SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH

 

F1208/09

JUDGEMENT

 

of

 

SHERIFF WILLIAM HOLLIGAN

 

in the cause

 

GD

 

Pursuer

 

against

 

EK

 

Defender

 

and

 

RICHARD MILL, Curator ad litem to M, 21 Stafford Street, Edinburgh EH3 7BJ

 

Minuter

 

Act: Jack, Advocate, Thorley Stephenson

Alt: Docwra, Morisons

Curator ad litem: McAlpine, Hughes Walker

 

Edinburgh 4th May 2011

 

The sheriff having resumed consideration of the cause finds in fact:-

 

[1] EK is the mother of M. GD is the father of M. At the date of the proof EK was aged 32 and GD was aged 44.

 

[2] M was born on 17th September 2006. 5/1/1 is the extract birth certificate of M. GD is registered as the father. EK and GD are not and never have been married to each other.

 

[3] EK was born in Edinburgh. She has three older brothers. At the age of 9 she moved with her family to New Zealand.

 

[4] When she was 16 her parents separated and subsequently divorced. Her father remarried in 2000. Her parents and brothers live in New Zealand.

 

[5] EK has relatives who live in England and Northern Ireland. She has no relatives in Scotland.

 

[6] GD is one of two children. His parents and his sibling live in Edinburgh. His

parents' address is St Patrick Street, Edinburgh.

[7] EK is a podiatrist. GD is a computer engineer.

 

[8] After her parents' separation, the defender went to live with her mother at Cambridge, New Zealand. She then went to live with her father at Rotatuna, Hamilton. The defender's mother is a Jehovah's Witness.

 

[9] The defender left school at the age of 17. She worked for a year. She intended to travel.

 

[10] In or about 1996, at the age of 18, the defender came to the United Kingdom. After approximately 4 years the defender went to Queen Margaret University College where she obtained a BSc (Honours) degree in podiatry.

 

[11] At one stage during her residence in the United Kingdom the defender was a member of an Evangelical Christian Church.

 

[12] The defender began work as a podiatrist in Edinburgh. In or about January 2005, the parties met when the pursuer attended to repair the defender's computer.

 

[13] On in or about October 2005 the defender moved to London in order to further her career. She obtained employment with the NHS.

 

[14] The defender was joined in London by an old school friend from New Zealand. He lived with her for a period.

 

[15] The parties maintained a relationship. The defender visited Edinburgh. The pursuer did not visit London.

 

[16] In or about January 2006, the defender discovered she was pregnant. The pregnancy was unplanned. The pursuer told the defender certain things about his health and his financial position. The defender considered terminating her pregnancy.

 

[17] The defender returned to Edinburgh in or about July 2006 being approximately 7 months pregnant at the time.

 

[18] The pursuer flew down to London to meet the defender. They jointly paid for the hire of a car. They drove to Edinburgh.

 

[19] The defender initially stayed with a friend. She then stayed one night at the property in Lochend in Edinburgh but moved out because it was unsuitable.

 

[20] The parties both identified a property at 186 The Pleasance, Edinburgh to rent ("the Pleasance property"). The Pleasance property is a one bedroom flat. The landlord was initially unwilling to let the Pleasance property to the defender. On the pursuer's suggestion, the defender offered the landlord three months rent. The landlord accepted the proposal. The defender was named as the tenant on the lease. 6/1/14 is a copy of the lease.

 

[21] The defender was named as responsible for payment of the utilities for the Pleasance property.

 

[22] M was born on 17th September 2006. The pursuer was present at the birth. He cut the umbilical cord. The pursuer was happy to be a father.

 

[23] The parties were in a relationship from after the birth of M until May 2009. M regularly saw the pursuer's parents. His grandmother looked after him from time to time. The pursuer did have a part in M's upbringing.

 

[24] The defender and M lived at the Pleasance property.

 

[25] The pursuer did also live at the Pleasance property from time to time but he also stayed at his parent's house at St Patrick Street.

 

[26] Photographs 5/5/1 show a number of outings undertaken by the parties and M.

 

[27] The parties and M went on holiday to Portugal together and on visits to the defender's aunt in England.

 

[28] The defender began part time work as a podiatrist in or about 2008 and on a more regular footing in January 2009.

 

[29] At an appropriate age, M went to nursery. The pursuer's mother helped with babysitting.

 

[30] The pursuer was in work during this period.

 

[31] In the period before May 2009 the defender was unhappy. She had a brief relationship with a third party. She was considering returning to New Zealand.

 

[32] The pursuer applied for employment in Australia. 5/7/3 is a copy of the defender's application for such employment. The pursuer was unaware that the defender had made the application.

 

[33] In or about 30th April 2009 the defender sought certain advice from the Citizens Advice Bureau in Edinburgh. 6/5/52 is a copy of the report of the attendance.

 

[34] Without the knowledge or consent of the pursuer the defender planned to move to New Zealand and to take M with her. She originally planned to go to New Zealand in June 2009.

 

[35] On or about 28th May 2009 the defender abducted M and took him to New Zealand.

 

[36] En route to New Zealand or immediately on arrival in New Zealand the defender sent a text. 6/5/49 is a copy of the text which sets out her sentiments at the time.

 

[37] The defender and M went to live with her father in Rotatuna.

 

[38] The defender enrolled M in nursery school in Rotatuna. The defender obtained a certificate of New Zealand citizenship, New Zealand passport and New Zealand IRD card for M. All of the foregoing was done without the consent of the pursuer.

 

[39] The defender made enquiries in Rotatuna as to M's schooling. The defender's father helped with such enquiries.

 

[40] The defender registered M with a GP in New Zealand and sought specialist medical assistance.

 

[41] From time to time, on the initiative of the defender, M was referred to by the defender's surname in New Zealand and not the name on his birth certificate.

 

[42] The defender did make plans to start work as a podiatrist in or about the Rotatuna area. She did not engage in remunerative employment as a podiatrist.

 

[43] 6/3/20 are copies of the defender's practising certificates as a podiatrist which, incorrectly, purport to show addresses at which the defender was living and working.

 

[44] The pursuer sought contact with M on a regular basis. The only contact available was by telephone. Contact was unsuccessful. The defender discouraged contact between M and the pursuer.

 

[45] On learning of the defender's abduction of M, the pursuer immediately commenced proceedings in New Zealand pursuant to the Hague Convention.

 

[46] The documents commencing the New Zealand proceedings were served on the defender on or about July 2009. The defender defended the New Zealand proceedings.

 

[47] Both parties lodged affidavits in the New Zealand proceedings.

 

[48] The pursuer looked at emails on the defender's computer without her approval. The pursuer filed an affidavit exhibiting emails he obtained from the defender's computer between her and her father.

 

[49] The foregoing exhibits annexed to the pursuer's affidavit were incomplete. The pursuer deleted certain passages from the emails.

 

[50] In the New Zealand proceedings the defender argued that to return to the United Kingdom would cause grave risk to her and to M.

 

[51] By reserved judgment dated 17th November 2009 ("the New Zealand judgment") the New Zealand court ordered that M be returned to the United Kingdom forthwith.

 

[52] The defender complied with the order and returned to the United Kingdom at or about the beginning of December 2009.

 

[53] The defender and M have been residing in Edinburgh since December 2009 and continue to do so. The pursuer does not reside with the defender and M. M attends nursery.

 

[54] Since he was very young M has suffered from an eating disorder. He found the digestion of solid food difficult. He had sensory difficulties particularly in relation to having his hair and toe nails cut.

 

[55] M was examined by medical practitioners in the United Kingdom and New Zealand. The investigations were appropriate and reasonable.

 

[56] M's difficulties have diminished and he is steadily improving. He presently has no major medical issues. He is not subject to assessment or treatment as an outpatient at hospital.

 

[57] Were the defender and M to live in Rotatuna, the medical, educational and housing opportunities would be broadly similar to those in Scotland.

 

[58] There is a demand for the employment of podiatrists in New Zealand.

 

[59] The defender does not currently have an offer of employment in New Zealand.

 

[60] The defender does not have accommodation of her own in New Zealand. Were she to go to New Zealand she would be obliged to stay with one of her parents.

 

[61] Neither the pursuer nor the pursuer is wealthy. In order to purchase a property in New Zealand, the defender would require to save up for a deposit or to borrow money from her father.

 

[62] The pursuer has not worked since December 2009. He has made occasional payments towards the maintenance of M.

 

[63] The defender's father is willing to lend monies to the defender to purchase a property and towards the cost of a mortgage were she to live in New Zealand but not if she were to remain in the United Kingdom.

 

[64] If she were to remain in New Zealand the defender's father is willing to provide some financial assistance to the defender to purchase airline tickets to travel from New Zealand to go to the United Kingdom over a period of up to 5 years. The cost of return air fares to New Zealand is approximately between NZ$4000 to $8000.

 

[65] The defender's father usually visits the United Kingdom annually for business and family matters. During these visits he meets with the defender and M. The defender's mother has visited the defender in the United Kingdom. It is unlikely that she will be able to afford to make regular visits to see the defender and M.

 

[66] M has a bond with both sets of grandparents.

 

[67] Since his return to Scotland, the pursuer has had regular contact with M pursuant to an order of the court for contact.

 

[68] The contact has been successful.

 

[69] The relationship between the parties is poor. They are unable to communicate with each other.

 

[70] Since November 2010 the defender has completed a diary. When M goes for contact the diary goes with him. The pursuer has not made any entries in the diary.

 

[71] M is enrolled and attends nursery. He is enrolled to commence at primary school in August 2011.

 

[72] During contact visits for the pursuer, M regularly sees the pursuer's parents. He eats meals with them during the week.

 

[73] The lease for the Pleasance property is in the name of the pursuer. On a Saturday night M and the pursuer stay at the Pleasance property overnight.

 

[74] M is presently happy and well cared for. M has a close bond both with the pursuer and the defender. M loves his parents. His parents love him. They have a close bond with him.

 

Finds in Fact and in Law:

1. That it is in the best interests of M to continue to reside with the defender;

 

2. That it is not in the best interests of M that the specific issue order be granted;

 

3. That it is in the best interests of M that he has contact with the pursuer;

 

4.      That it is in the best interests of M that the interim interdict granted on 27th November 2009 be continued;

 

5.      That M is too young to express a view;

6. That it is better that the foregoing orders be made than that no orders should be made at all.

 

THEREFORE

Sustains the 2nd and 4th pleas in law for the pursuer; sustains the 1st plea in law for the defender; quoad ultra repels the remaining pleas in law for the parties; orders that M should continue to reside with the defender within Scotland; continues in force the terms of the interim interdict dated 27th November 2009; reserves all questions of expenses to the diet hereafter assigned; without prejudice to any other competent procedure, grants leave to the defender to apply to recall or vary the terms of the interdict granted herein by Minute in this process; continues the existing orders for contact in favour of the pursuer ; reserves to pronounce further in relation to contact and assigns 17th May 2011 at 9.30am at the Sheriff Court 27 Chambers Street, Edinburgh as a diet therefor.

 

NOTE

Introduction

[1] This action concerns M, born on 17th September 2006. M is the only child of GD and EK who are the father/pursuer and mother/defender respectively in this action. The parties are not and never have been married to each other. At the date of the proof GD was aged 44 and EK aged 32 respectively. In short, the pursuer seeks a residence order that M lives with him. The defender seeks a residence order in her favour. The defender also seeks a specific issue order in which she asks the court to allow her to move to New Zealand. In circumstances which I shall later explain, at the end of May 2009, for a period of 6 months, the defender and M lived in New Zealand. In addition to the parties themselves (and for convenience I shall exclude the curator ad litem from the definition of "party") I heard evidence from the defender's mother and father, Doctor and Mrs K; a health visitor, Pamela Richardson; JH, a friend of the defender; Ronald Ferguson private investigator; Richard Greghorn, emigration expert; Doctor Sonia Thielen; Doctor Anne Iliffe; the pursuer's mother, Mrs D. A joint minute of admissions was also lodged. The Joint Minute deals with a number of documents. I do not consider it necessary to include all of these in my findings in fact.

 

[2] The defender was born in Scotland. She is the youngest of a family of four children. After a period of living in England, the defender and her family moved back to Scotland. At the age of 9 the defender and family emigrated to New Zealand. Initially the family lived at Palmerston North but subsequently lived at Cambridge. The defender's parents separated when the defender was aged 16 and subsequently divorced. There was some rather vague evidence about an alleged unhappy relationship between Dr and Mrs K and allegations as to Dr K's behaviour, none of which I accept as having happened. In any event, I do not consider it relevant for the purposes of these proceedings. At the outset, the defender lived with her mother. The defender left school aged 17. She always intended to travel abroad. After leaving school she obtained a job for a year or thereby. At one stage she went to live with her father. When the defender was 13, her mother became a Jehovah's Witness. I will return to this issue later. The defender's paternal grandmother lives in England. The defender's father has siblings who live in England; her mother has a brother who lives in Northern Ireland. The defender has no relatives living in Scotland. Dr K has grandchildren and step grandchildren, some of whom are of a similar age to M. They live in or about the vicinity where Dr K lives. Dr K currently lives in Hamilton, teaching at a nearby University. Mrs K lives in Cambridge. The towns are a car journey of approximately 30 minutes apart (6/4/21-22 are the relevant maps).

 

[3] The defender did travel. She arrived in the United Kingdom in or about 1996 during which Mrs K visited the defender. The defender waited some 4 years before beginning a course of study. For 4 years the defender studied podiatry at Queen Margaret University College in Edinburgh graduating, aged 24, with a BSc (Honours). The defender went back to New Zealand for the marriage of one of her brothers in 1999 and her father's remarriage in 2000. Other than that she remained in the United Kingdom. During her time in Edinburgh she became a member of an evangelical church. At one stage in her evidence she described this organisation as a cult. It is also clear from the evidence of both Mrs K and Dr K that they had reservations about the defender's membership of this church. In any event, the defender found herself in disagreement with a number of its practices and left. The defender worked in Edinburgh as a podiatrist for a year. It was in January 2005 that she met the pursuer when he came to repair her computer.

 

[4] The evidence as to the pursuer is less extensive. He is a computer engineer. There was no evidence as to whether he has any qualifications. He is the son of Mr and Mrs D. Mr D is a retired trawler man. Mrs D is also retired. They live nearby the Pleasance property at St Patrick Street. The pursuer has one sister who has one grown up son now living in Canada. Neither Mr D nor the pursuer's sister enjoys good health. When he was working, at the latter stages at least, the pursuer was self-employed. He has spent most of his life living in or around the Edinburgh area. He has not travelled greatly and appears to have gone abroad, to Portugal, on one occasion.

 

[5] It was in October 2005 that the defender moved to London to work with the NHS. She moved her employment in order to further her career. At some point the defender was joined by an old school friend (male) from New Zealand (ZT). The defender returned to Edinburgh in or about July 2006 having fallen pregnant to the pursuer with M. The pregnancy was unplanned. She discovered she was pregnant in or about January 2006. M was born (overdue) in the middle of September 2006. The pursuer did not visit the defender in London but the defender visited him in Edinburgh, travelling from London by train some 13 times or thereby over the period. When in Edinburgh the defender stayed in bed and breakfast accommodation or with a friend.

The Witnesses

[6] As I move to some of the more controversial evidential aspects in this case, it is appropriate that I should comment upon the witnesses. I have no difficulty in finding Mrs Richardson, Dr Iliffe, Dr Thielen and Mr Greghorn to be credible and reliable witnesses. Although not greatly experienced at the time, I also consider that Mr Ferguson was doing his best to tell the truth as best he could remember matters. I am also inclined to accept JH, a friend of the defender as being credible and reliable. Almost inevitably, Mrs D and Dr and Mrs K exhibited a degree of partiality in their evidence towards their family member. Mrs K struck me as being a person with staunchly held beliefs. I am satisfied that, as she put it herself, she would be prepared to side with her daughter only if it was right according to her opinion and beliefs. I have little difficulty in concluding that lying for her daughter or being party to an elaborate evidential concoction would not accord with Mrs K's staunchly held principles. Dr K struck me as a man of strong views, along with an admittedly poor short-term memory. He had great difficulty in recalling his most recent contact with M when it had taken place a matter of days before his evidence. He was prepared to give material support to his daughter but on his own terms. However, again, he did not strike me as someone who would be party to a deliberate concoction of evidence. As to the parties themselves, I have to say that I find it difficult to accept either as being a wholly credible and reliable witness. By her actions in 2008 and 2009, the defender showed herself as being single minded and quite prepared to say whatever suited her to achieve her goals. I have identified particular chapters in the evidence where I do not accept her evidence. The pursuer, on the other hand, repeatedly found it difficult to give an answer to a simple question. One of the first, and routine questions asked of him was where he lived. He seemed unable to answer that simply and directly. It set a pattern. His answers were often diffuse, lengthy and unrelated to the question put to him. Although I reject the submission that the pursuer is abusive and controlling I do detect what I would call an intensity of approach. I have also made certain comments in relation to particular chapters of the evidence relating to him.

 

 

The relationship between the parties

[7] There are one or two chapters in the evidence which can only be described as unusual, if not downright bizarre. The defender's evidence was to the effect that the pursuer told her that the pursuer had incurred substantial debts. The debts arose during a relationship he had had with the daughter of a former employer. They had allegedly bought a property together which they intended to improve. They took out a mortgage. The property had proved to be worthless leaving him with substantial debts. The defender also said that during this time the pursuer told her that he was suffering from a brain tumour and had also been involved in a road accident. The defender described that, on visiting the pursuer when she was living in London, the pursuer was sick looking, very tired and that he suffered from nose bleeds. She said he showed her a brain scan which disclosed a tumour which had his name on the top. She also described him as having difficulty in forming sentences. The defender also described the pursuer as being on Warfarin which I take to be a form of medication, and that, although there was talk of an operation, the clot dispersed without the need therefor. He was taking tablets and suffering headaches. However, the defender had her suspicions about this story from the pursuer. She says she rang the hospital where the pursuer was said to be a patient. The hospital, it was said, confirmed that they had no record of the pursuer being a patient. Quite why the hospital would disclose such confidential information was not made clear. By this time the defender had found out that she was pregnant. When the defender discovered that the pursuer had been lying to her she considered having an abortion. However, she changed her mind. She said in evidence in chief that she felt she had not treated the pursuer "right" and moved from hating him to forgiving him.

 

[8] The defender's evidence is partially supported by the evidence of her parents. During his visit in July 2006, Dr K met the pursuer for the first time. Indeed it is the evidence that Dr K regularly visited the UK primarily by reason of his academic activities. In particular, he saw the defender in the summer of 2006, 2007 and 2008. It is clear from his evidence that Dr K did not take to the pursuer as an individual. Dr K described the pursuer as telling him what he described to be "an unbelievable story" as to debt. In terms similar to those described by the defender, Dr K said that the pursuer alleged that he was suffering from a brain tumour but that he stood to gain a substantial payment through a policy of insurance held by his former employer. Mrs K said that the defender did describe the pursuer's medical condition in the course of a conversation with her on the telephone in 2006. She recalled the defender telling her of her concerns in relation to the pursuer's health and that the defender said she had taken compassionate leave for a week to visit the pursuer. Mrs K was adamant that the pursuer did discuss in her presence that he had a brain tumour and that he had debts occasioned by a bad property investment. These conversations took place during her visit to see the defender and M which lasted from March until June 2008. Mrs K had a specific recollection of the pursuer discussing his claim for compensation on a date shortly before she returned from London. She was also clear that, as far as she was concerned, she did not condone the pursuer and defender living together when they were not married and that, had they been living together, she would not have stayed with them.

 

[9] The pursuer completely denies all of the above. He says it is simply untrue. Evidence was led from Dr Anne Iliffe who was, amongst other things, the pursuer's General Practitioner at the relevant time. She had no evidence to suggest that at any time the pursuer was suffering from a blood clot, a brain tumour or injuries from a car accident. Nor had she any medical evidence as to anything adverse as to the pursuer's mental health. I have no difficulty in accepting Dr Iliffe as an entirely credible and reliable witness. My conclusion is that the pursuer was not suffering from the ailments referred to. Accordingly, I do not accept the defender's evidence as to the pursuer's medical condition. On that basis, what the defender may have said to others, Dr and Mrs Kelly and JH as to the pursuer's medical condition and similar events, might fall into the same category. However, as I have said, both Dr and Mrs Kelly gave clear evidence as to the things they say the pursuer said directly to them. On such a matter there is no room for unreliability: the evidence is so unusual I do not consider a witness could be mistaken as to whether it was said. Either it was said or it was not. In short, in my judgement the issue is whether Dr and Mrs Kelly are lying in their accounts of what the pursuer said. I have set out my general view of these witnesses. I do not consider that they are lying. Having said that, however bizarre, I cannot say that I regard it as being of great significance in the overall outcome of this matter.

 

[10] The defender returned to Edinburgh in July 2006. The pursuer flew down to London to meet her and returned with her in a car they had jointly hired. The cost of the hire car was shared. For a short time she stayed with a friend. She then moved into another property at Lochend for an equally brief time before moving into the Pleasance property. A copy of the lease is 6/1/14 and is dated 23rd August 2006. It is in the name of the defender only. It was her evidence that she had in mind that the parties would live together in family. Just who found the property does not matter but it was the evidence of both parties that, initially, the landlord was not keen to grant a lease in favour of the defender alone. He only did so after (at the instance of the pursuer) the parties made an offer of payment of a deposit of three months rent. The utility bills and the rent were all in the name of the defender. She described herself as a lone parent and, as I understand her evidence, she was claiming, and being paid, benefits on that basis.

 

[11] Between the date of M's birth and June 2009 there is a sharp difference in the evidence as to whether the parties could be said to be living together and whether they were in a relationship in any meaningful sense. The pursuer says they were; the defender says they were not. M was born in September 2006. The pursuer attended the birth and indeed cut the umbilical cord. Mrs K said she received a telephone call from the pursuer whom she described as clearly excited and happy. 5/5/1 contains a bundle of photographs, all dated, covering a period from M's birth through to 2009. The photos show a number of family outings over the period and include holidays taken together at the house of the defender's aunt in England and a holiday to Portugal. Both parties admitted that these occasions took place. The photos also record excursions to more local venues, again in family, together with a number of photographs showing scenes at the Pleasance property. 5/7/9 is an application for the nursery place for M completed by the defender and giving the home address for both parties and M as the Pleasance property. This leads me to another strange chapter in the evidence in this case. In short, the defender maintains that the pursuer did not live with her and M in family at the Pleasance property. She does say that the pursuer did visit them both on a regular basis at a very late hour (11pm or thereby) staying until the small hours of the morning. It is said M was kept awake in order to fit in with the pursuer's routine. This the pursuer denies. It was his evidence that he lived a normal family life with the defender and M. His hours of work did vary. He did accept that there were times when he stayed with his parents nearby, particularly when his father was unwell and also when his sister was unwell. There is some independent evidence in relation to this issue. I refer to the evidence of Mrs Richardson (the health visitor), Mrs Kelly, JH and Ronald Ferguson. Mrs Richardson made a number of visits during the daytime to visit the defender and M. She said she never met the pursuer during any of these visits nor did she see any evidence of his presence, one way or the other, in the flat. She said the defender described herself as a single mother but that she was obtaining support from the pursuer. She felt that the defender was somewhat isolated. Given the daytime hours which Mrs Richardson visited I cannot say that I find her evidence greatly surprising.

 

[12] Mr Ferguson was, but is no longer, a private investigator. Although he may not have been experienced, given the limited nature of his task, I did not see that as being a particular impediment to his evidence. His task was to interview persons living in, or in the vicinity of, the Pleasance and to ask them, by reference to certain photographs, whether they recognised the pursuer as having lived in the block of flats. Mr Ferguson also carried out a search of certain databases which disclosed the pursuer as resident at St Patrick Street. He then proceeded to interview people living in or around the block of flats. The evidence was that the layout of the flat is unusual, with a balcony facing at the back of the flats. Mr Ferguson produced a report which is 6/1/3 of process. It is sufficient to say that a number of those referred to in the report (but not a majority of those living in the block) did recognise the defender and M as living in the block but not the pursuer himself. None of the witnesses was called to give evidence. It would appear that the layout of the flat meant that the prospect of meeting other residents is less likely than ordinary tenement flats although it did not seem to impede those who did see the defender and M. I do note that the public records available to Mr Ferguson did suggest residence by the pursuer at St Patrick's Street rather than the Pleasance property. On balance, I am not inclined to give much weight to this evidence. It adds slight weight to the absence of the pursuer.

[13] I turn now to the evidence of JH. She is a friend of the defender. She knew the defender prior to M's birth until September 2007 when the relationship diminished. It was rekindled in or about December 2009. It was the evidence of JH that the defender described to her the relationship between the pursuer and the defender and the hours which the pursuer kept. The source of this information was of course the defender. Also, she described visiting the flat on a limited number of occasions and never meeting the pursuer nor seeing any evidence of his presence in the flat.

 

[14] The evidence of Mrs K was to the effect that during a visit she made to the defender and M in 2008 the pursuer did not live in the flat. She also spoke to late night visits by the pursuer. I am not greatly surprised by this evidence. As I have said, it is clear that, for personal reasons, Mrs K did not approve of the defender cohabiting with the pursuer and indeed seemed to be of a state of mind that they were not cohabiting. Furthermore the Pleasance property itself is not large. It is also clear from the evidence of the pursuer that he did not expect the visit of Mrs K to be for as long as it was. He said that Mrs K's disapproval of his residence with the defender led him to move out "in order to keep the peace". I have no doubt in concluding that the parties were in a relationship. Exactly what the terms of that relationship were is perhaps less clear. I am not inclined to accept that throughout the time the pursuer only visited the flat at unsocial hours. However, I have some hesitation concluding that he lived with the defender and M throughout the time in the way he described. There were periods when he did not. My conclusion is that there was much more of a relationship than the defender was prepared to concede but somewhat less than the pursuer was inclined to advance.

 

[15] The defender began to work part-time as a podiatrist in January 2009. The evidence discloses that she had plans to do so from a much earlier point and indeed seems to have undertaken some work in 2008. I do not consider it necessary to set out this matter in detail. (I refer to productions 5/5/2, 5/5/21, 5/7/6-8, 5/7/10). By the time the defender left for New Zealand with M she had established herself as a podiatrist in Edinburgh.

 

[16] Much was made of a series of texts which are 5/8/1. They appear to me to be largely unexceptional, dealing with routine everyday matters which one would expect from parties who were in a relationship. M was enrolled at nursery. The defender usually took him to nursery. The pursuer would collect him from time to time. The pursuer's mother was in regular, if not daily, contact with the defender by telephone. She would assist with babysitting from time to time. I also accept the evidence that M saw his paternal grandparents regularly and was looked after by Mrs D. However, all was clearly not well. At one stage in late 2008 the defender was involved in a brief indiscretion. It is also clear that, unbeknown to the pursuer, the defender submitted an application for employment in Australia (5/7/3). She accepted the document says that, if accepted, she would travel (alone) with M to Australia to work. On any view, it seems to me that the defender was unhappy and indeed accepted at one point in her evidence that she was simply "stringing the pursuer along". Some support for the defender's unhappy state of mind can be gleamed from the evidence of Dr K who, when he met the pursuer in the defender in the summer of 2008, found her to be unhappy. Dr K was aware that by, late 2008, the defender's state of mind was to the effect that she wanted to return to New Zealand.

 

New Zealand

[17] There is no doubt that the defender, unilaterally and without the consent or knowledge of the pursuer, removed M from the United Kingdom and went to New Zealand. In short, she abducted him. She had originally planned to do so in or about June 2009 but brought her plans forward so that she left the United Kingdom on 28th May 2009 arriving in New Zealand on 1st June 2009. Before going to New Zealand the defender sought advice. She attended at the Citizens Advice Bureau on 30th April 2009. She said she told an adviser what she intended to do. The substance of her evidence was that she was told that, if she did go to New Zealand with M, then she could "fight from New Zealand". No mention was made to her of the Hague Convention (formally the Convention on the Civil Aspects of International Child Abduction 25th October 1980 which I will refer to as the "Hague Convention"). 6/5/52 is a copy of the record of interview. The author of the document did not give evidence. The report of the advice relates to the parental rights of a father and how they are acquired. No mention is made of a move to New Zealand nor of the Hague Convention. Given the importance of such an issue I would have expected it to have been noted in the record. It is not. Whereas I accept that the defender did seek advice from the Citizens Advice Bureau I am not prepared to hold that the advice related to a move to New Zealand.

 

[18] The removal of M and the defender to New Zealand was totally unexpected by the pursuer. He entered the Pleasance property to find it empty. The defender sent certain texts to the pursuer on 30th May 2009 en route to New Zealand. The first two were to her friend ZC. It is worth setting out part of the third text which is contained in 6/5/49:-

"I do know you are cut up. I felt like a single mother from the day (M) was born, you never made me apart (sic) of your life and you just visited mine, I was hoping for a change. You could not even show me were (sic) you slept. Please do visit and when he is 16 or so he may decide to live in Scotland. I should never have you (sic) into my life, we did not know each other. Life was ticking on"

I cannot help but think it may well represent the defender's state of mind at the time.

 

[19] The defender and M remained in New Zealand between June and December 2009. The defender returned to the United Kingdom with M following a reserved judgment of the family court in New Zealand dated 17th September 2009 ("the New Zealand judgment") in which the defender was ordered to return to the United Kingdom pursuant to the Care of Children Act 2004 (NZ) which, from the New Zealand judgment, I understand to enact into New Zealand law the provisions of the Hague Convention. A copy of the judgment is 6/1/2. Before dealing with the judgment and the proceedings I deal with certain factual matters which occurred over that period. On her arrival in New Zealand the defender and M went to live with the defender's father where, in general terms, she remained. There was some evidence that she also stayed with her mother. M was enrolled in, and attended, Kinder Care nursery. 6/6/54 is a portfolio from the nursery for "MK". The defender seems to have referred to M as "MK" and "MD" although often "MK". The defender enrolled M with a local general practitioner. She also, albeit later, obtained for M a New Zealand passport, New Zealand citizenship and a New Zealand IRD card (an identity document). All of the foregoing was done without the consent or knowledge of the pursuer. Indeed it is clear that such actions continued in 2010, after her return to the United Kingdom. 6/5/30-31, 6/5/31-35 and 6/5/42(a) and (b) are examples of various documents relating to schools and medical centres for "MK" not "MD". Her father assisted her in relation to a number of these applications. None of these documents was produced with the pursuer's consent or knowledge. It is also clear that, although she did try to do so, the defender was not employed during that period. The principal difficulty was obtaining a practising certificate. She did eventually obtain a practising certificate (6/3/20) to work as a podiatrist, stating an address in Hamilton at which, as I understand the evidence, she did not live at and referring to a work address at which she was not employed.

 

[20] On any view, the evidence as to contact between M and the pursuer discloses an unhappy picture. The pursuer was left with no direct contact number as to where the defender was living. Through his own efforts he managed to obtain the telephone number of the defender's father, Dr K. He rang, or tried to ring, on a regular basis. He wanted to speak to M. The evidence is that he rang approximately 2 to 3 times per week. The contact by telephone was not successful. Given M's age at the time it is not surprising. The defender made no attempt to contact the pursuer. No attempt was made to establish contact by any alternative method such as Skype or video. On M's 3rd birthday the pursuer was given no opportunity to speak to M. When he rang he was told M was playing. The best which can be said was that all this took place during the Hague Convention proceedings in which affidavits were filed by both parties containing a number of allegations and counter allegations. The defender accepted that during this period she did say a number of things which can only be described as harsh (telling M "we don't want to speak to daddy"). Be that as it may, as a matter of fact, no attempt was made to promote contact. Indeed quite the contrary occurred.

 

[21] The New Zealand judgment refers to a series of emails annexed to affidavits filed in the New Zealand proceedings. I refer to exhibits marked "c", "d", "e" annexed to the affidavit of the defender dated 7th September 2009 (6/1/6). The exhibits comprise an exchange of emails between the defender and Dr K over the period March to April 2009, shortly before she left for New Zealand. The exhibits were filed in answer to material exhibited to an affidavit filed by the pursuer. The exhibits to the pursuer's affidavit were lodged in this process as 5/1/6 and accepted by both parties as being the exhibits put before the New Zealand court by the pursuer. The pursuer's evidence is that he retrieved the emails from the defender's computer. That was done without her consent or approval. The defender was able to retrieve her copy of the emails from her father's computer. The pursuer alleged the copy he printed off from her computer was as he found them. A cursory comparison between the two sets of emails shows that there are significant differences. In the pursuer's copy of the layout of the emails there are physical gaps in the document. It was put to the pursuer that he had altered the emails in order to excise some material that was not favourable to his case. He denied this. It seems to me it is more probable than not that he did alter the emails. As I said, it is plain from the layout of the text that there are gaps. In general the changes in the text favour the pursuer. He is the one who obtained them and exhibited them. He is a computer engineer. He had the means and the opportunity to make alterations. Another aspect of the emails is to show that the defender continued to have a close relationship with her father to whom she turned for advice. The emails do disclose an unsettled state of mind on the part of the defender.

 

[22] In their evidence, the defender and her father said they had little knowledge of the New Zealand judgment. Given its importance that is something I find somewhat surprising. Dr K, who seems to have funded some or all of the costs of the proceeding for the defender, regarded the whole exercise as a "mistake" in the sense that the proceedings ought not to have been resisted. However, I do accept that neither Dr K nor his wife, initially at least, had any idea understanding of the Hague Convention. I will return to the effect of the New Zealand judgement on these proceedings.

 

M's Health

[23] I turn now to the issue of M's health. Both parties agree that M had a difficulty with eating and, in particular, eating solid foods. Mrs Richardson gave evidence that the matter first came to her attention when M was a matter of months old. Investigations were carried out, initially using a speech and language specialist. Arrangements were made for M to see a specialist at the Royal Hospital for Sick Children in Edinburgh but the appointment was for a date after the defender had left for New Zealand. Dr Sonia Thielan, a paediatrician at the Royal Hospital for Sick Children, gave evidence as to M's past and present condition. Dr Thielan spoke to medical reports dated 1st April and 21st September 2010 (6/5/38 and 39) prepared by her for Dr Iliffe, M's GP. Dr Thielan was able to comment on a psychologist's report on M dated 8th December 2009 prepared in New Zealand when the defender and M were still there but despatched after their departure. An appointment to see the parties and M had been made for February 2010 but only the pursuer arrived. It appears the defender did not receive the letter. A further appointment was made which all attended. Dr Thielan recommended a follow up appointment 6 months later which led to her letter of 21st September 2010. I do not consider that it is necessary to go into great detail. M was described as a "delightful" little boy. He did have eating difficulties. He was also noted as being reluctant to have his hair and nails cut. There were no concerns as to M's physical development. The New Zealand psychologist did comment upon the possibility of ASD in the light of M's sensory issues, something which I understood the health visitor in Scotland (not Mrs Richardson who had by then retired) had also commented on. Dr Thielan said she found the report from New Zealand to be helpful and appropriate. I mention that because there was a comment at one point in the evidence that the medical report was utilised for the purposes of the New Zealand proceedings. Dr Thielan recommended assistance from the Occupational Therapy Department to help with M's sensory issues. The upshot of that was that the occupational therapist considered in November 2010 that M was making sufficiently good progress for him to be discharged from her care (6/5/40). Dr Thielan also discharged M from her care. She was not aware of any major issues as to M's health. He is making good progress and his sensory issues as to eating are gradually improving. There are no concerns as to M's health.

 

The future

[24] I turn now to the defender's plan to move to New Zealand. In general terms, I have little difficulty in accepting the evidence of Mr Greghorn. Put in general terms the educational, health and social security systems in New Zealand are broadly similar to those in the United Kingdom. I also accept Mr Greghorn's evidence that there is a demand for podiatrists in New Zealand. It is no doubt true that, when she was living there, the defender had no actual offer of employment in New Zealand as a podiatrist. However, in my opinion, the defender showed herself as determined and resourceful when it came to finding similar employment in the United Kingdom. Of course, that does not deal with the issue of her hours of work and it is her hours of work which determine the income she has available both in terms of a mortgage and her plans to travel to the United Kingdom with M to visit the pursuer. Dr K did say that he would be prepared to give some financial assistance to the defender were she to stay in New Zealand (but not in the United Kingdom). In terms of accommodation I consider there is evidence to show that property is available to the defender in the Rotatuna area, either to rent or to buy. However, whether the defender would be able to afford such accommodation is quite another thing. It should be remembered that the defender is presently working part-time in Edinburgh and living in rented accommodation. If she were to obtain employment in New Zealand I doubt the situation as to accommodation would be significantly different from that in the United Kingdom. Various attempts were made by the defender to set out budgets in relation to her anticipated expenditure and income in New Zealand. It is sufficient to say that all attempts collapsed under the weight of their own inconsistencies and I therefore attach no weight to them. There is also the issue of child care. If the defender were to move to New Zealand she would be a single parent. The more hours she works the greater the need for child care. I cannot say I found the evidence on this to be entirely satisfactory. There was a vague expectation that members of the family would be able to help. Even if that were correct, it would leave M without either parent, in unfamiliar surroundings, for the greater part of the day, always assuming the defender was able to secure employment in the locality and at an appropriate salary. It is clear that neither party to this litigation is wealthy. The pursuer has not worked since December 2009. The defender is in part-time employment. There is no evidence of any savings on the part of either of them. Mr Greghorn's evidence was to the effect that the cost of air fares to and from New Zealand could be anything between $4000 and $8000 return. If it is intended that either party should make the journey on a regular basis it is not clear to me how this would be funded. The defender placed much reliance upon Dr K for the funding of her future plans. Dr K's evidence was to the effect that he would be prepared to find a deposit for a property in New Zealand up to a maximum of $70,000 although to do so would, in his words, "clean him out". His enquiries also disclosed that the bank would require him to be a co-mortgagee on any security taken out by the defender. If the defender was able to find employment for up to 3 to 4 days a week, given a salary of $50,000 per annum, then he would also be willing make up the shortfall on the monthly payments. He would also be willing to fund air fares from New Zealand to the United Kingdom for a period of 5 years which I took to be up to his expected date of retirement. However, all of the above was predicated on the assumption that the defender would remain in New Zealand. No such equivalent funding would be available from him were she to remain in the United Kingdom. To use Dr K's words, he would fund the defender if his "influence was close".

 

[25] That leads me to the current situation. The defender is in employment. The pursuer says that he is not. He said that since the removal of M to New Zealand he found himself unable to work, describing himself as being "not sure where my head was". There was an attempt to show that the pursuer was still advertising his services as a computer engineer and working as such. I did not consider this to be particularly satisfactory and I draw no conclusions from it. There was some rather unsatisfactory evidence as to somewhat limited financial contributions by the pursuer to the costs of M's upbringing. I find it impossible to make anything other than a general finding that on occasions something was paid. However, why the pursuer could not have undertaken some work over this period is not clear. The defender is living in rented accommodation. M continues to reside with her and has done so since her enforced return from New Zealand. On her return to Edinburgh, the pursuer immediately commenced proceedings, seeking interdict and contact. Indeed, the defender was served with a writ upon her arrival at the airport. Orders for contact were duly made and extended slightly to the extent they are from 11.30am until 4.30pm each Tuesday and Thursday and each Saturday 4pm until Sunday at 1pm. That regime has, in broad terms, continued until the present. It is clear from the evidence that the parties find it almost impossible to communicate with each other. This difficulty in communication is symptomatic of the almost complete breakdown in trust between them. It is hardly surprising. The defender wrongfully removed M from the United Kingdom. The pursuer is not sure whether she will seek to do so again. Although not expressly said it seems to me that the defender is highly resentful of having to return to the United Kingdom and only did so as a result of the New Zealand judgement. M attends a number of activities such as swimming. The activities do not take place during the time when the pursuer has contact so he has no involvement therein although he does make some limited contribution to the cost. Much was made by both parties as to the use of a diary (6/6/55). The diary was started by the defender in or about December 2010. The diary goes with M when he has contact with the pursuer and contains information as to M's activity. The pursuer sees no need for the diary and claims that it is merely a ruse used in advance of the proof. He would prefer contact to be by text or face to face. Whatever the motives for its commencement, it constitutes a channel of communication between the parties (if not the only one) and one which the pursuer has not engaged in. M is nearly aged 5 and is ready to start school. The defender enrolled him at a primary school without the express consent of the pursuer although the defender alleged this was due to a mix up over dates for enrolment.

 

[26] The defender seeks a residence order in her favour together with a specific issue order, the effect of which will be to allow her to move to New Zealand with M. If it is granted, she also seeks a contact order securing M's relationship with the pursuer. The defender proposes that the pursuer have contact for one week at Easter and two separate weeks in summer. The defender should also be allowed contact with her family in New Zealand. The actual proposal was for 4 to 5 weeks at Christmas/New Year and a period following in the United Kingdom summer and so forth. If refused, she seeks a residence order in her favour.

 

[27] The pursuer seeks a residence order in his favour. In the event the court refuses his application, then there should be an order for contact in his favour. The defender accepted in evidence that, should she remain in Scotland, she would be agreeable to an increase in overnight contact. There may be scope for agreement between the parties as to contact, should the specific order be refused. However, the pursuer submitted that the court should be very cautious as to trusting the defender to go to New Zealand given the history of the case. M had benefited from stability and the interdict presently in place should remain.

 

[28] The curator does not support the defender's crave for a specific issue order in her favour. The curator is in favour of a residence order in favour of the defender. There should be contact in favour of the pursuer but not a material increase therein and not to the extent that, as the pursuer wants, M should have an equal amount of time with both parents. All parties lodged written submissions in this matter which I found very helpful and I do not propose to extend an already lengthy judgment with a recitation of all that was said in the submissions.

 

[29] Leaving aside the curator, the principal craves of the pursuer are for residence; the defender's principal craves are for residence and a specific issue order "allowing the defender (and M) to relocate to New Zealand". Mr Jack submitted that the court should deal with the specific issue order first and residence second. Mr Docwra submitted that I should deal with the residence first and then the specific issue order. It is common ground that, at the moment, the only significant extant orders are those of interdict and contact which have operated since December 2009.

 

The Law

[30] In my opinion, it is both necessary and appropriate to refer to the principal legislation. Both parents enjoy parental rights and responsibilities as these are defined in sections 1 and 2 of the Children (Scotland) Act 1995 ("the 1995 Act"). Section 2(1) gives to both parties the right "to have the child living with him or otherwise to regulate the child's residence". Section 1(1)(a)-(d) enumerates and defines parental responsibilities; section 2(1) enumerates and defines parental rights. Section 2(3) has particular application to this case. It provides:-

"Without prejudice to any court order, no person shall be entitled to remove a child habitually resident in Scotland from, or to retain any such child outwith, the United Kingdom without the consent of a person described in subsection (6) below"

Read short, section 2(6) provides that the consent of both parents is required to the removal and retention of the child outwith the United Kingdom. All parties submitted that, whereas the subsection applies to this case, to some extent, other than providing a general prohibition, thereafter it falls out of account. I have to confess initially that was also my own view but since taking the matter to avizandum, I begin to have doubts.

 

[31] The powers of the court "in relation to" parental rights and responsibilities are conferred in section 11 and in particular section 11(1). Section 11(2) goes on to provide that the court may make any order under section 11(1) "as it thinks fit". Section 11(2) then goes on to provide particular matters on which the court may make an order and that includes a residence order (section 11(2)(c)) and a specific issue order (section 11(2)(e)). I think it is important to bear in mind that the court's powers relate back to issues of parental rights and responsibilities as these are defined in section 11(1) (I exclude rights in relation to guardianship which are not relevant here). As a matter of strict statutory interpretation, section 2(3) is not dealing with rights or responsibilities as these are defined in sections 1(1) and 2(1) (see in particular section 2(4)). The court's powers to make a specific issue order in section 11(2)(e) are directed to parental rights and responsibilities as those are set out in section 11(1). Now it might be said that the specific issue order raised in this case is, in effect, a residence issue as provided for in section 2(1)(a). However, on one view a residence order relates to with whom a child should live rather than where. One reason why I raise this matter is because there was some controversy between the parties to the extent to which if, at all, the English case of Payne v Payne [2001] Fam 473 has any application to the law of Scotland. (I will refer to this in more detail later). Payne was a relocation case. I note that the vehicle for resolving the matter was not a specific issue order as provided for in section 8 of the Children Act 1989 ("the 1989 Act") but in terms of section 13 which has certain superficial similarities to section 2(3). One significant difference is that section 13 expressly confers upon the court the power to grant leave to a parent who wishes to take a child outwith the United Kingdom. Therefore, the issue before the court in Payne was whether the court should grant leave. That is something which section 2(3) does not expressly provide for. The use of the words "without prejudice to any court order" could carry with it an implicit acknowledgement that the court can make such an order. But whether it is, in some form, a stand alone order made pursuant to section 2(3) (and if so on what basis is the power to be exercised?) or an order relating to parental rights and responsibilities (and if so which?) is not stated. I am inclined to think it cannot be the former if for no other reason that it would potentially put the matter outwith the provisions of section 11, and in particular section 11(7), which cannot be correct. Clearly, there is no point in the legislature having provided a prohibition with no mechanism for resolving it. If I had to fit this issue into one of the categories of parental rights and responsibilities I would be inclined to do so under the broad heading of residence. I am conscious this is an issue on which I have not heard argument. However, I do not consider that it is appropriate to prolong matters by asking for further submissions and its resolution does not affect my conclusion on the merits of the matter.

 

[32] The question then arises as to what, if any, test or tests the court should apply when deciding this matter? At the end of the day, all parties were in agreement, correctly in my view, that the matter is governed by the provisions of section 11(7). For reasons of brevity I summarise the relevant tests as being (1) the welfare test; (2) the no order principle; (3) views of the child to be considered. All parties were agreed that the third aspect does not require to be addressed beyond the present procedures. M is not yet 5. He is too young to express a view. A curator has been appointed to protect his interests.

 

[33] The short hand expression "welfare test" conceals a more elaborate formula, namely that the court shall regard of the child concerned as its paramount consideration. The test is well known and is applied regularly by the court. As originally enacted, and in marked contrast to section 1 of the 1989 Act, section 11(7) contains no list of matters to which the court ought to have regard when reaching a conclusion as to welfare. That position changed following the insertion of what is now section 11(7A-D). Section 11(7D) requires the court to have regard to issues of cooperation between the parents when making an order, something on which Mr Jack founded. In determining the matters concerning the future of a child it is axiomatic that there are competing interests, such as those of the parents, sometimes those of family members and sometime a number of others. In my opinion, read short, what the welfare test does is to direct the court, whatever other interests there may be, and whoever may be advocating them, to the interests of the child. It is those interests which must come first. With the exception of the factors I have referred to above, Parliament has not prescribed a set of specific factors which the court should take into account, nor has it prescribed any hierarchy in dealing with them. Given the endless range of factual situations which arise in such matters and their various permutations it is unsurprising. Subject to such guidance as exists within the structure of the 1995 Act itself it is very much a matter of judgment for the court to reach on the basis of the material placed before it. (See the opinion of Lord President Rodger in White v White 2001 SC 689).

 

[34] I was referred to a number authorities on what has become known as relocation: H v H 2010 SLT 395; Payne v Payne [2001] Fam 473; M v M 2000 Fam LR 84; X v Y 2007 Fam LR 153; M v M 2008 Fam LR 90; KM v MG 15th April 2010 Edinburgh Sheriff Court; S McC v J McC 10th November 2010 Kilmarnock Sheriff Court; SM v CM 13th January 2011 Edinburgh Sheriff Court; Fourman v Fourman 1998 Fam LR 98; McShayne v Duryea 2006 Fam LR 15. Of the foregoing, other than SC v CM, none is binding upon me. In terms of conclusions all turn of their own facts. There is a clear divergence of view between the parties and that is the extent to which the approach taken by the Court of Appeal in England in the case of Payne v Payne is good law in Scotland.

[35] In short, Mr Docwra's submission was that Payne is good law in Scotland. In particular he relied upon certain dicta which I now set out. Thorpe LJ said at para [26]:-

"In summary a review of the decisions of this court over the course of the last 30 years demonstrates that relocation cases have been consistently decided upon the application of the following two propositions: (a) the welfare of the child is the paramount consideration; and (b) refusing the primary carer's reasonable proposals for the relocation of her family life is likely to impact detrimentally on the welfare of her dependant children. Therefore her application to relocate will be granted unless the court concludes that it is incompatible with the welfare of the children."

The President of the Family Division, Dame Elizabeth Butler Sloss said at paragraph [85]:-

"In summary I would suggest that the following considerations should be in the forefront of the mind of a judge trying one of thee difficult cases. They are not and could not be exclusive of the other important matters which arise in the individual cases to be decided. All the relevant factors need to be considered, including the points I make below, so far as they are relevant, and weighed in the balance. The points I make are obvious but in view of the arguments presented to us in this case, it may be worthwhile to repeat them.

(a) The welfare of the child is always paramount.

(b) There is no presumption created by s13(1)(b) of the Children Act 1989 in favour of the applicant parent.

(c) The reasonable proposals of the parent with a residence order wishing to live abroad carry great weight.

(d) Consequently the proposals have to be scrutinised with care and the court needs to be satisfied that there is a genuine motivation for the move and not the intention to bring contact between the child and the other parent to an end.

(e) The effect upon the application parent and the new family of the child of a refusal to leave is very important.

(f) The effect upon the child of the denial of contact with the other parent and in some cases his family is very important.

(g) The opportunity for continuing contact between the child and the parent left behind may be very significant."

It is the reference by Thorpe LJ in particular to the reasonable proposals of the relocating parent to which Mr Docwra particularly directed my attention. He also relied upon the list of factors referred to by the President. Mr Jack submitted that Payne is not the law of Scotland. Whereas the factors may have some value in drawing together the material, these cannot detract from the welfare test.

 

 

[36] Whatever the jurisdiction, there is, inevitably, a degree of common experience in resolving cases as to the welfare of children. To that extent it can be helpful to see how areas of particular concern have been dealt with elsewhere, especially where there is little authority within this jurisdiction. However, I confess I have some reservations about too heavy a reliance on English authority on this matter. As I have pointed out the statutory regime in England is different from that in Scotland. Payne itself is not without its critics in England (see the judgement of Mostyn J in Re AR (A Child:Relocation) [2010] EWHC 1346 Fam). In the Scottish authorities to which I was referred, although it has featured in some of the sheriff court cases, it is significant that, although cited, Payne did not feature in the opinions of either Lord Ordinary to any material extent, nor do I detect from the opinion of the sheriff principal in SM v CM any great reliance on anything other than the welfare test. At its root, such matters as the one before me concern with whom, and where, a child should live. For my own part, I do not see that an international dimension puts it into a special category calling for an approach any different from resolving where, and with whom, a child should live should the issue be a matter of domestic geography. Put another way, whether the relocation is to Methil or Melbourne the fundamental issue, the welfare of the child, remains the paramount consideration. Of course, the factual material will be different, as will be the weight to be given to the various aspects of the material but that is no different from resolving any other dispute as to the welfare of a child. As I have said and to paraphrase Lord Rodger, in deciding what the welfare of the child demands the court must make a judgement on the basis of the material put before it. In fairness to Mr Docwra he did not suggest that the "factors" suggested in Payne amounted to rules. However, in some respects that seems to me to the undoing of the argument. If it is accepted, as it must be, that each case turns on its own facts, what is a factor in one case may not arise in another and a factor of great weight in one case may be of little or no importance in another. I can see that factors might be said to introduce a degree of predictability to this area. Nonetheless, given my analysis of the underlying issue it is no different from any other issues involving the welfare of children and those have not and, arguably by reason of the endless permutations which human experience engenders, cannot fit within a framework of factors, other than the general welfare test. Without in any way detracting from his primary submission, Mr Jack referred me to the Washington Declaration on International Relocation of March 2010 which lists 10 factors said to be of relevance in relocation issues. As Mr Jack pointed out, factor (xiii) refers to "any other circumstances deemed relevant by the judge". In other words, no list can be complete. I also note that the Washington factors are not the same as those listed in Payne and no doubt other courts will come up with yet more. Accordingly, and with respect to others who have taken a different view, whilst respectfully acknowledging the value of the identification of certain issues, I am not inclined to determine the outcome of this matter by reference to Payne. In particular, I am not inclined to afford any special status to the wishes of the relocating parent. That is not to say it is irrelevant. However, before I leave Payne there is one aspect of it which is of importance in this case and with which I am in respectful agreement. It concerns the status of the New Zealand judgement. None of the parties suggested that I am bound by the findings in fact and law of the New Zealand judgement and with that I agree. I hasten to add I intend no disrespect to the New Zealand court, far from it. Rather, it is because the issues to be decided in that case were different from those before me. The proceedings were summary. Evidence was taken by affidavits. It was not tested by cross examination. I respectfully agree with the dicta of Thorpe LJ at paragraphs [58]-[59] of Payne. Accordingly, in the present matter I have to reach my own conclusions on the basis of the matters raised before me.

 

 

Conclusions

 

[37] With that in mind I return to the facts of this case. I am not inclined to record my conclusions in terms of deciding the orders sought by the parties in any particular order. I reach my conclusions on the basis of the material put before me. Put another way, having regard to the welfare principle what is best for M and are orders necessary to give effect to my conclusions? In my opinion, there are several key elements. First and foremost, M is happy and healthy. Whatever difficulties he may have had in the past with regard to eating, he is, fundamentally, a healthy child. Although obvious, it is worth stating that his progress is a consequence of the care and attention of all those involved in his care and welfare. The parties were in a relationship of sorts prior to May 2009. However, I also have no doubt that, for whatever reason, by the end of 2008 the defender was profoundly unhappy in that relationship. The pursuer did have a part in M's upbringing. I have some doubts as to whether he was living at the Pleasance property throughout that time. He had absences to help with the care of his father and his sister and I also conclude he absented himself during Mrs K's stay in 2008 given her strongly held convictions as to the party's cohabitation. The defender abducted M to New Zealand in May 2009. Judge Mackenzie so concluded in the New Zealand judgment and with that conclusion I respectfully agree. It was planned. It was done without the knowledge of the pursuer. It was done without any knowledge of the provisions of the Hague Convention although I hasten to add that that is no excuse. The pursuer appears to have lost no time in seeking legal advice and instigating proceedings in New Zealand, the relevant papers being served in July 2009. These are the actions of a concerned parent, not someone who had little interest in the affairs of his son. That in itself suggests to me there was a relationship. The defender chose to defend the action, something which, like Dr K, she now regards as a mistake. A mistake or not, read short, she also pursued a defence of grave risk and filed affidavits in support thereof. That defence failed. It was only when ordered to do so that she returned to the United Kingdom with M.

 

[38] I have no doubt that the defender wants to go to New Zealand. I do take account of that desire on her part. However, in my opinion, on the facts of this case it is only one of the pieces of material which I have to consider along with the rest. As a matter of fact, New Zealand is a country in which the defender has not lived for some considerable time. Inevitably, she was asked what her attitude would be were the court to refuse her application. Intending no criticism of her, I have to say I am not inclined to attach much weight to the defender's response which as I recall was to the effect that she would manage to deal with it. It would seem an odd result that the more stoical parent should be more disadvantaged than the (ostensibly) abjectly miserable one. I do have to confess that the defender's motivation to move to New Zealand is not clear. Shortly before her departure she was prepared to contemplate living in Australia rather than New Zealand which does not suggest a particularly strong motivation to be with her family nor to choose New Zealand as a preferred destination. I am inclined to think that some of the motivation relates to ending the relationship with the pursuer and severing any contact with him. She has, nonetheless, resided in Edinburgh for some considerable time since her arrival in the United Kingdom in 1996. She is not bereft of contacts or employment. Viewed objectively, I do not consider that her continued residence in the United Kingdom is something which, when weighed against residence in New Zealand, is intolerable or unreasonable. I do not say that is the test but remaining in the United Kingdom is something to put into the balance of this case. It is a matter of fact. In the United Kingdom, she has accommodation and employment. Although I consider it more probable than not that the defender could find work in New Zealand the fact remains that she does not have a firm offer of employment in New Zealand. To put it at its best, she has been optimistic in her dealings with the licensing authorities. Also I do not regard her financial plans as being reliable. Neither party is wealthy. The defender is almost completely reliant upon the largesse of her father. That also includes the cost of air fares from New Zealand to the United Kingdom. In effect, the pursuer would also be reliant on the defender's father. It is highly unlikely the pursuer could fund the cost of travel to New Zealand which means that he might only see M if the defender were able to bring M to the United Kingdom and she would have to rely on her father to do that. Furthermore, unlike many other cases, I have the evidence of what actually happened when the defender took M to New Zealand. In short, she shut the pursuer out of M's life, going to the extent of changing his surname. He had no involvement in the day to day affairs concerning M. For all practical purposes contact did not happen nor was there any likelihood of it happening. I am told that this time it would be different. I have considerable reservations about that. If the pursuer were to go to New Zealand to visit M, there is also the issue of accommodation and the cost thereof. I do not regard as realistic the possibility of the pursuer living with Dr K and family during a visit. The defender has no accommodation of her own. To buy a property will require significant input from her father both in terms of a deposit and monthly repayments. It also assumes particular hours of work and a certain salary, none of which is certain. I do not think it should be forgotten that, with the exception of the period of the abduction, M has lived all his life in Edinburgh. There is a link between him and his paternal grand parents. Although I do not say it is crucial, he also has links with where he lives and the environment which he knows. No one disputes that there is a bond between M and the pursuer. I do not consider it is in his interests, in effect, to sever that bond or to put it significantly at risk. In my opinion, were I to make the order the defender seeks, that is what I would be doing.

 

[39] Another feature in this case is that, as I have held, the parties did look after M jointly before the defender abducted him to New Zealand. Since his return from New Zealand M has resided with the defender and the pursuer has been allowed contact. In one sense, that the defender is, as a matter of fact, the primary carer of M is a result of the abduction process. It may therefore appear wrong in principle that she should appear to profit from her own wrongdoing. However, in my opinion that is the point at which I need to remind myself of the provisions of section 11(7). The abduction is clearly a feature of this case but it is not, in my opinion, something which should be used as a penalty, at least so far as M's interests are concerned. I have to deal with the situation as I find it now. Furthermore, I have to say that, whereas I have no doubt the pursuer was badly treated on account of the defender's actions in abducting M, it does not follow that he should, as it were, be rewarded with an award of residence. Having seen and heard the pursuer in the witness box, it is my assessment that it would not serve M's welfare best if, at the moment, I were to award the pursuer residence. Whereas I do not doubt his affection for M, I have some reservations about the pursuer's intensity. There is no evidence to suggest that the status quo, however it came about, is anything other than stable and that it serves M's welfare. I do take into account the provisions of s11(7)(D). On any view of the evidence, the relationship between the parties is acrimonious. They cannot communicate with each other, or at least not with any great ease. Whatever the motives of the defender in introducing the diary it seems to me that there is a degree of intransigence on the part of the pursuer in refusing to have any part in its completion. Having said that, I do not doubt that both parties love and care for M and he loves them too. However difficult it has been, contact has happened. Now that there is a decision in this matter with clear conclusions I do not think it is unreasonable to expect that communications will improve. Both parties have a clear and unambiguous duty to cooperate with each other so as to protect and advance M's interests.

 

[40] My conclusions are that I should refuse the pursuer's motion for a residence order. I am also not minded to grant the specific issue order which the defender seeks but to make a residence order in her favour. I consider that it is better that such an order be made than no order. As I have said the relationship between the parties is poor and an order on the major issue of residence is, in my judgement, needed to give stability. Notwithstanding their differences on the fundamental matter of residence, during the conduct of the proof it became clear that the parties may themselves be willing to adjust the terms of contact. Such alterations will become almost inevitable, particularly when M starts school. If the parties can reach an agreement it would be preferable to the court imposing an order. That leaves the question of the defender and M travelling to New Zealand. Given the history of this matter, the pursuer's anxieties as to whether the defender can be trusted to return are not without foundation. On the other hand, it is equally unreasonable that there should be a permanent ban on the defender ever going to New Zealand. M does have a bond with both sets of grandparents. Obviously, any such visit must be in M's best interests. His attendance at school will provide a structure within which any journey can be contemplated, particularly in view of the duration of the journey. I do not consider that I either can, or should, seek to deal with this issue now. Any proposal by the defender will have to be looked at on its merits at the time it is proposed and examined carefully so as to ensure that there are sufficient safeguards to ensure M's return to the United Kingdom. I shall reserve all questions of expenses and assign a hearing to deal with them. If necessary I shall also hear parties should there be any requirement to vary existing orders for contact. I am obliged to all involved in the preparation and conduct of this matter which was lengthy and not without difficulty.