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F1052/11

IN THE SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH

JUDGMENT (anonymised)

by

SHERIFF NMP MORRISON, QC

in the cause

L

Pursuer

against

L (AP)

Defender

__________________

Act: Macpherson, Advocate; instructed by Morton Fraser LLP, Solicitors, Edinburgh

Alt: Knight; Wilson Terris & Co, Solicitors, Edinburgh

EDINBURGH, 4 April 2013

The sheriff, having resumed consideration of the cause:-

Finds the following facts admitted or proved-

1. The pursuer, who is 45 years old, is the father of H, who was born on 3 December 2006, and JL, who was born on 11 August 2008. The defender, who is 33 years old, is the mother of H and JL.

2. Both the pursuer and the defender have parental responsibilities and parental rights in respect of the two children.

3. The pursuer has two other children of her own, namely, J, who was born on 28 January 1988, and S, who was born on 19 December 2000. Each of these two children has a different father.

4. The pursuer and defender met in Mallorca in February 2005. They got engaged in August 2005. They started living together in Edinburgh in about November 2005.

5. The pursuer is a property valuer with an estate agent in Livingston. The defender is a mental health nurse. Her interest is in forensic mental health, that is, working with the criminally insane; and she currently works part-time as a forensic health nurse in a secure unit at a hospital in Dawlish near Torquay.

6. The pursuer and defender separated in February 2010 and the defender left the pursuer.

7. After the separation, residence and contact was agreed by a minute of agreement in July 2010 whereby the defender was given residence of H and JL but the pursuer had residential care of the children for six nights, and the defender had the children for eight nights, out of 14 nights.

8. After the separation, the defender moved to a house near the pursuer, then to Gogar in 2012 and then to a home near the pursuer again.

9. In 2011 the defender wanted to move to Torquay with all four children. The pursuer obtained an interim interdict on 26 October 2011 to prevent her from removing H and JL from Scotland.

10. On 9 November 2011 an interlocutor was pronounced allowing the defender to take H and JL to Torquay for Christmas. The defender gave an undertaking to the sheriff to return with the children and was warned that she could go to prison if she did not.

11. In February 2012 the defender started work fulltime as a community nurse with the drug treatment and testing team, a job which she liked.

12. The pursuer and defender agreed summer holiday arrangements for 2012 which included the defender taking H and JL to Torquay from 29 June to 9 July. The defender took the children to Torquay but did not return.

13. The defender had decided to move to Torquay before 29 June 2012.

14. The pursuer obtained an interim residence order for H and JL from Edinburgh Sheriff Court on 20 July 2012 and on 25 July obtained an interim residence order and a collection order (to have the children returned to him) from the District Registry of the Family Division of the High Court of Justice of England and Wales in Exeter.

15. H and JL have lived with the pursuer since 27 July 2012 at the pursuer's home in the Greenbank area in Edinburgh. The flat is suitable for H and JL who have a bedroom each.

16. The pursuer employs an au pair to help him to look after H and JL during the week who takes them to and collects them from school. The children are not unhappy being looked after by the au pair. The pursuer sometimes collects them from school.

17. H and JL attended a nursery school, and JL is still there. H then went to primary school where he is now in primary 2. The defender's other two children, J and S, were at that school. That school is near to the pursuer's home.

18. The defender lives in a four-bedroom house in Torquay. The home is suitable for the children. If H lived with the defender, H would have a room of his own and JL would share a bedroom with S.

19. Many members of the defender's family live in Torquay including her parents (who live about five minutes' walk away from the defender), and her two sisters and their children.

20. The school in which the defender had H and JL enrolled in July 2012, and in which she would expect to be able to re-enrol them, is 10 minutes' drive from the defender's home. The school that J and S attend is a further five minutes' drive away.

21. The defender, by court order, currently has non-residential contact with H and JL every fortnight on a Saturday and Sunday; and in February 2013, by court order, had two weekends of residential contact. The defender loves and cares for her children.

22. The pursuer did not have a sexual relationship with another woman while in a relationship with the defender, has not had one since and does not have any children other than H and JL.

23. The pursuer was and is a good father to H and JL. He loves and cares for his children.

24. The pursuer once slapped S across the face.

25. H and JL enjoyed the time they spent with the pursuer before he obtained a residence order. They were happy living in Edinburgh before the defender took them to Torquay on 29 June 2012.

26. H and JL are happy living with the pursuer and are getting on well at school and nursery.

27. H and JL had regular contact with the pursuer's father and with the pursuer's sister and her children, each of whom lives in different parts of Fife, before the pursuer and defender separated and have done so since the separation of the pursuer and defender.

28. Since H and JL have been living with the pursuer, contact with the pursuer's father and with the pursuers sister and her children has increased. H and JL enjoy that contact. H enjoyed his first sleepover with his paternal grandfather. His grandfather takes him swimming and has introduced him to golf.

29. H and JL saw little of the defender's parents and other family members when the defender lived in Edinburgh.

30. If H and JL lived in Torquay with the defender they would have regular contact with the defender's parents and other family members. They would see little of the pursuer's father and the pursuer's sister and her children.

Finds in fact and in law that-

1. It is in the best interests of the children H and JL that they reside with the pursuer.

2. It is in the best interests of the children that they should not relocate to Torquay with the defender.

Therefore-

(1) sustains the pursuer's first plea-in-law and repels the pursuer's second plea-in-law and the defender's pleas-in-law;

(2) grants a residence order, as first craved by the pursuer, that the children of the pursuer and defender, H and JL, shall reside with the pursuer;

(3) dismisses the pursuer's crave for interdict as being no longer sought;

(4) refuses the residence order, and the specific issue order to allow the defender to remove the children from Scotland to live permanently in England, as craved by the defender;

(5) finds the defender entitled to residential contact with the children of the pursuer and the defender H, who was born on 3 December 2006, and JL, who was born on 11 August 2008, at least every fourth weekend from Friday to Sunday, alternate mid-February school holidays, one week at Easter, three weeks during the summer school holidays, alternate October school holidays, half of each Christmas and New Year, and two telephone contacts and two Skype contacts each week, or such contact as may be mutually agreed between the parties.

NOTE

Residence and relocation

[1] The pursuer and defender each seeks a residence order in respect of their two children H and JL. The defender also seeks a specific issue order to enable her to take the children with her to live in Torquay. In this case, the issues of residence and relocation are inextricably entwined. Relocation will be determined by the decision about with whom the children should reside.

[2] In this note I sometimes refer to H and JL as "the children" to distinguish them from the defender's two other children.

The history

[3] The pursuer and defender met in a bar in Mallorca in February 2005. The pursuer was working in Mallorca as a holiday representative. The defender had moved to Mallorca in January 2005 with her two children, J and S, her then partner (the father of S), her parents, two sisters, brother and his partner. Her parents wished to do something different. A proposed move to mainland Spain by her parents had fallen through and so they all moved from Torquay to Mallorca which the defender had visited before.

[4] The pursuer and defender got engaged in Mallorca in August 2005 and intended to live together in Edinburgh. The pursuer moved back to Edinburgh in October 2005 after six years in Mallorca. The defender returned to Torquay where (before Mallorca) her family had lived since she was 11 years old. About two weeks later she moved to Edinburgh to live with the pursuer; her two children, J and S came too. J was born on 28 January 1998 and S was born on 19 December 2000. J and S have different fathers. J's father lives in Torquay and S's father still lives in Mallorca.

[5] The pursuer and defender lived together first of all in Gray's Loan in Edinburgh and then, in about April 2006, they moved to the Greenbank area which has remained the pursuer's home. They have two children of their own, namely, H, who was born on 3 December 2006, and JL, who was born on 11 August 2008. The children are, therefore, currently six and four years old.

[6] The defender went back to work full-time 12 weeks after the birth of H. She started studying for a degree in February 2009 at Napier University and graduated as a mental health nurse in July 2012. Her interest is in forensic nursing, that is, working with the criminally insane.

[7] The pursuer and defender separated in February 2010. The children went to live with the defender in Meggetland Terrace, five minutes from the Greenbank house. The pursuer helped with the deposit and some furniture. He helped the defender pack and cleaned the carpets in her new home. The pursuer and defender entered into a minute of agreement in July 2010 to provide that the children reside with the defender and that the pursuer should have contact with H and J on an alternating basis by which the children were to be with him in one week from Thursday 5pm to Friday 8am and in the following week from Monday 5pm to Tuesday 8am and Thursday 5pm to Monday 8am. That was six nights for the pursuer and eight nights for the defender out of 14. The pursuer referred to it as a shared care arrangement. The defender did not see it as shared care, but as residence to her and contact to the pursuer.

[8] In 2011 the defender contemplated moving to Torquay with the children. There was a dispute as to when and how the pursuer found out, which I find unnecessary to resolve. At the latest it was in May of that year. The pursuer raised this present action for a residence order in terms of the minute of agreement or whole residence of the children and interdict of the defender removing the children from Scotland. He obtained an interim interdict on 26 October 2011 preventing the defender from removing the children from Scotland. The pursuer did not raise the action until October because he knew that the defender would be studying for her degree until December. An interlocutor of 9 November 2011 allowed the defender, by agreement between the parties, to take the children to Torquay for Christmas. The defender gave an undertaking to Sheriff Liddle that she would return with the children after the holiday and she was warned that she could go to prison if she did not. She did return.

[9] The defender moved to Gogar in 2012 because the tenancy at Meggetland Terrace had come to an end. The pursuer paid for the deposit (two months' rent) and the first month's rent. The defender started a full-time job as a community nurse in February 2012 with the drug treatment and testing order team in Alva Street. She then became aware that the property in Gogar was for sale. She moved to Myreside in Edinburgh, near the pursuer's home in May 2012.

[10] There was an agreement for the summer holidays in 2012. The defender was to take the children to Torquay from 29 June to 9 July and the pursuer was to take the children on holiday from 6 to 20 August. The defender did not return from Torquay after 9 July for the pursuer to have his normal contact on Thursday 12 July. On 11 July the defender sent the pursuer an email indicating that he should by then have received a letter from her lawyer outlining her long-term plans, informing him that she had not returned to Edinburgh and appealing to him to give permission for the children to live in England with her. She obtained school places for J and S on 20 July and for H and JL on 24 July. The defender applied for the job she had originally applied for in 2011, which she obtained. This is part-time employment as a forensic mental health nurse with Devon Partnership NHS Trust in a secure unit at a hospital in Dawlish, north east of Torquay. The offer of employment was made on 23 July and she signed the contract on 25 July.

[11] The pursuer went to court to get the children back. He obtained an interim residence order in this court in respect of H and JL on 20 July 2012. The motion for the order was not intimated to the defender. The pursuer then went to the District Registry of the Family Division of the High Court of Justice of England and Wales at Exeter County Court to enforce the Scottish residence order that he had obtained. HH Judge Tyzack QC heard the application without notice to the defender on 25 July and that day granted a collection order to the Tipstaff, made an interim residence order in favour of the pursuer and ordered a further hearing on notice to the defender for 30 July. The children were removed from the defender in Torquay on 27 July in accordance with that order by the police and child protection officers. After hearing the defender in person on 30 July (she was not represented), Judge Tyzack pronounced an order, inter alia, discharging the collection order once the children had returned to Scotland with the pursuer. The defender said that she was found in contempt by the sheriff on 26 October 2012 for failing to obtemper court orders by retaining the children in Torquay beyond 9 July. I have found no interlocutor to that effect.

[12] The children have lived with the pursuer in Edinburgh since 27 July in the home in the Greenbank house. The flat is suitable for the children and each has a bedroom. The pursuer is a property valuer and works for an estate agent from an office in Livingston. He employs an au pair to help him look after the children during the week. The pursuer says that he gets up at about 6.30 to 6.45 am; the children get up at 7.15 am. They have breakfast and he leaves for work at about 7.45 to 8 am. The au pair takes the children to school. The pursuer collects the children from school two or three times a week, otherwise the au pair collects them. The pursuer feeds the children at night. The children go to bed at about 7.30 to 8 pm after a bath and H's homework. JL is read a story in bed.

[13] The children attended a nursery school, and JL is still there. H then went to primary school where he is now in primary 2. The defender's other two children, J and S, were at that school. That school is near to the pursuer's home.

[14] The defender lives in Torquay. Since 22 December 2012 she rents a privately owned four-bedroom terraced house. The home is suitable for the children. S and JL would share a room with bunk beds if H and JL lived with the defender. H and JL have never been to the house. The defender's part-time nursing work involves doing three seven and a half hour shifts. She has alternate weekends free.

[15] After the children were returned to Edinburgh to live with the pursuer, the defender was allowed contact with the children initially by telephone and Skype. Then the pursuer allowed the defender face-to-face contact, supervised at first. A court order of 7 December 2012 allowed the defender unsupervised non-residential contact every second Saturday and Sunday. A court order of 21 January 2013 allowed the defender two weekends of residential contact.

The law

[16] Parties were agreed about the law. The welfare of the child (usually referred to as the best interests of the child) is the paramount consideration; no order should be made unless it is better for the child that an order be made than not; and, taking into account the age and maturity of the child, the court shall have regard to the child's views: s.11(7) of the Children (Scotland) Act 1995. The party who seeks to alter the status quo has some liability to furnish the court with material potentially capable of justifying the making of the relevant order: S v S, 2012 Fam LR 32, 34, para. [10] (Extra Division); it is no more than an evidential burden. There is no presumptive rule or guideline favouring the wishes or interests of either parent, and such wishes or interests must, as with any other factor, be given such weight as the court deems appropriate: M v M, 2012 SLT 428, 431, para. [9] (Extra Division).

[17] In making their submissions, parties considered and followed the factors set out by me in another case cited as M v M, 2008 Fam LR 90, 91, para. [5]. These are not guidelines, but factors that might be relevant and ought to be considered. They are not all the factors that may be relevant, and not all the factors mentioned may be relevant.

[18] Mr Knight, for the defender, accepted that it fell to the defender, as the party seeking relocation to furnish the court with evidence to show that it was in the best interests of the children to move to Torquay and that it was better to make the order than not.

Reporters, curators and the effect of reports on welfare at a proof

[19] The distinction between a reporter and a curator ad litem is sometimes not clearly understood in cases involving children. A reporter will be appointed to report on the whole or aspects of residence or contact, or to take the views of a child. The essential nature and purpose of the appointment of a curator ad litem is to represent a child in the litigation; that does not mean simply exercising the functions of a reporter. A curator ad litem may write a report, but that is not the sole function; a curator may sometimes be asked to obtain the views of a child. The curator ad litem should normally appear or be represented at hearings and proofs. Sometimes reporters appear at child welfare hearings and often, as do curators, play a part in facilitating contact.

[20] What weight should be attached to a report on welfare at a proof? In Oliver v Oliver, 1988 SCLR 285, Lord McCluskey took the view that the reporter's evaluation of the evidence, assessments and opinions could not replace those of the judge at the proof; and recommendations on issues at the proof were not recommendations that could be delegated by the judge to the reporter. His opinion was in the context of a report ordered shortly before the proof. I was referred by Mr Macpherson to Glaser v Glaser, 1997 SLT 456 (a case about section 2(1)(b) of the Civil Evidence (Scotland) Act 1988 and the effect of affidavits), to support the proposition that the trial judge could have regard to the assessment by the reporter about the attachments of the child and about welfare. I was also referred to K v K, 2004 Fam LR 25, at para. [3], where Sheriff Bell, who was not referred to Oliver, above, made findings in fact based in part on the reporter's report which, he said, was simply another way of dealing with issues between the parties. I note that he records that none of those facts appeared to be substantially in dispute.

[21] In the end it seemed to be agreed, and I think this is correct, that the court could look at a report and attach such weight to the assessments and opinions in a report as it thought fit. There are clearly limitations. If facts relied on by the reporter are not found to be proved at a proof, one could not rely on the assessments, conclusions or recommendations of a report based on such facts. The witnesses at a proof may not be all the same persons interviewed by the reporter. I think that the primary source of evidence for the trial judge must be the evidence led at the proof; and on that evidence the judge will make his or her own assessments and conclusions. The report may be an adminicle of evidence insofar as it is referred to and consistent with the evidence on which the judge relies. The judge may use assessments of the reporter in testing the evidence subject to the limitations I have mentioned. The trial judge cannot be bound by the recommendations or conclusions of the reporter in making his or her own assessments and conclusions.

[22] Where a reporter is appointed to obtain the views of a child, on the other hand, and the judge is not hearing the views of the child in evidence, or by interviewing the child himself or herself in chambers, then, in my opinion, the judge is entitled to treat the recorded views as the views of the child unless the judge (exceptionally) accepts evidence that contradicts them.

The report of the curatrix

[23] In this case the curatrix ad litem, who did not appear at the proof, wrote a report on 17 January 2013. The curatrix did not go to Torquay to assess the arrangements there. She interviewed some people in person and some by telephone, but it is not clear which persons were interviewed by telephone. Mr Macpherson stated that the pursuer did not dispute that Torquay and the arrangements there for the children were suitable; it did not matter, therefore, that the reporter had not gone to Torquay. I agree, however, with Mr Knight that by the reporter not going to Torquay one could not place as much weight on the assessment and conclusions as one might if she had; but they need not be ignored. She does record some views of H which I have no reason to doubt.

[24] The conclusion of the curatrix was that a further change of home for the children was not in their best interests and that the specific issue order sought by the defender to take the children to live in Torquay should be refused.

Some factual disputes resolved

Whether the pursuer had had other relationships

[25] The defender alleged that in July 2005 in Mallorca the pursuer told her that an ex-girlfriend (a woman from Glasgow) had had a child; that one afternoon, looking at his emails, she found one from a girl who wrote that she loved him (the pursuer) but had had a termination; and that he had had an affair during their own relationship. Apart from having a brief relationship in Mallorca with another woman at a time when the pursuer had stopped seeing the defender for a while before they got together again and got engaged, the pursuer denied that he had had any relationship with any other woman during their relationship or since they separated. He did not have another child. There was no woman who had had a termination; the woman in Mallorca had had a miscarriage (it was not mentioned in evidence who the father was).

[26] I believe the pursuer on this issue. The first time that there was mention of the pursuer having any other relationship was in the defender's written statement to the court in Exeter on 30 July 2012 (no. 5/6/22(60) of process). That statement was about the pursuer allegedly having had a relationship with a woman from Glasgow and that she had given birth to their son in July 2005. The purpose of that statement was no doubt to imply that he had little interest in his children with the defender because he showed no interest in seeing this other child. In evidence the defender indicated that the woman in the email was someone whom the pursuer had met before their own relationship or was something going on in Mallorca. It is possible, I suppose, that the three women in the defender's mind are in fact the one woman in Mallorca. That brief relationship, the pursuer said, was when he stopped seeing the pursuer because he found it difficult to cope with the situation of S's father living with the defender in Mallorca. I think that the defender's allegations were made simply to paint a bad picture of the pursuer.

Whether the pursuer was a good father

[27] There was a dispute about whether the pursuer was a good father. The defender said that, when they lived together, the pursuer worked long hours leaving the house at about 7 to 7.30 am and not returning until 8 or 9 pm on weekdays and he worked most Saturdays. He left all the childcare to her; he did not help with the children; he was no help with H when she went back to work. He might have cooked a dinner or cleaned a bathroom. Then she said that he cleaned the bathrooms and washed the car every weekend, and occasionally cooked. He was strict at mealtimes; the defender's mother supported this evidence: the children were sent to their rooms if they did not eat their food.

[28] The pursuer said that he left for work at about 7.45 am and returned home at about 5.30 to 6 pm Monday to Friday with two late nights on which he got home at 7 pm possibly 8 pm in the Summer; and he worked one Saturday every four weeks from 9.30 am to 1 pm. He was not just a weekend father; he played with the children, and took them out. He accepted that it was a fair assumption that the defender did most of looking after H; she did most of the domestic work during the week. He cleaned the bathrooms at the weekends and did some of the cooking for the children at weekends.

[29] I think that the truth lies somewhere in the middle. The pursuer was the breadwinner and worked hard to provide for his family. I am sure that he worked long hours sometimes, but I think that the defender exaggerated how long he worked and how little he did. If he was not home till 8 or 9 pm so often, one wonders how he was able to be at home in time to be strict about the children eating their meals. I think that the personal care of the children fell substantially to the defender; and the pursuer really admits that that was so. At one point in cross-examination, the defender stated that she did not say that the pursuer was not a good father, just that he was unsupportive. The defender did indicate that, when they separated, the pursuer came to cut the hedge in her garden and cleaned the carpets in her new home. In a postscript to a letter that she left the pursuer in 2009 before leaving him with the children one weekend, the defender wrote "You've done more for us and been a partner and father more than you'll ever know." These do not seem to be the words of someone who considered that the pursuer was not a good father. She claimed in cross-examination that she was referring to his financial support. I think that she was referring to more than that.

[30] It is significant that the defender signed the minute of agreement in July 2010 giving the pursuer residential care of the children six nights a fortnight and in alternate weeks four of those nights are consecutive. The defender does not say that she entered into the agreement because she had no other childcare arrangements. The defender also accepted that the pursuer had "stepped up" since he had residence of the children and was making an effort. If he had not been pulling his weight in childcare, he clearly has the skills to do so; if he had not been capable of childcare, he would not have got the agreed residential care that he did. In my opinion, the defender was belittling the pursuer's parenting skills to make her case for residence of the children stronger.

[31] There was an occasion when the pursuer slapped S across the face. The pursuer admitted it at the time. He explained in his evidence that he had done so when she used the lavatory shortly before open viewing of the house which had been put on the market. There was no other evidence or suggestion that the pursuer ill-treated or struck S before or since or the other three children at all.

[32] The defender said that J and S did not like the pursuer because he was very strict. Her mother's evidence was that the pursuer was harder on J and S than on H and JL. When asked about whether the pursuer was nicer to H and JL, J did not think so. J did say that he had come not to like the pursuer. I do not think that the pursuer treated J and S differently.

Whether the children did not want to go for contact with the pursuer and did not want to leave the defender

[33] The defender and her mother gave evidence that H had not wanted to go for contact with the pursuer when the children lived with the defender. He had to be chased round the room to get him to go. The defender did say, though, that he settled once he got to his father's. Since the children have been living with the pursuer and the defender has had contact, the children asked her why they could not go with her to Torquay. The defender's mother embellished the evidence about the children not wanting to leave the defender after contact by saying that the defender had told her that they screamed, with the pursuer having to drag them into his house. The defender did not mention this in her evidence. The curatrix does not appear to have got the impression that the children were not happy living with the pursuer. She does mention that H appeared confused and at times apprehensive, though he talked happily about his life with the pursuer and his paternal grandfather. She records that his confusion may be not surprising because the defender reassures him by telling him that they will all be together soon; the defender was not asked about this in her evidence. JL, the curatrix records, was coping admirably with the current circumstances.

[34] If the defender thought that the children had not wanted contact with their father, she would not have entered into the minute of agreement or would have sought to vary it. I have no doubt that the children will not be happy when current contacts with their mother come to an end; they will be seeing less of her than they did before. The school report for H in February notes some anxiety in H but states that he finds school a stable and reassuring environment. He is happy and confident in class, though anxious if uncertain about tasks and needs reassuring. JL's nursery report in January 2013 indicates that she is happy, confident and relaxed.

[35] I am sure that the children will be sad when contact with their mother comes to an end. I do not think that there is anything about the pursuer's previous contact with the children, their current residence with him, or the contact that the defender has with them, which indicates that the children are not happy in the pursuer's care.

When did the defender decide to move to Torquay

[36] The defender said that she did not decide to stay in Torquay until after a few days there in the summer holiday in 2012, when the children appeared happier and more at ease there. She had contemplated it in 2011 when she told H's teacher that she had found a job in Devon; the pursuer says he discovered that H would not be back at school after Christmas. At one point in her evidence the defender said that she had been saying for seven years that she wanted to go home (I have it recorded as "seven"; she may have said "several"). In cross-examination she said that she needed to go home and that it was hard being isolated in Edinburgh. Then she stated that from the initial court order (the interim interdict on 26 October 2011) she decided that she wanted to go home. Earlier in examination-in-chief she had said that, when JL had trapped her finger in a door in the summer of 2012, she took stock, nobody was happy, the children were not happy and she could not carry on emotionally or financially. She did dispute in re-examination that she could not cope with the children on her own and that that was why she went to Torquay. She did not terminate the lease on the home in Myreside before leaving for the summer holiday in Torquay.

[37] I think that the defender had clearly decided before she left for Torquay on 29 June 2012 that she was going to move there. Unlike in 2011, she was not going to discuss it with the pursuer as she said she had done at that time. By 2 July 2012 she had already taken legal advice in Devon which she claimed was that, notwithstanding the interim interdict, she could stay in England and from there seek an order in the Edinburgh court to relocate. She wrote an email to her then Edinburgh lawyer to that effect on 2 July. She had sought advice from lawyers in Torquay and then lawyers in Newton Abbot. I think it unlikely that she was given such advice. She could not remember if she had shown the lawyer in Newton Abbot the interim interdict. What advice was given would depend on what the lawyers were told; sometimes people taking advice only hear what they want to hear. The defender sent an email to the pursuer on 11 July informing him that she had not returned to Edinburgh and asked his permission to stay in England.

[38] One does not punish a party who has made a wrong decision and defied a court order by taking the children away. Any decision on residence and relocation has to be based on the best interests of the children. Mr Macpherson, for the pursuer, argued inter alia that the defender's actions demonstrated poor decision-making, blaming others for them and indicated a lack of stability for the children. I think that the defender thought that the children were hers and that she could move with them where and when she liked.

Could the defender have got a job in Edinburgh?

[39] The defender averred that she could not get a job in her field in Edinburgh. The pursuer denied it, called on her to produce evidence of applications for jobs in Edinburgh, but did not aver positively that she could get a job in Edinburgh.

[40] Various mental health nursing jobs available in Scotland were put to the defender in cross-examination: see no. 5/7/29 of process. These, she said, were not NHS jobs, she wanted to work in the NHS and she wanted to work in forensic nursing. In re-examination, she said that she probably would not have applied for these jobs anyway. When she lived in Edinburgh she had asked the charge nurse, during her training in the Orchard Clinic, if she could get a job there but had been told that there was no money available; she had heard that Carstairs was difficult to get into. She claimed that she had looked constantly for jobs in the NHS in Scotland and still did now and again. She did say that she liked working for the drug treatment and testing team in 2012.

[41] I think that the defender could have got employment in mental health nursing in or around Edinburgh, albeit not in forensic nursing. There have been jobs available. She could have stayed in her job with the drug treatment and testing team.

How often the pursuer's relatives and the pursuer's close friend saw the children

[42] The defender claimed that, when she and the pursuer lived together, the children barely saw their relatives, or Mr Clark Gillespie and his children, except once a year at Hogmanay. The pursuer claimed that his father (and his father's wife) saw the children about once a month (his father said it was once a month to six weeks); and that his sister also saw the children about once a month. The pursuer's sister has a partner and two children, a son aged 16 and a daughter aged 10. Both the pursuer's father and sister (who works in Edinburgh) live in different parts of Fife. Mr Gillespie, who described the pursuer as his best friend whom he had known since school, said that he and his family saw the pursuer and his family about once a month, as well as at his annual event on 31 December, when the pursuer and defender lived together. Mr Gillespie has three sons aged nine, eight and four.

[43] There was an incident, being an argument between the defender and the pursuer, which the pursuer's father and his wife witnessed that soured relations such that the pursuer's father did not want to see the defender. As a result, contact between the children and their paternal grandfather was reduced when the pursuer and defender lived together. The pursuer's father indicated that contact with the children was about four or five times a year when the defender was not there (the pursuer said it was about once every three months).

[44] In my opinion, the children saw their paternal grandfather, and aunt and her children, and Mr Gillespie and his children, far more often than the defender would have me believe. There is no doubt that the children see their paternal grandfather, their paternal aunt and her family, and Mr Gillespie and his family, more often now than before. The pursuer's father indicated that he saw the children, since they were living with the pursuer, about every fortnight. The pursuer' sister said that she saw the pursuer and the children now once or twice a month. Mr Gillespie, whose children are at school in Edinburgh and who therefore comes to Edinburgh often, said that he saw the pursuer once or twice a week. These frequencies may be exaggerated, but there is no doubt that the pursuer is receiving a considerable amount of support from family and friends. It is likely to be more than before; but it was never "barely" as claimed by the defender.

[45] The pursuer's father takes H swimming and has introduced him to golf.

H's first sleepover at his grandfather's

[46] The pursuer described H's recent first sleepover at his paternal grandfather's house. The pursuer said that H had been a bit apprehensive, waking up during the night; but his grandfather had reassured him. The pursuer's father could not remember H waking up in the night. The defender said that H had telephoned her and told her that he had woken up in the night distressed but that his grandfather had simply put him back to bed and left him.

[47] The curatrix reports H telling her about the sleepover. He said that he enjoyed it. He admitted waking up during the night, was a little frightened and disorientated, and had gone to his grandfather for reassurance. This is more consistent with the pursuer's evidence than with the defender's.

[48] I think that H enjoyed his sleepover.

Whether the children like the au pair

[49] The pursuer seemed to think that the children got on fine with the current au pair, who is Spanish. Her English is improving. The previous au pair, who was Italian, spoke good English. The pursuer did not accept that the children were unhappy being looked after by the Spanish au pair. The defender said that the children did not like the au pair. The curatrix does not record the children as saying anything about the au pair; certainly nothing was said about not liking her or not getting on with her.

[50] It may well be that the children will find it more difficult to relate to the current au pair if her English is not good. The curatrix reports that the Italian's English was excellent and that the pursuer accepted that the children found it easier to relate to her, whereas the current au pair's English is poor but is slowly improving.

[51] I do not accept that the children do not like or are unhappy being looked after by the au pair.

Other disputed issues

[52] There were some other disputed issues. These included whether the pursuer had made the defender go back to work when H was 12 weeks old and whether the pursuer was supportive of the defender taking her degree. I did not find it necessary, for the purposes of reaching a decision on residence and relocation, to resolve those issues.

The reasons given by the pursuer and defender for the orders sought

[53] The pursuer's reasons for wanting to have residence of the children, and for them to stay in Edinburgh, were that the children are used to Edinburgh; they were born, brought up, live and go to school in Edinburgh; they had stability here; they should not have to sacrifice the contact they have with the pursuer.

[54] The defender's reasons for wanting to take the children to Torquay were that she was the children's mother; all four children would be re-united; her family were all in Torquay; there would be no need to rely on an au pair; it was not suitable for the children to be looked after by an au pair instead of their mother; it was easier for the pursuer to come to Torquay for contact than for her to come to Edinburgh; and the pursuer could easily move to Torquay. The pursuer had not been a good father; he had had relationships with three other women; he treated her children less well than his own; and he had not been supportive of her going to university. I did not consider this last point to be relevant to the issues I had to determine.

The pursuer and the defender

[55] I found the pursuer to be open and honest in his evidence; I found the defender to be less so. Some of her evidence I did not accept. She had a tendency to blame others for her predicament: lawyers in Torquay had advised her that she could stay in England in spite of the interim interdict; her Edinburgh lawyer at the time should have given her clearer advice; the pursuer could have dealt with her not returning to Edinburgh other than by involving the police; a lawyer had advised her that the minute of agreement lasted only a year.

[56] When it was put to the defender that she was in breach of the minute of agreement as well as the interim interdict, the defender stated that a lawyer had told her that it lasted only for a year. If she had been told that, she nonetheless operated it for over 22 months before ignoring it. It does not appear to have occurred to her that, if the agreement only lasted a year, then not only did the pursuer's rights under the agreement come to an end but so also would her right to "residence". The minute of agreement has, in fact, no time limit in relation to residence and contact.

[57] It was not clear how the pursuer was supposed to have handled better the return of the defender and the children to Edinburgh. She did not want to return, has not returned herself and has a job in Torquay. It was put to her that she had phoned the police on 1 August 2012 when the pursuer had not responded to her telephone calls (no. 6/2/2 of process). I think that she was probably angry and getting back at the pursuer after the children were taken away.

[58] I now turn to examine the factors dealt with in submissions.

Reasonableness of the proposed move

[59] For the pursuer, it is argued by Mr Macpherson that the defender's reasons for wanting to take the children to Torquay were not enough; her real reason was that she was miserable in Edinburgh; and that there was no presumption in favour of the defender as the mother. Not only was the removal clandestine but the defender ignored the terms of the minute of agreement. The evidence for the defender in relation to lack of employment opportunities in and around Edinburgh was unsatisfactory. The fact that the pursuer had residence of the children was a factor. The suitability of the arrangements in Torquay was not challenged by the pursuer. For the defender, it was argued by Mr Knight that relocation was reasonable because the defender wished to go home to Torquay; the four children, between whom there was a bond, would be re-united; there would be no need for an au pair; and the defender and the children were miserable in Edinburgh. The pursuer's interim residence order was a means of getting the children back; he had not had residence before then.

[60] At one point in her evidence the defender indicated that she could not carry on financially and emotionally, and at another that she felt isolated in Edinburgh; though later she stated that she did not move because she could not cope. It would not be surprising that, after the separation, the defender found it difficult to cope, juggling employment with childcare and felt isolated from support of her own family. These reasons may well have played a part in her moving to Torquay. She was able to get a job there in her field. She would be closer to her family.

[61] I do not think that the fact that the pursuer has an interim residence order is a substantial factor in this case. In M v M, I was envisaging the situation in which one parent had always or for a substantial period had a residence order. The residence order obtained by the pursuer in July 2012 was in order to get the children returned from Torquay. It is not as if the children have always lived primarily with the pursuer. The defender made much of the fact that, in terms of the minute of agreement, she had "residence" of the children and the pursuer had only "contact". What is important is that the agreement gave the pursuer residential care of the children six nights a fortnight and in alternate weeks four of those nights are consecutive. The pursuer had more than weekend residential contact. In this case the defender had "residence" under the minute of agreement; but I do accept that the pursuer had substantial residential care of the children after the separation. It may not have been equal care, but it was shared. It should not, therefore, be readily set aside.

[62] I am not satisfied that the defender's life so far could be described as secure and stable. The life of the pursuer is and has been: he has always lived in Edinburgh and the home of the children has always been in Edinburgh. The move to Torquay is the fourth house move for the defender since the separation. There was no independent evidence that the children were not happy in Edinburgh. I have not accepted that they were not happy in Edinburgh. There may not be jobs in forensic nursing, but there are other jobs in or involving mental health in and around Edinburgh; and the defender did have a job in the drug treatment and testing team which she liked.

[63] If the children were happy and the defender had a job that she liked, she did not have to move to Torquay. At one point in cross-examination, however, the defender indicated that she would not accept the decision of this court and hoped that she would be allowed to appeal. A little later she said that she would abide by the decision of the court.

[64] There is no doubt a bond between the four children. For the reasons that I relate later in paragraph [82], I do not think that it is as close as the defender describes. It is, of course, through the precipitous actions of the defender that the four children are separated. There would be no need for an au pair if the defender were in Edinburgh.

[65] It does not seem to me that the proposed move to Torquay is reasonable.

Motive

[66] For the pursuer, it was suggested that matters came to a head after the defender lost the tenancy in Gogar, she was struggling to cope, then JL broke her finger; her misery was at her own hand. She wanted to go home. For the defender, it was argued that her motive was to re-unite the four children and to give them a better, fuller family life. The pursuer had not disputed that her motive was genuine.

[67] I accept that the defender was not motivated by a desire to defeat the pursuer's care or relationship with the children. The pursuer accepted that the defender's reasons for moving to Torquay, namely, to be closer to her family and where there were more job prospects, were genuine. According to the defender, her desire to go back to Torquay predates her leaving the pursuer in 2010. Her desire to re-unite all four children post-dates her decision to stay in Torquay: the four children were all living in Edinburgh until the defender jumped the gun, went off to Torquay, enrolled all the children in schools in Torquay where J and S remain and got a job there. I think that the defender's primary motive in moving to Torquay was because she wanted to go home and found a job there in her field of nursing.

Importance of contact with the absent parent

[68] For the pursuer, it was submitted that he offered stability and security. He was a committed parent. The defender accepted that he had "stepped up". For the defender, it was accepted that the pursuer would have less extensive contact if the children were in Torquay; but the children would do better in Torquay and the pursuer would have regular contact.

[69] Contact with the absent parent is important in this case. The pursuer has previously enjoyed substantial residential care of the children, and they have lived with him for the last seven months. The children would miss that if they moved to Torquay. Similarly, when in Edinburgh the defender had substantial residential care of the children, and the children clearly miss that too. Whichever parent has residence, contact for the children with the other parent is very important.

Importance of contact with other family members

[70] For the pursuer, it was argued that the relationship between the children and their paternal grandfather had blossomed. The level of contact that the defender's family have had with the children would be the same if the children lived in Edinburgh. For the defender, it was argued that time spent with the pursuer's relatives was minor until the children lived with the pursuer; the relatives had "stepped up". The pursuer's relatives did not live in Edinburgh whereas the defender's relatives were on her doorstep in Torquay.

[71] I have concluded that the pursuer's father and sister and her family had regular contact with the children before, and after, the separation. It has increased since the children have been living with the pursuer. The relationship between the pursuer's father and the children since the pursuer had residence had blossomed, according to the pursuer's sister.

[72] The defender does have an extended family in Torquay including her parents and two sisters and their families. One sister is married and has two boys, one aged five and the other aged four. The other sister has a partner and a daughter aged five and a son aged two. The defender's parents live five minutes' walk away from her home.

[73] The defender did not believe that the pursuer's family had a rôle in the children's lives. I think that she is wrong about that. I have no doubt that contact between the children and the pursuer's father and sister and her family has increased since the children have been living with the pursuer. That H's relationship has blossomed with his grandfather is an indication that contact has increased.

[74] The children saw little of the defender's relatives when they lived in Edinburgh. One sister states in her affidavit that she visited Edinburgh a couple of times a year; and her father states in his affidavit that he came two or three times a year. The oral evidence was about the visits of the defender's mother, who came more often and, when the defender was in Gogar and had no childcare, came for three months. The defender told the curatrix that the children probably saw less of her family than they saw of the pursuer's family. I think, on the evidence, that that is true.

[75] Wherever the children live, whether Edinburgh or Torquay, the other parent's relatives will see less of the children. If the children are in Edinburgh, they will see no less of the defender's family than they did. If the children live in Torquay, they will see less of the pursuer's family than they did and certainly less than they do.

Maintenance of contact

[76] For the pursuer, it was argued that contact for the pursuer would be uncertain if the children were with the defender who had led a nomadic existence and might not stay in Torquay. J did not know his home address when asked in evidence. The defender could and did travel to Edinburgh to see the children; it was just as exhausting for the pursuer to travel to Torquay as for the defender to travel to Edinburgh. For the defender, it was argued that the position would be the same for both parents, each would get some contact and the cost would be about the same.

[77] The parties have entered into a joint minute about the contact each would have if the other got residence of the children. Each would have at least every fourth weekend from Friday to Sunday, alternate mid-February school holidays, one week at Easter, three weeks during the summer school holidays, alternate October school holidays, half of each Christmas and New Year, and two telephone contacts and two Skype contacts each week. Thus, each parent would have the same amount of contact.

[78] Both parties put forward figures in their evidence about the cost of travel. The cost of air travel would be between £30 and £100; travel by car would be more expensive for the defender than the pursuer; and travel by coach would be cheaper for the defender travelling with J and S than if she travelled alone. Both would incur accommodation costs, though the defender has stayed with a friend in Edinburgh who has a daughter aged five. The defender has stayed in an hotel at £55 a night for herself, J and S; next time it will be £93. The hotel had a swimming pool. The defender had previously offered that the pursuer could stay with her, and had offered to contribute to the cost of his travelling to Torquay. She did not think that she could afford to contribute. The defender cannot bring J and S every contact visit because she would have to take them out of school on a Friday.

[79] The defender suggested that the pursuer could move to Torquay. He could get a job as an estate agent in Torquay. If he wanted to work for himself, she had, for example, showed him a bar and restaurant business to buy there. The pursuer does not want to move to Torquay. The defender could move back to Edinburgh, but does not want to do so.

[80] I think that the pursuer could afford to go to Torquay more readily than the defender could afford to come to Edinburgh. Contact for the defender would be more readily maintained, and residential care of the children could be restored, if she moved back to Edinburgh.

What the children will gain

[81] Mr Macpherson, for the pursuer, submitted that it was not clear what the benefits would be from having the four children together in Torquay. J was on the cusp of going to University. J and S were much older than H and JL. He accepted that there was a relationship between the four children, but that would not be diminished. For the defender, it was argued that the children would gain an extended family in Torquay and the four children would be together.

[82] There is a bond between the four children. J and S, however, are much older than H and JL and their interests, friends, activities and futures will increasingly diverge from those of the two younger children. J and S do not have the same fathers as H and JL. I think that the need for the four children to be together is less than the defender claims. The fact that they are separated is entirely due to the actions of the defender.

[83] H and JL would gain the defender's extended family if they moved to Torquay, but they would lose the pursuer's substantial residential care and contact with his family.

The children's views

[84] It was accepted by Mr Macpherson and Mr Knight that the children were too young to be able to express views.

[85] The defender claimed that the children have said to her that they are not happy and want to live with her. She says that H wants to stay with all his other siblings and wants to stay in Torquay with his sister.

[86] It is always difficult to know whether one can rely on what children say to a parent; they usually do not want to upset the parent they are with. What H said to the curatrix is rather different from what the defender says, and predictable for a child of his age. H told the curatrix that he would like his father to sell his home and to move to live in Torquay or his mother could sell her home and return to Edinburgh. In fact he wanted his parents to live together with all the children.

Effect of a move on the children

[87] The pursuer said that the children had lived only in Edinburgh, their school and nursery were here. H was developing a circle of friends here. The school reports were positive. For the defender, it was submitted that the move would be positive because the children would be with their mother and her extended family. Moving H from school would not be a problem because he was only in Primary 2.

[88] The defender expected that she would be able to put the children into the primary school in Paignton in which she had secured places in July. That school was 10 minutes' drive from the defender's home; J and S's school was a further five minutes away.

[89] There was some evidence that H was beginning to develop friends at school in Edinburgh. The children have always lived in Edinburgh. Their school and nursery school reports are positive. For the defender and J and S, they have moved from Devon to Mallorca to Edinburgh and back to Devon. I think that a move for H and JL would be disruptive. H is clearly confused by the current situation because he is not seeing his mother as much as he used to do; he will be confused by a move to Torquay as a result of which he will not see his father as much as he used to do.

Effect of refusal on parent seeking residence

[90] Mr Macpherson submitted that it was not in the interests of justice to base a decision on the intransigence of a party: the defender refused to move back to Edinburgh. Mr Knight submitted that there would be a big impact on the bond between the defender and J and S if H and JL did not go with her to Torquay. If the move took place, the effect would not be as destructive than if it did not. The pursuer needed to have a nursery for JL and an au pair.

[91] There will be a substantial impact on whichever parent is unsuccessful in seeking a residence order. The pursuer does not want to live in Torquay. The defender stated that she will not move back to Edinburgh. She said that she could not move back for two years because J had his GCSEs to do. J, however, said that his GCSEs were this year.

[92] The defender has committed herself, before the decision of the court, to move to Torquay by moving there already, getting a job there and enrolling J and S in school there. She could and should have applied to this court and waited to see what the decision of the court was. Any impact of refusal is at her own hand.

Effect of refusal on welfare of the children

[93] The defender's position was that, if the children stayed in Edinburgh, they would be looked after by the au pair, whereas in Torquay they would be looked after by their mother. Mr Macpherson submitted that the au pair was not a major factor against the pursuer.

[94] If the children move to Torquay, the defender will rely on her mother to assist her. If she works a morning shift, her mother will take the children to school and collect them from school in the afternoon. If the defender works an afternoon shift, her mother will need only to collect them from school. The defedner's mother indicated that she would be available to help if needed; and she sometimes took J and S to and collect them from school. The defender considered that it was better for the children to be looked after by their mother than by an au pair. The pursuer relies on an au pair. The defender accepted that the pursuer cared for and loved his children; they were not, however, looked after by him but by the au pair.

[95] It was put to the defender that in February 2012 she had sent a text to the pursuer stating that an au pair was the answer to their childcare problems (no. 5/5/21(35) of process) and 10 days later sent a text indicating that it was alright if the au pair stayed at the pursuer's home. The defender's answer in cross-examination was that that was not relevant now because she did not need an au pair.

[96] H does have some anxiety and confusion because he is not with his mother as much as he used to be and probably does not understand why. There is no evidence that the children are not happy and doing well living with the pursuer.

[97] I do not think that the welfare of the children will suffer if they do not go to Torquay. All things being equal, it would be better for a parent to look after a child. What is being considered here is taking the children to and from school and looking after them until the parent gets home. It is not always possible for a working parent to do this; the help of an au pair, child sitter or relative may have to be sought.

Better for an order than no order

[98] Both Mr Macpherson and Mr Knight were agreed that an order was required in this case. I agree.

Best interests of the children

[99] For the defender, ultimately, the issue is whether these two young children, aged six and four, should be living with their mother in Torquay surrounded by her family or living in Edinburgh being looked after by an au pair. For the pursuer, it is that the children should remain where they were born and brought up, secure, stable and happy.

[100] I think, in all the circumstances, that it is in the best interests of the children that they should continue to live in Edinburgh. There is stability for them in Edinburgh. It is less certain that they would remain in Torquay if they went there. In my opinion, the children are more likely to be secure and stable with the pursuer than with the defender. The children are happy in Edinburgh. I think that there is stability and security for them with the pursuer. The pursuer is a good parent and father. The children are well cared for and happy at school. They have substantial contact with the pursuer's family. They will still have contact with the defender's family when they visit Torquay. There is no indication that the arrangement made by the pursuer by having an au pair is unsatisfactory or that the children are suffering as a result. In this case, I do not consider, because the pursuer will be assisted by an au pair rather than the defender being assisted by her mother, that that would be sufficient reason for deciding that the children should live with their mother in Torquay.

[101] It is unfortunate that the defender will not return to Edinburgh and for a shared care arrangement of the children be resumed between the pursuer and the defender. Perhaps the defender should have postponed doing the job she wanted and settled for a job she liked for the sake of the children.

[102] Accordingly, the pursuer will have a residence order for H and JL. The defender's craves for residence and a specific issue order to take the children to live with her in Torquay, therefore, have to be refused.

Expenses

[103] It was agreed that the issue of expenses should be dealt after this decision.