AF AGAINST FF

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SHERIFFDOM OF GRAMPIAN AND HIGHLANDS AT FORT WILLIAM

 

[2016] SC FORT 16

 

F5/14

JUDGMENT OF SHERIFF R A DAVIDSON

 

In the cause

 

AF

 

Pursuer;

 

Against

 

FF

 

Defender:

 

Act: Ms. Coutts, Advocate.

Alt: Ms. McAlpin, Solicitor, Fort William

 

 

Fort William, 11 December 2015

The sheriff, having resumed consideration of the cause, finds the following facts admitted or proved:-

 

1.         The pursuer is AF, aged 45, who resides in Lochaber. He works on a self-employed basis as a handyman/carpenter. His family come from England and he is English by birth.

2.         The defender is FF, aged 42, who resides in Argyll. She is a self-employed gardener. Her family come from Australia and she is Australian by birth and is the holder of dual UK and Australian nationality and associated passports.

3.         The parties were married in Las Vegas, Nevada, United States on 10th. January, 2003.

4.         There are two children of the parties’ marriage, namely TF born in Inverness and MF born in Inverness. TF is 6 and MF is 4.

5.         The parties have lived almost all of their married life in Scotland and both have continued to reside in Scotland following their physical separation on or about 13th. May, 2013 at which time the defender left the matrimonial home and moved ultimately to her present address.

6.         The two children reside primarily with the defender with the pursuer having regular residential contact in terms of interim orders made by this court on 28^th. May, 2014.

7.         Parties have not had sexual relations with each other nor have they cohabited otherwise for a period in excess of a year. They are agreed that their marriage has broken down irretrievably and that there is no prospect of a reconciliation. The defender consents to the pursuer’s crave for divorce.

8.         The pursuer’s last self assessment tax calculation is dated 11th. October, 2013 and shows a “profit from self-employment” of £8,150 and a personal allowance of £8,105, producing a tax liability of £9.00. He was often paid in cash, including the rental income from a caravan, and the cash was kept in various locations.

9.         The defender has been in employment throughout most of the period of the marriage including employment as a waitress, child-minder, cleaner, roads worker and gardener. However, she currently suffers from a number of physical conditions which make it difficult for her to continue work as a gardener. She had been advised by a physiotherapist to stop undertaking gardening work but nonetheless continued to do some. She had earned about £3,500 in the last twelve months from this employment.

10.       The principal item of matrimonial property is the former matrimonial home. The property was the subject of a brief walk through inspection by John H. Miller, BSc. (Hons) FRICS, a Consultant with Messrs. D.M Hall, Chartered Surveyors, Oban. His letter dated 7th. October, 2014 (6/4/1 of process) is the only valuation of the property lodged as a production by either party and, notwithstanding its date, appears to be accepted by the parties as a reasonable estimate of the market value of the property as at the relevant date at a figure of £180,000.

11.       The property is burdened with a rural housing burden in favour of the Highlands Small Communities Housing Trust who assisted the parties to fund the construction of the property. The rural housing burden contains a right of pre-emption in favour of the Trust which is to be exercised by them subject to them so doing within a period of 42 days of notification and a complex formula for the calculation of the price at which they would be entitled to exercise this right. It is to be noted that the valuation by Messrs. D.M. Hall at £180,000 specifically excludes what is therein described as “the implications of this burden.”

12.       The pursuer built the matrimonial home in about 2009. In the course of that year he undertook very little else in the way of employment and had very little income. The parties survived on the earnings of the defender who also undertook a substantial amount of administrative work relating to the house and the purchase of materials for its construction and who also did some labouring work.

13.       The parties used their joint savings, the money from the Highlands Small Communities Housing Trust and loans from the pursuer’s father to fund the purchase of the land and the construction of the house. The loans to the pursuer’s father have been fully repaid by the pursuer from funds inherited from the estate of his late uncle to the extent of £56,000. The defender’s family did not make any contribution to the acquisition of the land or the construction costs.

14.       Production 5/3/27 is a disposition in favour of both of the parties by the Highlands Small Communities Housing Trust of the plot on which the house was built and that ‘in consideration of the sum of £30,000 paid to us’ by the parties.

15.       The relevant date for the determination of what constitutes matrimonial property is agreed to be 25th. March, 2013, notwithstanding that the parties continued to reside in the matrimonial home until 13th. May, 2013. Their relationship broke down primarily on account of the pursuer’s misuse of marijuana and cannabis and his failure to assist the defender practically or financially notwithstanding the birth of their two children.

16.       At 25th. March 2013, aside from the matrimonial home and its contents, the parties had the following matrimonial property:-

(i) An account in the pursuer’s name with the Bank of Scotland in the sum of £180.07

(ii) Three accounts in the defender’s name with the Bank of Scotland with a total credit balance at the relevant date of £11,867.22.

17.       The pursuer claims to have a current income of £156 per week. His charge out rate is £12 per hour so this represents a 13 hour working week. He pays £18 per week to the Child Support Agency for his children and spends approximately £30 per week socialising.

18.       The pursuer’s father would assist him financially to acquire the defender’s interest in the matrimonial home.

19.       The pursuer also has an interest in a heritable property in Derbyshire which formed part of the inheritance he received from his late uncle but no evidence was led as to the value of that interest.

20.       The defender does not oppose in principle the transfer of her interest in the matrimonial home to the pursuer.

21.       The defender is in receipt of some housing benefit in relation to the rent for her present property but also requires to pay £100 towards the rent from her income. Her grocery bills for the last twelve months had averaged £388.84 per month.

22.       Since the separation, the parties’ children have primarily resided with the defender at her address as specified in the instance, but have had regular contact with the pursuer.

23.       By concession, the pursuer accepts that it is in the best interests of the children that the defender should continue to be their primary carer subject to him continuing to have contact with them on a regular basis.

24.       Since each of the children was born, the pursuer has demonstrated a lack of confidence and a reluctance to participate in their physical care, especially during their respective infancies. The practical care of the children was left to the defender and there was no criticism of her practical care for them except in relation to diet, which criticism was unfounded.

25.       Once they had ceased to be infants, but during their respective pre-school periods, again the pursuer demonstrated little interest in either of them, spending most of his time at work, engaged in leisure pursuits or asleep. The burden of care fell primarily upon the defender and her requests for assistance were ignored by the pursuer.

26.       The pursuer’s interest in the children has developed since the parties’ separation and the children now enjoy contact periods with him. He has all the necessary practical skills to be able to care for their physical needs during periods of contact.

27.       The defender can be aggressive, domineering and controlling particularly in relation to the care of the children.

28.       The parties are incapable of communicating civilly with each other in relation to the welfare of the children despite attending at a mediation service and being assisted by an experienced child care worker employed by Highland Council Social Work Department.

29.       At contact handovers historically, the pursuer has from time to time behaved in an aggressive and foolish manner.

30.       The behaviour of the parties’ child, TF, is a cause for concern. There have been times when he has been beyond parental control. From the time of his admission to the first nursery he attended, he has been violent towards other children and occasionally towards nursery staff. When the head teacher of the nursery attempted to discuss these issues with the defender, the defender was dismissive and tended to underplay the enormity of his behaviour which included lashing out at other children, nipping, biting and striking them. She saw no merit in the setting up of a multi-disciplinary meeting as proposed by the head teacher to attempt to find a means of addressing the child’s difficulties. She blamed the nursery staff, claiming that TF was stigmatised and subject to negative comment, without justification. Her attitude was that she would not be told by anyone else how to bring up her child. The head teacher informed her that parents of other children were removing them from the nursery on account of her child’s behaviour and when the head teacher declined to identify the particular parents, she was accused by the defender of withholding information. She was regarded by the head teacher as not setting acceptable boundaries for her son.

31.       Without consulting the pursuer, the defender removed TF from this nursery and enrolled him in another nursery. The pursuer appeared content to leave these arrangements to the defender.

32.       In the early months of 2013, TF assaulted a child, RN, who was of a similar age to himself, by kicking him in the face while he was lying on the ground.

33.       In August, 2013, TF was enrolled in Primary 1 at a local primary school. There were approximately 19 children attending at the school then comprising two composite classes of children in the Primary 1 to 3 and 4 to 7 groups respectively. TF started in a class with five other children.

34.       The head teacher had been forewarned by colleagues in the nursery that TF had behavioural problems.

35.       Both of TF’s parents engaged well with the school and were interested in his progress there.

36.       TF frequently used “lavatory language,” insisted in making very close contact with other children, invading their personal spaces, and pulled down boys’ trousers and sometimes made contact with their genitalia.

37.       In about September, 2013, TF had an argument with another boy at the school. The other boy came to be on the ground and TF kicked him on the temple.

38.       In May, 2014, TF and a girl in his class were seen at lunch time some distance from the school building. The girl had her underpants down at her ankles. TF was kneeling beside her. This was seen by a teacher. Asked what they were doing, the girl replied that they were playing a game. She called it the “licky bum” game. The bell rang to end lunch time and the teacher reported what she had seen to the head teacher. She spoke to both children. The girl repeated that they were playing the “bum licking” game. Asked where this had come from, TF said that he had made it up. Asked if he had done this before, he said, “Yes, under the covers.” Asked if his mother knew he played this game, he said “Yes.” Asked if he had played the game with anyone else, he said that he had tried to get his younger sister to do it, but that she got grumpy and went into a huff.

39.       The head teacher was the school’s designated child protection officer. She should have known at this stage to seek assistance from the police and Highland Council Social Work Department. She did not. Instead she telephoned the mothers of each of the children and asked them to attend at the school and informed them in each other’s company of what had been reported to her. At the defender’s suggestion, the children were brought back to the head teacher’s room. The children were shocked to see their mothers. TF began to cry and would not speak. The head teacher asked the mothers where they thought matters should now go.

40.       The defender spoke to MF that evening who confirmed that she knew of the “licky-bum” game, that TF had asked her to play it with her but that she had refused to do so.

41.       The defender spoke to the pursuer whose attitude was that “they all do this,” and that “there’s nothing wrong with my boy.”

42.       The defender consulted her general medical practitioner who regarded what was being described to him as learned behaviour and who considered that it was appropriate to issue a child concern notice to Highland Council Social Work Department which he immediately did.

43.       Some eight days after the event, TF was interviewed jointly by a police officer and a Highland Council Social Worker at his primary school.  The police officer conducted the interview. TF knew what he was going to be asked about, was uncomfortable, thought he was going to get into trouble, put his hands over his face and would not talk to her.

44.       There was no effective investigation into the source from which TF had learned this behaviour by either the police or Highland Council Social Work Department. He was not categorised as a child at risk, not placed on the Child Protection Register and not made the subject of a report to the Reporter to the Children’s Hearing. However, the social worker did make some enquiry about TF’s background with the staff at his primary school, with his general practitioner and by visiting both parents. In particular, she discussed with the defender inappropriate nudity demonstrated by the children both in their own home and elsewhere and her professional concern that there may be a connection between that and TF’s disinhibited behaviour. She also discussed nude photographs of the children on a calendar compiled by the defender making it clear that she regarded some of these photographs as inappropriate for distribution. Though she was initially inclined to argue with her, the defender reflected on the advice of the social worker and acted upon it.

45.       The defender established a routine at home preventing TF and MF being alone in each other’s company in the absence of an adult, apart from the fact that they continued to occupy the same bedroom.

46.       In the small community, rumours spread about what had happened. The head teacher received expressions of concern from other parents about the risks to their children from TF. She had to re-arrange the set up of the class. Despite what had occurred, TF continued to use lavatory language and to play with his exposed genitalia in the school toilets. He also continued to attempt to touch the genitalia of other boys. He continued to exhibit aggressive behaviour towards other children. He kept touching the school fire extinguisher. He had frequently to be excluded from PE lessons on account of his disruptive behaviour. The staff at the school spent more time dealing with him than with any other child. He lacked awareness of proper boundaries. As a result of his behaviour, he is now notorious and thus at a disadvantage, educationally speaking, in his current location.

47.       TF was intellectually bright though demonstrated a tendency to write numbers backwards. He was always well presented at school in clean and tidy clothing whether he was coming from the pursuer’s or the defender’s home. 

48.       Highland Council instructed a child support worker to work with TF on a 1:1 basis at the school. They further instructed a practice teacher to work with the parties to attempt to improve communication between them. She was unsuccessful, in part at least because the pursuer would not permit her to share information he had imparted with the defender. It is unclear what value if any derived from the child support worker’s efforts.

49.       By letter dated 20^th. May, 2014, TF’s general medical practitioner referred him to the paediatric services at Belford Hospital, Fort William. In his letter, he said that this was on account of the child’s mother’s concerns about his uncontrollable behaviour. His aggression and irritability was causing an adverse effect at school and he was awaiting an assessment by the school nurse. The defender had raised the question whether he might be suffering from epilepsy since she said he had exhibited tics and spoke of finding TF in trance like states. The GP also made reference to the episode of inappropriate sexual and coercive behaviour at the school – the bum-licking incident – and the doctor suggested that this had previously happened between TF and his sister. He also referred to a complaint about the younger sister having suffered bruising while visiting her father and that he might somehow be responsible.

50.       The defender was the primary historian to the general medical practitioner. She told him that there was a strong family history of epilepsy, a statement for which there was no foundation. Other than from her, there was no evidence of TF suffering from tics or drooling. In these respects the information she gave to the doctor was misleading.

51.       There was no evidence from which it could have been concluded that the bruising to MF was non-accidental.

52.       There was a further episode of inappropriate sexual behaviour between TF and another boy in the course of the boy staying overnight at the defender’s home though the defender was unaware at the time of the behaviour. The precise nature of the behaviour is unknown.

53.       On or about 14^th. January, 2015, while TF was at the pursuer’s home for a period of residential contact, and while playing with a friend’s child, TF was heard to say to the other boy that he should sit on the sofa so that TF could “lick his bum.” The other boy declined and was then asked by TF if he was afraid to do so. The parents of both children then intervened. TF was told by the pursuer that his behaviour was inappropriate. The pursuer did not tell the defender, the school, the social work staff or the paediatrician with whom he had an early appointment about this episode. It only came to light when the other boy discussed it in school. This event was then drawn to the attention of the practice worker who relayed it to the social worker on 19^th. January, 2015. The social worker gave evidence in this court on 21^st. January, 2015 and made no mention of any report of this current incident.

54.       Licking a child’s private parts is not normal exploratory behaviour on the part of a six year old boy.

55.       At New Year, 2014, the defender and the children attended a family wedding in Thailand. The pursuer had been unnecessarily difficult about providing letters of authority for the defender to exhibit to immigration officers until she threatened to enrol a motion before the court.

56.       On their return from this trip, the pursuer pestered the defender from the moment of her return with a series of unreasonable demands for contact to his children, threatening their removal from school. Rather than have to face an unpleasant encounter in the presence of at least TF at school, she kept both children away from school. She told the head teacher she had been advised to do that by the police, which was not true.

57.       Historically, the defender did not set proper and effective boundaries and behavioural standards for the children. Beyond an age at which it would have been appropriate, she allowed both children to be naked in social situations both within and outwith their home. Her efforts to discipline both children were largely ineffective and TF was allowed to engage in dangerous and anti-social forms of behaviour without restraint or appropriate punishment. She did not discourage either child from playing with their private parts which both had a tendency to do. This applied both prior to and after the parties’ separation. Both children swore having picked that up primarily from the defender. Prior to the separation, the pursuer did little if anything to assist with the control of the children’s behaviour.

58.       TF and MF both enjoyed living at the pursuer’s home, the former matrimonial home, in a hamlet. This is a small, close knit community. It was a safe and friendly environment in which both children, but particularly TF, had a number of friends.

59.       Both children enjoy the current periods of contact they have been having with their father. TF enjoys attempting to emulate his father’s carpentry skills. They have a tree house built by the pursuer who also built them a go-kart each. He allowed MF to take part in painting them. During contact periods he has had the children out in a boat fishing, hiking in the woods, going on picnics and helping him to collect firewood. They have been sledging during the winter period. He has a well established routine that they have their evening meal, and then sit with him to watch a child friendly DVD prior to bedtime. He tried to assist them with their homework.

60.       If the defender required a babysitter, she would ask a friend or neighbour rather than the pursuer.

61.       The defender will not engage in a face to face conversation with the pursuer about the children. The pursuer only reluctantly engages in e-mail or text communications. He is not computer literate whereas she is.

62.       The defender has attended a number of parenting courses and has tried to apply what she has learned at these courses.

63.       The pursuer accepted that there was a need for consistency especially with TF and that he understood that the “Golden Rules” should be applied. However, he could not describe what these are.

64.       The pursuer had consistently been late in returning the children at the conclusion of periods of contact.

65.       At least two of his neighbours in the hamlet would be willing to assist him in child care if asked.

66.       The pursuer’s parents and his sister, brother-in-law and their daughter had all had regular contact with TF and MF notwithstanding that they lived in the English Midlands. They would come to Scotland for holiday periods, especially at Whitsun, and the parties and the children regularly went to stay in England at Christmas. The children had a close relationship with all five. Since the separation, the defender has made it difficult for contact between the children and the pursuer’s family to continue.

67.       The pursuer’s father had opened building society accounts for each of the children.

68.       The pursuer’s niece had been very close to the children. She had spoken on the telephone to them on the last occasion on which they went to Australia with the defender and TF had told her that he missed her and the pursuer.

69.       The defender told the social work department that she did not wish her sister-in-law to play any part in the future welfare of the children or for them to discuss the children with her.

70.       TF’s behaviour is not affected by his diet.

71.       Contact arrangements currently operate via the school or nursery so that each child is deposited at school and then collected by the other parent at the end of the school day. Face to face contact is thus avoided and arrangements are made by text or e-mail.

72.       The pursuer is suffering from stress on account of the risk of the removal of the children to Australia.

73.       The defender’s health would be adversely affected were she not to be allowed to remove the children to Australia. However, she would not leave Scotland without her children.

74.       The defender complained to the police that the pursuer had driven to her home and round it for the purpose of frightening her, in about May 2014. At the material time when he was supposed to have done this, the pursuer was in the company of a neighbour building a sun roof on the neighbour’s property.   

75.       The former good relationship between the defender and her in-laws was at an end. The defender had prevented the children being with their paternal grandfather to celebrate his 70^th birthday. Their paternal grandmother was in poor health, not assisted by not seeing her grandchildren.

76.       Were the children to relocate with the defender to Australia, JJ, the pursuer’s sister, could not see how in practical terms it would be possible for them to see the children again.

77.       The defender had asked D and JJ to act as guardians for her children should anything happen to her.

78.       MF is popular at her nursery and is a lovely, confident child who is clearly fond of her father.

79.       Sometimes MF’s behaviour suggests a similar lack of boundaries as has affected TF and his behaviour.

80.       The defender is isolated. There is now no one she would be happy to leave her children with except for members of her family living in Australia. If she asked the pursuer to help her, his response would be, “Why? Where are you going?” So she had stopped asking.

81.       She had sought to persuade the pursuer to move to Australia but he would not do so.

82.       Her current address was part of a house which had been subdivided. There were two bedrooms, a living room, kitchen and bathroom. It was adequate but suffered from damp. It was let on a short assured tenancy.

83.       The defender had a diagnosis of degenerating discs in her upper spine. She presently underwent physiotherapy and engaged in Yoga exercises to help with strengthening other muscles to counteract the deficit.

84.       The children were in school or nursery respectively from 09.00 to 14.30 and 10.00 to 14.00. It was virtually impossible to find any employment which would enable her to be available to take each of them to and collect each of them from school or nursery.

85.       The pursuer had historically tried to discuss issues between them in the presence of the children without regard to their sensitivities. However, the defender had never tried to stop contact taking place. She wanted it to take place without the children being exposed to hostility.

86.       The pursuer did not contact the children by telephone in between periods of physical contact.

87.       The defender has suffered weight loss and stress on account of the pursuer’s behaviour before and after the separation and on account of the continuing litigation and her isolation.

88.       There is no existing support network in the area for single parents who want to take up employment.

89.       Were the defender to be permitted to relocate to Australia with the children, contact between them and the pursuer would no longer be possible on any regular basis.

90.       The only realistic and affordable means by which he could see the children for the foreseeable future would be for him to travel to Australia and have a holiday period with them there. He could not afford to bring the children along with an accompanying adult to Scotland for a holiday period here.

91.       A typical journey from Glasgow to Melbourne via Dubai would involve flights of 7.5 hours and 13.5 hours duration. It would be difficult at any time coinciding with school holiday periods to obtain a return flight for less than £1,000. A hotel room on a bed and breakfast basis in the Melbourne area would cost about £90 per night and a hire car would cost about £20 per day. At Christmas time, which is the long summer holiday for schools in Australia, the prices tended to be significantly higher. The longest he has ever been away from his self-employment is five weeks.

92.       The pursuer is not computer literate. His only other means of contact with his children would be by telephone or other form of electronic communication via the Internet. There is a time difference of between nine to eleven hours depending on the time of year which makes direct, live contact very difficult to organise.

93.       The children would cease to have any direct physical contact with their grandparents, paternal aunt and uncle and cousin with all of whom they have had regular direct contact from which they have benefited.

94.       It would be impracticable for the children to visit the UK for a two week period.

95.       The pursuer did not want to emigrate to Australia.

96.       He had made no inquiry as to whether he would be permitted to emigrate to Australia and, if so, on what terms.

97.       Any change of school has an impact on a child and frequent moves are normally counter-productive to a child’s education. However, as long as the appropriate support mechanisms were in place, there was no reason to think that TF could not adjust to the Australian education system.

98.       There would however be a risk to his wellbeing on account of the separation from his father.

99.       The pursuer’s parents had never been to Australia and would find the journey very difficult.

100.     HH, a long-standing friend of the defender’s mother, who had known the defender since she was a child, was prepared to offer the defender employment as an administrative assistant in a company she and her husband owned. She would be based in an office about two miles from the primary school she had in mind for the children and so could get there quickly if needed. Some of the work could be done from home. The salary on offer was $50,000 Aus. which worked out at about £27,500 which was much more than the defender could earn in Scotland as her circumstances presently stood. The salary was sufficient for her and the children to live in modest comfort. She would be entitled to four weeks paid holiday.

101.     The defender had reached the conclusion that, if she were permitted to relocate with the children to Australia, she would try to rent property in a town which was about an hour from the centre of Melbourne. She had visited the primary school there and met with the head teacher who had indicated that the children could be accommodated there. The school had a roll of about 180 children. As well as the normal education curriculum, it offered music, art, gardening, cooking and sports activities conducted by dedicated teachers. The secondary school was within a relatively short distance. There is plenty accommodation for rent in this area and a reasonable property would cost about $20,000 Aus per annum. The area was about a 15 minute drive from her mother’s home.

102.     The average annual temperature in Melbourne is about 18 degrees centigrade. Occasionally, the temperature can exceed 40 degrees.

103.     Apart from her mother and step-father, the defender would have contact with and support from her Aunt J, her mother’s sister, her stepfather’s daughter, who is a school teacher, her brother and his wife and teenage children, HH and her three daughters who all have children of their own, Aunt J’s three daughters, all of whom have children, and friends from her time of living in the Melbourne area. She would be very well supported.

104.     Her step-father has a son living and working in London and likely to continue so to do for about five or six years. He might be a person who could accompany the children on flights to and from the UK to facilitate contact with the pursuer. He is a 64 year old chartered accountant and has had contact with the children both in Australia and in the UK during holiday periods. The children enjoy his company.

105.     The defender’s step-father was also willing to make a contribution towards education costs for the children.

106.     Australia has both public and private health care systems. Both are good. The defender’s step-father had had successful cancer treatment in the public system. But he also had private healthcare which facilitated rapid access to the doctor of your choice.

107.     It was almost twenty years since the defender had resided in Australia.

108.     SJ, the children’s cousin, had spoken to them by telephone the last time they were in Australia and TF complained that it was too hot, that the defender’s step-father was always grumpy and that he missed her and his father.

109.     In the event of relocation, she would be able to show the pursuer how to use Skype or Facetime, either of which would facilitate face to face contact live. Apart from the normal broadband charges, there was no charge for Facetime.

110.     The children are unaware of any plan on the part of the defender to relocate them with her to Australia. They are not of an age or level of maturity where either of them would be able to express a considered view on the proposal.

 

Finds in fact and law:-

1.         Both parties currently reside within the territorial boundaries of Fort William Sheriff Court district and have done so for many years. This court accordingly has jurisdiction in the cause.

2.         The parties have not cohabited nor had sexual relations with each other since 25^th. May 2013 and the defender consents to the pursuer’s crave for divorce. The marriage has broken down irretrievably and there is no prospect of a reconciliation.

3.         There is no risk of the defender removing the children from the jurisdiction of the court or otherwise from Scotland without first having the authority of the court.

4.         The defender is willing to consent to the transfer of her interest in the former matrimonial home to the pursuer and it would be appropriate to make an order to that effect.

5.         In return, it would be appropriate to make an order in favour of the defender awarding her a capital payment.

6.         While there are some special circumstances pertinent to the sharing of matrimonial property, the overall consequence is that it would be fair to the parties that the property is shared equally.

7.         The pursuer having conceded that it would not be appropriate to make a residence order in his favour regulating the residence of the children in such a way as to make him the primary carer of them and since as a matter of law he already has parental rights and responsibilities in relation to the children, no order for residence in his favour is necessary. However, having regard to the provisions of section 11(11) of the Children (Scotland) Act, 1995, as amended, and the orders otherwise herein made, it is necessary to deprive the pursuer of his parental right to have the children living with him or for him otherwise to regulate their residence.

8.         Since the defender has full parental rights and responsibilities in relation to the children it is unnecessary to make a residence order in her favour.

9.         However, on balance, it would be in the best interests of the children, that being the paramount consideration, to make an order permitting the defender to relocate to Australia with the children.

10.       There are no circumstances which would make it appropriate to make an award of periodical allowance in favour of the defender.

11.       There is no need in the circumstances to make an order for the sale of the former matrimonial home.

 

Finds in law:-

1.         This court has jurisdiction in the cause.

2.         The parties’ marriage having broken down irretrievably by reason of one year’s non-cohabitation and with the defender consenting to the pursuer’s crave for divorce, the parties are entitled to a decree of divorce.

3.         There is no factual basis for an award of interdict as craved.

4.         A fair division of the matrimonial property in this case would be an equal division which would best be achieved by the defender being required to transfer her interest in the former matrimonial home to the pursuer, by each party retaining the funds in their respective bank accounts at the relevant date and by the pursuer making payment of a balancing capital payment in favour of the defender.

5.         It is unnecessary to make a residence order in favour of either party. It is necessary to make an order depriving the pursuer of his parental right to have the children living with him or otherwise to regulate their residence.

6.         It is in the best interests of the children to make an order to the effect that they will primarily reside with the defender and that she may relocate with them to Australia.

7.         It is in the best interests of the children that every reasonable effort be made to maintain contact between them and the pursuer and the pursuer’s parents, sister and brother-in-law and cousin.

 

Accordingly,

(1) finds the pursuer entitled to decree of divorce from the defender on the basis that the marriage has broken down irretrievably by reason of non-cohabitation for a period in excess of one year, and with the defender’s consent thereto;

(2) makes an order for the transfer from the defender to the pursuer of her whole right, title and interest to and in the heritable property comprising [the former matrimonial home], and to evacuate any survivorship destination thereto; ordains the defender to make, execute and deliver to the pursuer, all in exchange for payment of the hereinafter mentioned capital payment in her favour, a valid disposition of the said subjects or such other deeds as may be necessary to give the pursuer a valid title thereto, and that within one month of the date of decree hereon; and in the event of the defender failing to make, execute and deliver such disposition and other deeds, and in exchange for consignation in the hands of the sheriff clerk of the capital payment hereinafter referred to, to authorise and ordain the sheriff clerk to subscribe in place of the defender the disposition of the said subjects, as adjusted at his sight, and such other deeds as may be necessary to give the pursuer a valid title to the whole of the said subjects; for the avoidance of doubt, each party is ordered to meet the conveyancing expenses on the usual basis for effecting the transfer of title to a heritable property.

(3) makes an order for payment to the defender by the pursuer of a capital sum of SEVENTY FOUR THOUSAND ONE HUNDRED AND FIFTY SIX POUNDS AND FORTY THREE PENCE (£74,156.43) STERLING, to be paid in exchange for delivery of the disposition and all other necessary deeds required to transfer the defender’s interest in the title to the foresaid matrimonial home, all within one month of the date of decree hereon, with interest on any outstanding amount due from the date of tendering said conveyancing documents until payment at the rate of eight per centum per annum.

(4) refuses to make any order for interdict.

(5) makes an order depriving the pursuer of his parental right to have the children living with him or otherwise to regulate the residence of either of them.

(6) makes an order regulating the arrangements for residence to and contact with the children as follows:-

(a)  orders that the children shall reside with the defender and authorises and permits the defender to relocate to Australia with the children forthwith;

(b)  orders the defender to make known to the pursuer and to the court –

(i)   the address at which she and the children will initially be residing at on arrival in Australia;

(ii)   her date of departure;

(iii)   the address of any subsequent property at which she may come to reside;

(iv)   the address of the school at which the children are enrolled together with a telephone number for said school;

(v)   mobile telephone numbers for herself and for each of the children and a landline number for herself; and

(vi)   internet addresses for the receipt of e-mail, Skype, Facebook and Facetime communications between the pursuer and the children.

(c)  orders that there should be communication at least once per week between the pursuer and said children by means of telephone, text, e-mail, Skype or Facetime or any similar form of electronic communication with a requirement that the pursuer text the defender 24 hours in advance to arrange a suitable time for such communication; and

(d)  orders that there should be direct contact between the children and the pursuer primarily in Australia but otherwise as agreed between the parties with the pursuer being responsible for all costs associated with the exercise of such contact wherever it may take place; orders that said contact will ordinarily be for a period of up to six weeks during the Australian schools’ holiday period which extends between approximately the end of December and the beginning of February each year.

(7) Refuses as unnecessary any order for the sale of the foresaid matrimonial home;

(8) Refuses as unnecessary any order for payment of a periodical allowance in favour of the defender;

(9) Makes a finding that there should be no expenses due to or by either party in relation to the cause but assigns a diet for consideration of any incidental issues in relation to expenses on 8^th January, 2016 at 10.00.

 

NOTE

Statutes referred to:

[1]        Family Law (Scotland) Act, 1985, as amended, esp ss. 8, 9, 10 and 11.

“8. (1)   In an action for divorce, either party to the marriage may apply to the court for one or more of the following orders –

(a) an order for the payment of a capital sum to him by the other party to the marriage;

(aa) an order for the transfer of property to him by the other party to the marriage;

(b) an order for the making of a periodical allowance to him by the other party to the marriage;

(baa) a pension sharing order;

(ba) an order under s.12A(2) or (3) of this Act;

(c) an incidental order within the meaning of section 14(2) of this Act.

 

(2) Subject to sections 12 to 15 of this Act, where an application has been made under subsection (1) above, the court shall make such order, if any, as is –

(a) justified by the principles set out in section 9 of this Act, and

(b) reasonable having regard to the resources of the parties.

 

(3) An order under subsection (2) above is in this Act referred to as an “order for financial provision.”

 

(4)…………………………….

 

      9.   (1) The principles which the court shall apply in deciding what order for financial provision, if any, to make are that –

(a) the net value of the matrimonial property should be shared fairly between the parties to the marriage;

(b) fair account should be taken of any economic advantage derived by either party from contributions by the other, and of any economic disadvantage suffered by either party in the interests of the other party or of the family;

(c) any economic burden of caring, after divorce, for a child of the marriage under the age of 16 years should be shared fairly between the parties;

(d) a party who has been dependent to a substantial degree on the financial support of the other party should be awarded such financial provision as is reasonable to enable him to adjust, over a period of not more than three years from the date of decree of divorce, to the loss of that support on divorce;

(e) a party who at the time of the divorce seems likely to suffer serious financial hardship as a result of the divorce should be awarded such financial provision as is reasonable to relieve him of hardship over a reasonable period.

 

(2) In subsection (1)(b) above and in section 11(2) of this Act-

“economic advantage” means advantage gained whether before or during the marriage and includes gains in capital, in income and in earning capacity, and “economic disadvantage” shall be construed accordingly;

“contributions” means contributions made whether before or during the marriage; and includes indirect and non-financial contributions and, in particular, any such contribution made by looking after the family home or caring for the family.

 

10. (1) In applying the principles set out in section 9(1)(a) of this Act, the net value of the matrimonial property shall be taken to be shared fairly between the parties to the marriage when it is shared equally or in such other proportions as are justified by special circumstances.

 

(2) The net value of the matrimonial property shall be the value of the property at the relevant date after deduction of any debts incurred by the parties or either of them –

(a) before the marriage so far as they relate to the matrimonial property, and

(b) during the marriage,

which are outstanding at that date.

 

(3) In this section “the relevant date” means whichever is the earlier of-

(a) subject to subsection (7) below, the date on which the parties ceased to cohabit;

(b) the date of service of the summons in the action for divorce.

 

(4) Subject to subsection (5) below, in this section and in section 11 of this Act “the matrimonial property” means all the property belonging to the parties or either of them at the relevant date which was acquired by them or him (otherwise than by way of gift or succession from a third party)-

(a) before the marriage for use by them as a family home or as furniture or plenishings for such home; or

(b) during the marriage but before the relevant date.

 

(5)…………………

 

(6) In subsection (1) above “special circumstances,” without prejudice to the generality of the words, may include –

(a) the terms of any agreement between the parties on the ownership or division of any of the matrimonial property;

(b) the source of the funds or assets used to acquire any of the matrimonial property where those funds or assets were not derived from the income or efforts of the parties during the marriage;

(c) any destruction, dissipation or alienation of property by either party;

(d) the nature of the matrimonial property, the use made of it (including use for business purposes or as a matrimonial home) and the extent to which it is reasonable to expect it to be realised or divided or used as security;

(e) the actual or prospective liability for any expenses of valuation or transfer of property in connection with the divorce.

 

(7)…………………………………..

 

 

11. (1) In applying the principles set out in section 9 of this Act, the following provisions of this section shall have effect.

 

(2) For the purposes of section 9(1)(b) of this Act, the court shall have regard to the extent to which-

(a) the economic advantages or disadvantages sustained by either party have been balanced by the economic advantages or disadvantages sustained by the other party, and

(b) any resulting imbalance has been or will be corrected by a sharing of the value of the matrimonial property or otherwise.

 

(3) For the purposes of section 9(1)(c) of this Act, the court shall have regard to-

(a) any decree or arrangement for aliment for the child;

(b) any expenditure or loss of earning capacity caused by the need to care for the child;

(c) the need to provide suitable accommodation for the child;

(d) the age and health of the child;

(e) the educational, financial and other circumstances of the child;

(f) the availability and cost of suitable child care facilities and services;

(g) the needs and resources of the parties; and

(h) all the other circumstances of the case.

 

(4) For the purposes of section 9(1)(d) of this Act, the court shall have regard to-

(a) the age, health and earning capacity of the party who is claiming the financial provision;

(b) the duration of the marriage;

(c) any intention of that party to undergo a course of education or training;

(d) the needs and resources of the parties; and

(e) all the other circumstances of the case.

 

(5)………………………………..

 

(6) In having regard under subsections (3) to (5) above of all the other circumstances of the case, the court may, if it thinks fit, take account of any support, financial or otherwise, given by the party who is to make the financial provision to any person whom he maintains as a dependant in his household whether or not he owes an obligation of aliment to that person.

 

(7) In applying the principles set out in section 9 of this Act, the court shall not take account of the conduct of either party unless –

(a) the conduct has adversely affected the financial resources which are relevant to the decision of the court on a claim for financial provision; or

(b) in relation to section 9(1)(d) it would be manifestly inequitable to leave the conduct out of account.”

 

[2]        Children (Scotland) Act, 1995, as amended, esp s. 11.

“11. (1) In the relevant circumstances in proceedings in the Court of Session or sheriff court, whether those proceedings are or are not independent of any other action, an order may be made under this subsection in relation to-

(a) parental responsibilities;

(b) parental rights;

(c) guardianship; or

(d) subject to section 14(1) and (2) of this Act, the administration of a child’s property.

 

(1A)…………………………………..

 

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

(a) an order depriving a person of some or all of his parental responsibilities or parental rights in relation to a child;

(b) an order –

(i) imposing upon a person (provided he is at least sixteen years of age or is a parent of the child) such responsibilities; and

(ii) giving that person such rights;

(c) an order regulating the arrangements as to-

(i) with whom; or

(ii) if with different persons alternately or periodically, with whom during what periods,

a child under the age of sixteen years is to live (any such order to be known as “a residence order.”

(d) an order regulating the arrangements for maintaining personal relations and direct contact between a child under that age and a person with whom the child is not, or will not be, living (any such order being known as a “contact order”).

 

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

(f)…………………..

(g)……………………

(h)………………………

 

(3) The relevant circumstances mentioned in subsection (1) above are –

(a) that application under that subsection is made by a person who –

(i)…………………………

(ii) has parental responsibilities or parental rights in relation to the child;

(iii)…………………..

(b)…………………………..

 

(4)……………………………..

 

(5)………………………………

 

(6)………………………………

 

(7) Subject to subsection (8) below, in considering whether or not to make an order under subsection (1) above and what order to make, the court-

(a) shall regard the welfare of the child concerned as its paramount consideration and shall not make any such order unless it considers that it would be better for the child that the order should be made than that none should be made at all; and

(b) taking account of the child’s age and maturity, shall so far as practicable-

(i) give him an opportunity to indicate whether he wishes to express his views;

(ii) if he does so wish, give him an opportunity to express them; and

(iii) have regard to such views as he may express.

 

(7A) In carrying out the duties imposed by subsection 7(a) above, the court shall have regard in particular to the matters mentioned in subsection (7B) below.

 

(7B) Those matters are-

(a) the need to protect the child from-

(i) any abuse, or

(ii) the risk of any abuse,

which affects or might affect the child;

(b) the effect such abuse, or the risk of such abuse, might have on the child;

(c) the ability of a person-

(i) who has carried out such abuse which affects or might affect the child; or

(ii) who might carry out such abuse,

 

to care for, or otherwise meet the needs of, the child; and

(d) the effect any abuse, or the risk of any abuse, might have on the carrying out of responsibilities in connection with the welfare of the child by a person who has (or, by virtue of an order under subsection (1) would have) those responsibilities.

 

(7C) in subsection (7B) above –

 

“abuse” includes-

(a) violence, harassment, threatening conduct and any other conduct giving rise, or likely to give rise, to physical or mental injury, fear, alarm or distress;

(b) abuse of a person other than the child; and

(c) domestic abuse;

 

“conduct” includes-

(a) speech; and

(b) presence in a specified place or area.

 

(7D) Where-

(a) the court is considering making an order under subsection (1) above; and

(b) in pursuance of the order two or more relevant persons would have to co-operate with one another as respects matters affecting the child,

the court shall consider whether it would be appropriate to make the order.”

 

(8)………………………….

 

(9)………………………….

 

(10)…………………………

 

(11) An order under subsection (1) above shall have the effect of depriving a person of a parental responsibility or parental right only in so far as the order expressly so provides and only to the extent necessary to give effect to the order, but in making any such order as is mentioned in paragraph (a) or (b) of subsection (2) above the court may revoke any agreement which, in relation to the child concerned, has effect by virtue of section 4(2) of this Act.

 

(12)………………………..

 

(13)…………………………”

 

International convention referred to:-

[1]        United Nations Convention on the Rights of the Child – Arts. 3.1; 8; 9.3 and 12.

“3.1 In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

 

8.1 State Parties undertake to respect the rights of the child to preserve his or her identity, including nationality, name and family relations as recognised by law without unlawful interference.

 

8.2 Where a child is illegally deprived of some or all of the elements of his or her identity, State Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity.

 

9.3 State Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.

 

12.1 State Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

 

12.2 For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

 

41. Nothing in the present Convention shall affect any provisions which are more conducive to the realization (sic) of the right of the child and which may be contained in:

 

(a) the law of a State party; or

(b) International law in force for that State.”

 

Authorities referred to:-

1. Little v Little 1990 SLT 785

2. Jacques v Jacques 1997 S.C. (H.L.) 20

3. Sanderson v McManus 1997 S.C. (H.L.) 55

4. Cunningham v Cunningham 2001 F.L.R. 12

5. Payne v Payne 2001 2 WLR 1826

6. M v M 2008 F.L.R 90.

7. Wilson v Wilson 2009 F.L.R 18

8. The Principal Reporter v K 2011 SLT 271.

9. M v M [2011] CSIH 65; 2012 SLT 428

10. AB v CD Aberdeen Sheriff Court, 22^nd February, 2012.

11. MS v SS 2012 F.L.R. 32

12. Harris v Harris 2013 F.L. R 122.

11. GS v YS Dundee Sheriff Court, 27^th. August, 2013

12. GS v YS Sheriff Principal R.A. Dunlop Q.C. on appeal from Dundee Sheriff Court, 8^th. May, 2014

 

Text Books referred to:-

1. Wilkinson & Norrie – The Law Relating to Parent and Child in Scotland (3^rd. edition)

2. Macphail; Sheriff Court Practice, 3^rd. edition.

 

[1]        This was an action of the utmost difficulty for a whole variety of reasons and I am acutely conscious of the time which it has taken me to produce this judgment, most of which has been written in my own time. The initial writ in these proceedings was warranted in February 2014, with interim orders being made at a continued child welfare hearing on 28^th. May, 2014. It was agreed at the Options Hearing on 7^th. August, 2014 that the only way to resolve the issues in dispute between the parties in this case would be by proof of their respective averments and on 18^th. September, 2014, diets were assigned for 6^th., 17^th., 18^th. and 19^th. November. There was a delay in commencing the proof on 6^th. November occasioned by the late lodgement of productions on behalf of the pursuer. After three and a half days of evidence, further diets were assigned for 21^st and 23^rd. January, 2015 and 18^th., 20^th., 23^rd. and 24^th. February, which involved fixing diets for dates on which this court was not programmed to sit. Following those five days of evidence, a further three days of proof was assigned for 18^th., 19^th. and 20^th. March but, because of a scheduled long running solemn case, it was impossible for these diets to take place at Fort William and I am grateful to the parties and their legal representatives and to the staff at both Fort William and Portree Sheriff Courts for agreeing that the case could be transferred to Portree where it was concluded after twelve days of evidence and submissions. I made avizandum on 20^th. March since which date there has been no time because of the pressure of the business both at Fort William and Portree, especially the former, to devote myself to the preparation of this judgment during anything resembling normal working hours. I apologise to both parties for this recognising that this must have been an extremely anxious period of uncertainty for them. There are a number of aspects of this judgment that have caused me considerable concern and anxiety and I make no apology for taking the necessary time to be clear about my conclusions and the basis for them. This is a life changing decision for the parties and the children and it was patent from the outset that one of the parties would be bitterly disappointed and deeply distressed by the outcome. I fear there is nothing I can do about that.

[2]        I heard evidence from the pursuer, from his father, from his sister, his brother-in-law, his niece, from the head teacher of TF’s Primary School, from the social worker, from a practice teacher with Highland Council Social Work department, from the mother of a child of similar age to TF and from three neighbours. Affidavits were also lodged by an early years practitioner at another local primary school and the head teacher of the school where TF was first enrolled in the nursery class. I also heard from the defender, from her mother, from her mother’s current husband, and from two of her friends. Affidavits were also lodged by the defender’s sister-in-law, her aunt, a friend and HH, a friend of the defender’s mother and prospective employer of the defender. I had reservations about various aspects of the evidence given by both the pursuer and the defender and had some concern about the reliability of the witness, MM. I also have reservations about the credibility and reliability of JJ. I am afraid I have to say that I have grave doubts about the credibility and reliability of the social worker.

[3]        So far as the basis for the divorce is concerned, the evidence did not present any difficulty. The defender had removed herself and the children from the matrimonial home on or about 13^th. May, 2013. The parties nonetheless appeared to be agreed that they had ceased cohabiting on 25^th. March, 2013 which I observe is the day after MF’s birthday. Either way, I am satisfied from the evidence of various parties, but in particular, DJ and JJ and the neighbours, that there has been no resumption of cohabitation. The defender has given her consent to divorce and it was fairly evident from the attitude of the parties towards each other in the course of the proof, that there was no reasonable prospect of a reconciliation. I can therefore grant decree of divorce.

[4]        In considering what determination I should reach in relation to the parties’ financial claims, I had regard to the provisions of sections 8 to 11 of the Family Law (Scotland) Act, 1985, to the opinions of both Lord President Hope (as he then was) and Lord Dunpark in Little v Little 1990 SLT 785, wherein it was opined that while it was now necessary for a court dealing with financial provision on divorce to carefully consider the provisions contained in sections 8 to 14 of the 1985 Act, much is still left to the discretion of the court of first instance and the exercise of discretion should be “aimed at achieving a fair and practicable result in accordance with common sense,” and also to the whole circumstances of the case including the conclusion I had reached that the defender should be permitted to relocate to Australia with the children. Plainly on relocation she will no longer have any interest in the matrimonial home and she said straightforwardly in her evidence that she had no difficulty with her interest in the property being transferred to the pursuer. Title to the house is in joint names. Parties and their legal representatives paid little regard to the relevant date which would have to be somewhere in the period 25^th. March to 13^th. May, 2013 in relation to the valuation of the matrimonial home, being apparently content to rely on a valuation by Messrs. D.M. Hall, Chartered Surveyors, Oban, dated 7^th. October, 2014 at £180,000 at least so far as that would reflect its value on the open market. However, the property is burdened with a rural housing burden in favour of the Highlands Small Communities Housing Trust who assisted the parties to buy the property. Production 5/3/27 is a disposition in favour of the parties by the said Housing Trust of the plot on which the house is built on a consideration of £30,000. As I understood the evidence, which could have been clearer, there was a secured loan in favour of the Trust in the sum of £20,000 though that seemed to diminish on a sliding scale from year one to year ten of occupancy after which there would be no obligation to repay, and there was a right of pre-emption in favour of the Trust with the basis upon which the price they would require to pay set out in a complex formula with alternative approaches to valuation. Neither party led any evidence from any representative of the Trust or Highland Council who were said now to be responsible for its continuing operation. In their report, D.M. Hall specifically excluded from their valuation what they describe as “the implications of this burden.”    

[5]        Counsel for the pursuer recognised that the parties had been together for 14 years and married for just over ten at the time of their separation. She submitted that the marriage was over “because FF said it was over.” While the reason for the breakdown of a relationship may have little relevance to the determination of financial claims on divorce, I cannot allow that to pass without comment. The defender’s position was that the marriage broke down because the pursuer failed to give her any support following the birth of her first child. Her position, for which there is some support in other evidence, is that the pursuer was a habitual user of what she called marijuana, though what she described seemed to me to be both herbal and commercially manufactured cannabis and cannabis resin, which he smoked. He continued to do so, despite promising to stop when TF was born. This affected his ability to work and may explain his apparent low income. That there had been a drug issue was acknowledged by DJ and dishonestly denied by JJ in the course of their evidence.  The defender’s mother spoke of the pursuer seeking drugs in Australia particularly via her son. It was surprising that the neighbours at the hamlet seemed unaware of his habit but on balance I prefer the evidence from the defender that he did misuse cannabis to his evidence that he did not. The second issue, which may well be related to that first issue, was that he took nothing to do with the infant TF, and that was particularly trying for the defender when she had no nearby family support to call on apart from him. He did not dispute that he was uncomfortable handling a small child and that he left the practical care of the child to the defender entirely. She was particularly distressed by the fact that he would not participate in the bath time routine, preferring to lie on the couch and fall asleep. That he could not find the time, energy or skill to help with his infant son is telling. I am not surprised that these two issues led to the breakdown of the marriage.

[6]        Turning then to the consideration of the parties’ financial claims, there was no evidence about the value of the contents of the house and I proceed on the basis that parties are satisfied that no issue arises in relation thereto and that the value of the contents can be ignored in reaching the net value of their matrimonial property. Nor was any evidence led of either party having any relevant pension or insurance provision. That therefore left only the balances at credit of four bank accounts, one in the name of the pursuer in the sum of £180.07 and the other three in the name of the defender totalling £11,867.22., together with whatever ought to be regarded as the true net value of the matrimonial home. All these accounts were with the Bank of Scotland.

[7]        The source of funds for the matrimonial home appeared to me to comprise the parties’ joint savings, a loan of £20,000 from the Rural Housing Trust and loans totalling approximately £50,000 from the pursuer’s father, all of which were repaid, from funds received from an inheritance from the estate of the pursuer’s late uncle to him prior to the relevant date.

[8]        Counsel for the pursuer directed my attention to the provisions of sections 8, 9 and 10 of the Family Law (Scotland) Act, 1985 reminding me that any award had to be justified in accordance with the principles set out in section 9 and elaborated upon in section 10 and having regard to the parties’ resources, which included foreseeable future resources. She submitted in accordance with section 9 that the net value was to be shared fairly which meant equally unless there were special circumstances and that in the present case, the source of funds constituted a special circumstance. Further, she submitted that “special circumstances” was not a closed category and that an order for relocation potentially could amount to a special circumstance having regard to the burden of the costs of maintaining contact with the children which would have to be borne by the pursuer.

[9]        In particular, she submitted that the pursuer was a self employed joiner earning £8,500 to £10,000 per annum. The defender did his books. Money for normal household items was kept in a teapot and larger sums saved for a holiday were put in a safe. The defender had an income which counsel said was about £21,000 per annum from her part time employment, from tax credits and child benefit. There was also income from the rental of a caravan at £200 per month. With reference to the valuation of the matrimonial home, she said that the effect of the right of pre-emption in favour of the Trust was that the house had to be offered to the Trust at £117,097 plus inflation based on the Retail Price Index. The valuation produced by the defender was therefore meaningless. She had a good deal to say about the defender’s evidence about where money came from but the bottom line is that the sources of funds for the construction of the matrimonial home are as I have narrated in para. 6 and title to the house is in joint names reflecting, in my opinion, the joint contribution to its construction and payment for its construction. The reality is that the evidence led about the position of the Trust was unsatisfactory. The pursuer led no evidence about the current position at all but now seeks to found upon the documentation which is not self-explanatory. The defender gave evidence on the basis of some other person’s alleged recent experience in dealing with a burden and right of pre-emption in allegedly similar terms. In effect, that evidence amounted to an assertion that the Trust had foundered, that it was no longer operating and that it did not have any funds to fund a right of pre-emption. I do not regard the valuation by D.M. Hall as meaningless. It comes with an appropriate caveat. Having regard to that caveat, the sum advanced by the Trust which may or may not have to be repaid and the right of pre-emption which may or may not be exercised on one of two different bases, I have reached the conclusion that a reasonable net valuation taking account of the implications of the arrangements with the Trust, at the relevant date, would be £160,000. I have to accept that there is an element of speculation in that figure but in the absence of clearer information about the position of the Trust, there is little further I can do. In any event, on the hypothesis that the defender’s interest in the house will be transferred to the pursuer without triggering any right of pre-emption, and that there is every likelihood that the pursuer will continue to reside in the property until beyond the expiry of the right of pre-emption and, possibly, the repayment of any loan, to proceed on the basis submitted by counsel would be to confer a double benefit upon the pursuer.  These considerations simply add to the uncertainty of the true valuation of the property at the relevant date and to the unavoidable need for a degree of speculation.

[10]      It is not disputed that MF provided loans totalling £50,000 to fund the purchase and construction of the property and that the pursuer has repaid his father from the inheritance he received from his uncle and that that has the potential to justify unequal division, having regard to the provisions of s. 10(6)(b) of the 1985 Act.  Inherited funds are not matrimonial property but the effect of what the pursuer did was to use these funds to leave the matrimonial home in joint names free of all encumbrances except for the rural housing burden as at the relevant date. The defender does not seek a share of inherited funds but of matrimonial property. The question is begged whether MF would ever have sought recovery of the loan had the defender not insisted that the pursuer should repay him. In any event, had the pursuer repaid a commercial loan in the same circumstances, it would be an matter for the exercise of the discretion of the court to determine what account should be made of the source of funds used to repay such a loan and I see no material difference merely because the loan came from a family member rather than a commercial source. The Scottish courts have been unenthusiastic in regarding joint ownership of the matrimonial home as something to be interfered with to reflect a source of funds for its purchase argument, c.f Jacques v Jacques 1997 S.C. (H.L.) 20 in which the point was made strongly by Lord Jauncey of Tullichettle that the new statutory provisions contained a presumption in favour of equality in the division of net matrimonial property and Lord Clyde was not persuaded that the court of first instance necessarily had to take into account a source of funds argument where title to a matrimonial property was in the joint names of the parties, and Cunningham v Cunningham 2001 Fam L.R., where Lord Macfadyen decided that money used to purchase a matrimonial home was devoted in a particularly clear way to matrimonial purposes, in refusing to grant an order for unequal division where the husband had been the primary contributor to the price of the matrimonial home, reflecting the theory, at least, that marriage is supposed to be a partnership. I can see no distinction between a loan to meet the costs of construction of a property and a loan to meet the purchase price.  Separately, it can be argued that the position of joint ownership reflects the defender’s non-economic contribution to the family by caring for the children and in doing so reducing her own capacity to work and earn. Further, having regard to section 9(1)(c) I am obliged to ensure that any order I make is justified by the principle that any economic burden of caring, after divorce, for a child of the marriage between the parties should be shared fairly between the parties. Given what I have otherwise determined, the defender will have the economic burden of caring for TF for the next ten years and MF for the next twelve years, at least, and that is another reason for refusing to exercise discretion in favour of the pursuer to award an unequal division of matrimonial property in his favour and so I shall refuse to do so. Taking £160,000 as the net value of the house at the relevant date and adding in the balances of the four bank accounts produces a figure for the net value of matrimonial property of £172,047.29, half of which is £86,023.65. To divide the net value equally, were the defender ordered to transfer her interest in the matrimonial home to the pursuer, would result in the need for a balancing capital sum to be paid to her in the amount of £74,156.43 which is what I have ordered. It follows that I do not agree with the basis upon which counsel has sought to assess the value of the house nor her approach to dealing with the loan from MF for the reasons I have just stated. In addition, the evidence on the balance of probability demonstrates that it is unlikely that the house will be sold. The grant will not have to be repaid and the right of pre-emption will evaporate after the tenth anniversary of the payment of the grant i.e. within four or five years.

[11]      In any event, the fact that he is not being required to meet any costs to maintain his children should permit the pursuer to save the costs of a return flight and accommodation in Australia on an annual basis and the consequences to him of relocation do not amount to a special circumstance justifying unequal division of matrimonial property.

[12]      MF said quite clearly that he was in a position to help the pursuer pay a capital sum to the defender provided that was in exchange for a transfer of her interest in the property to the pursuer, which she is prepared to undertake. It seems therefore that the pursuer will have the resources to meet the payment of the capital sum. If however his father does not assist him, then he will require to meet the capital sum from the sale of the property. One way or another, the orders I have made are thus reasonable having regard to the resources of the parties.

 

Relocation:

[13]      The concession that the pursuer was no longer seeking a residence order requiring the children to reside with him and that he could not oppose an order whereby the children would primarily be resident with the defender, but in Scotland, came only at the conclusion of the evidence and while the concession was properly made, it would have shortened this litigation considerably had it been made at the outset of the proof and on the evidence led by the pursuer it is difficult to see how he could ever have argued that he should become the primary carer of the children. In my opinion, that concession now meant that the focus of the dispute between the parties was on whether it would be better for the children to relocate with the defender to Australia or to remain in Scotland residing with the defender with the pursuer having regular contact with them. The question for me came to be which of these two alternatives would produce the better outcome having regard to the welfare of the children as the paramount consideration.

[14]      I have not found this an easy question to answer. There is now a growing jurisprudence on the question of relocation, consideration of most of which seems to lead to the conclusion that the decision will depend upon the circumstances of each case. In my opinion, the starting point for consideration of the jurisprudence remains Sanderson v McManus 1997 S.C. (H.L.) 55, although it now requires to be acknowledged that the decision was taken in relation to litigation prior to the implementation of the Children (Scotland) Act, 1995 and most certainly prior to the Family Law (Scotland) Act, 2006 which has for all practical purposes extinguished the distinction between married and unmarried fathers, which has been taken yet further in the decisions both in the Court of Session and the Judicial Committee of the Privy Council in The Principal Reporter v K, 2011 S.L.T. 271. Consideration also has to be given to the United Nations Convention on the Rights of the Child which came into effect on 2^nd. September, 1990, though in my opinion the least cited but most important provision for the Scottish courts is that contained in para. 41 which I have set out above.

[15]      In Sanderson, Lord Hope of Craighead opined that (page 57) “The resolution of a dispute about access is in almost every case a matter for the court of first instance. So much depends on the facts and on the impression which is made on the judge by the parties to the dispute when they come to give evidence. An appeal court which has not had the advantage of seeing and hearing the witnesses will always be slow to disturb the decision which has been taken on the facts by the judge.” The impressions made by both the pursuer and the defender in the present case are indeed important to the outcome. Lord Hope also made the point that no case of this nature has a final decision, because the children’s welfare remains open to further consideration throughout childhood and on a change of circumstances. That may be less so in a case where relocation to the other side of the world is a central feature. Sanderson’s case had to be determined on legislation which predated the coming into force of the Children (Scotland) Act, 1995, having regard to the provisions of section 15(2). But it was still the law as provided by s. 3(2) of the Law Reform (Parent and Child)(Scotland) Act, 1986, that the welfare of the child was to be the paramount consideration in relation to any private law decision affecting a child and that an order should only be made if it were in the child’s interests to make an order rather than making no order, so, broadly speaking, in my opinion the test has not materially changed. Under both Acts, the court had conferred upon it the discretion to make such orders in relation to parental rights and responsibilities as it thought fit, and that is a very wide discretion. At page 62, Lord Hope made it clear that “the onus is on the party who seeks such an order to show on balance of probabilities that the welfare of the child requires that the order be made in the child’s best interests. It is of course true, as Lord Weir pointed out in this case, that questions of onus usually cease to be important once the evidence is before the court. The matter then becomes one of overall impression, balancing one consideration against another and having regard always to the consideration which has been stated to be paramount. The court must however be able to conclude that it would be in the child’s best interests that the order should be made. If it is unable to come to that view, the proper course for it to take is to make no order.” In relation to the importance of the natural link between child and parent, at page 63, he said, “The more fundamental question, however, is whether the natural link between the child and his parent is so important that the court must always seek to preserve it unless there are strong reasons to the contrary. Whatever may have been the position at common law, the effect of s. 3(2) of the Act of 1986 has been to remove any rule or principle to this effect. Lord Dunpark had already recognised the fallacy in this approach, once the welfare of the child was made the paramount consideration, in the opinion which he delivered in Porchetta v Porchetta 1986 SLT 105. In that opinion…..he said that a father does not have an absolute right to access to his child, that he is only entitled to access if the court is satisfied that that is in the best interests of the child, and that the onus to show that is on the father who seeks access…………I consider that the effect of s. 3(2) of the Act of 1986 is to show that the approach taken by Lord Dunpark is the one which should now be adopted by the court.” And at page 64, “But these considerations only serve to emphasise that the facts of each case may vary from one extreme to the other and that there will be an infinite variety of circumstances in between. The relationship between the natural father and the child can never be dismissed as irrelevant. The natural relationship is a fact of life which it will always be proper to take into account. But the importance which is to be attached to it must vary according to the circumstances. This is a matter which must be decided not by applying any presumption but upon an evaluation of the evidence. As with any other factor which the court is asked to take into account, the question is whether contact with the parent has something to offer which is likely to be of benefit to the child’s welfare. The question must be examined from the point of view of the child. It may normally be assumed that the child will benefit from continued contact with the natural parent. But there may be cases where it is plain on the evidence that it has nothing to offer at all. There may be other cases where the evidence will show that continued contact is likely to be harmful. Whatever the view which is taken on this matter in the light of the evidence, the child’s welfare is paramount. The decision of the court will depend on its analysis of all the factors which bear on the question what is in the best interests of the child.”

[16]      At page 65, Lord Clyde added:-

“One factor which unquestionably has to be considered by the court from which a parent seeks an order is that of maintaining the link between parent and child. In many cases regarding opposed orders for custody or access that consideration will be at the heart of the dispute. In many cases it may well be proper to regard it as a factor of the very greatest weight. On the other hand the unusual case cannot be excluded where in all the circumstances it may be proper in the interests of the child to exclude access to a parent. Thus, for example, where there has been no absolute commitment to a lasting relationship, as may be affirmed by a marriage, and where the relationship as a result of which the child came to be born has terminated, and where the mother has entered into a new relationship which is intended to be permanent and which can provide the child with a secure background, there may be circumstances where that unusual course of refusing access to the father may be justifiable in the interests of the child. Article 9.3 of the United Nations Convention on the Rights of the Child indeed recognises that the right of the child to maintain regular relations and contact with both parents is subject to exception where that would be contrary to the child’s best interests.”

 

Lord Clyde’s illustrations are plainly different from the present situation, but it is interesting that he selected the stability of the new relationship between a natural parent and a new partner as in an appropriate case potentially justifying the refusal of a contact order.

[17]      Turning then to the burgeoning jurisprudence on relocation, I start with the now well known and extraordinarily helpful judgment by my colleague, Sheriff N.M. P. Morrison Q.C., in M v M 2008 Fam. L.R. 90. In that judgment he listed a number of factors, accepting always that there might be others, as follows:-

(a)     the reasonableness of the proposed move abroad;

(b)     the motive of the parent wishing to take the child abroad;

(c)     the importance of the contact with the other parent;

(d)    the importance of the child’s relationships with siblings, grandparents or other members of the child’s extended family who would be being left behind;

(e)     the extent to which contact would be able to be maintained;

(f)     the child’s views;

(g)     the effect of the move on the child;

(h)    the effect of the refusal of the specific order on the applicant;

(i)      the effect of refusal on the welfare of the child; and

(j)      whether it would be better for the child for an order to be made than that no order be made.

[18]      I will return to some of his more detailed observations on the operation of some of these factors when considering their applicability to the present case.

[19]      The next case in the order of date of judgment is M V M 2012 SLT 428. Frankly, I find this a difficult judgment which seems to me to fail to recognise some of the real issues faced by a sheriff and in particular the desirability of reaching a conclusion about the welfare of children sooner rather than later and the inevitable difference in the standard of evidence available to support the status quo on the one hand and to speculate about the effect of a relocation on the other. Suffice it to say that it makes it very clear that the decision of the Court of Appeal in England in Payne v Payne [2001] 2 W.L.R. 1826 has no application in Scotland and that the welfare of the child is the paramount consideration. However, at para. 53 they did state, “We acknowledge, of course, that there might be cases in which significant – even dominant – weight would incidentally attach to the reasonable relocation plans of a residential parent. By way of illustration, a remarried mother in a stable and settled household might have little option but to consider a move abroad, or to a different part of the UK, for legitimate family or employment reasons. The proposed move might offer children demonstrable advantages. They might be of an age and maturity to support it for themselves. Continuing contact arrangements might not be a major issue. In such circumstances the court might well be inclined to support the mother’s freedom to take the course proposed; standing in the way of such a move might evidently risk significant adverse consequences for the mother and for others in the household; and a conclusion along these lines might even more easily be reached if, for instance, children were not thriving at their present school……..What matters, in this case as in any other case, is that the welfare of the children must at all times be the paramount consideration, and that the wishes and interests of either parent must receive no greater weight than they truly deserve in the circumstances.”

[20]      Of greater benefit to me was the judgment of the Court in MS v SS [2012] CSIH 17, given by Lady Paton, though I observe that Lord Emslie was a common participant in this case as in the previous one though the tone of this judgment on the important matters of the significance of the relocation to the primary carer on the one hand and of the significance of the continuation of contact with the non-resident parent on the other is noticeably different, making the point that each of these are factors along with other factors to be weighed in the balance of the judge of first instance having regard to the welfare of the children as the paramount consideration. In the judgment of the court, the potential benefits for the welfare of the parties’ child from a successful relocation were recognised and considered to outweigh the negativity of the defender’s obstruction of relocation and poorly considered means on his part by which successful contact could be continued. As it was put in para. 32 of the judgment, “We can see nothing wrong, for example, with the sheriff’s conclusion that the preservation of B’s (the child) current relationship with the defender (father) was overall of lesser importance than the maintenance and development of his primary relationship with the pursuer (mother seeking relocation) as the “bedrock” of his life.” One issue that has caused me some concern in the present case, given the terms of s. 11(7)(b), is the complete absence of any evidence of the views of the children in the present case or of any attempt to ascertain them. On the contrary, parties were agreed that the children should not be told of the possibility of relocation until the decision of the court was known. Given that they were six and four respectively when the bulk of the evidence was taken, and given the statutory requirement to take account of the children’s ages and state of maturity, I do not believe that I would have been able to attach much significance to any views either of them may have expressed, given their necessarily limited understanding of the consequences, one way or the other, of any preference they may have. Indeed, this is a rare illustration, in my opinion, of the parties having acted sensibly and fairly both towards each other and, more importantly, having regard to the welfare of each of the children, by not raising false hopes or anxieties which would inevitably have affected them had they been told about the relocation proposal. Implicit in the decision of the Court in MS v CS, is a recognition that causing unnecessary alarm and distress to such young children would be counter-productive and is to be avoided. I am happy to adopt that approach.

[21]      I have also considered the judgment of Sheriff Scott Pattison in AB v CD, a judgment of 22^nd. February, 2012 in F477/10 at Aberdeen Sheriff Court. The circumstances of that case had some features which are replicated in the current case, particularly the sense of isolation and lack of support felt by the mother seeking the order to relocate, and the associated anxiety and stress occasioned by being in such a position when alternately there is good support on offer from family and friends in the proposed destination, Nova Scotia in that case. This is a subject to which I will return but I was encouraged to note the prominence attached to such considerations in this judgment, while remaining clear that each case must be determined on its own facts and circumstances with the welfare of the children being at all times the paramount consideration and viewing the facts and circumstances from their perspective.

[22]      Finally, I considered the judgment of Sheriff Vinit Khurana in GS v YS, case A333/10 from Dundee Sheriff Court dated 27^th. August, 2013, a case in which I had some involvement prior to my repositioning to the West Highlands, where the mother was a Belarusian and the father was Dundonian, the couple have initially “met” online. Sheriff Khurana’s decision granting inter alia the relocation order was appealed to Sheriff Principal R.A. Dunlop Q.C. who refused the appeal and adhered to the sheriff’s decision. The child involved, a daughter, was only 4 at the date of the initial judgment and the parties’ relationship, albeit one of marriage, broke down in just over two years so that the child had lived in family with her parents for only just over a year. The father had an alcohol related problem and that appeared to be a determining factor as it created a situation in which his support for the mother and the child was limited and the mother became depressed as a consequence of feeling isolated and unsupported, a similar theme to that arising in Sheriff Pattison’s case in Aberdeen and the present case. On a consideration of all the other factors relevant to the child’s interests, Sheriff Khurana found little between life in Dundee and life in Minsk and so effective family support for the mother was a critical consideration in determining the outcome. With regard to the judgment of Sheriff Principal Dunlop upholding the sheriff’s decision, the focus primarily was on the considerations permitting an appellate court to allow an appeal against a judgment which primarily comprised of an assessment of competing facts followed by a balancing exercise of discretion in the absence of the sheriff coming to a conclusion which was plainly wrong. I observe that, though the matter was raised by the appellant, there was no criticism of treating what might be described as the welfare of the mother as a factor to be taken into account, and arguably in that case into critical account, in the course of the discretionary balancing exercise.

[23]      I turn then to the factors to which I should have regard in the present case in determining the specific issue of relocation. Before doing so, I should state that I was not wholly impressed with either of the parties to this litigation, for reasons which will become clear. There were a number of stark issues of credibility. They each demonstrated a tendency to blame the other for the breakdown of the relationship. The pursuer blamed the defender for TF’s behavioural problems, an issue of considerable significance to the outcome. The defender was in too big a hurry to ascribe alleged failures in child care to the pursuer and to try to invoke the assistance of various authorities including the school, the doctor and the social work department. Ultimately, however, the defender’s position, which I accept, was that from her perspective the only downside to relocation to Australia would be the loss of frequent, meaningful contact between the children and the pursuer, which was a fair acknowledgment of the importance of that contact to the children and was counter-productive to the ambition of her specific issue crave, and that was very much to her credit. Generally, I was able to form the opinion on the evidence that, despite criticism from the pursuer and members of his family, the interests of the children would be better served by them being primarily resident with the defender, something which the pursuer himself ultimately conceded, and that that fact was of far greater importance in the balancing of factors for and against relocation than the importance of continuing regular contact between the children and their father.

[24]      The pursuer was an Englishman, born in the Midlands, where he had been brought up by both parents, who were still together and each aged about 70, with one sister who was older than him. His father was a successful businessman and the pursuer benefited from a comfortable and caring home lifestyle. He remained in close contact with his parents, sister, brother-in-law and their daughter. He was a carpenter to trade. For some time he had been working on a self-employed basis as so many people in the construction industry now do. His current declared earnings of £8,150 per annum appear low – the National Careers Service suggests online that a carpenter or joiner should be able to command a starting salary of £18,000 per annum - and may reflect a certain disinclination to work hard though there was a body of evidence from which it could be concluded that he always came home from work tired and spent significant amounts of time asleep on the couch. He liked to socialise, though not to any excessive extent, and he continued to use herbal cannabis and cannabis resin each of which he regularly smoked. He enjoyed outdoor activities including hill-walking, camping and fishing. He and the defender shared outdoor interests and had cohabited for a period of about six years as I understood the evidence prior to their marriage in Las Vegas in January, 2003. The defender was Australian, now aged 42, having been brought up in the Melbourne area. She had a degree in business studies from tertiary education in the Melbourne area but had rarely used the qualifications she had obtained. Her parents had separated when she was quite young and she remained with her mother but saw her father for weekend contact. While her relationship with her father was not close, she attached importance to the fact that she had had this opportunity to remain in touch with him and she did remain in touch with him at the present time, though her primary supporter throughout her life had been her mother, to whom she was very close. She had come to the United Kingdom when she was in her early 20s. There was some suggestion that she made this choice on account of friction between her and her mother. Whatever may have been the case then, and there would be nothing novel about friction between a young woman and her mother, they now had an extremely supportive albeit long-distance relationship. She had had a variety of jobs in her time in the UK, most of which had been spent in Scotland. She had worked as gardener employed by Highland Council and was later employed by their Roads Department where, among other tasks, she drove snowploughs. She was in the course of completing an Open University degree on modern languages. She said that she loved the scenic splendour of Scotland and she and the pursuer had enjoyed hill-walking and camping together but her life changed beyond anything she had anticipated when her first child, TF, was born, since which time her attitude both to the pursuer and to life in Scotland had changed for a variety of reasons. His misuse of controlled drugs was no longer tolerable. His disinterest in his infant son was distressing. His unwillingness to do anything to assist her with child-care or to provide her with adequate financial support left her feeling isolated and a long way from home, really for the first time since she had left Australia. Sometimes the pursuer worked away from home but her reality was that whether he was at home or not she was left to get on with the task of looking after the children substantially on her own. The pursuer conceded that he could not cope with the care of infants and did not become involved. What he did do, however, substantially by himself, was build a family home in the hamlet. He was very proud of this achievement. He did not really acknowledge the part the defender had played in organising all the finances and paperwork for the acquisition of the land and the contribution from the Trust, nor the practical help she had given in relation to the construction works nor most specifically how she had managed to undertake work as well as caring for her infant son while the house was being constructed and they were all living in a caravan, which work then was primarily gardening work, so that they had an income from which they could buy food and other household necessities, and during part of which period during which she continued to work, while she was pregnant with her daughter. A significant event was her finding out by accident from the pursuer’s sister that the pursuer was to inherit a sum of the order of £57,000 from the estate of his late uncle and that the estate was about to be distributed, at a time when she was working as a waitress for the minimum wage while almost nine months pregnant with her daughter and was exhausted. Unsurprisingly, she was distraught at not having been told that there was no immediate need for her to work. Matters deteriorated after TF started at nursery school. Apart from the practical difficulties of having to deal with one young child at nursery and another at home, she began to receive complaints about TF’s behaviour at nursery, involving him being physically violent in a number of ways towards other children. This was another battle, at least as she saw it, that she was left to fight on her own without support from the pursuer. She reacted to these complaints angrily and continued to maintain in her evidence that that was justified, though the affidavit of the head teacher at the nursery portrays a rather different picture of the defender’s attitude being one of not being prepared to allow anyone else to tell her how to bring up her children and as “bristling” and as “aggressive and dismissive of my staff.” In the same affidavit, the head teacher speaks of seeing the pursuer with the children, describing him as a pleasant, helpful, hard-working member of the community who was a “caring and supportive” father whose children responded to his calm caring approach. However, without consulting the pursuer, which itself casts light on the importance the defender attached to his opinion at this point in time, the defender transferred TF to a different nursery where he progressed and apparently did not cause the same level of disruption as at the first one. TF was then enrolled at primary school, a school with less than 20 pupils in two composite classes, where again a catalogue of physical violence began to be compiled but was added to by episodes of what was described as “lavatory language” in the classroom, disruptive behaviour especially during P.E. lessons and a significant episode of inappropriate sexual behaviour shortly prior to his sixth birthday in May 2014. The defender and the children had left the matrimonial home in May, 2013 and were in rented property comprising two bedrooms, living room and kitchen, in part of a house and was by then embroiled in this litigation as well as trying to deal with TF’s behavioural problems and undertake some part time work to have some money to keep the children and herself and it is perhaps no great surprise against all this background, even before we consider the adequacy of the response of professionals to TF’s behavioural issues, that the defender’s attitude to life in Scotland was dramatically altered. It was also perhaps unsurprising that at least from time to time she was on a relatively short fuse.  Apart from the fact of the separation from the pursuer, the only other thing that had changed, on balance for the better in her opinion, was that the pursuer was actually during contact periods showing some interest in his children and doing constructive and enjoyable things with them, though his undertaking of the exercise of contact was not without criticism, especially in relation to his behaviour towards her in the presence of the children at handovers.

[25]      Turning to the history of the litigation, it would appear that the initial writ was warranted on 20^th. February, 2014 on which date there was an interim hearing at which both parties were represented and, since no orders were made, it appears that I must have been told that there was no need for any court order at that stage as contact was taking place by agreement and the case was sisted to enable the defender’s application for legal aid to be processed. I should however record that at that early stage the pursuer gave an undertaking to the court not to molest either the defender or the children to avoid an interim interdict being granted and it has not been suggested that the pursuer has acted in breach of that undertaking in any material way. The sist was recalled on 7^th. May and a child welfare hearing took place on 28^th. May at which an interim contact order was made in favour of the pursuer involving the children being collected from school or nursery as appropriate to avoid face to face confrontation between the parties, a specific issue order was made to allow the children to be taken to Australia on holiday, and a holiday residential contact order was made in favour of the pursuer with an options hearing being assigned for 7^th. August. If it had not already been clear, it was patently clear at that date that this case would only be resolved after proof and 6^th. November was appointed as the first day for hearing evidence with the record being closed. The proof duly commenced on 6^th. November and proceeded until I made avizandum on 20^th. March, 2015.

[26]      I was bemused by the pursuer’s presentation at the proof. It was almost as though he were unable to grasp what was happening and that there was a very real risk of the court making a specific issue order allowing the defender to relocate to Australia with the children. He had, for example, made very little effort to consider and cost how contact could take place if the specific issue order were granted. He had made no effort to ascertain whether or not he might be able to obtain a work permit visa for Australia should he choose to go and work there if an order were to be made. He ultimately conceded that he was not seeking more than a contact order to the children but was maintaining his opposition to the specific issue order by focussing on the disbenefits to him of such an order being granted rather than addressing the welfare of the children and the issues relevant thereto. He just generally appeared vague about the whole process. His position appeared to be that the present status quo should continue. He denied being responsible for the poor relationship between himself and the defender but I am not in any doubt that he was deliberately obstructive in agreeing to the children going to the defender’s brother’s wedding in Thailand, that he did not adhere to times fixed by court order for the conclusion of contact periods and that there were times when he was abusive to the defender. Of more concern was his attitude to TF and TF’s difficulties, best expressed by the mantra ascribed to him by the defender which I consider did accurately reflect both his position and attitude that “there’s nothing wrong with my boy,” when there plainly was. He did not co-operate in setting and maintaining boundaries and disciplinary processes for TF. He did not provide relevant information to the defender or professionals involved with TF about illustrations of behaviour which would have informed professional input. In relation to the inappropriate sexual behaviour by TF, he did not seem to understand why there was a fuss about this and how it involved him in attempting to influence TF to change for the better. He claimed, for example, to be familiar with the “Golden Rules” used at school but he was quite unable to tell me what any of these were and what he was doing to apply them. I accept that he was not the primary carer of the children while the parties were together and I accept that when he tried to intervene in matters pertaining to the regulation of the behaviour of the children he was instructed not to do so by the defender and so it seems he gave up doing so but he had no plan as to how he would help TF to change from his present unacceptable presentation and that was a matter of grave concern for me.

[27]      The most disturbing aspect of this case was the evidence about TF’s behaviour and the inadequate response of both parents and professionals in attempting to address this. The latest edition, so far as I am aware, of their guide to “Getting It Right For Every Child” (“GIRFEC”) was published by the Scottish Government in June 2012. The guidance refers to eight keywords, safe, healthy, achieving, nurtured, active, respected, responsible and included as being the belief as to what every child is entitled to be. In the present case I have concerns about the safety, nurturing, responsibility and inclusion of TF and, by association, MF, having regard to the current living arrangements. I am in little doubt that the defender is primarily responsible for TF’s poor behaviour through a combination of her failing to set appropriate and reasonable behavioural standards for him at an early age and by having some very silly ideas both about what style of behaviour was appropriate, with particular reference to nudity beyond an age and stage of development where it was appropriate and socially acceptable, and in relation to discipline, and about who was responsible for TF’s bad behaviour, blaming school teachers and other school staff and pretty well anyone other than herself. Two witnesses gave very good illustrative evidence about this and I regarded both of them as credible and reliable. The first of these was SJ, the 16 year old cousin of TF and MF, who was a delightful and remarkably measured young woman and who was clearly very fond of both children. She spoke of last seeing the children in the summer of 2013 after their parents’ separation at the defender’s home. They had been playing on the beach and when they came home both children immediately took all their clothes off. They were returning her to the pursuer’s home and as they got ready to leave, TF attempted to climb through a serving hatch between the kitchen and living room of the house, an act that was both stupid and dangerous. SJ stopped him and he began to cry. She carried him out to the car where the defender promptly took him back into the house and allowed him to jump through the hatch. SJ had been surprised and distressed by the defender’s attitude. She also remembered another occasion when TF had thrown an apple from the car which struck the windscreen of another vehicle, causing the defender to call out, “Good shot, TF.” These are not the behaviours of a responsible mother. The second witness was AN, a local resident with two children aged 6 and 4 at the material time. She and the defender had been pregnant with their second children contemporaneously and had thus got to know each other. For a while after the children were born, they were mutually supportive, going for walks together or meeting up at each other’s houses, but she became increasingly concerned about TF’s rough behaviour, as she described it, and scratching in particular together with the defender’s inability to control him. She offered advice to the defender but found that the defender was not receptive to that advice. She recalled one time when they were all out for a walk and her younger child tripped and fell to the ground. TF’s response was to run up to him and kick him in the face, a wholly unprovoked and gratuitous assault. She also observed “stripping off.” She was very aware of a significant improvement in her children’s behaviour while TF and MF were in Australia on holiday. She told the defender she wanted to reduce the level of contact among the children but the defender continued to seek her out. Then one day when TF was supposed to be in her care, he suddenly ran out into the middle of the main road. At that point, AN had had enough and told the defender she wanted nothing further to do with her or the children.

[28]      The Scottish Government’s mission statement for GIRFEC reads, “As children and young people progress on their journey through life, some may have temporary difficulties, some may live with challenges and some may experience more complex issues. Sometimes they – and their families – are going to need help and support. No matter where they live or whatever their needs, children, young people and their families should always know where they can find help, what support might be available and whether that help is right for them. The Getting it right for every child approach ensures that anyone providing that support puts the child or young person – and their family – at the centre. Getting it right for every child is important for everyone who works with children and young people – as well as many people who work with adults who look after children. Practitioners need to work together to support families, and, where appropriate, take early action at the first sign of any difficulty – rather than only getting involved when a situation has already reached crisis point.”

[29]      Without seeking to minimise the failures on the part of both parents of the two children in this case, I cannot help but observe that Highland Council’s Education and Social Work Department and NHS Highlands Paediatric Service have failed to meet their responsibilities as set out in the foregoing mission statement in relation to TF and, by association, MF, and I have grave reservations about the contribution, such as it was, of the Police Service for Scotland. There was a substantial body of evidence from a variety of sources from which it would have been possible to conclude on the balance of probability that TF was beyond the control of any relevant person – see s.67(2)(n) of the Children’s Hearings (Scotland) Act, 2011. That evidence and the source of that evidence included the following:-

(a)  The affidavit of the 56 year old head teacher of the primary school including the nursery unit at [a location in Lochaber]. I was told that the defender’s agent had been supplied with a copy of this affidavit in advance of the proof but the head teacher was not called as a witness. The defender made some effort to portray the head teacher as out of touch and biased, so she should have been called as a witness. I see no reason to doubt the sworn statement of this experienced school teacher who described TF as having “behavioural issues” from the time of his admission to the nursery unit including lashing out, hitting, nipping and biting with specific reference to a classroom assistant recording that TF had “sunk his teeth” into the arm of another nursery child. TF attended there between September, 2011 and June, 2012, during which period there were 27 recorded episodes of violent behaviour on TF’s part. The head teacher’s attempt to set up a “Focused Solution” meeting in relation to TF was obstructed by the defender who claimed that TF was stigmatised by her staff, an allegation she strenuously disputed. The defender’s solution to the problems identified by the head teacher and her staff was the removal of TF from the nursery and his relocation to another nearby nursery. This first opportunity to address TF’s issues professionally was thus avoided by the defender and so his problems remained unaddressed. Of concern to me having regard to the decision I now have to make was the head teacher’s evidence that other parents were threatening to remove their children from her nursery on account of TF’s behaviour. At the age of three he was already notorious. BM, a neighbour of the pursuer, worked as an assistant at the first nursery and described an occasion on which she had to act as a human shield to prevent TF biting another child. She was another credible and reliable witness.

(b)  The evidence of AN, who I regarded as credible and reliable, set out in Para.19 above, about TF kicking her son in the face after he had fallen to the ground, in what was a completely unprovoked assault. She also spoke about TF running out into the main road while in her care and about other less significant episodes of bad behaviour on the part of both TF and MF.

(c)  TF commenced his primary education at a Lochaber primary school in August 2013. I heard evidence from the head teacher there, MM, who was generally credible and reliable. She accepted that she had had information from nursery about TF’s behavioural issues. From the outset, he engaged in lavatory language, insisted in making very close contact with other children, and engaged in pulling down other boys’ pants. In particular, in September 2013 there was an incident with a boy named C. He and TF had an argument and C came to be on the ground. When he was on the ground, TF kicked him on the temple.

(d) In May 2014, TF was involved with a primary one girl in what became known as “the licky bum game.” While the evidence about what precisely occurred was poor and indecisive, no one calling the person who had actually seen the event occur, for example, to give evidence, I consider I am entitled to conclude on the balance of probability that TF had been involved in licking the vagina of this girl. Asked in the immediate aftermath by MM where this had come from, TF said that he had made up the game, that he had done it before “under the covers,” that his mother knew that he did this and that he had tried to do it with MF but she got grumpy and went off in the huff. MF told the defender, early in June 2014, that TF had tried to get her to play the “licky bum” game with him during a contact period at the pursuer’s home during a contact visit and that “Daddy had shouted at TF.” Asked by the defender what had happened, TF claimed that a boy called H had pulled his pants down and told him to do it. The defender reported both of these incidents.

(e)  Despite being caught with the girl and the ramifications such as they were of so being caught, TF continued to use lavatory language and was reported to be playing with his exposed genitalia in the boys’ toilets. He also continued to touch the genitalia of other boys. He continued to exhibit physical aggression towards other children. He kept touching the fire extinguisher. He was frequently excluded from PE on account of his disruptive behaviour. MM was very clear that his behaviour was deliberate and not ever involuntary.

(f)  The pursuer’s father, MF, who I regarded at least in this respect as credible and reliable, told me that there were times when he regarded the behaviour of TF and MF as being out of control. He had seen both children sitting on the beach playing with their genitalia and the defender doing nothing about it.

(g)  The evidence of SJ, narrated at para 19, about the kitchen hatch and apple incidents. She also spoke about them swearing in public places, narrating that TH would say, “For fuck’s sake, A [father’s Christian name],” and that she had heard MF say, “Pass the fuckin’ salt” in a restaurant.

(h) KG, a support worker with Highland Council Social Work Department, who was 61 and had a vast range of experience of working with children and their families, and who I regarded as an impressive, credible and reliable witness, told me that the pursuer had told her of an episode which seemed to have occurred on 3rd. January, 2015 (while this proof was in progress) at the pursuer’s home when a friend and his son had been visiting and TF asked the other child to sit beside him on the sofa so he could “lick his bum.” The other boy declined and was then asked if he was “too scared to do it.” The parents then intervened.

(i)   The defender spoke to KG about occasions since May 2014 when TF had spat phlegm in another child’s face and, separately, had urinated on another child while playing in the park.

(j)   EM, a community staff nurse who was a neighbour of the pursuer, described a recent occasion when she had seen the children at the pursuer’s house when MF, who was not wearing any underpants, had put her bottom right into TF’s face.

(k)  DJ, a 52 year old development manager, and the parties’ brother-in-law, who was a likeable and fair witness, spoke about having seen MF with her fingers in her vagina, apparently playing with herself, as he put it, when she was about three. The defender said that she was just being playful. He had also seen TF playing with his penis, making shapes with it, and on one occasion had seen him at the dinner table when everyone else was around, put his penis into a bowl of pasta. He described TF as “going off the radar” when told he was not allowed to do something.

(l)   The children’s aunt, JJ, who was clearly very fond of the children and who had been supportive of the defender in the immediate aftermath of the births of each child notwithstanding that she lived 400 miles away, told the court that the children did not understand that their private parts were private. She told me that when she had been visiting her brother in the summer of 2013 and TF had been present, a neighbour’s wee girl had approached her and said, “Excuse me, but TF is showing his penis.”

(m)      The day after TF had been seen at Belford Hospital, Fort William, by a paediatrician, the pursuer e-mailed the defender informing her about an episode at his house about two weeks earlier involving TF and a boy called R where TF had asked R if he wanted his bum licked. When R said “No” TF had asked him if he was scared. Information about this episode had been given to the school and that appeared to be the only reason the pursuer was telling the defender about it.

[30]      While some of these events post-date the “bum-licking” episode of May, 2014, it is clear that, on fairly superficial investigation, a plethora of information would have been available which would have caused considerable concern to the average professional social worker involved in child care. I am at a loss to understand how the social worker in this case could properly have come to the conclusion that there was no need to open a case in relation to child concern for both TF and MF. I am at a loss to understand how MM could have failed to seek professional help for TF by requesting that he be assessed by an educational psychologist. What was of particular concern to me was that she, despite being the designated child protection officer for both two local primary schools, had no idea what to do when a child protection issue arose, as they do, starkly and suddenly, immediately before her involving TF. As I understand it, and the social worker confirmed that it was her understanding too, MM should have known immediately on the information about TF’s bum licking activity, whatever precisely that may have comprised, becoming available to her, that she should have contacted Highland Council Social Work Department, and not the parents of the children concerned, and should have allowed them together with the police to carry out such investigation as they deemed appropriate, untainted by the involvement of any parent. It should be well known to anyone responsible for the care of children that the kind of behaviour, i.e. licking the genitalia of another child, in which TF is said to have engaged, is not natural. But the only professional who immediately recognised this and immediately issued a child care concern was the child’s general practitioner to whom it was immediately obvious, as it should have been to all the other professionals involved or who came to be involved, with this child, that this was learned behaviour and the primary object of any investigation with a view to ensuring the future protection of the child should have been directed towards ascertaining from what source this behaviour had been learned. For the avoidance of doubt, I would not have expected the general medical practitioner to have attempted any such investigation, but it was patently the function of the social work department and the police to attempt to do so. I have to be conscious of the fact that this is not an investigation into the adequacy of social work or police services on any general basis. In particular, I have no direct evidence from any police officer. But from my experience elsewhere, I am not in the slightest doubt that in relation to the response to the known circumstances here in terms of investigating the source of TF’s learned behaviour, the efforts of the social work department and the police were so inadequate as to be almost non-existent. It will not do for either of these services simply to conclude that both parents seem decent folk so we do not need to do anything further. Many people who turn out to be paedophiles can present well. Nor is it an excuse that by the time they became involved it was too late to carry out a proper investigation since any investigation had already been tainted by the involvement of the mothers, at least, of each of the children. There was certainly a sufficiency of evidence to justify the detention of the defender in terms of s. 14 of the Criminal Procedure (Scotland) Act, 1995, a fact on which she may wish to reflect further in the fullness of time. Information about others may also have emerged. Doing nothing was not an option. Had the social worker opened a case for these children as she should have done, whether she or another social worker became their social worker, then the later information about TF's continuing efforts to engage in inappropriate sexual behaviour would have been collated by her and ought to have been shared by her with other agencies and it would have become obvious that the children should be the subject of a report to the Children’s Reporter. A superficial enquiry would have revealed TF’s history of violent and disruptive behaviour at school and elsewhere and I would like to think that any professional social worker would be aware of the high level of risk a psychologist would attach to an adult sex offender who engaged not only in sexual abuse but also violent conduct and would recognise that where a child engages in both, that child is also at high risk and presents as a high risk to others. But the necessary enquiries were not made. It was disappointing and unique in my experience for the social worker to turn up at the proof without any notes or file on these children. It was disappointing that she said as she did in her evidence that she was unaware of any recent inappropriate sexual behaviour on TF’s part when she had been told by KG the day before she gave her evidence of a report of another attempt to engage in bum-licking by TF and in that, for reasons only she could explain, she deliberately misled the court.

[31]      MM appeared not to appreciate that, statistically speaking, most child abuse, particularly sex abuse, is perpetrated on a child by someone known to the child which is why the last person that you contact where there is a suggestion that a child is demonstrating sexually inappropriate behaviour is the parent. There is a training issue here for Highland Council Education Department for those appointed in schools as child protection officers.

[32]      I cannot leave the issue of criticism of professionals without expressing some concern about the position of the Community Paediatrician. Again I recognise that I did not have the benefit of his evidence in person but it is plain from his letter to TF’s general medical practitioner of 3^rd. July, 2014 that he had had the benefit of a careful referral document prepared by the general practitioner but nonetheless leapt to the conclusion that he was dealing with a case of inept parenting rather than anything more significant. While I accept that there is plenty scope for being critical of the quality of parenting by both of the parties to this litigation, that of itself does not explain TF’s inappropriate sexual behaviour, which behaviour was specifically drawn to his attention by the general practitioner in his referral letter and by the defender at the consultation. This appears to be ignored and there is no advice tendered and no referral to psychology apparently considered. Whatever criticisms may be able to be directed against the defender otherwise, I am satisfied on the evidence that by this point in time she had heard and reacted with considerable concern to the huge wake up call that TF’s bum-licking behaviour had been and that she was anxious to learn of any strategy that she might adopt to minimise the risk of recurrence. It ought also to have been obvious to a paediatrician that the behaviour TF was said to have participated in was learned behaviour and it is surprising that he did not make any enquiry of either party or of the social work department about the source of the learned behaviour. Perhaps some impetus to a proper enquiry might have arisen had he done so. I am afraid that the only proper conclusion to reach is that if this is typical of the response to a patently obvious child protection issue, then GIRFEC is not happening in the West Highlands and there is a great deal to be done to improve the services supposedly designed to protect children.

[33]      The upshot of all of the information contained in para. 20 for the purposes of the present litigation is that there is no argument for keeping TF in the West Highlands so that his behavioural issues can continue to be addressed effectively by professionals because his issues are not being effectively addressed.

[34]      A problem with every case involving a specific issue to relocate children is that the evidence about how their life may be in the new location is necessarily speculative in its nature by contrast with the actual evidence of the status quo. But I did hear a substantial body of evidence about what would be available in the State of Victoria in what might be described as Greater Melbourne from the defender, her mother and her mother’s present husband and in the affidavits from the defender’s sister-in-law, her aunt, her friend and HH, a friend of the defender’s mother and the prospective employer of the defender. Dealing briefly with the affidavits, the defender’s sister-in-law depones that the defender’s mother, her mother-in-law, is a “fantastic grandmother” well supported by her husband, and that the two of them involve themselves in her children’s activities all the time. She also depones about the significant support she gets from the aunt and how much all the children enjoy spending time in each other’s company. The aunt depones that she is a qualified nurse, aged 65, now working part time and involved otherwise in the care of her grandchildren. She would be willing to be involved in the care of TF and MF. She portrays a strong family set up, including an offer to use her beach house and making it available to the pursuer should he wish to do so during contact visits. The friend lives in the area where the defender proposes to seek a tenancy and could introduce her to local services, having three children of her own and is a person who has known the defender since schooldays. Her youngest child is autistic and she depones to the effect that he has had fantastic support within the state school system where the problem was first recognised. Finally, HH confirmed the offer of employment to the defender as an administrative assistant in their family lighting business where some of the work could be done from home and that the work would not involve any activity likely to exacerbate the defender’s existing problems with her neck and shoulder.

[35]      I was impressed by the defender’s mother. She took the time, trouble and expense to travel from her home in Melbourne to Fort William to give evidence and to support her daughter, the defender. That of itself tells me a lot about the level of support she already offers and is prepared to offer in the future. She had had face to face contact either in the UK or in Australia at least once a year with each of the children since each was born. She had paid for the airline tickets for the defender and the children to come to Australia following the separation. She had been instrumental in finding employment for the defender should she be allowed to relocate with the children to Australia. She had visited the prospective primary school with the defender and had had a discussion with the head teacher and knew that the school could accommodate the children and had access to specialist resources. She was able to tell me that the average temperature in Melbourne was 18 degrees centigrade. She told me that her grandchildren in Australia were all involved in a variety of sporting activities which she tried to support. The area where the defender hoped to find accommodation had a large park and a playpark and was about six kilometres from the beach. She explained that the salary on offer for the job, $55,000 Australian, would be enough to allow the defender and the children to enjoy a reasonable standard of living. She explained that the children were familiar with and comfortable with her husband who was good at telling them stories. She had a substantial family circle and a large circle of friends and a good social life into which the defender and the children could be absorbed. She and her husband would help with any education costs as they were both financially comfortable. The Australian health service was good, with both a good public system and a good private system funded by insurance. Her husband had been treated successfully for cancer through the public health system. He had a son currently working in London and so he would wish to visit London from time to time and that might be a means of bringing the children to have contact with the pursuer. Her husband, MH, who also travelled from Melbourne to give evidence and to support his wife and step-daughter, told me that he was a 64 year old chartered accountant who was plainly fond of the children and confirmed that he was in a position firstly to provide them with a place to stay on their arrival in Australia and who could provide both financial and practical support to the defender and the children for as long as necessary thereafter.

[36]      In addition, the defender produced a series of family photographs from Australia (6/2/1 of process) which seem to depict lots of happy, healthy looking children, together with photographs of friends and their children, including her own children playing with other children and appearing to be perfectly at home. From my perspective, what these photographs depict is a state of recognisable normality in that the children all appear well kempt and active and the homes depicted appear to be in good decorative order and child friendly. I particularly note that granny has a playroom. I further note that the photographs suggest that the family circle can accommodate people of all ages and that augurs well. There are also a series of photographs of the prospective primary school featuring children engaged in various activities and it looks like an entirely normal primary school. Between 6/1/8 and 6/1/18 there are lodged a series of mainly printed publications containing information about the school including that there is a large sports oval with football posts and a cricket pitch, a fully fenced tennis court and a basketball court, that there is a programme involving children and their parents in maintaining the school’s physical environment which ends with a barbecue, that there are facilities in the school for both performance and visual arts plus a large multi-purpose assembly hall used primarily for PE but also for assemblies and for a number of community activities including yoga and Tai Chi. The school also boasts a library, a kitchen and garden programme and a pizza oven. The list of school staff includes fourteen teachers plus ten education support workers, administrative staff, a kitchen specialist, a garden specialist and a visual and performing arts teacher. The school indicates that it has access to named student welfare officers and an educational psychologist and speech therapist. The Principal is said to be an expert in Special Education. I observe that the school curriculum features “Information and Communication Technology & Cyber Safety.” Details are also provided for out of schools care which operates daily from 07.00 to 18.00. Details of term times are also provided demonstrating that the “summer” holidays are taken from mid December until the end of January. The school is said to have a roll of about 180 pupils. Produced with the above documentation is a number of testimonials speaking to the quality of the school. From what I have seen and heard, particularly from MH, I am in no doubt that the children would receive a good primary education in this school. I am not going to say that TF has received a poor quality of education in Scotland but what is undoubtedly true is that both within the school and among the parents of the children in attendance there, he has become notorious and no matter how much he may improve were there to be appropriate intervention, in my opinion even at the age of six, he is saddled with a reputation for violence, disruptive behaviour and sexual impropriety which will stick with him and operate to his disadvantage throughout any continued primary education at his original primary school.

 

Submissions for the pursuer:

[37]      On behalf of the pursuer, it was submitted that a fair distribution of the parties’ matrimonial assets would be to make an order for the transfer of the house, by which I assume is meant the transfer of the defender’s interest in the house, to the pursuer and that he make what was described as a “balancing payment” of £26,657 by way of an award of a capital sum to the defender. Counsel’s starting point was that the matrimonial home should be valued by regard to the sum which the Housing Trust would require to pay to exercise their right of pre-emption at £117,000 and that the rest of the assets, including £4,000 in cash held by the pursuer, produced a total of £133,047 as the matrimonial property at the relevant date. From that amount, however, were the house to be sold, a £17,000 grant would require to be repaid. Whether or not the house was sold, there should be a departure from equal division of the matrimonial property on account of the pursuer’s contribution of £56,000 from his inheritance from his uncle’s estate. When that figure was subtracted from the matrimonial property, the resultant balance was £77,047 which meant that each party would be entitled to £38,524. The defender had retained £11,867 of matrimonial property and therefore the balance due to her was £26,657. I have already set out in paragraphs 3 to 11 of this note why I consider counsel’s submissions to be inappropriate and need not repeat what was said there.

[38]      In relation to relocation, it was the submission of counsel for the pursuer that the issue for the court is whether it is in the best interests of TF and MF that the current arrangements continue or whether the children should be allowed to emigrate to Melbourne with their mother without their father’s consent. Prior to reaching a conclusion on that issue, I required to consider the Children (Scotland) Act, 1995, especially sections 1, 2 and 11, the UN Convention on the Rights of the Child (in force from 1990), though she conceded that the provisions of the 1995 Act were consistent with the Convention so I was unclear what the value would be in having regard to Articles 3.1, 8., 9.3 and 12 to which she directed me, and to the authorities in M v M 2011 CSIH 65, which was to the effect that the welfare of the child was the paramount consideration and that the principle in the English decision in Payne v Payne 2001 2WLR 1826 did not form part of the law of Scotland, that there should be an evaluation from the child’s perspective of the importance of the current contact arrangements and the likely effect on the children if they were to see less of their father and others involved in their lives; that a useful summary of relevant factors could be found by reference to the decision of Sheriff Nigel Morrison Q.C. in M v M 2008 Fam LR 90, where he set out the test at para [4] and the factors at para [5] of his judgment and she referred to a number of sheriff court decisions including decisions by Sheriffs Reith, Holligan, MacFarlane and Halley.

[39]      So far as concerned the present case, she submitted that inappropriate behaviour had been a significant issue in relation to TF and continued to be. It was significant that the defender made no reference to concern about behaviour in her pleadings or productions and that she had opposed the pursuer’s motion to get a report from a child psychologist arguing that there was nothing abnormal about TF and that the granting of the motion would simply cause further delay. This, it was said, demonstrated a lack of candour on the part of the defender. Rather it had been the pursuer who had brought the concerns about the children to the attention of the court. The defender’s family in their evidence said that they were unaware of any inappropriate behaviour on the part of the children. Either that was dishonest or demonstrated a lack of candour on the part of the defender with them. In contrast, she submitted, the pursuer’s family were and always had been very involved and concerned, stemming from a genuine interest in the children’s well-being. She referred to the evidence of DJ who had observed that with TF behaving as he was at 6 it was a real worry as to what he would be like at 12. This concern caused the family to approach the social worker, not maliciously, but as a consequence of genuine concern. The defender saw this as malicious but the Social Work Department were already involved with TF after the incident at the school and the pursuer and his family had not invented cause for concern. The concern from the school pre-dated the May 2014 incident and related amongst other things to his lack of understanding of personal privacy but the concern was thereafter considerably racked up. These concerns remain. For the pursuer and his family, the concerns are greatly enhanced when contemplating the children’s removal to Australia to which proposal they are implacably opposed as this would cut off any meaningful input or support from the pursuer and his family.

[40]      Counsel then went on to rehearse TF’s difficulties at length, apparent, she said, since he entered nursery. The defender minimised these difficulties, aggressively asserting that TF was merely boisterous. She had opposed the admission of the head teacher’s affidavit into evidence but attacked its content without calling her as a witness. She thus minimised the problem attempting instead to present a picture of the nursery putting a label on TF which he then strove to live up to. The nursery had recorded 27 incidents of bad behaviour but the defender denied being aware of all but a few of these. She accused the nursery staff of withholding information from her when they would not identify the alleged victims. She claimed to have then prepared food charts for TF to see if there might be a dietary cause for his behaviour which begged the question why she would do that if his behaviour was not concerning. She objected to staff being used as human shields between TF and other children. She told the head teacher that this was psychologically damaging for TF. However, she claimed it was too early i.e. TF was too young for there to be any value in any outside psychological intervention. She would not co-operate with the child plan being devised by the nursery but rather substituted her own plan sweeping along the health visitor with her in what he described as his determination to do right. When she did not get her own way, she decided to consider moving to France. Friends of her had done so and her friend JG was planning a similar move. This is why she embarked upon obtaining British citizenship. She also moved TF to a different nursery without consulting the pursuer or informing the head teacher or anyone else at the original nursery.  By contrast, the pursuer did not think that the change of nursery was of benefit to TF. TF had friends at the original nursery and it was a good school. The pursuer was on good terms with the staff there. The staff did not have any difficulty dealing with him. He would always listen to what they had to say. He was good at calming TF down.

[41]      The defender claimed that there were no problems with TF’s behaviour at the second nursery though he was moved from the English to the Gaelic medium class “just as he was beginning to settle down.” He did not move on to the primary school there though that would have been possible and nearer home. The pursuer, on the other hand, said that problems continued but were not recorded as they had been at the first nursery. In counsel’s submission, the pursuer’s account was to be preferred given the continuation of problems into primary one and the evidence of TF’s out of school behaviour from AN.

[42]      At the primary school, there was evidence from the head teacher, MM, who also does some teaching of the class of which TF is a member, that he would invade the private space of other children, use lavatory language and be disruptive in groups. He had kicked an older boy on the head. The defender’s response was said to be to put him on a rocking horse and hold him there until his anger had subsided.

[43]      It was plain, said counsel, that the defender had problems with figures of authority. There had been several occasions when she had been confrontational at school in the presence of children. Her behaviour did not encourage TF to be respectful when at school, nor to respect school discipline.

[44]      There had been two occasions on which TF had been interviewed jointly by police and a social worker in relation to inappropriate sexual behaviour. The first was the episode of 13^th. May, 2014. A school assistant saw a primary one girl, [……] who is a good friend of TF’s, with her trousers down with TF kneeling beside her. They were in the trees a long distance from the school. The assistant went over and asked the girl if she had wet herself as she had the previous day. The girl said to TF that they had to tell the truth and that they had been playing the bum licking game. They had played it before under the covers. TF said his mum knew he played it and he had played it with MF but she got grumpy and went in the huff. The parents of the children were told. At this point, submitted counsel, the defender appears to have taken control of the matter arranging a telephone appointment with the GP and arranging meetings with the girl’s mother and the school. She conducted her own interviews of TF and MF telling TF that he was not in trouble but that this was very serious and telling him that he was good for telling the truth when in fact he had told her nothing of the incident. The complicated and mixed messages would have been confusing for TF and, submitted counsel, all he needed to know was that his behaviour was unacceptable and must not happen again. Her evidence about interrogating MF about this was strange to the point of being bizarre. It did not ring true. Her suggestion that MF would say that she refused to play the game and went off in the huff, using the same words as TF had used, was singularly unlikely. One was entitled to ask how the child would know what game the defender was talking about. The defender was not telling the truth about this. Her interference rendered the joint interview pointless. TF knew he was in trouble and would not co-operate with the process. In counsel’s submission, TF was maybe “overloaded” by his mother talking about it a lot. The defender, said counsel, is a woman who has a lot to say and says it with force and determination but with little consistency or coherence. Anyway, TF had not co-operated at the interview. The police did not take the matter further. The social work conclusion was that TF was not at risk at home and that only TF, MF and [the girl…] were involved. Certain supports were put in place. The inference appears to be that TF may have observed these acts rather than having been made to participate in them by anyone against his will. TF currently has no social worker but has a child support worker with whom he has one to one sessions. The parties also have a family support worker who assists them with strategies for managing TF’s behaviour and their own communication.

[45]      The defender was critical of the pursuer for not engaging with her initiatives. The initiatives were a step forward from simply resenting criticism but she appeared to have started to think about things and come up with ideas now albeit on the basis of flawed analysis. It was therefore understandable that the pursuer would not support all of her initiatives such as putting money in a jar as a reward.  The social worker had doubts about the sense of this. KG did not support any of the defender’s criticisms of the pursuer. In counsel’s submissions, the defender’s criticisms of the pursuer were misguided. Encouraging teeth brushing using the Tammy Tooth and Tommy Tooth chart system was cited as an act of inconsistency because the pursuer would not adopt this method. What mattered was that the children were regularly brushing their teeth no matter which parent was in control at the material time. It was submitted that this initiative appeared to have started only since the pursuer gave evidence and it was further submitted that this was done to distance the defender from the pursuer’s evidence that she paid the children to brush their teeth. In any event, her criticism of the pursuer did not amount to evidence of bad parenting on his part. Concentrating on brushing teeth was a means of diverting attention from the real issue of inappropriate sexual behaviour.

[46]      Following the joint interview, the pursuer contacted the social work department raising concerns about the children’s lack of boundaries, about issues with health and hygiene and difficulties over contact. He showed the social worker calendars which the defender distributed to the family showing the children naked and he discussed his concerns about nudity and the lack of boundaries. He was supported by his sister. The social worker raised these issues with the defender who said that the complaints were malicious and there was a fraught and difficult meeting at which the social worker and the defender agreed to disagree. However, the defender then informed the social worker that she had reflected on what she had said and now accepted that some of the photographs had been inappropriate and that she would not do this again. She had devised a plan that the children would no longer bath together. She said that she had installed a recording device in the bedroom shared by the children to record any inappropriate behaviour. This was said to be bizarre. It might, suggested counsel, be an attempt at an explanation for the information which came second hand that the police who visited her house on one occasion found themselves presented with a recording device. In counsel’s submission, there was something very unsettling about someone who records children in their bedroom.

[47]      The second incident that resulted in a joint interview was at a sleepover at the defender’s house involving TF and a boy called E. The pursuer was unaware of this until he picked it up through village gossip. It was of concern to him that he had not been made aware of this episode. The defender suggested that this had happened prior to the May 2014 episode and occurred during the Easter holidays of 2014. She says that it was simply an act of exposure not involving any touching yet she claimed that she was not told and did not ask the nature of the behaviour concerned. In counsel’s submission it is unlikely that the defender was not told of the incident and unlikely that E’s parents would speak of E being concerned over a period of time if all that was involved was nakedness at a sleepover. Why would they have reported the incident to the police? Why would E’s mother have been in tears? Why would it be reported that they were saying that TF needed help?

[48]      There had been other incidents of lesser significance in that there was no physical contact. MM reported that TF continued to expose himself at school. KG spoke of TF urinating on someone in the park. JJ gave evidence about TF showing a young girl his “tail” in the play house at the hamlet. Then there was the suggestion to R at the pursuer’s home from TF that they should play the bum-licking game, asking him if he was scared when he declined. The defender was inappropriately critical of the pursuer for not pursuing this episode with TF but counsel submitted that this was not a matter which the pursuer was qualified to pursue, that the advice from social work was to deal with it at the time, which had been done and then to leave it to avoid attention seeking copycat behaviour.

[49]      The concern, said counsel, is that TF is still suggesting this game. There is a risk for children who are prepared to go along with TF’s suggestions or find themselves in a situation where they feel that they are unable to complain either from intimidation or through a sense of loyalty to TF to protect him from trouble. The girl in the May 2014 was a very good friend according to the head teacher. E was someone who was comfortable enough to agree to a sleepover. It was counsel’s submission that MF was vulnerable. There was evidence that she was very aggressive for her age. There was also evidence from JM that she had waggled her naked bottom at TF and H.

[50]      MM, the headmistress at his first primary school, had ongoing concerns. TF still exposes himself in the boys’ toilets and so arrangements have had to be made that he is alone in the toilet. Arrangements have also been made to supervise him in the cloakroom. He continues to use lavatory language and to be disruptive. She is not satisfied with the position of the social work department that there is no continuing cause for concern. She feels other children are copying TF’s behaviour. As far as lavatory language and swearing is concerned, the defender had devised a game of throwing these words into the bin, but she had mixed the value of this message by including phrases such as “gummy bears” in there too, phrases which other children would use normally, without concern.

[51]      TF’s behaviour had not only been difficult at nursery and school. With S and RN, there had been scratching, biting, pulling, pushing, spitting and throwing things. AN tried to talk to the defender about these problems but the defender would not listen to her. TF had kicked R in the head after he had tripped and fallen. Eventually, AN decided she did not want the responsibility of looking after TF and ended her relationship with the defender. She said the children seemed to be much calmer when they were with the pursuer.

[52]      The GP records disclose bad behaviour on TF’s part at appointments, switching the lights on and off. This was done while the defender was claiming that his behaviour was much improved and blamed the residual difficulties on the separation which was less than honest. The GP arranged an appointment with a paediatrician because the defender talked about TF suffering “absences” and from tics and said that the pursuer was in some way responsible for his behaviour. Then she said that she never had any concerns about the father but that the children had witnessed aggressive and controlling behaviour on his part which was untrue and designed to undermine the pursuer as a good parent. There was no input to the paediatrician from the social work department. There was no hint in the report that the paediatrician had the child plan or a social work report. It was counsel’s experience that doctors would refer in reports to all the material they had before them. The history given by the defender to the paediatrician was inaccurate and untrue. She suggested that TF’s problems had started with the May 2014 incident which was untrue. She reported that TF did not like his father which was untrue. TF was showing attention seeking behaviour in the course of the appointment and the doctor explained the difference between positive and negative attention to the defender. Her attempts to place the blame on the pursuer were dishonest and manipulative. The pursuer was not invited to attend this appointment. He was not furnished with a copy of the report. Instead he got notes on tics from some unknown Australian source and from information on the internet. MM got this too and put it in the bin.

[53]      The defender had shown no respect for the position of the pursuer or for his opinion. She does not consider his input has any value. Her position is that nudity was not an issue until court proceedings started, that it all comes from the pursuer’s family and that their assertions are wrong. She was, said counsel, side-stepping the real issue which was less about nudity of itself and more about the children having no sense of privacy, tolerating them playing with their genitals, for example. She submitted that this has led on to the inappropriate sexual behaviour with others. Her assertion that the pursuer was uninterested in this was not true. She was so self-absorbed that she simply ignored his views regarding them as inconsequential. She had failed to pick up the signals from JJ telling the children to put their clothes on. She had failed to recognise MF’s discomfiture at the content of the calendars and of the children playing with their genitals while eating. She dismissed criticism saying that the children were fine. She pays little or no respect to the views of other people, including the pursuer, his sister, his father, the head teacher of the first nursery, MM, the social worker and AN.

[54]      Given the behavioural issues, said counsel, there are real concerns over the children’s wellbeing. The pursuer is a calming influence. He dilutes the intensity of the defender, her bizarre ideas on raising children and her complicated or mixed messages. He has mainstream views and uses simple messages for the children. There are clearly risks that need to be addressed. These could and should be monitored in the context of the status quo. Social work was involved on the periphery. They do not see the children with either of their parents and the defender cannot be trusted to tell the truth. Social work has put in place, through the medium of the children’s worker, a means of independent communication for TF. KG seems to have a better relationship with the defender than most people and considers that the advice she offers is received well and acted upon by both parents. The court could continue to monitor the situation by child welfare hearings. A curator for TF may be the way forward if there is concern about the lack of joined up thinking of the relevant agencies and the dishonesty of the defender in dealing with them. It was not true that TF did not like his father and it is difficult to construe the paediatrician’s record to that effect as not arising out of a deliberate lie by the defender. Her history of TF’s difficulties was not the whole truth, but an edited version. This is not helpful to TF. To help TF, she needs to learn to be truthful. Otherwise the agencies need to understand that she finds it difficult to tell the truth.

[55]      TF’s problems, and perhaps MF’s too, will not be resolved by relocation to Australia, submitted counsel. The defender’s views that the problems are caused by other people, situations or tics are misconceived. The problems need to be addressed. If the defender does move, she cannot be trusted to give an accurate history. There is a risk based on experience to date that the defender will say TF did not like his father who was not interested in his children but who was violent, aggressive, controlling and incapable through drug use and that it has all got better for the children since moving. In this way the pursuer will be removed from the children’s lives. He will not be there to put his case. He is not articulate. He does not relish taking on the strategies the defender has deployed in conducting her side of the litigation. His demeanour will not be capable of assessment from 12,000 miles away.

[56]      The defender has deployed strategies in preparing her case, said counsel. She has set about creating situations that support her case for taking the children to Australia. They were designed to show that the children do not have a good relationship with their father who was not only not interested or involved with them but a threat to their wellbeing with his aggression and inability to care for them properly and tendency to involve them in unsafe activities and so they will not miss him and would be better without him. Apart from minimising the children’s behavioural problems she has raised concerns about MF having sustained a head injury by falling downstairs, when all she had was a bruised knee, about the children developing rashes and the pursuer doing nothing to seek medical help while they were in his care, when the reality is that the pursuer lived next door to the district nurse and frequently sought her advice. She, the defender, however was happy to take them to Thailand when they were ill and had not had all the appropriate inoculations and to France when MF was unwell. She was a parent with an agenda.

[57]      While epilepsy and tics were reasonable issues to explore, neither could ever explain the licking bum game and was another attempt to divert attention from the real issues. She lied to the paediatrician as already discussed and to the GPs who prepared the referral letters.

[58]      She also raised concerns with the police. The defender called the police when she did not receive an answer to a text message. She called the police claiming to be being stalked by the pursuer at a time when he was working with another person fixing a roof. In January, 2014, the police issued two concern notices. The first related to the defender’s provocative behaviour on return from Thailand in prohibiting contact with the pursuer. She involved the police because he said he would come and see TF for a few minutes at the close of the school day. This was blown entirely out of proportion and was a blatant attempt at manipulation. The defender claimed to have been advised by the police to keep the children off school which was just a lie, leading to the issue of the second concern notice for them being unnecessarily absent from school. This led to an application for interim interdict with the pursuer requiring to give an undertaking to the court that he would not molest the defender or the children.

[59]      There have been a number of other threats to involve the police. The pursuer’s father and sister were outraged about having been accused of assault and of intimidation. This brought about the end of any contact between the pursuer’s family and the defender which they had tried to continue for the sake of the children.

[60]      The complaints about TF being permitted to engage in dangerous behaviours were unfounded. He had been allowed to handle some carpentry tools but only under the strict supervision of the pursuer. He had found matches on a camping trip but these had been left in a bothy by previous occupants and there was no attempt at concealment or fire-raising. His father did allow him to play with a Nerf gun, of which the defender disapproved, but the gun shot foam darts and was available for sale in any toy shop and was harmless. All these complaints further attempt to divert attention from the lack of appropriate boundaries with the defender who whips her children up into a frenzy, encourages nakedness and allows the children to play with their sexual organs. She denied this but the pursuer and his family gave credible and reliable evidence about this and in the GP notes it is recorded that she tells the GP that TF plays with his penis a lot and it was observed that the foreskin was fully retractile with only one small adhesion left.

[61]      The defender sought to dictate to the pursuer what he should do with the children during contact periods. The children were used to being with the pursuer at the weekend when the defender was at work. She and her mother were of the attitude that he should not see his children except during contact periods even when he met them innocently in the village. The defender was difficult about handovers and would not entertain the pursuer’s reasonable requests to see the children. She changed the arrangements. She had other people babysit for her when the pursuer could have done it. She was completely unreasonable following the Thailand visit. She prevented the children going on their grandfather’s 70^th. birthday trip by arranging an Australian holiday competitively.

[62]      The defender has undermined the pursuer and his family in their efforts to look after the children. There was the incident with SJ and the serving hatch. She wound everyone up when the pursuer took the children away camping for a few days to Filey and could not be contacted. She left the children with JJ at her home on return from a trip to France with dirty feet, matted hair and mouldy clothing. She woke them in the middle of the night to say goodbye.

[63]      She has changed her position in relation to the pursuer’s alleged misuse of drugs. She now accepts that he is not incapacitated from working or caring for the children. She appears now to accept that TF would benefit from psychological assessment. Her line now is to ask why the pursuer would want to deprive the children of the opportunities available in Australia. She still does not accept the pursuer’s importance to the children in their daily lives. This attitude reflects her mother’s evidence that “home is where the mother is.” This demonstrates a contempt for or at any rate a lack of understanding of the importance of fathers to children and in particular, the pursuer to these children.

[64]      Other factors requiring to be considered are, first, the nature of the children’s relationship with their father and how this would be changed by the grant of an order for their relocation to Australia. The pursuer currently has the children together on alternate weekends. He sees one or other of them on alternate Thursday evenings. He would like to see more of them. In particular, he feels cut off from information about their performance at school or nursery. The children love their father and enjoy spending time with him. MF runs to him and jumps into his arms. Both children recount at school or nursery what they have done with their father at weekends with enthusiasm. Neighbours, teachers and social work staff all speak to a good relationship. TF is particularly attached to his father and some neighbours suggested that it would be devastating for TF to be moved to Australia because that would be like losing his father altogether.

[65]      The pursuer built a house for his children. He built a playhouse and a bogey. He involves them in carpentry, his trade. The defender does not like the children enjoying time with the pursuer. She complains about them having access to hammers and the like. She complains about them having access to matches and to a Nerf gun. She thus attempts once more to undermine the efforts of the pursuer claiming that the activities he takes part in with them are unsafe, whereas, submitted counsel, their activities with their father were all a healthy part of their development and an appropriate channel for their energies, particularly with TF. In the house, they have crayons and glitter to make stuff. They enjoy snuggling up watching films. The pursuer takes them swimming, walking and boating. Usually other children go too. There are plenty of other children in the hamlet. They have a play area with swings and a trampoline. H who lives next door is TF’s best friend. They are in and out of each other’s houses and often eat together. The pursuer is a good cook. H’s parents trust the pursuer with the care of their children and consider him to be a great father. They would not leave their children with the defender. She has chosen to live in an isolated location where there are no other children around. She has objected to the pursuer taking H with TF when they go swimming, saying that the pursuer should be devoting his time to TF on his own, continuing her interfering, controlling, provocative and unhelpful behaviour.

[66]      Maintaining a close and direct relationship between the pursuer and the children would not be possible if they were in Melbourne. It is, she submitted, 12,000 miles away. (It is, actually, 10,500 miles away). The pursuer was only earning £8,500 per annum and could not afford travel costs. One flight cost £1,600. Children cost 10% less so one adult and two children would cost £4,000 if booked on the best deal a year in advance but the adult would need two return trips so the price goes up to around £5,000. The children could not travel on their own for years. The flights take 23 hours to get there and 29 hours to get back. There is the further period of travel from home to the airport. Holidays of two weeks duration are not practicable leaving only the Christmas holidays available. Winter in Scotland is not the best time to visit. The pursuer would require somewhere to stay in Melbourne and would not be comfortable staying with the defender’s family. The offer of a beach house is unrealistic as the aunt who offered it has three children each with their own children who would use the house during the holidays. The pursuer struggles with computers. He is not familiar with Skype. He is not comfortable with e-mail. It is not likely such indirect communication with the children would be a positive experience in these circumstances. Telephone contact has never been good. TF did not want to speak on the phone from Australia. The defender has never phoned the pursuer from Australia or France. She claims she is happy for him to phone her but does not provide details of where she will be. There was one call from the children from the defender’s home recently about TF losing a tooth. It was a first and clearly staged for court purposes. There is no indication that the defender will make any effort to maintain contact.

[67]      The children have a very close relationship with the pursuer’s parents and his sister and her family. Historically, they have met up several times a year either coming to Scotland or with the parties and the children going to England. The children have been left either with their paternal grandparents or at JJ’s while the parties went off on their own. The pursuer’s parents are not fit for a journey to Australia. JJ and her family would try to maintain contact but it would involve a huge financial commitment and JJ is not keen on flying. The children’s relationship with the pursuer’s family would deteriorate. The family believe it would come to an end as they do not trust the defender to foster it. The family made huge efforts to maintain the link with the defender following the marriage breakdown and were concerned about her wish to live in France with her friend JG. The defender assured them that she did not want to go to Australia. Since that has become her plan, relations have deteriorated. She has requested that there be no further contact from the family under threats of reports to the police. She refused additional contact when the pursuer’s family most recently came to the hamlet. The defender says that the rift between her and JJ is irreconcilable. JJ says that she will deal with the defender if it were in the interests of the children. It was also significant to the family that this court would lose control of the litigation.

[68]      The children would be changing life as an established part of a small Highland community for life in the suburbs of a large Australian city. There is little doubt they could make new friends but they already have friends at home. They are familiar with local children and their parents. They are established at school and nursery. The way of life in their community is familiar to them and they have the opportunity of a great lifestyle here. Disrupting them would not be in their best interests.

[69]      The defender intends to take a job apparently on an offer from her mother’s friend on an open basis at $50,000 Australian gross including superannuation. The job became available as the mother’s friend’s daughter used to do it and stopped to have her second child. It is not clear if that job would be short term cover. Certainly the contract has one week’s notice of termination. The salary is minimal and the defender’s step-father anticipates that she would need help with the rent and car finance. Certainly rent would eat into her net income at the rate of about $20,000 Australian per annum. Health care and dental care is mainly private although the rates of insurance are more affordable than in the UK. The job would allow the defender to give up working as a gardener and that would benefit her health. But her neck pain has only been an issue in Australia and there is no medical report about it here. There has been no effort to consider alternative employment here. It is not difficult to find work in the West Highlands. The defender has always been successful in doing that in the past 14 years of her life in Scotland. Finding fulfilling work has not been an issue.

[70]      The school identified in Australia is much larger than what the children would experience in Scotland. It is difficult to say without expert input whether the smaller number of children per teacher is better for TF although one to one attention has been a strategy used in his primary school here. There are facilities on offer in and out of school for the children to try out new skills and social groups in both countries.

[71]      In Melbourne it can reach 44 degrees centigrade in the summer. People move from one air conditioned place to another. The outdoor play areas have covers over sand pits etc. to protect people from the sun.

[72]      Summarising, counsel submitted, that in favour of Australia, it was what the defender presently wants. She will be fed up if she cannot go. Her mood may affect the children. It is not long ago that she wished to move to France. She obtained British citizenship with this in mind. She has coped with the disappointment of that plan falling through. Or maybe France is still the plan but she realised permission to go to Australia would be easier to apply for because she has family there. In Australia, she has school friends, her mother, her brother, an aunt and cousins that she would like to spend more time with. She has been in touch at least since separation and can continue to keep in touch. She is clearly capable of doing so with a computer and Skype. Her mother and stepfather are likely to visit London as her stepfather has a son who lives there with his family. The defender thinks that friends and family will assist her in bringing up the children. From a practical point of view, she could ask them for help. That her mother would be doing daily child care does not seem realistic. The defender does not appear to have been that close to her mother in the last fourteen years and has not taken her into her confidence in relation to her concerns about the children. Her mother does not present as a daily take to and pick up from school child minder but more of a turn up at school plays type of grandparent. The “all pound notes and perfume” comment seemed apt. No doubt the defender’s mother would help more financially if the pursuer were not to be a beneficiary. The defender claimed that she would not use a child-minder here, though she has in the past, as she wants to bring up the children herself. If that is her reasoning then having her mother as a child-minder would not be bringing up the children by herself. It would be less expensive but would have the drawback of her mother imposing her views in relation to the children – not something the defender looks as though she would accept gracefully. The defender has acquired a document which is apparently an open job offer but it is from her mother’s best friend who owns a nationwide lighting business. It is difficult to assess how real this is. It would start at 09.00 and involve light manufacturing which the defender would be capable of doing despite her repetitive strain injury from working with vibrating tools diagnosed in 2006. It would also involve computer work that could be done at home. Working at home would not be easy while supervising TF and MF. Computer work would not help the defender’s neck. It can be terminated on one week’s notice. She would be filling a gap left by the owner’s daughter who has had a second child but is apparently not interested in going back. The wage after tax and superannuation is meagre when considering how much would need to be spent on rent, a car, health and dental insurance and after school care. The defender has alienated some people locally and would like a fresh start. This is her nature and is not likely to change through relocation.

[73]      Issues which were neutral are that it is not possible to tell whether a school that is small is better for TF or not; the opportunities on offer to the children are many and varied where they live. They can be involved in swimming, ballet, scouts, music and sport wherever they live. There are benefits of living in the suburbs of a big city and there are benefits from living in a close Highland community; the defender could get a different job without moving to Australia. The pursuer would fulfil the role of looking after the children after school very happily. Once the defender has accepted that he is not inadequate as a parent, and once it is no longer part of her court agenda to alienate him from the children or provoke him into aggressive behaviour, she will adjust to allowing him to help more and as a result she will cope better; there is no evidence that the standard of living would be better in either place.

[74]      Issues in favour of Scotland are that contact with the pursuer would remain close and direct. The risk that he is removed from his children’s lives is avoided. The distance is too great to be practical for contact. It is not possible to fulfil parental responsibilities and rights at such a distance. The role if the children remain in Scotland is as a father rather than a person to visit on a winter holiday. The children would not be disrupted from home, school, family, friends and community. The status quo is maintained. Contact with the pursuer’s family is maintained and developed. Contact with the defender’s mother will be able to develop by Skype as she is competent with the technology and she is likely to visit the UK regularly as her husband’s son and family live in London. They can afford first class flights. They think nothing of long haul travel. The defender is a resilient character who will make the best of it and cope with the disappointment. The children will not be made to suffer for being the reason she is staying.

[75]      So, weighing it up, do the benefits of a move outweigh the benefits of staying? There is nothing, submitted counsel, that outweighs the importance to these children of staying in Scotland to maintain close and direct relations with their father. The risk to the children’s wellbeing of allowing the defender pretty well complete control is significantly increased by her attitude to the very agencies and authorities who are independent and required to safeguard the children’s welfare. She has lied in court, to the GP, to the paediatrician, to the police and she has withheld information from school and social work being neither candid in her dealings nor about her dealings with them. In relation to residence, she submitted, the evidence favours the pursuer as better able to provide appropriate care for the children. They would live in their own home with a parent who has settled in the community. They would be protected from the consequences of the defender’s lack of boundaries and from her difficulties in maintaining good relations and honest relations with those agencies designed to protect the children. They would be protected from being isolated as the defender alienates previous friends and neighbours. The defender is unlikely to want to stay in the area and making an order for residence in favour of the pursuer would avoid the need for further litigation the next time she decides she wants to move.

[76]      Counsel then invited me to grant craves one to four for the pursuer, to grant the defender’s fourth crave to the extent of making an award in the sum of £26,657 and thereafter to refuse the defender’s craves.

[77]      I expressed surprise at the closing elements of her submission in relation to residence. I was under the clear impression from the way she had conducted the proof that what the pursuer was seeking was the refusal of the specific issue order to relocate and the continuance of the status quo. She then told me that the pursuer’s primary position was that he wishes to be a “residential parent.” He accepted that that would be a change to the status quo. However, he would be content that the defender would remain the primary carer if the children continued to reside where they presently resided. There was no criticism of the defender as a mother apart from some of her strange ideas and counsel could not suggest that the defender was not a good mother. After I expressed further concern at what now seemed to me to be further confusion as to what it was that the pursuer was seeking, I was then told it was accepted that the defender should remain the primary carer for the children whether in Scotland or Australia. On the hypothesis that the children would be remaining in Scotland, then the pursuer sought additional unspecified periods of contact with each of his children on an individual basis.

[78]      Counsel’s submissions were long on length but short on clarity and consistency and contained a number of significant factual errors. Most importantly, at this stage, it seemed to me that the kind of confusion about what it was that the pursuer sought to achieve had permeated the entire conduct of the case for the pursuer from beginning to end.

 

Submissions for the defender:

[79]      Miss McAlpin (as she then was) for the defender first made submissions in relation to the applicable law by reference to section 1(2)(d) of the Divorce (Scotland) Act, 1976, as amended, there being no issue about the divorce however, in respect of financial provisions by reference to section 9(1)(a), (b) and (c) of the Family Law (Scotland) Act, 1985, in respect of the making of a residence order in relation to section 11(2)(c) of the Children (Scotland) Act, 1995, in respect of the specific issue order in relation to s. 11(2)(e) of the 1995 Act and in relation to the deprivation of parental rights and responsibilities by reference to s. 11(2)(a) of the 1995 Act. She set out the provisions of the 1985 Act so far as she considered them to be relevant but thereafter appeared to leave the determination of financial provisions to the discretion of the court, reflecting the defender’s consent to the transfer of her interest in the matrimonial home to the pursuer and her expectation that she would receive something in return, and thus she concentrated on what for the defender was the primary issue, namely the specific issue order to permit her to relocate to Australia with the children. She started with the general considerations to be found in s. 11(7) of the Children (Scotland) Act, 1995 (“the 1995 Act”) specifying the three over-arching principles as being that the welfare of the child was the paramount consideration, that there was a presumption in favour of making no order and that the court required to take account of any view expressed by any child affected by the decision. The predominant principle was the child’s welfare. The court must have regard to the child’s welfare as its paramount consideration and must only make an order when it considers that it would be better for the child that an order be made than that none should be made. The onus was on the party seeking the section 11 order to prove the welfare test has been established. The standard of proof is the normal standard of proof on the balance of probabilities – see Sanderson v McManus 1997 SLT 634E per Lord Hope of Craighead. On the meaning of “paramount consideration” she directed me to the text of the 3^rd. Edition of Norrie & Wilkinson on the Law Relating to Parent and Child in Scotland at p.299, where the learned authors observed that “the course generally followed will be that which is most in the interests of the children’s welfare when all the relevant facts, relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed.” That was subject to the “no order” presumption. In the present case, she submitted, the children were too young to express their views and have no knowledge of these proceedings as a matter of fact. She submitted that it was in the best interests of the children that the court make a residence order in favour of the defender and similarly that the specific issue order should be granted as its granting would also be in the best interests of the children.

[80]      She then addressed the specific issue order, submitting that the starting point always had to be that the welfare of the children was the paramount consideration. No order should be made unless it was better for the children that an order should be made than not. The court had to take account of the views of the children where these had been expressed. There is no presumption, rule or principle in favour of or against the position of either parent. It was a matter for the judgment and discretion of the court as to where the best interests of the children were thought to lie in the circumstances of each individual case. She referred to M v M 2012 SLT 428 esp. para 53 to which I have already made reference (vide Para 14 hereof), and to the judgments in MS v SS, AB v CD and M v M to all of which I have similarly made reference. In relation to the last of these cases, Sheriff Morrison’s well known and approved list of criteria, she set these out in their terms and then proceeded to address each of these as it applied to the circumstances of the particular case, under each of the following headings:-

 

(i)   Reasonableness and motive -

[81]      The defender’s reasons and motives for the move are entirely child focused. The defender is in the unique position of being both the primary carer and primary financial provider for the children and the burden of that weighs heavily upon her. Relocation to Australia offers the family a stable, secure and supportive environment in which the children can thrive. There is accommodation available for the defender and the children with her mother and step-father. The defender has the offer of full time employment in Australia. MH’s evidence was to the effect that, having made enquiries of HH regarding the position, he believes this to be a real career opportunity with a clear progression path. There is a good school with additional support available. The defender has a large family support network within close proximity in Australia. The children have no extended family within Scotland at all. The extended family are an eight hour drive away in the English Midlands. In Scotland, the defender is forced to arrange her work commitments around the children and as a result has found that the only work that allows her to do this is gardening which is detrimental to and aggravates her repetitive strain injuries to her hand and neck. The defender feels very unhappy and unsupported in Scotland and has done so on an increasing scale since the children were born. The situation has been exacerbated by the separation. The defender’s move is entirely genuine and child-focused. It is submitted that she does not present as being motivated to frustrate or defeat the pursuer’s relationship with the children. The defender genuinely feels that, given the opportunities and support available to her and the children in Australia that are not available in Scotland, the children will have an improved quality of life and will thrive in that environment. The defender believes that with support and stability she could be the best parent possible to the children to their benefit.

 

(ii)     The importance of contact with the absent parent –

[82]      It is accepted that the relocation would inevitably result in a reduction in direct contact between the pursuer and the children. The defender accepts that this is a negative aspect of the relocation but it is submitted that it is the only negative aspect of the relocation. It is accepted that the pursuer loves the children and that they love him and enjoy the activities in which they take part during contact periods.

 

(iii)    The importance of the children’s relationship with family left behind –

[83]      The children’s extended family in the UK consists of their paternal grandparents and their father’s sister and her husband and their daughter. They live about eight hours distant by car. It is not disputed that these family members love the children and that continuing contact with these family members would be in the interests of the children. However, the family have only been involved in the children’s lives on a holiday contact basis and not in terms of practical day to day support.

 

(iv)   The extent to which contact is able to be maintained –

[84]      In respect of the extended family’s contact, similar levels of direct contact to that which has regularly occurred during the children’s lives thus far should be attainable. It is submitted that relocation would not reduce the amount of direct contact between the children and the family. The regular family holiday is during Whit week which is not a holiday period which coincides with Scottish school holiday periods. The children have been at school or nursery during visits at this time. The contact was largely dictated by DJ’s work commitments and he gave evidence that from his two week annual summer leave generally one would be spent alone with his family and one in Scotland with the parties and the children. The children regularly visited the English Midlands in the summer holidays and for a period at Christmas time. Weekend visits were not and would not be practicable at any other time as that would involve a sixteen hour round trip. Should relocation be granted, the proposed contact is for a period of five to six weeks in the UK each year and this would not represent a diminution of the direct contact which the extended family have with the children. MF confirmed that he would be available for the entire period during which the children were in the UK for contact. The extended family were not averse to the idea of visiting the children in Australia. It is submitted that, if relocation were granted, this would be likely to happen. The family’s main response regarding contact on relocation was not that the level of contact would be insufficient or of poorer quality but simply that they would never see the children again. It is submitted that this, as an approach, is groundless and unfounded. Any additional holiday contact has in fact been in the defender’s hands since February 2014. Even prior to that, the defender has facilitated summer holiday contact in 2013 despite her concern, apparently shared by JJ, about the pursuer having the children in his sole care. Notwithstanding the anxiety caused when the pursuer was out of contact with the children for a period of days, she continued to promote contact between him and the children. The defender’s promotion of that contact has always been on the basis of what is in the children’s best interests – having regard to school/nursery, their behaviour and routine. The instigation of “TF Time” by the defender was not for the benefit of the adults but for the benefit of TF. The defender has been averse to additional midweek contact and altering contact during the school/nursery week as her experience is that it is simply not in the children’s best interests.  In the course of 2014, the pursuer had residential contact with the children for more than half of each holiday period. This does not support the proposition that the defender would obstruct or limit contact. The only contact that has required to be referred to the court was the defender’s request to take the children to Australia in the summer of 2014, clashing with the pursuer’s father’s 70^th. birthday celebration plans, albeit his birthday was some three weeks after the planned return from Australia. It is clear that the defender is in favour of the pursuer continuing to have contact with the children and will do what she can to facilitate that, despite her own strained relationship with him. Despite difficulties, the defender has not sought to frustrate contact but rather to put measures in place to facilitate it and make it less stressful for all involved. It is therefore submitted that the court can find that the defender will continue to promote and facilitate contact between the pursuer and the children. The defender’s proposal is that the children travel to the UK for five to six weeks each year during the Australian school summer holidays i.e. December and January. However, there is a genuine offer of accommodation available to the pursuer and the children should he choose to visit Australia during school holidays. The offer has been made genuinely and will be available for the benefit of the children as well as the pursuer. In terms of contact by telephone or Internet services, the children are familiar with these types of contact and are at an age where communication via these methods are more and more rewarding and it is submitted that contact via these methods would be available without limitation. Every request for telephone contact when the defender and the children were in Australia in summer 2014 was facilitated. The defender made the offer of Skype contact but this was not taken up by the pursuer. It is submitted that the pursuer would need to be open to utilising these methods and cannot completely disregard their effectiveness as a means of communication. AMcN spoke of the interactive nature of Skype with the children and JJ gave evidence that SJ had recently spoken with TF on the telephone for 40 minutes. The children are clearly at an age where this is a useable and effective means of communication with which they are familiar and its effectiveness will improve as they grow. In terms of time difference, because of summer time changes and the like, this varies between nine and eleven hours but there will always be suitable times to facilitate contact with the children. The cost of the flights would be in the region of £4,000 - £5,000. MF and MH both gave evidence to the effect that there would be financial support for this travel. MH has family in London who he and AMcN visit regularly and it is submitted that they would also be available to accompany the children to the UK. Financial support is available to support at least one 5-6 week period of direct contact annually. It is submitted that it is likely that the pursuer will be able to visit Australia in addition to that. He is self-employed and has previously been able to organise his work to enable him to spend several weeks in Australia. He would continue to be able to do this. Telephone and internet contact will also be promoted and freely available and is a useful and interactive means of maintaining and increasing the bond between the children and their father and extended family. The e-mails lodged by the pursuer and the evidence of KG testify to the fact that there is an open dialogue of communication by e-mail between the defender and the pursuer regarding the children. KG said that the defender lets the pursuer know everything. It is submitted that this active line of communication between the parties regarding the children would continue.

 

(v)    The extent to which the children may gain from a relationship with family members as a result of relocation –

 

[85]      The children already enjoy a good relationship and are familiar with all of their extended family in Australia despite the distance. The children have regularly visited Australia and have been visited by family in the UK and elsewhere. The children know their family and there is a loving bond. Evidence from the defender, from her mother and from MH, together with the “Australian” affidavits, demonstrates that there is a strong, close and very active family network in Australia that will be a real and practical feature in the children’s day to day lives. AMcN and MH spoke of going to all the school events for their niece and nephew, birthday parties and of regular family gatherings and weekends. Having the family network within close proximity will give the children the simple day to day family exchanges that they do not have in Scotland. The children have cousins and extended family and close family friends with children of similar ages that the children already know. There is practical family support and help in Australia and in terms of child care, if required, the children could be looked after in their own home by family members. In a practical sense, if the children or the defender were to be ill, there are family members on hand to assist. Friends and neighbours with their own families, lives, jobs and other commitments cannot be relied upon for support in the same way that family can. The defender’s friend MMcG gave evidence that MF was delighted to have her Australian granny available to attend her ballet class and watch her during the time of the evidential hearing. It is submitted that the children would gain hugely and benefit from having numerous family members actively involved in their day to day lives rather than just on a holiday contact basis. The children would have extensive, regular contact with their relatives in Australia. They would gain a fuller knowledge and appreciation of their larger family from development of these relationships and they would greatly benefit from this.

 

(vi)   The children’s views –

[86]      The children are not of an age to express their views and know nothing of the present proceedings.

 

(vii)  The effect of the move on the children –

[87]      The children are four and six. They were well socialised children and at an age where they are adaptable. MF goes to school in August 2015 so a change in her circumstances will take place then. TF is in Primary 2. He has previously adjusted well to moving nursery and the transition to school. TF has social issues within his peer group and community due to his behaviour. The social worker gave evidence that TF spoke with her regarding his concerns about classmates not playing with him. MM gave evidence that there are systems in place regarding information sharing when children change schools and she has had experience of that working well internationally. The practicalities of changing school are not an issue. MM gave evidence that if additional support was available for TF in a new school, that could be a positive experience. A major issue is the current lack of support for TF here. There are ongoing issues which require support and the defender despairs at these not being adequately addressed or supported in Scotland due to a lack of resources and availability of personnel. It has been highlighted that TF would benefit from one to one support but that is not possible within his current school. The proposed school in Australia has additional support such as an educational psychologist and a “Learn Easily” one to one programme for children. MM gave evidence that, with additional support available, the move could be a positive one for TF. At the most recent “Solution Focused Meeting” for TF, the educational psychologist did not attend, nor did the school nurse. No progress has been made for TF. The proposed new school in Australia has additional support available. The school is already aware of TF’s issues and MM confirmed that they would be fully informed in terms of his Child Plan if he were to move. It is submitted that his needs are not being met here and would be better served and met in Australia. The area in Australia is familiar to the children. They have spent time there regularly since birth and it is submitted that they would settle in well. They will be able to enjoy an extremely active outdoor lifestyle. In terms of the children’s educational, developmental and medical needs, the defender has played a proactive role and will continue to do so. It is not disputed that children’s reduction in direct contact with their father is a negative. It is however submitted that the children would not be adversely impacted by this as the mainstay in their lives has been living with their mother and her being in the primary care giving role. The pursuer is not presently involved in the children’s lives on a daily basis. During term time, he goes ten days without having any contact with MF and eight days without contact with TF. It is submitted that, overall, the relocation would have a very positive effect on the children.

 

(viii) Effect of refusal on parent –

[88]      The practicalities of having children in an area where she had absolutely no family support did not become apparent or real to the defender until the birth of the children. The lack of practical support makes daily life difficult on many levels. The defender spoke of her happiness in Scotland as an individual but having children changed everything for her. If the relocation were refused, the defender would have to continue with her gardening work for at least the next seven years. She has made all reasonable enquiries and has found this to be the only work that is suitable and flexible enough to fit around the children. Due to repetitive strain injury and disc degeneration, this type of work is detrimental to her health. MMcG gave evidence that the defender’s health has been affected by the stress of the situation. She has lost weight because she struggles to eat. There is a noticeable improvement when her mother is here. The defender’s own evidence was to the effect that she would feel like she was being imprisoned if not permitted to relocate to Australia. A number of witnesses testified that she would be devastated. The overwhelming feeling for the defender would be a sense of devastation that she would have to make do and in making do would not be able to give the children the best upbringing possible and, being unsupported in Scotland, she believes she cannot be as effective a parent as she could be on account of the lack of practical and emotional support. The decision to try to relocate was not taken lightly and was not a knee-jerk reaction to the separation. She has given full consideration to all practical and economic aspects of the relocation and truly believes that it is in the best interests of the children. Not to be able to give them the lives she feels they deserve would be devastating for her. She further believes that her economic stability would be in the best interests of the children. The defender has despaired at the lack of support for TF in the area. She has required to push for any support for him and the prospect of much more readily available support in Australia is of huge significance to her as she feels that TF would benefit hugely in the long term from having that support in place and again would be devastated not to be able to have that available for him. If help is available elsewhere, she should seek it.

 

(ix)    Effect of refusal on welfare of children -

[89]      The defender always does her utmost to shield the children from her distress and unhappiness with the situation but it is inevitable that they will pick up on it. The lack of support in Scotland for her effectively equates to a lack of support for the children. There is already a social divide caused by the separation which would simply continue if relocation were refused leading to an increasingly unhealthy position for the children. TF is not getting all the help he needs and incidents involving him are not being reported by the pursuer. This has been a hindrance in seeking help for his needs. The children would miss out on the enjoyment of having extended family involved in their everyday lives. As the defender said in her evidence, they will survive here but they will not thrive. That really is the crux of the matter. Upon receiving a financial settlement on divorce, after the Legal Aid Board claim back the fees payable to the defender’s solicitor, which claim back will inevitably be substantial given the length of the proceedings, as the defender will be deemed to have made a recovery, she will still have capital sufficient to lead to the loss of her housing benefit. Without the ability to increase her working hours around the care of the children, this would be detrimental to the family’s ongoing financial situation. She currently earns about £3,000 per annum and receives child benefits of approximately £500 per month. The pursuer says his earnings are £8,500 to £10,000 per annum. The job in Australia will pay the equivalent of £27,000 per annum. This has been described as meagre but has to be viewed both in perspective and in the context of the parties’ current earning capacities. The defender spoke about a hand to mouth existence currently. There has never been any offer of voluntary financial support from the pursuer for the children and the defender required to make an application to the Child Maintenance Service. Since March, 2014, he has been paying £16.56 per week on the basis of a declared income of £156.30 per week. His evidence regarding his income and resources is highly questionable. He had £180 in the bank at the relevant date. He claims to earn £8,500 to £10,000 per annum but can earn £400 per week working for a contractor. He sometimes only works 2 days per week, or so he says. When working for friends or people he knows, he says he cannot charge a lot. His stated expenditure, however, appears to be £18,780, including £1,500 for holidays. Yet he said he had never been in debt. He gave evidence that he had put “a couple of grand” into accounts for the children since the separation. He gave evidence that he inherited a further £23,000 from his late uncle in February, 2014. He equivocated as to what he had done with this money claiming in chief to have put it into accounts for the children but acknowledging in cross-examination that he had spent some of it and used some of it to meet his legal fees, etc. He seemed to think the balance would be going on legal fees. Based on these figures, he should have substantial debt. So the question needing to be addressed is not so much whether he will be able to fund contact visits if the children relocate to Australia but how he is going to be able to afford to support them if they remain in Scotland where the defender will not be able to work full time to support them. Arguably, if the children remain in Scotland, it will be in the context of a precarious economic position which would be contrary to their interests.

(x)        The parties previously argued about residential and non-residential contact and handovers have been fraught with difficulties. An order for interim residence and contact was required in February, 2014 and that has gone some way to alleviate these issues. It is submitted that in order to prevent future issues, it is submitted that an order is required one way or another.

 

[90]      In conclusion, Miss McAlpin submitted that the specific issue order should be considered having regard to the best interests of the children. The court required to carry out a balancing act weighing up the advantages and disadvantages to the children of remaining in Scotland as opposed to relocating to Australia. It was her submission that there were more factors favouring granting the relocation order than supporting its refusal. She submitted that it is in the children’s best interests having regard to the evidence that the relocation order be made and that it was in their interests that the order be made rather than that no order should be made. She submitted that it was paramount to the welfare of the children that they remain with the defender and that she should continue to be their primary carer. She submitted, having regard to the principles set out in s. 11(7) of the Children (Scotland) Act, 1995, that the defender had demonstrated on the balance of probabilities that it would be in the best interests of the children for them to remain in her care and for the specific issue order to be granted. It was submitted that the burden of proof had been discharged to the standard required as stated in Sanderson v McManus. She submitted that the defender had shown on the balance of probabilities that the welfare test was met and that the orders sought by the defender should be granted as reflecting the best interests of the children.

[91]      She therefore invited me to grant decree in favour of the defender in terms of the defender’s craves one to four and that craves one and four for the pursuer should also be granted but that otherwise the pursuer’s craves should be refused. For the avoidance of doubt, she submitted that the interdict sought at the pursuer’s third crave was unnecessary, the defender having demonstrated repeatedly that there was no risk of her attempting to leave Scotland without the authority of the court. She further submitted that the defender should be entitled to an award of expenses against the pursuer as an offer to transfer her interest in the matrimonial home had been intimated and she had made proposals about contact to the children. However, she was unable to direct me to any formal written communication to the pursuer or his agents founding on the making of these proposals for the purposes of expenses and I would simply add that the bulk of the proof and the evidence led thereat related to the hotly contested issue of the specific issue order which was never going to be the subject of agreement, and which is why I directed that this case should proceed to proof at the earliest opportunity which it did.  

 

Discussion and conclusions:

[92]      I am grateful to both counsel for the pursuer and Miss McAlpin for the defender for their helpful and thorough submissions. With regard to the crave for divorce, there is no issue and the evidence very plainly demonstrated that the parties’ marriage had broken down irretrievably and that they had not cohabited nor had sexual relations for a period in excess of one year and that the defender consented to decree of divorce being granted.

[93]      I have not given effect to either the second crave for the pursuer nor the first crave of the defender wherein each of them seek a residence order since both parties have the rights and responsibilities conferred upon them by sections 1 and 2 of the Children (Scotland) Act, 1995 and will each retain these rights and responsibilities except insofar as these are removed otherwise by the interlocutor I have pronounced. Rather what I have done is to pronounce a decree regulating the residence of the children and ordering arrangements for contact between the children and the pursuer. I see no need to make general orders for residence or contact.

[94]      I have refused as unnecessary the pursuer’s crave for interdict against the removal of the children furth of Scotland.

[95]      I have granted decree as craved for the transfer of the defender’s interest in the former matrimonial home for the reasons set out earlier at paras. 5 to 11 hereof to which there is nothing I can usefully add. Having done that, I have then refused the pursuer’s crave for a capital payment on the basis that his right to a fair share of the matrimonial property will be fully met by the transfer to him of the defender’s interest in the former matrimonial home.

[96]      I shall grant the defender’s second and third craves which have the combined effect of removing the pursuer’s right to regulate the residence of the children and permit their relocation to the State of Victoria, Australia.

[97]      I shall grant the defender’s fourth crave for payment of a capital sum to the extent of £74,156.43 for the reasons previously explained representing her fair share of the matrimonial assets. Accordingly, I shall refuse the defender’s fifth craves (both of them – sic) as unnecessary and similarly will refuse her sixth crave. Apart from the expenses of the cause, which I shall deal with later, I shall refuse all other ancillary craves.

[98]      The central issue in this sad case came to be the question whether it would be in the best interests of the children, having regard to their welfare as the paramount consideration, to make the order sanctioning their relocation to Australia. At the end of the day and on a careful consideration of the evidence I have no doubt whatsoever that granting the relocation order will be in the best interests of the children.

[99]      Crucial to this decision is the position in relation to parties’ child TF and to his welfare. TF was born on [d.o.b.] and MF was born on [d.o.b.]. At the time of TF’s birth, the parties were living in a caravan, as I understood the evidence. I did not hear anything about the dimensions or facilities of the caravan, though I assume that it is the same caravan as now produces some rental income for the pursuer notwithstanding its apparent absence from his tax return. I heard no evidence as to whether TF’s arrival in May 2008 was or was not planned. However, the disposition in favour of the parties granted by The Highlands Small Communities Housing Trust speaks of the parties receiving entry to the land disponed on [a specified date] and the evidence is clear that that was for the purpose of constructing a family home so it seems reasonable to infer either that the plan so to build was a consequence of the discovery of the defender’s pregnancy or that the parties took a deliberate decision to start a family, given that they had already been a couple for about ten years and had married in 2003, and that TF was the result. I assume that they thought about what they were doing and must have had some experience of seeing how the arrival of a child affected the lives of other people that they knew but they both appear to have been spectacularly unprepared for the event. The pursuer spent 2009 building what was to become [the address in the hamlet] and it was accepted by the defender that that occupied a great deal of his time and put him in a position where he had virtually no external income for that year. So she had to find part-time employment to provide enough money to feed the growing family. They spent their savings and borrowed money from the Trust and from the pursuer’s father to fund the construction and must have been existing on a very tight budget. The defender claimed in her evidence that her life changed dramatically on TF’s arrival. The birth of a first child causes the life of most women to change dramatically but most seem to adapt successfully to the occurrence and survive the experience. Of course, many of them are better supported by close family than the defender was but that ought to have been obvious to the defender prior to conception. She complained bitterly in her evidence about the lack of support from the pursuer but he seems to have been busy building her a family home. Had he not been doing that, he would presumably have been at work, sometimes away from home. I accept that he was unwilling to handle the new born infant or otherwise participate in his practical care and that that is a less than satisfactory position which encourages belief on the part of the woman that he does not care about the child and she also stated in her evidence that the pursuer continued to socialise as before which is inconsiderate but the indisputable fact is that a second child was conceived in or about August, 2009, which again I assume was planned, which rather undermines her suggestion that the pursuer was particularly inept as a father. She may have made some allowances for him while he continued to be a useful builder. It is hard to determine on the evidence what truly led to the breakdown of the relationship. The defender may have been distressed by the pursuer’s apparent disinterest in his infant children and I believe that there is some truth in her assertion that he presented as being disinterested, at least in the sense of being a non-participant in their practical care. She may have been discouraged by his continuing misuse of cannabis, about which there is little doubt. It is surprising that the neighbours claim to have been unaware of this, but I believe the defender supported by the evidence of the pursuer’s father that the pursuer’s sister had told him about it (despite her untruthful denial of this) and the defender’s mother’s second hand account of the pursuer asking her son in Australia where he could source drugs. I say “may have been distressed” since the defender can hardly claim not to have been aware of the pursuer’s habit but still went on to have two children with him. She may simply have got fed up with him. I suspect a turning point may well have been the discovery, inadvertently via JJ, that the pursuer was about to inherit £57,000 from his late uncle’s estate, a matter which it had slipped his mind to mention to his wife at a time when she was heavily pregnant with MF but still working as a waitress for the minimum wage. Thus is trust lost. The reason for the breakdown of the relationship is only of interest insofar as it may have a bearing on the future welfare of the parties’ children. Being an abuser of controlled drugs would have been a significant factor militating against contact and while the defender was somewhat equivocal about whether the pursuer was continuing to abuse cannabis, she was unequivocal about the merit of continuing contact between the children and their father. It may be that he was just a convenient, free baby-sitter while she went out to work but her evidence was that she accepted that, since the separation, he appeared to have shown some genuine interest in his children and to have got them to take part in a variety of outdoor activities, which she acknowledged was where his strength lay, and that the children appeared to be genuinely fond of him.

[100]    TF went to nursery in about September, 2011 at the first nursery school he attended from where the head teacher provided an affidavit to the court. In fairness to the agent for the defender, my recollection is that this was a document produced on the morning of the first day of the proof, which I allowed to be lodged though late, given the nature of the proceedings and the importance of the content of the document. She did not seek an adjournment and did not call the head teacher as a witness notwithstanding that it was plain that the defender and the head teacher had materially different views about TF’s period at that nursery. In her affidavit, the head teacher made clear that she had known the pursuer for 15 years and regarded him as a pleasant, skilled, hard working man who was well respected in the community. If any aspect of that description was to be challenged, she should have been called to give evidence and it is noteworthy that that is how the pursuer presented to an experienced professional immersed in the local community. She further described him in the context of TF as being “caring and supportive,” taking a great interest in what his son was learning and she considered that both his children responded well to his calm, caring approach. TF, she deponed, had obvious behaviour issues. He would lash out at other children in the nursery, hitting, nipping and biting. An assistant had seen him sink his teeth into another child’s arm. The defender always played down her concerns. Her reaction to being informed about two episodes of biting was to turn to TF and say, “We really need to get you a toy.” The head teacher referred to the now retired local health visitor, who seems to have been a supporter of the defender, being the named person for all children in the nursery (I assume in terms of GIRFEC, the Scottish Government’s policy to combat child abuse) and the head teacher asked him to convene a Solution Focused meeting in respect of TF to discuss possible solutions. The defender was against such a meeting and she and the health visitor conspired to draw up a child plan which was presented to the head teacher as a fait accomplit which it was not, so far as she was concerned, as such a plan should be a multi-agency document where all partners involved in meeting the child’s needs meet and agree a plan. The defender blamed the nursery staff for TF’s difficulties saying that he was stigmatised and subject to negative comment. This was not acceptable to the head teacher and she refused to sign the plan. A meeting was convened at which the defender was bristling, saying that no one was going to tell her how to bring up her children. She would not engage in discussion. The head teacher told her that TF’s biting was so endemic that other parents were removing their children from the nursery. She refused to disclose to the defender who these other parents were and was then accused of withholding information. The defender was very aggressive and dismissive of the nursery staff. She did not think that solving TF’s problems was anything to do with her. It was the head teacher’s opinion that the defender did not engage in setting acceptable parameters for her son and that the same seemed to be true of MF. After this meeting, TF was removed from this nursery without notice and transferred to another school’s nursery department.

[101]    Patently, these are strong words from the head teacher and, if not accepted, should have been made the subject of cross-examination. It is interesting, having regard to counsel’s submissions about the defender being manipulative, that the head teacher uses the word “conspire” to describe the relationship between the defender and her health visitor. I am content to adopt the head teacher’s phrase in also opining that the defender did not engage in setting acceptable parameters for TF during these pre-school years, which is, of course, most of his life so far. I have no doubt that the evidence about behaviour spoken to by SJ, especially in the period following the separation when she visited the defender and the children at their then home, about TF and the kitchen hatch and about throwing an apple at a car windscreen is both credible and reliable and illustrative of an entirely inappropriate permissive approach to controlling bad behaviour by a young child. In fact the defender was encouraging bad behaviour. I believe SJ and her mother and father in their evidence about nudity and about the children playing, for want of a better word, with their private parts, to the extent of TF sticking his penis into a bowl of pasta at the dining table while people were eating, as described by DJ, all of which the defender passed off as just a bit of fun. I also believe AN and her description of her relationship with the defender and its deterioration on account of the behaviour of both TF and MF, which included TF kicking her son in the head and MF sticking a fork into her son, but this relationship ending with the defender trying to cling on to it and expressing surprise and disappointment at AN’s attitude of ending it because TF had reduced her to tears. There is no doubt that TF’s behaviour was as described by the head teacher at the first nursery and as described by JJ and her family and by AN. It was a cause for concern and it was an issue which might have benefited from a solution focused meeting as proposed by the head teacher at the first nursery who patently recognised that there was a problem and was trying to do something about it but was thwarted by the defender. As we shall see when it comes to TF’s time at primary school, the consequence of this profound failure on the part of the defender would come to be very significant for TF.

[102]    TF moved to a second nursery where there is a choice between the content of the teaching being in English or Gaelic. TF started off in the English nursery but, just as he was beginning to settle there, or so it is recorded, the defender moved him to the Gaelic nursery. It is not clear why this change was made. Her position is that he had a good year at this nursery without trouble and there is little evidence to contradict this. However, things changed again when he started at primary school.

[103]    He started there in August, 2013. His parents had physically separated in that the defender moved out in May, 2013. No one has offered any assessment of the effect of this change on TF though the change occurred during the time when AN and her children were associating with the defender and her children. The head teacher, MM, who was responsible for two primary schools, gave evidence to the effect that she had received some internal notification of TF’s behavioural issues prior to his arrival there. There were under 20 children on the roll of his primary as at August, 2013 operating in two composite classes of roughly equal size. So TF was in a small class wherein his behaviour could hardly pass unnoticed. From the outset, he used what MM described as “lavatory language” which seemed to mean that the words “fuck,” together with its adjectival derivative, and “fart,” featured frequently in his vocabulary. She said that he also insisted in making very close contact with other children, invading their personal space and pulling down the pants of other boys. The close contact and invasion of personal space seemed to mean that he was touching their genitalia. Largely because of what happened next, in May, 2014, it is not clear to me how much of this information was brought to the attention of the defender, or the pursuer for that matter, or how either of them responded to it, apart from in relation to an incident when TF stamped on another child’s Lego and then pushed a teacher when she attempted to intervene, this happening in November, 2013. It is fair to say that at least until August, 2013, when TF started school, the position seems to be that the defender was very permissive in relation to TF’s behaviour and the pursuer appeared to be at best uninformed and at worst unconcerned.

[104]    Things changed dramatically in May, 2014 in relation to what I will describe as the “bum-licking” incident though I have come to be of the opinion on the balance of probability that what actually occurred was an act of cunnilingus, or at least an attempt thereat, by TF on a girl called JK. I have to say at the outset that I am concerned at the way the evidence about this matter was presented to the court and about the way in which the event appears to have been investigated. The parties went to proof on a record certified as being a true copy of the pleadings on 29^th. October, 2014 in which, despite it running to 24 pages, there is no mention of this incident or of the other incident which gave rise to TF for a second time being jointly interviewed by the police and a social worker, about which second incident I know virtually nothing. There are virtually no productions, apart from an illuminating letter from TF’s general medical practitioner, who immediately issued a child concern notice which brought the event to the attention of the Social Work Department of Highland Council. I should have been furnished with their records. I should have had access to the DVD of the recordings of both interviews. The person who was the eye witness to this episode whose name I do not know should have given evidence at the proof as should the police officer who was apparently the police officer allocated to deal with both incidents. I do not know if the school authorities made any record of the incident. If they did, I have not seen it. I am afraid I regard all of this as a significant failure on the part of both counsel for the pursuer and the agent for the defender. My recollection is that neither party had any social worker on their list of witnesses and I only heard evidence from a social worker at my insistence.

[105]    The evidence I have comes primarily from MM and from the defender. MM, as the head teacher at GTF’s primary school, was also the designated child protection officer. The incident was drawn to her attention by a person she described as a “support teacher.” She had noticed the girl with her pants down – I assume that means “knickers” in the context I am about to describe – and that TF was kneeling beside her. The teacher asked if she was needing the toilet and the girl said “No.” Asked what she was doing, the girl said that they were playing a game. The bell then rang and the support teacher then left and reported what she had seen to MM.  MM then spoke to the children together, which was her first mistake. Initially, they were not forthcoming but eventually the girl said, “TF, you have to tell the truth,” and she then said that they had been playing “the bum licking game.” Asked where this had come from or where they had seen it, TF said that he had made it up. Asked if he had done this before, he said, “Yes, under the covers.” Asked if his mother knew he played this game, he said “Yes.” Asked if he played the game with anyone else, he said that he had tried to get MF to do it but that she got grumpy and went off in a huff. This ought to have rung a whole series of alarm bells in the brain of an experienced teacher and designated child protection officer. A properly trained child protection officer should have known that the next thing to do as a matter of urgency was contact children’s services at the local authority social work department. At the very least, someone with MM’s experience should have had the wit to seek advice from the Education Department as to what to do next, especially when TF had implicated his mother in his inappropriate sexual behaviour. Instead she did the worst possible thing she could have done. Even at the proof while she was giving evidence, she seemed not to understand the enormity of her error. She seemed not to appreciate that the bulk of sexual abuse of children occurs within the family circle. Instead of handing over to the police and social work staff the process of what should happen next in terms of an investigation, she decided to telephone the mothers of both children and ask them to attend. Unsurprisingly, both came right away. She told them what she understood had occurred. TF said nothing. He had become very quiet. The defender said she would speak to MF. The following day, the defender told her that she had spoken to MF and that she was taking TF to the doctor. As MM put it, from there (i.e. the doctor) it went to Social Work and a Child Concern Report was issued.

[106]    TF’s general medical practitioner immediately recognised that the behaviour being described to him was not natural behaviour on the part of a six year old boy. There is no reason why he would be aware of the inappropriate nudity and fiddling with their genitalia that both children had been permitted to do over a period of time but even if he had been, I suspect that he would have placed the reported behaviour in a different category. In my opinion, that would have been correct. This has the appearance of learned behaviour. MM, the children’s services social worker and KG, a very experienced social work practitioner, all agreed that licking the private parts of another child’s anatomy was not in their experience natural behaviour for a boy approaching his sixth birthday. If behaviour is not natural, then it is learned. It really is that simple. So the obvious question is where has TF learned this behaviour from. That brings me to the second area in which I feel I cannot avoid criticism, this time of the quality of the investigation which was conducted.

[107]    I accept that any investigation was prejudiced by the actions of MM but that does not mean that it was not still important that some investigation be carried out. The information given by the support teacher eye witness, together with what the children said to MM about the event, in particular TF saying that he had played the game before “under the covers” the natural inference from such an expression being that he is talking about bedclothes, and that his mother knew he played the game, would have been sufficient evidence in law to justify the defender’s detention under s. 14 of the Criminal Procedure (Scotland) Act, 1995 on the basis that there was reasonable cause to suspect that she had committed a sexual offence with her son. She could then have been interviewed under caution. We shall now never know what information might have emerged at such an interview as it was never undertaken. Let me say immediately that on my assessment of the evidence generally in the present case and the demeanour of the defender in the witness box that I do not believe that she has engaged in any inappropriate sexual behaviour with either of her children. If I did not believe that, they would not be going to Australia. I simply use the defender to illustrate the material available for the conduct of an inquiry which was not carried out. Eventually, TF was interviewed by the police, as I understand it by [a particular named officer] in the presence of the children’s services Social Worker. The police officer was not called to give evidence. I do not therefore know what she knew or thought she knew when she went to conduct this interview or what she thought she might achieve. The social worker was ultimately cited as a witness but transpired in many respects to be a very poor witness. She turned up without bringing any records and spent most of her time in the witness box attempting, without success, to justify her inaction. I have already said that there was a failure to produce to the court a copy of the DVD of this or any other interview. The social worker told the court that she had formerly been a social worker in Angus and Dundee and that she had undergone training in joint investigative work on child abuse on a training scheme run by the former Tayside Police. She said she had undergone the course twice. So twice she should have heard that the content of the joint investigative interview would not merely be of interest to a prosecutor seeking to bring criminal charges but also to the Reporter to the Children’s Hearing contemplating child protection proceedings and to parties to any civil litigation relating to the welfare of the child. Having undergone that training, she would also have known not to turn up at an evidential hearing without notes. It is within judicial knowledge that all social workers in the three Tayside local authorities were instructed to keep records of everything so it is hard for me to accept that there would have been no records to produce. From that same training if not otherwise in the course of her wider training for her social work qualification, she would know that the behaviour she was hearing about was learned behaviour and from that conclusion it should have been obvious to her that there was a need, at the very least, to carry out further enquiry into TF’s welfare and, by extension, into MF’s welfare. Had she carried out superficial investigation with the school, she would have learned of TF’s lengthy record of being disruptive, violent, disinhibited vocally and sexually and as being the product of a mother who had failed to teach him right from wrong and a father who appeared to be disinterested in intervening to correct the mother’s errors. Hopefully, it would then have occurred to her that there was a need for social work intervention with this family and that the very least she should do was submit a report to the Reporter to the Children’s Hearing.

[108]    It is not my remit to conduct an inquiry into the operation of Highland Council Social Work Department, but the social worker was asked about her workload and did not suggest in evidence that it was excessive or intolerable and, even if it was, it would still have been her responsibility in dealing with what was obviously a case where there were children at risk of sex abuse to do something more positive than she did. MM told the court that she was informed by the social work department that they had no concerns about either of the children involved in the bum-licking incident. MM indicated that she was unimpressed with their conclusion. She is not alone.

[109]    The social worker gave evidence on 21^st. January, 2015. She told the court that she was a 45 year old social worker with an MA, though she did not say in what discipline, a postgraduate qualification in Community Education, a social work qualification and a child protection qualification. She had qualified as a social worker in 1996 and worked as such in Dundee. She moved to Fort William in 1999. She became involved with this family in May, 2014. The referral, she said, came in the form of a telephone call from a general medical practitioner and then there was a concern noted by the school. The nature of the referral led to a joint discussion with the police and it was decided that she and [a named police officer] would conduct interviews of the children. She said that they were obviously aware that the children’s behaviour had been observed at school and that the head teacher had spoken to them and involved the parents. So by the time they set up their interview, the children had already spoken to a number of people. “So the purpose of the named police officer and I being involved in the joint interview was to determine whether TF had been involved in this game with other children, in particular with regard to any perversion by adults, or involvement by adults that indicated that he had been shown this game, that was the main aim of this.” As an aim, that seems well directed subject only to the opening position being that one or other of the children must have learned about the “game” from an adult source either directly or from another child or from something seen on a video, DVD or internet site. In her evidence she then recalled what the circumstances had been, though found herself using the expression, “I can’t remember” in relation to a number of significant issues. She described the girl, for example, as having her trousers down, which may suggest a different degree of harm to that in the original description of the event. She could not remember whether the interview had been video recorded but could say that it had taken place in the school, that it had not been informative but that TF had said he had not played the game with anyone else. She did not seem to be aware that that was not what he had told MM. She observed, quite rightly, that it was “unusual” for the children to have been spoken to by so many other people before the joint interview. Her understanding of the usual procedure was that the head teacher “should have contacted us” (i.e. the social work department) before making contact with any parent. She did not know why that had not happened on this occasion. She said it was possibly reasonable to conclude that the head teacher had not followed normal procedure. When she and [the named police officer] tried to discuss what had occurred with TF, he physically moved himself round in his chair and hid his face. Otherwise he had been open and charming. One would have thought that that non-verbal response might have been another indicator of cause for concern. She said that TF gave no indication of having observed adult sexual behaviour. She then said that there would have been an impact on him if he had done so. I cannot help but observe that one impact may have been to try the behaviour himself. There was some indication according to the social worker that the occasion on which they had been seen may not have been the first occasion on which they had jointly participated in the game – the fact that the game had a name would be consistent with each of them knowing what was to be expected in the game – but she could not say where that indication came from. The police decided not to take the matter any further. That is disappointing for they should have carried out further enquiries at least with each of the parents. The social worker spoke with each of the parents and with MM. While she did not open a case to social work for each of the children in this family as she should have done, and while she did not acquaint herself with TF’s other difficulties as she should have done, she did decide, having met the parents, that there would be some merit in requesting KG to become involved in trying to improve communication between the parents which was poor. She also spoke to a children’s resource worker, who began one to one sessions with TF to support him with issues at school. One has to wonder why the school did not do that at an earlier stage. The pursuer raised with her concerns about the health of the children, about hygiene issues, about the defender’s failure to put proper boundaries in place and about difficulties over contact. Later, he expressed concerns about nudity. She met him with his sister, JJ, who had concerns, as had the rest of her family, about nude pictures of the children in a calendar circulated at Christmas 2013 by the defender. She was told that the children regularly stripped off. Again, I cannot help but think that these are all matters which ought cumulatively to have led this experienced social worker to the conclusion that at the very least the children should have been an open case to social work. However, she said she discussed the nudity and the calendars issue with her manager and then went to see the defender and discussed these concerns with her. The defender expressed the view that the complaints were malicious and that she had heard them before in court and that this was all just part of an acrimonious separation. The social worker challenged her on the content of some of the photographs which apparently led to a lively discussion but, so she said, on reflection, the defender conceded that some of them could be seen to be inappropriate, especially photographs of the children sitting nude on the toilet. Despite other criticisms of the social worker which are justified, it is my opinion that in tackling the defender vigorously about this and in expressing the view as she said she did that there was at least a risk of a connection between the permissive behaviour at home and the sexually inappropriate behaviour at school, she at least began the process of removing the blinkers from the defender’s head that she had had about the insignificance of what she had allowed and encouraged in the way of nudity and disinhibition and bad behaviour generally. She was aware of the second joint interview of TF but did not give any details as to what that was about. She had not met MF. In the course of the discussions about the calendars, the defender told the social worker that she did not wish the pursuer’s sister to be involved in any further discussion with the social work department, another indicator that a qualified social worker should have been allocated to the children. Her evidence however was that the defender then began to put new rules in place, it would seem recognising the risk to MF that she had helped to create. TF’s inappropriate language was challenged for the first time by the defender and the children stopped having bath time together. Generally, the social worker felt that this was not a case where she and her concerns for the children were being ignored by the parents. After these initial enquiries however, and notwithstanding her entirely different role, the social worker appeared to delegate to KG the task of gathering information and being the listening post for complaints, a function she was not briefed to undertake and which conflicted with her role as communications mediator.

[110]    During re-examination, the social worker said that the pursuer had not been informed, or so she understood, about an incident with a child called E. She said that she had not been involved in the joint interview but had been asked to meet the defender with [the named police officer] and explain the allegations and that that had taken place and the police were going to be speaking to the pursuer. It was not appreciated, at least I did not appreciate at the material time, that this interview etc., related to another incidence of inappropriate sexual behaviour involving TF. That only became clear when we later heard evidence from KG. She had an M.A. in Social Work and Community Education and had worked as a practice teacher since 2009. She had worked with families and children for 30 years. She had worked as a youth worker for the Armed Forces in Germany and thereafter in London, Aberdeen and rural Aberdeenshire. She had been a senior practitioner with Action for Children and had been the service manager running a family support service for vulnerable children and families based in Lochaber. Following a referral from the social worker, she had worked with the parties to provide them with some parenting support after the “bum-licking” episode at school. Her remit was to help the parents deal with issues which came up in relation to the children. Since the defender returned from Australia with the children at the end of July 2014, she had seen her once a week. She had seen the pursuer on average about once a fortnight “because he works away from home a lot.” He was the more reticent of the two when it came to her seeking authority to share information with the other parent. Generally he declined to authorise information sharing. Both parties were, in her opinion, caring people who loved their children. Both provided a suitable home environment which was child-friendly. They differ slightly in their parenting methods but nothing in either household had caused her concern. She dealt with each separately taking them through a parenting course working around self esteem and boundaries. Much time was devoted to how TF’s behaviour should be handled. Whether either of them followed her advice was down to each of them. The defender was the more articulate and wanting to discuss the “hows” and “whys” of the advice given. The pursuer took information on board and acted on it occasionally but at other times took things at his own pace. The work they were doing with her was voluntary and they each knew that. The pursuer and members of his family were concerned about clothing and photographs involving the children and she had raised her own concerns with the defender. The defender had told her that the children now have an enhanced sense of the need for modesty and that she does not now have any issue with them stripping off clothes. She has been using sanctions to control behaviour and the witness felt that what she had done was appropriate. She was, for example, making use of a family notice board in the hall of her house the content of which changed frequently. She made use of happy or sad faces encouraging the children to talk about how they feel. She tried to use the same systems as were used at school for the sake of consistency. She had been in the defender’s house on a weekly basis and had seen cooking or food preparation taking place. She had seen the defender making home made soup and there was always a bowl of fruit on the table. She had heard allegations of the use of junk food from the other side and could see no sign of this but it was a very tidy house and crisps may have been kept in the cupboard. She and the defender had talked about diet and each recognised that certain types of food were best avoided in relation to unusual behaviour in children. The defender’s position, she said, was that she was managing TF’s behaviour in the light of the “bum-licking” incident, with the intention of preventing a recurrence and limiting opportunities to engage in such behaviour. Both parents were trying to address inappropriate language by TF by dealing with it at the time it occurred. She had been approached by the pursuer’s father and sister and had made it clear to them that her work was confidential but that she would listen to them. She did not think that their concerns were well founded. Generally, the pursuer was quite respectful when he spoke about the defender. She was the same when speaking about him. Sadly, they did not find it easy to talk to each other. When she started work with them, they were doing contact handovers at a local café which each of them found stressful. The pursuer complained that the defender would not speak to him. The defender claimed to find him intimidating. They re-arranged contact so that it involved dropping the children off at school or nursery and thus limiting the opportunities for direct contact. They communicate by e-mail and the success or otherwise of that depended on how the recipient chose to interpret what the other had to say. Sometimes the tone is good; sometimes it is not. On 14^th. January, 2015, she had visited the pursuer who told her that there had been an incident in his house on 3^rd. January, 2015. He told her that he and a friend had been in the sitting room and the friend’s son was playing with TF. TF had come running through and had asked the boy to sit on the sofa beside him to “lick his bum.” The boy declined and TF asked, “Are you too scared to do it?” Both the pursuer and the other parent then intervened. The pursuer had regarded the matter thus as at a conclusion and had not reported this behaviour to anyone, including the defender. Both parents and TF had seen the paediatrician about this time and the pursuer said nothing about this episode. But the following night, the mother of the other child told the pursuer that the incident had been mentioned at school. His position was that he had not said anything to anyone as he was satisfied that he had dealt with the episode. The defender found out about it via the school. The witness, KG, had discussed the episode on 19^th. January with the social worker because “Although the social worker is no longer involved with the case…..otherwise, there is no open file in relation to TF in the caseload of any social worker.” The social worker omitted to make any mention of this information which she received two days prior to giving evidence. No one told the paediatrician that TF had participated in any inappropriate sexual behaviour since May, 2014. It would have been helpful if the pursuer had told the paediatrician. He had only told KG because he was aware it had emerged at school.

[111]    On an entirely separate issue, she was aware that the defender was not the only parent to have had issues with the head teacher at the first nursery but she was not in a position to comment about the defender’s justification for having any complaint about how TF was treated. The witness was aware of the relocation plan and was aware that this was causing each of the parties to experience stress. They had each discussed with her what should happen if the decision favoured relocation and had agreed that the children should be told at a joint meeting. If the decision went the other way, they were agreed that the children need never know about the application. That, at least, reflected some measure of common sense agreement. She considered the defender’s motives in seeking relocation were quite genuine. She understood the defender’s feeling of isolation and that she had better work prospects in Australia and support from family and friends. She considered the move would be positive for her and the children. The pursuer saw it differently because he wanted the children to remain where he can have regular contact with them.

[112]    She was very firmly of the professional opinion that licking another child’s private parts, whichever precise part might be involved, was not natural exploratory behaviour on the part of a six year old boy. She agreed with the suggestion that the recent reported episode at the pursuer’s home appeared to contradict the suggestion that progress had been made with TF. She accepted that it was not satisfactory that this episode had not been brought to the attention of the social work department by the pursuer when it happened. She was unaware of TF being reported as continuing to expose himself in the school toilets. Following the bum licking incident, the social worker had assessed each of the parents and formed the view that TF had not learned the behaviour from either of them. That meant that he must have learned it from a third party source and that should have been the subject of further investigation. There was no evidence of either party having a new partner. In particular, there was no evidence of the defender being involved with another lady.

[113]    Of the professionals who gave evidence, KG was by some distance the most credible and reliable. She was also the most successful in that she appeared to have the trust of both parties and she had recorded clear information about each of their homes with particular regard to child welfare issues. She had spent time discussing with each of them how to deal with TF in the light of his involvement in inappropriate sexual behaviour and she had tried, without success, to improve communication between the parties. She was quite clear that TF’s issues had not been effectively addressed and that more should be being done to identify the source from which he had learned about licking genitalia. By inference, she was unimpressed and thought it was wrong that there was no open case on TF. Even in her evidence it can be seen that there was a lack of sharing of information between the school and the social work department, never mind between the parents and either of these departments. It is noteworthy that she considers the defender’s motives for relocation are genuine and are intended to improve the welfare of the children. It is also noteworthy that she had heard the suggestion of the defender having a lesbian lover. This was one of the most disappointing aspects of the evidence offered by the pursuer. The evidence came primarily from JJ whose value as a witness diminished in the course of her cross-examination where she became more and more aggressive with Miss McAlpin and more and more offensive about the defender. Though she denied it vehemently, she did engage in behaviour which came very close to amounting to criminal behaviour towards the defender in the episode at the hamlet when the defender was fastening MF into her child safety seat. But she was the promoter of the idea that the defender had a lesbian lover from information allegedly gleaned from MF. The supposed lesbian lover was JG and the pursuer knew this. He had known JG, who gave evidence and who was entirely credible and reliable, for about twenty years. He also knew her male partner for he had visited at their home in the borders on a number of occasions. He knew that there was no basis for this assertion but nonetheless allowed it to be made. I can only conclude that he must have thought that he would gain some advantage if I thought that the defender had a lesbian lover. In that, he has thus twice shot himself in the foot, for even if the assertion were true, it would have no effect on the outcome of the case. Questions relating to the welfare of the children and the person most likely to enhance their welfare do not turn on any individual’s sexual preferences. There is no statistical evidence which would support the notion that lesbian women do not make caring mothers. To suggest otherwise is, frankly, homophobic. Counsel for the pursuer went on about manipulation on the part of the defender but this episode is the most blatant and unjustified attempt at manipulation of words spoken by a four year old girl with no other basis for the allegation. There is no evidence that the defender is a lesbian but, even if she was, that would not be a factor of any significance in the determination of the outcome of this case.

[114]    The other thing which has become clear is that, even if the authorities who ought to be exchanging information about TF have demonstrated their remarkable ineptitude about doing so, the community in which he lives has been sharing information. How accurate that information is is hard to assess but I have a real concern that TF is now irrevocably stigmatised. It started with the biting at the first nursery which, according to its head teacher, and I have no reason to disbelieve her, caused other parents to remove children from her nursery. Information about the incidents with E, JK and the child at the pursuer’s house in January 2015 seems at least to some extent to be out there in the community. No matter how successful the defender’s efforts to control his behaviour may prove to be, the stigma will not readily disappear particularly if he is regarded as a risk to other children. The evidence has demonstrated a very poor level of professional support for TF. It is disappointing and unacceptable that he has to wait months for an appointment with the school nurse. It is disappointing and unacceptable in the light of the cumulative evidence of his behaviour that he has not had an appointment with a child psychologist. It is surprising that the paediatrician who saw him and who had good information in the referral from the GP thought it was adequate to give the defender advice about setting boundaries and do nothing further. It is utterly incomprehensible that this child is not an open file to social work. In fact, he should have been the subject of a report to the Children’s Reporter. It is disappointing that the police do not appear to have carried out any adequate inquiry into the source of the learned behaviour leading to TF’s sexually inappropriate behaviour. Completely contrary to the assertion of counsel, it is my very clear opinion that there is nothing in relation to support mechanisms currently being effectively utilised for TF’s benefit in the area in which he currently resides and I accept Miss. McAlpin’s submission that the defender is in despair about getting effective assistance for her son in the West Highlands and understand for the foregoing reasons why she should have come to that conclusion. So there is no point in him remaining here to have his issues addressed because no one is addressing them effectively.

[115]    There has been very little mention of MF in the evidence. There was never any suggestion that the children could or should be separated and so I am proceeding largely on the basis that what is better for TF is also better for MF. She is described as a bright and articulate child who is ready for school. There is some evidence to suggest that she is attention seeking and has to some extent suffered from the same lack of boundaries as TF but that the effect has not been so profound. There is also some evidence of bad temper. I have to treat each of the children as individuals but there is no doubt that her welfare is intrinsically bound up with her mother. It is worth noting that both at the hamlet and the location to which she moved with her mother there are no other wee girls for her to play with whereas there are a number in Australia whom she has met and interacted with well while on holiday. The bottom line is she must go where her mother goes.

[116]    I am accordingly of the opinion that the specific issue order should be granted. I am satisfied, having regard to the welfare of the children as the paramount consideration, and trying to visualise things from their perspective, that it will be in their best interests to relocate to Australia with their mother. Because that can only be done by the granting of the specific issue order, it is self evident that it is better that I make an order than that no order be granted, having regard again to the welfare of the children. I am satisfied with the reasonableness of the proposed move to Australia. It is interesting to see the developing pattern in the judgments of Sheriffs Pattison and Khurana of recognition of the importance of family support for the primary carer particularly where young children are involved and having had the benefit of evidence from the defender’s mother and her husband together with what I will call for convenience the Australian affidavits, I am satisfied on the balance of probability that the defender will benefit from solid support from her mother, from her step-father and from her significant family circle and circle of friends. As Sheriff Morrison put it in M v M, providing security and stability for a child is best achieved “if the life of the parent with the residence order is also secure and stable.” It is important that there is an offer of employment available for the defender because that makes her proposition viable though I do not doubt that there will be further financial as well as practical assistance from her mother. I see no reason to doubt the propriety of the offer of employment. The prospective employer has deponed in an affidavit that there is such an offer and I have seen a contract. The work on offer will be more conducive to the welfare of the defender than her present gardening work which adversely affects her hands, neck and shoulders and which she has been advised to quit. She will be supported by her family, particularly by her mother, in relation to child care where that clashes with her employment obligation though the evidence was that some of the work can be done at home. Much was made of the modest salary which the defender would receive but seems to me to represent a substantial improvement on her current earnings and with a much better prospect of advancement should she prove successful. I do not propose to become embroiled in the large school versus small school debate about where the greater benefits lie for the children. Suffice it to say that I am satisfied on the material produced to the court and on the evidence of the defender, her mother and step-father, that the prospective primary school in Australia is a good school with a head teacher who happens to be a specialist in special needs teaching, not that I am suggesting that TF requires special needs teaching but he may require some special treatment. I am also satisfied that, because of the stigma in the community, it would not be in TF’s best interests to remain at his current school. The only drawback to the proposed relocation will be the gross reduction in the level of physical contact with the pursuer. Unfortunately, the presentation of the case for the pursuer concentrated almost exclusively on what seemed to me to be appropriate to categorise as the loss to the pursuer and, to a lesser extent, his family than what would be in the best interests of the children. I appreciate and acknowledge that the removal of the children to Australia will have a profound effect on the pursuer and I do not seek to minimise that, but this is a case about the best interests of the children, not the pursuer. The pursuer essentially seeks the continuation of the status quo and I have reached the conclusion that that is simply not in TF’s best interests, and while I can only speculate about what assistance may be available for TF in the Melbourne area, the reality is that it could hardly be poorer than the provision in the West Highlands has been for him. I am satisfied on the balance of probability that the defender’s motive in moving is real and not spiteful and relates primarily to her need for support as well as an opportunity to earn enough to provide her children with a decent standard of living.

[117]    There is a significant body of evidence which suggests it would be detrimental to the children not to have regular contact with the pursuer. Clearly that is an important factor to which I have to have regard. Firstly, I would be failing in my duty to the children if I did not observe that I have some concerns about the attitude of the pursuer which attitude has the scope to affect the welfare of the children. I have already reached the conclusion on the balance of probability that the pursuer has a history of misusing cannabis. There was little evidence that that had continued subsequent to the parties’ separation and no evidence of misuse having any adverse impact on contact but I have already expressed surprise and concern at the pursuer’s apparent lack of grasp of the enormity of these proceedings and I cannot help but wonder whether there is any connection. In any event, his attitude towards the welfare of his children has at times been wanting. I acknowledge that he had to work away from home at times but when he was home he must have observed how his children were behaving but seems to have done nothing about it. His attitude towards TF’s issues has been less than helpful. His philosophical stance seems to be that “there is nothing wrong with my boy,” when there very plainly is. It is not going to assist the child to ignore the issues. But he has failed, except when afraid of being found out, to disclose important information about TF’s behaviour to the defender and to the relevant authorities. There is no evidence from which I could conclude that the pursuer is the source of TF’s learned behaviour but the foregoing observations make it impossible to exclude him from the possibility. I recognise and do not minimise the importance of the effort that the pursuer has made since the separation to make contact a good experience and that has been remarked upon by a number of witnesses, including the defender. He built the home in which he planned they would live and he is rightly proud of that. He built a playhouse which the children clearly enjoy using. He built a bogey. TF enjoys trying to help his father with carpentry skills and the pursuer appears to have the patience to indulge him. He takes both children for walks in the woods and in the hills. He takes them out on the loch in a boat for a spot of fishing. I am in no doubt that the children enjoy these simple pleasures and will miss them. They will also miss out on the visits with the pursuer’s family and this outcome will be hard for the children’s paternal grandparents. I recognise that, for them, any trip to Australia would be something of an ordeal. DJ was more optimistic on that front but recognised that for him the expense of the trip would be a major consideration especially with SJ heading for university.  I am in no doubt that the children enjoyed and benefited from this contact with the pursuer’s family and I am equally in no doubt that that contact, at least on a face to face basis, will be very limited henceforth. However, I am in no doubt that it is more important to the children to have their mother in a stable and secure situation and well supported and the importance of that factor has to take precedence in the balancing exercise I am obliged to undertake over the importance to the children in the maintenance of regular physical contact with their father and his family.

[118]    In relation to the maintenance of contact, all I heard from the pursuer was negativity. He appeared not to have applied his mind to the kind of opportunities that this different form of contact might present. There is much to be seen in Australia and were he to go there and take his five or six weeks contact there, he and the children could happily go on tour. There would be no need for him to sit in the defender’s mother’s house feeling miserable. As the children get a bit older, perhaps they could meet in exciting destinations between the UK and Australia and thus share a holiday experience. The pursuer will have to come to terms with the decision and decide what to do with the rest of his life. He did not give evidence about having explored whether he would be likely to get an entry visa to live and work in Australia. He said nothing in particular about whether he would continue to live and work in the West Highlands. I take the defender’s point that she does not wish any ongoing payment from him, so he can use what he should be paying to support the children to come and visit them or have them come and visit him. I have been troubled about the evidence about the pursuer’s financial position. He ought to be able to earn about twice his declared income and appears to have a lifestyle consistent with him earning about twice his declared income so he may be better placed to afford contact trips than he presently declares. In any event, there were what seemed to me to be genuine offers of assistance in relation to contact.  The defender’s aunt was prepared to make her beach house available to the pursuer and even if that were only for a week of the holiday period, that would help to alleviate his costs. The defender’s mother and step-father intend to make occasional trips to London while MH’s son continues to live and work here and so it might be possible to organise things so that they will be available to accompany the children from and back to Australia. I am not suggesting, however, that anyone other than the pursuer should be responsible for the expense of these trips, both his own and that of the children, given that he is otherwise relieved from having to maintain them. Supposing physical contact is limited, that does not preclude contact by other means. The pursuer can write to his children; he can telephone his children. He can stop moaning about his inadequacies and learn to use a computer and the various forms of communication which the Internet permits. The bottom line here is that the level and quality of contact is very much a matter for him to establish and if he finds he is being obstructed, he can always come back to this court for orders which will be enforced in Australia having regard to the existing reciprocal arrangements on family cases. I have set out in the order pronounced a broad pattern for phone and internet contact which I hope would set the minimum standard but I will always be open to persuasion that contact arrangements, both direct and indirect, should be amended. Contact will be different. The challenge for the pursuer is to make each period of contact a worthwhile experience which the children will not forget.

[119]    I have already observed that the children will benefit from support and support to their mother from their maternal grandmother and her husband. But into that equation also come the defender’s brother and sister-in-law and their children, together with her aunt and her three cousins and their children. Both the evidence of AMcN and the affidavit of the aunt portray a very active family circle where the whole family turns up for family events and no one lives terribly far away. I believe the children will benefit from the involvement of this wider family circle.

[120]    It has caused me a certain amount of concern that I do not have any view from the children, even indirectly, but I respect the parties’ decision not to trouble the children with the stress of awaiting the outcome of this case and I acknowledge that the children are both too young to be able to express any meaningful view on the topic. I acknowledge that SJ was told by TF that it was too hot in Australia, that he was missing his father and his friends and his granny’s gravy and that MH went and hid in his room. I do not doubt that that is what he said but I cannot accept that it is material from which I should conclude that he was unhappy during his last visit to Australia. I have seen a number of photographs and heard evidence from the defender and AMcN and MH all of which satisfied me that each of the children had a good time and were very happy to meet the children of other family members and of friends of the defender. It is fair to say that MF, in particular, appears to have derived a lot of enjoyment from meeting other little girls of her age group.

[121]    I am in no doubt that it would be a severe blow to the defender were the specific issue order to be refused. I accept that there has been a degree of manipulation of the evidence attempted by her in the course of the proof but there are few family proofs wherein no one makes any effort at manipulation and the court simply has to be alert to these. It demonstrates a certain Machiavellian state of mind reflective of a philosophy in which the end justifies the means. For the avoidance of doubt, I do not believe that I have been misled in any material way by evidence from the defender. I have already mentioned KG’s assessment of the effect of refusal of the specific issue order and I regard her evidence as measured and important. JG, a 56 year old freelance artist and heritage tutor who had been a friend of both parties since 1999, apart from confirming that the defender was the primary care provider to the children, gave evidence to the effect that the defender had had enough of living like a single mother with no support from the pursuer. She observed that the defender had brought TF with her to Edinburgh when she had Open University sessions to attend “because there was no one in the area in which she lived she would leave him with.” She had become very aware of all the other mothers around her having family support, as most witnesses at the proof who had children acknowledged, and recognised the value to them of that support. She said that the defender had given some thought to a move to France with or without the pursuer, but had come to the conclusion that it would be too difficult for the children. So Australia, and the family support available there, had become the obvious option. The proceedings and the lack of support had created what was a really stressful time and experience for the defender and she has been frustrated by the lack of support for TF. If she were refused the order for relocation, she would remain here and get on with it to the best of her ability, but she would find it difficult to continue to live in the present area where she feels ostracised. Another friend, MMcG, who was a straightforward, credible and reliable witness, a 45 year old nurse who lived locally, said that the defender would be devastated if not allowed to go to Australia. She said that when the defender’s mother had been able to visit, the defender was a different person, much more relaxed. She was in no doubt that having her mother to call upon would make a huge difference. This lady was also interesting as being the mother of a child with special needs who had had a similar experience as the defender when it came to trying to get effective help in the West Highlands with particular regard to child psychology. Anything that would leave the defender devastated would be contrary to the children’s interests.

[122]    I am obliged to have regard to the amendments inserted into the 1995 Act by the Family Law (Scotland) Act, 2006 and, in particular, to the matters set out in the new s. 11(7B) which it introduces into the existing provisions of the 1995 Act. That requires me to consider whether there is any need to protect the children from abuse. The learned behaviour demonstrated by TF, on the balance of probability, was learned in the West Highlands. It may, of course, have been learned from a film or DVD or the internet but the likelihood is that TF learned the behaviour in the West Highlands. It was an act of abuse to teach him about such sexual behaviour at the age of 5 and worse still to exhibit it to him however that may have been done. While I cannot identify the source of this abuse, I can still at least make the point that it was learned here and there is therefore on the face of it another reason for TF’s removal from the West Highlands. There is also the question whether the defender’s ability to care for her children has been affected by abuse from the pursuer. In the definition in subsection (7C), abuse is defined as including “harassment, threatening conduct and any other conduct giving rise to, or likely to give rise, to physical or mental injury, fear, alarm or distress.” Some of the pursuer’s behaviour towards the defender falls within the terms of this definition. This led to the arrangement of contact without the parties having to come into contact with each other. So it would be difficult to conclude that, beyond that change of arrangements, there has been any effect on the defender by the pursuer’s occasional act of abusive behaviour, but poor communications do not enhance the welfare of the children. I am also required to consider the ability of the parties to co-operate with one another over contact. In this, the defender has been resilient despite the lack of full and proper co-operation from the pursuer in not properly adhering to contact times and in being obstructive over his agreement for the children to go to the wedding in Thailand.  The level of co-operation is poor between them, primarily through the fault of the pursuer. All this adds to my conviction that it is correct to grant the relocation order.

[123]    I have no doubt undertaking the balancing act of competing factors which I have to do that the best interests of the children will be best engaged and protected by the making of the specific issue order permitting them and their mother to relocate to Australia. Making the order is all that is required of me, but, for the avoidance of doubt, I am not in any doubt that the relocation should take place as soon as practicable for the sake of the children and with as little fuss as possible given the inevitable level of disruption inherent in this decision.

[124]    Although in broad terms I am of the opinion that each party should meet their own expenses here, since there may be issues associated with any award of expenses, I have put the case out for a hearing on expenses on 8^th. January, 2016. If either party wishes to address me then on any aspect of the arrangements for contact in the future, then I will be willing to hear them.