to suppose that the pursuer would seek to develop contact beyond the present arrangement in the future, or to be regularly or actively involved with IM’s schooling. He would continue to have FaceTime contact with IM periodically during the week.

80. In the event that IM were to relocate to Cornwall, I accept that the defender can and will bring her from village P to Saltcoats such that the pursuer can exercise contact with her for one half of the school holidays. Given that C Infant School has three week-long half term holidays, two two-week holidays at Christmas and Easter, and one six week holiday in July and August, this would mean that IM would have residential contact with the pursuer six times a year for periods of between half a week and three weeks, being six weeks in total.

81. Additionally, the defender can and will take IM out of school in village P at 12pm on a Friday afternoon and bring her to and from Saltcoats for weekend contact during term time, although in my view this should take place no more than once in each of the three main school terms of the year. It would not be in IM’s best interests for her to travel to Scotland more often than this during term time. This is because more frequent travel would likely be tiring for her, given the short duration of the visit and the absence of sufficient recovery time following the journey, and because this would likely impact adversely on the quality of her contact with the pursuer and on her schoolwork.

82. However the pursuer will in addition be able to travel to Bristol or Cornwall during IM’s school term time to exercise weekend contact with her in either of these areas. This is viable and practical given the undertaking from the defender that she will pay the pursuer £200 towards the cost of each trip, and that they take place no more than once in each of the three main school terms of the year. The defender should be able to afford the additional net cost to him of trips to Cornwall of this frequency, and should be able with reasonable effort to secure time off work on a Friday afternoon in order to facilitate them.

83. Additionally, IM will continue to have regular FaceTime contact with the pursuer at no less than the present frequency, and he will be entitled to contact her by letter, text or messaging without limitation. Given the difficulties which have arisen regarding FaceTime contact in the recent past it would be appropriate to seek to have pre-arranged times during the week for IM to FaceTime the pursuer or vice versa.

84. Given the difficulties and disagreements regarding contact in the recent past, and the need to secure IM’s continuing contact with the pursuer into the future, this being in her best interests, it would however be better that an order for contact be made than not made, assuming an order for relocation is made. I am satisfied that the defender is committed to maintaining contact between IM and the pursuer and that she will abide by such an order.

85. The contact order should set out the pursuer’s minimum entitlement to contact along the lines set out above, but can leave the precise times and dates of contacts and handovers to be agreed by parties in advance. Not every detail of this can or should be prescribed by me: it will be for the parties to behave in a responsible and grown up fashion in working to make contact operate smoothly in practice within the framework of the order, this being in IM’s best interests. I am satisfied that they can and will do so: cf. 1995 Act, section 11(7D).

86. Accordingly, were an order for relocation to be made, IM would continue to have regular residential contact with the pursuer in Saltcoats and in the Bristol or Cornwall areas. Overall, the total period of such contact would likely be less than at present, but it would still be sufficient to enable IM to maintain positive and meaningful contact with the pursuer into the future. This would be in her best interests.

Contact with extended family

87. Were no order for relocation to be made, IM would continue to have contact with the parties’ extended families much as at present. She would thus have contact with the pursuer’s mother and her partner regularly, and other family members occasionally, during weekend contact with the pursuer, but not otherwise. She would have contact with the defender’s parents and extended families no more than once a month, on those occasions when the defender visits them in Ayrshire or they come to Blairgowrie. They would also continue to have occasional contact with IM via FaceTime.

88. Were an order for relocation to be made, and an order for contact with the pursuer made in the terms set out above, IM would continue to have contact with the pursuer’s extended family on those occasions when she came to Saltcoats to have residential contact with the pursuer. These occasions would be less than at present, but would not be so reduced that regular and meaningful contact between them and IM would not continue. IM would also continue to have contact with the defender’s extended family. In particular they would continue to have occasional FaceTime contact with IM, but would also travel regularly to Cornwall to visit her, as they have already done. Again, contact between the IM and the defender’s parents may be less than at present, but not so reduced as to prevent regular and meaningful ongoing contact between them.

Indirect effect

89. If the order for relocation were to be refused, I have no doubt that the defender would be significantly and adversely affected emotionally. I accept that she was unhappy for a long time in her relationship with the pursuer. I accept that she now feels lonely and isolated in Blairgowrie. She has invested an enormous amount in her relationship with PC, for whom she has a deep and genuine affection. The refusal of the order would frustrate her hopes for a family life together with him. She would wish to continue their relationship, but it would be placed under increased pressure and stress, without any obvious means to resolve this. She would therefore be made very unhappy for the foreseeable future.

90. The most important relationship IM has is with the defender. There is a close bond between them. IM’s interests and welfare are strongly linked to the defender’s. I accept the evidence of the defender’s witnesses that it is likely (given their close relationship and the sheer amount of time they spend together) that even with the best will in the world she would be unable entirely to keep her unhappiness from IM or to prevent it from impacting on her day to day life. IM would therefore be likely, to some extent, to experience unhappiness or upset as well. There is therefore likely to be an adverse indirect emotional impact on IM of the refusal of the order sought in at least the short term.

91. As for the pursuer, no doubt he would be pleased if the order for relocation were refused. But I do not think that he would be made particularly happier as a result, nor that there would be any indirect benefit to IM. He would likely remain dissatisfied as to the extent of contact which he presently has, and the fact that he cannot have what he really wants – a reconciliation with the defender, or at least for IM to return to live in Ayrshire, either with him or close to him and his family.

92. If on the other hand the order for relocation were granted, the defender would, for obvious reasons, be very happy. She would be able to go and live with IM in a family unit with the man she loves. I accept, on the basis of what I have heard, that her happiness would be obvious to and impact positively on those around her, including in particular IM, and that she would accordingly gain some indirect emotional benefit from this.

93. The pursuer, on the other hand, will be very upset by IM being allowed to relocate. I have no doubt that IM would not want him to be upset, and would be upset to think that he was. She has a loving bond with him, but her relationship with the pursuer is necessarily of less significance than her relationship with the defender. She does not live with him, and his upset would therefore not likely affect her emotionally on a day to day basis. The defender will see her periodically for contact visits, and I have no doubt that whatever his personal upset he will work hard to make those visits positive experiences for her while she is with him. Overall, I consider that any indirect emotional impact on IM from upset suffered by the pursuer at the result of this case would be less significant for her than the indirect upset which she would suffer were an order for relocation to be refused.

94. In my judgment therefore the balance of indirect effects on IM, positive and negative, from the parties’ likely reactions to the court’s decision, favours the making of the order sought as being in IM’s best interests.

The parties’ interests: reasonableness and motive

95. I have sought to focus very firmly on IM’s welfare in what is set out above, not the wishes and interests of her parents. But as I have indicated, it is apparent that such wishes and interests have been held not to be necessarily irrelevant. Although I attach relatively little weight to them, I can therefore indicate for the sake of completeness that I consider that the proposed move is reasonable from the defender’s perspective and that her motives are honest and comprehensible. The defender wanted to meet a new life partner with whom she and IM could live in a family unit. She turned to the internet, as many do these days. She met PC and fell in love with him. It was not her fault that the man she happened to fall in love with lived in Cornwall. I accept that she did not deliberately set out to find a relationship to enable her to move yet further away from the pursuer. I accept that the reasons for her wish to move to Cornwall are therefore quite different from her reasons for moving to Blairgowrie. Further, it was not the defender’s fault or design that because of PC’s family circumstances he was unable to move to Scotland. And I accept that the defender’s relationship with him is now genuine, established and committed, on both sides.

96. The defender has therefore reasonably decided that she wants to relocate with IM to live with PC. She is motivated by her own wish to pursue her relationship with PC in her own interests, but also by a belief that such a move would also be in IM’s best interests. Their lives in Blairgowrie have been somewhat lonely and isolated, but in any event the ending of the defender’s employment contact means that they will soon be moving and making a new start elsewhere in any event. The defender has thoroughly researched the practicalities of relocation to Cornwall and prepared the ground for such a move, with particular attention to IM’s interests. She has communicated openly with the pursuer about her plans through her solicitors, and devised and sought agreement on proposals for ongoing contact with IM. When agreement was not forthcoming she has engaged fully and responsibly with the legal process, and has in particular respected the undertaking given to the Court on 17 April 2015. The defender is not, in my view, motivated by a desire to thwart the pursuer’s relationship with IM or to prevent or reduce contact between them.

97. From the pursuer’s perspective I would accept that his interests will be adversely affected if the proposed relocation is permitted. The amount of contact which he enjoys with IM will be reduced somewhat. To that extent his reasons for objection and motives in doing so are understandable. However his objection to the making of the order is not wholly reasonable for the reasons already discussed, namely that it is in part based on a false picture of what could or should happen if the order were not granted, that is, that the parties might somehow reconcile or at least that the defender would return to live in Ayrshire with IM and that he will have increased contact with her. That is clearly not going to happen. Nor, if relocation is permitted, will his relationship with IM thereby be ‘destroyed’, or she ‘taken away from him’, as he suggested: his approach in this respect was unduly negative and expressed in over emotional terms. In that regard too his objection to the relocation is rather based on a false premise and is to that extent unreasonable.

98. I also consider that while the pursuer had some good grounds to criticise the defender’s proposed contact travel arrangements and to object to the making of the order on this ground, his obvious reluctance to travel to Bristol or Cornwall to exercise contact with IM did not show him in a particularly good light. He complained on the one hand that IM would be travelling too much under the proposed arrangements, yet on the other threw up various obstacles as to why he could not travel to see her, none of which was in my view insurmountable assuming reasonable effort. At times these objections (for example as to how difficult it would be to get the occasional Friday afternoon off work) seemed to give more weight to his own interests than IM’s. This also rather reflected, as I have already observed, his failure to travel to the Blairgowrie area regularly to exercise contact since July 2014, which would also have reduced the need for IM to travel, and more generally a rather fixed view of the way in which he thought that contact should take place.

99. It is therefore clear that both parties are to some extent pursuing their own interests in this litigation. However for what it is worth I found the defender’s proposed relocation to be more reasonable from her perspective than the pursuer’s objections to it from his. I also thought her motives to be rather more rooted in the reality of the parties’ present situation than his.

Conclusion

100. For all these reasons I am in no real doubt that it is in IM’s best interests that a specific issue order be made permitting her relocation to Cornwall, and that it would be better if such an order be made than not made. I am also satisfied that it is in IM’s best interests, as a means to securing continuing contact with the pursuer following relocation, that an order for contact be made, and that it would be better if such an order be made than not made.

101. Put broadly, the comparison is between on the one hand a somewhat uncertain and unstable future for IM in Scotland – one where (if there ever was one) the ‘comfortable status quo has gone and can never be regained’ (cf. S v S, paragraph 15); and on the other a comfortable and more secure future in Cornwall – one for which the ground has been carefully and thoroughly prepared over the last year or so.

102. I recognise of course that the contact order does not exactly reflect the terms of the proposals put forward by the defender, and amounts to a reduction in the number of days of residential contact which IM spends with the pursuer every year. Nevertheless, significant continuing contact between IM and the pursuer will be secured by this order and I am satisfied that the degree to which it will be reduced following IM’s relocation is not so great, when all relevant factors are considered and viewed overall, that it would not be in her best interests for a specific issue order permitting relocation to be made. The overall advantages to her of a move to Cornwall are in my view clear by comparison with the available alternative, and I do not consider that the current arrangements for contact between IM and the pursuer, and through him with his wider family, are of such importance that preservation of them should defeat such a move. The key relationships in IM’s life can realistically be maintained and developed following relocation, even if the form and frequency of direct and indirect contact has to undergo some degree of change: cf. S v S, paragraph 21.

103. In his closing submissions to me the pursuer’s solicitor suggested that if I was against him on the question of the specific issue order, then a procedural hearing might be appropriate in relation to the question of the precise terms of a contact order. I considered this but was satisfied that such a hearing would add nothing of significance to what I have already heard on this matter. I considered that I was in a position to make an appropriate order now, and that I should do so. The making of the specific issue order is in my view dependent on the court being satisfied that a specific, viable scheme is in place which will ensure future contact, and contact which is not so restricted or reduced, when considered alongside the other merits and demerits of relocation, that overall the making of a specific issue order would not be in IM’s best interests. I am satisfied that the terms of the contact order which I have set out strike an appropriate balance in this regard and that the order can and should be made at this time without further procedure.

104. I will therefore make the orders set out above, granting the defender a specific issue order permitting the relocation of IM to Cornwall, and granting the pursuer the rights of contact specified. Given the grant of these orders, the pursuer’s crave for interdict must be refused. The defender will also be released from her undertaking of 17 April 2015.

105. Finally, both agents were agreed that there should be a finding of no expenses due to or by either party, regardless of the outcome.

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	Scottish Sheriff Court Decisions
You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> JM v GF [2016] ScotSC 32 (19 April 2016) URL: http://www.bailii.org/scot/cases/ScotSC/2016/[2016]SCPER32.html Cite as: [2016] ScotSC 32

Scottish Sheriff Court Decisions