JQ v CC
SHERIFFDOM OF GLASGOW AND
STRATHKELVIN AT GLASGOW
F1467/07
JUDGMENT OF SHERIFF AISHA Y
ANWAR
in the cause
JQ
Pursuer
against
CC
Defender
Act: Moss,
Solicitor
Alt: Matheson, Solicitor
(F590/15 - For DC: Mr Bell, Advocate instructed by Harper Macleod, solicitors)
GLASGOW, 1 March
2016. The sheriff having resumed consideration of the cause, finds in fact:
(1) The pursuer and the defender are both 35
years of age and are respectively the father and mother of J, born on 10
December 2005. J is currently 10 years old.
(2) The pursuer obtained a Masters Degree in
Sound Design in 2014. He worked in sound
design and toured various art venues and theatres until he took employment with
Glasgow City Council as a part time library assistant in 2015. The defender is a graduate of the Glasgow
School of Art and is currently employed by the NHS as a physiotherapist
assistant.
(3) The defender was born in Amiens,
France. The pursuer was born in New York
but has lived in Glasgow for over 13 years.
The parties met in 2004 when the defender came to Glasgow to study at
the School of Art. The defender became pregnant in February 2005. The defender had a difficult pregnancy and
was diagnosed with Lymphocytic Hypophysitis, an inflammation of the pituitary
gland. Her symptoms included intense
headaches, temporary partial blindness, and exhaustion.
(4) Having lived together for a short
period, the parties separated soon after J’s birth. The pursuer moved into a
property located in close proximity to the defender.
(5) The defender returned to her parents’
home in France in early 2006 with J. By
summer 2006, she had returned to Glasgow, resumed her studies at the Glasgow School
of Art and obtained a part-time position at the Centre for Contemporary
Arts.
(6) Between 2006 and 2008, the pursuer
exercised contact with J on an ad hoc and irregular basis. During this time, the pursuer was facing a
number of personal difficulties, including in relation to his employment,
accommodation and alcohol misuse.
(7) On 12 March 2007, the pursuer pled
guilty to an offence under section 127 of the Communications Act 2003 in
relation to sending the defender threatening text messages. He was admonished. The defender sought and obtained an interim
interdict and non-harassment order against the pursuer. The pursuer continued to have ad hoc and
irregular contact with J.
(8) The pursuer raised proceedings seeking
an order for parental rights and responsibilities and an order for contact in
respect of J. On 9 December 2008, the parties
having agreed a joint minute, the pursuer was granted an order for parental
rights and responsibilities in respect of J.
He was also granted an order for (a) residential contact every second
weekend from 10am on a Saturday until 5pm on a Sunday (b) contact once a week
as agreed between the parties and (c) additional contact as agreed between the
parties.
(9) From December 2008, the pursuer and the
defender worked together to co-parent J.
They were able to co-operate and to arrange contact in a manner which
was in J’s best interests and which reflected their working commitments. Currently, J resides with the pursuer every
alternate weekend from Friday at 5pm to Monday at 9am, when the pursuer takes J
to school. In addition, the pursuer
collects J from school up to three days each week and cares for him until 5pm to
accommodate the defender’s working hours.
J resided with the pursuer for a two week period in the summer of 2015. Until
the raising of these proceedings, the pursuer and the defender remained on amicable
terms and were able to arrange contact flexibly and by agreement. At all times that J has resided in Glasgow,
the pursuer has lived in close proximity to him.
(10) The defender met DC in October 2006. DC is 43 years old and was born in
Dublin. He is a successful self-employed
artist. He has lived in Glasgow since
1996. He moved to Glasgow to be with his
partner, KV who is Scottish, and who was at the time, due to give birth to his
son, E. Upon separation from KV, DC
agreed a shared care arrangement in respect of their son, E.
(11) The defender and DC entered into a
relationship in early 2007. The defender
and J moved into DC’s home around early 2009.
During periods of residential contact, E resided with DC, the defender
and J.
(12) Difficulties arose in the relationship
between the defender and E, and in the relationship between the defender and DC. The defender wished to move out of Glasgow,
however DC refused to leave due to his commitments to his son, E. The relationship
between the defender and DC ended in October 2009 and the defender again
returned to her parents’ home in France with J.
J attended pre-school in France. The
defender and DC remained in contact with each other.
(13) In early 2010, the defender obtained
employment as a designer and general manager for a weaving business in the Isle
of Mull. The defender moved to Kintra. J began his primary education at a school in a
village nearby.
(14) DC visited the defender in Kintra. In August 2010, the defender became
pregnant. DC was unwilling to move to
the Isle of Mull due to his commitments to his son, E, in Glasgow. The defender and DC decided to live together
once more, in Glasgow and the defender returned to Glasgow in March 2011. DC purchased a flat in the west end of Glasgow. DC and the defender were registered as the
heritable proprietors.
(15) F was born on 25 May 2011. F is currently 4 years old. DC is his father. The defender is his mother.
(16) Difficulties again arose in the
relationship between the defender and DC.
On 27 August 2011, while DC attempted to prevent the defender from
self-harming by restraining her, the defender fell and broke her finger. The
defender and DC separated after this incident with DC moving out of their flat.
(17) The defender continued to reside in the flat
in the west end of Glasgow with J and F. There was no outstanding mortgage for the
flat. For an eighteen month period after
separation, DC paid the utility bills, factors fees, communal repairs and for
F’s nursery fees. When the defender was
struggling to pay the council tax for the property, DC assisted her. After the defender gained employment, DC paid
her £300 per month as maintenance for F and continues to do so. During 2012 and 2015, DC and the defender had
discussions regarding the sale of the flat and used the services of
mediators. The defender and DC entered
into a Minute of Agreement in relation to the division of the sale proceeds in
early April 2015 (item 5/3/9 of process in F590/15).
(18) Currently, DC has care of F (a) each
alternate weekend from Friday at 5pm to Monday at 8.45am when F is taken to
nursery (b) each Monday, Tuesday and Wednesday after nursery until 6pm and (c)
during holiday periods as agreed between the defender and DC. Contact has generally operated flexibly and
by agreement.
(19) In July 2014, the defender met JB during a
trip to the Isle of Mull. They met again
in September 2014 and were thereafter in daily contact by telephone and by
email. A few weeks later, they met again
in Shropshire. JB first met J and F in
October 2014 when he spent a weekend in Glasgow. He met the children again in November 2014 when
they enjoyed a day trip to the west coast.
The longest period of time JB has spent with the children has been a
period of 10 days over the Christmas holiday period in 2014/2015. Since then, he has spent time with the children
on average, twice a month and for longer periods during holidays.
(20) The defender and JB made a decision to
cohabit in early 2015 and began looking for suitable accommodation. They got engaged in March 2015. The children first visited JB in Exeter in
March 2015.
(21) JB is a 37 year old man. He has no children. Since graduating, he has
been engaged largely in employment which is related to agriculture. His parents own, work on and reside in, a
farm in Devon. Since 2012, he has been a
partner of the family farming business which comprises inter alia 170 acres, rears an award winning herd of cattle and
produces cider apples. The majority of
the day to day tasks involved in the running of the farm are carried out by JB
and by his parents. The business cannot
meet the costs of employing full time staff.
JB’s parents are each over seventy years old. It is expected that the farming business will
be transferred to him in the future. He
currently has a controlling interest in the farming partnership. Selling the farm will give rise to a
substantial capital gains tax liability. His drawings from the family business
are approximately £300 per month and the profits of the farming business for
the year ending September 2014 were approximately £1500. He also derives rental income of
approximately £1500 per month from a flat he owns in London.
(22) Between late January and mid February
2015, the defender and the pursuer exchanged a number of text messages
regarding the defender’s desire to relocate. The pursuer repeatedly asked the
defender why she wished to move out of Glasgow. The defender insisted that she
had never wished to settle in Glasgow and wished to move to be closer to her
parents (items 6/90-106 and 6/144 of process).
She did not respond directly to questions regarding whether she intended
to co-habit with another man.
(23) In April 2015, the defender entered into
negotiations to purchase a property in Exeter with a purchase price of £292,000. Title was taken in her sole name. She obtained entry to the property in June
2015. The property was purchased with
the financial assistance of her parents.
The property provides ample and suitable accommodation for the defender,
JB and for both J and F. It is located
within walking distance of a number of local amenities including a sports club,
a football club and a swimming pool. It
is within walking distance of a Junior School and an Infant School both of
which are likely to provide the children with a high standard of education. It takes approximately 25 minutes by road to
travel to JB’s farm from the property in Exeter. J and F visited the property in May and June
of 2015 and more recently, have spent alternate weekends with the defender and
JB at the property in Exeter.
(24) The defender has been offered employment
as a physiotherapist technical instructor at an NHS hospital in Exeter. The defender has no family or friends in
Exeter upon whom she could rely for support, with the exception of JB and his
parents.
(25) On 27 April 2015, the defender met with
the pursuer. She provided the pursuer
with a ‘fact sheet’ providing details of the property she had purchased, available
schooling for both J and F and providing details of travel options to and from
Exeter. She also provided the pursuer with information relating to job
opportunities for the pursuer in Exeter and encouraged him to consider moving
to Exeter. During this meeting, the defender did not advise the pursuer that
she was engaged to JB. She insisted that
the reason for her decision to relocate to Exeter was to be close to her family
in France.
(26) On 28 April 2015, the defender informed DC
by email that she intended to relocate to Exeter (item 5/37 of process in
F590/15). She attached a copy of the
same ‘fact sheet’ which she had provided to the pursuer. DC had not previously
been advised of the defender’s intention to move out of Glasgow or of her
engagement to JB. The defender wrote:
“I am writing to tell you that
I will be leaving Glasgow to move to Exeter with J and F. I plan to leave in July, so that we will have
time to settle before J and F start school together in Exeter in September.
As you know, I have always
wanted to be closer to France and my family, and Glasgow was never the place I
wanted to live nor bring the children up.
Furthermore, my personal circumstances have changed, as I am engaged to
my partner, [JB], and we wish to live together. . . . I would like to assure
you that I would always intend to promote fair and reasonable contact between
you and F. I truly hope that we can
cooperate and together create a positive and sustainable future for F. I look forward to hearing back from you to
discuss the contact arrangements . . .”
(27) DC has raised proceedings in this court
seeking inter alia interdict
preventing the defender from removing F from the jurisdiction of this court
(Court Reference F590/15).
(28) On 14 August 2015, following the sale of
the flat in the west end of Glasgow, the defender received the sum of £113,638.00
from the free proceeds and DC received the sum of £333,094.90. The defender used some of these funds to repay,
in part, the loan advanced to her by her parents for the purchase of the
property in Exeter.
(29) Prior to the sale of the flat in the west
end of Glasgow, DC offered to provide financial assistance to the defender to
enable her to rent suitable accommodation until the outcome of these proceedings
was known. The defender refused that
offer.
(30) Upon the sale of the flat, the defender
moved into a one bedroom flat in Glasgow with J and F. That accommodation is inadequate and
unsuitable for the children. The
defender moved into this property with limited belongings. She arranged for the family belongings to be sent
to the property in Exeter.
(31) The defender is a devoted mother who has
endeavoured to provide a high standard of care for both J and F following the
breakdown of her relationships with their fathers. However, the defender has,
on occasion, disciplined the children by physical means. The defender is prone to emotional and angry
outbursts. The defender has experienced
episodes of low mood and of self-harming behaviour. She self-harmed during her relationships with
both the pursuer and DC. She has not
been diagnosed with depression. She does
not suffer from any mental health disorder.
(32) The pursuer and DC are both devoted
fathers who have each played a very significant role in their respective
children’s lives following separation from the defender.
(33) Each of J and F’s parents has different
parenting styles but they have largely been able to communicate and share
information regarding the children’s health and wellbeing.
(34) J and F each enjoy an extremely close and
loving relationship with their respective parents. They each also enjoy a very warm and
affectionate relationship with their maternal grandparents who reside in
France, and with whom they regularly spend significant periods of time during
holidays. Both children speak French
fluently. Both children benefit from
their relationships with their extended maternal family and in particular with
their maternal uncle, maternal aunt, her husband and their children, all of
whom also reside in France. Relocating to Exeter may allow the children to
spend more time with their maternal family.
(35) J also benefits from a warm and
affectionate relationship with his extended paternal family, in particular, with
his uncle and his grandmother both of whom reside in Glasgow. More recently, he has enjoyed the company of
his paternal aunt and her three children each Saturday when he has residential
contact with the pursuer, to accommodate the pursuer’s working hours. Relocating to Exeter will involve a reduction
in the time J is able to spend with his paternal family.
(36) F has a very close relationship with his
half-sibling, E, with whom he resided during periods of contact with DC. E is now 18 years old and is currently studying
at the Glasgow School of Art. He has played
a part in F’s day to day life. F
benefits from a warm and affectionate relationship with his extended paternal
family, in particular, with his paternal grandparents, who live in Ireland.
Relocating to Exeter will involve a reduction in the time that F is able to
spend with his brother, E. Relocating to
Exeter may allow F to spend more time with his extended paternal family in
London.
(37) Since these proceedings commenced, J has
exhibited self-harming behaviour. He can
become angry and frustrated. He has been assessed by a child psychologist as
presenting with particular concerns regarding low self-concept and elevated
anxiety symptoms. The child psychologist
has noted that there is evidence of mild depression. She has cautioned that specific care will
require to be taken to ensure that J can benefit from a stable and calm living
situation. J has some understanding that he is mirroring his mother’s
behaviour.
(38) The defender has proposed the following
contact arrangements in event that she is able to relocate to Exeter, namely; (a)
seven days over the school February half term (b) ten days over the school
Easter holidays (c) seven days over the school May half term (d) twenty one
days over the school summer holidays (e) seven days over the school autumn half
term (f) eight days over the Christmas holidays and (g) each alternate weekend
in Glasgow, Exeter or elsewhere in the south of England. The defender has proposed that in the event
of contact taking place in Exeter, she would allow the pursuer and DC to reside
at her property in Exeter with the children, and she and JB would move into the
farm house for a transitional period during 2016. She has also offered to arrange contact by
telephone and by electronic means. The contact arrangements proposed by the
defender are of a different nature and level to the contact currently exercised
by the pursuer and by DC. They will have
an adverse impact on the nature of the relationship each child enjoys with his
father.
(39) A trial flight route is in operation
currently between Glasgow and Exeter.
Should that flight route continue to be available, the journey from
Glasgow to Exeter, including travel to and from the airports could take around
3 hours. The defender is willing to
travel to Glasgow with the children if necessary and to bear one half of the
costs of travel. An unaccompanied minors
service is available for the flight at a cost of £39 per flight in addition to
the airfare. Children can use this
service from the age of five and can travel unaccompanied from the age of
twelve. The cost of the flight
fluctuates significantly and depends, among other matters, upon when the flight
is booked. At present, this flight route
is not available all year round.
(40) A more established flight route is in operation
between Edinburgh and Bristol. Using
this route would involve the use of a hire car or train for the journey between
Bristol and Exeter, which would take over one hour, and a further car or train
journey between Edinburgh and Glasgow. Should the pursuer or DC exercise contact in
Exeter after 2016, they will require to meet the costs of accommodation in
Exeter on each occasion. The cost of bed
and breakfast accommodation for a weekend is approximately £200.
(41) While it is not possible to accurately
estimate the costs to the pursuer or DC of exercising contact with the children
in the event of the children relocating to Exeter, the costs are likely to amount
to several thousands of pounds each year.
(42) The pursuer had limited means. He pays the defender £120 per month by way of
maintenance. He cannot afford the cost
of travel to and from Exeter or of accommodation in Exeter.
(43) DC’s income is erratic but on average, he
earns £40,000 per annum. He has access
to substantial capital assets and trust funds, albeit that these assets and
funds are not immediately or readily available to him. The cost of travelling to and from Exeter,
and the cost of accommodation in Exeter, is significant, but it is a cost that he
can bear.
(44) The defender has suggested that the
maintenance paid by the pursuer and by DC could be utilised to meet the costs
associated with contact.
(45) The nature and level of contact proposed
by the defender would require good communication, co-operation, goodwill and
understanding between the defender and the pursuer, and between the defender
and DC, which does not presently exist between them.
(46) The
current arrangements for the care of the children have operated successfully
for a number of years. The children
enjoy stability and security in Glasgow.
They are happy and settled in Glasgow.
J is enjoying a high standard of schooling in Glasgow. It is likely that F will be enrolled in the
same school if he remains in Glasgow.
Relocating to Exeter will involve disruption to J’s schooling and peer
relationships.
FINDS IN FACT AND
LAW:
(1)
That
it is not in the best interests of the children, J and F, for a specific issue
order to be granted allowing the defender to remove the children from Glasgow
to reside with her in Exeter.
ACCORDINGLY (1) Repels
the fourth and fifth pleas in law for the defender and refuses to grant decree
as first and third craved; (2) Repels the first and second pleas in law for the
pursuer and refuses to grant decree as first and second craved and (3) Appoints
parties to be heard on the issue of expenses and on the issues of contact, if
any, arising, on a date to be hereafter assigned.
NOTE:
Introduction
[1] The issue at the heart of this anxious dispute
(and of that at the instance of DC), is whether the defender should be permitted
to relocate to Exeter with her two children, namely J, aged 10, and F, aged 4. The pursuer is J’s father. DC is F’s father.
[2] The defender has sought a specific issue
order in terms of section 11(2)(e) of the Children (Scotland) Act 1995 (‘the
1995 Act’). There was no question of the
defender relocating to Exeter without the children. In that event, the pursuer and DC did not
dispute that the children should continue to reside with the defender who has
been their primary carer throughout their lives.
[3] Disputes such as these are notoriously
difficult and anxious. As Lord Fraser
explained in G v G (Minors: Custody Appeal) 1985 1WLR 647 at page 651:
“The jurisdiction in such cases
is one of great difficulty, as every judge who has to exercise it must be
aware. The main reason is that in most
cases there is no right answer. All
practicable answers are to some extent unsatisfactory and therefore to some
extent wrong, and the best that can be done is to find an answer that is
reasonably satisfactory”.
In this case, it is
very clear to me that J and F’s parents are devoted, loving parents. J and F are, by all accounts, wonderful,
well-adjusted, intelligent children.
Until the present proceedings had commenced, J and F’s parents had been
able to put their differences aside and to focus on what was best for the
children. Contact had operated largely
flexibly and by agreement. Sadly, these
proceedings afforded an opportunity for the parties to open old wounds. That is to be very much regretted.
Procedural
History
[4] The initial writ in this action was
warranted in 2007. At that time, the
pursuer sought an order for parental rights and responsibilities and an order
for contact in respect of J. Those orders were granted on joint motion on 9
December 2008.
[5] The pursuer lodged a Minute to Vary on 1
May 2015. An interim interdict was
granting prohibiting the defender from removing J from the jurisdiction of this
court without either the pursuer’s written consent or an order of the
court. On 12 May 2015, the defender
having provided an undertaking to this effect, the interim interdict was
recalled. A three day diet of proof was
assigned for 5, 6 and 7 August 2015. The
sheriff appointed the proof in this matter ‘to be heard conjointly’ with the
proof assigned for the same dates in the action at the instance of DC (F590/15).
[6] On DC’s motion, the proof was
discharged. A further diet of proof was
assigned for 5 days commencing on 7 September 2015, when the actions first
called before me. The defender led at
the conjoined proof. On the morning of
the proof and during her evidence, the defender put forward new proposals for
contact between the pursuer, DC and their respective children, in the event
that a specific issue order permitting her to relocate with the children was
granted. I adjourned to allow parties to
consider that offer. No agreement could
be reached and the evidence resumed on 8 September 2015 and continued on the
subsequent 3 days. The evidence could not be concluded and the
proof was continued to 22 September.
Unfortunately, owing to an oversight, no shorthand writer had been
instructed. The proof was discharged and
further evidence was led on 25 September, 26 October, 13 November, 17 November
and 18 November. Parties were appointed
to lodge written submissions and thereafter a hearing on submissions was assigned
for 4 December. On 4 December, I was
addressed by the parties’ agents and by counsel. Further information had come to light regarding
J’s alleged self-harming behaviour and in relation to what were alleged to be
inappropriate postings on facebook by the pursuer. Parties were appointed to lodge amended
pleadings and an additional proof was assigned for 6 January 2016 restricted to
these issues. Thereafter, parties made
their final submissions.
[7] Every effort was made by the court to
re-arrange court business and other cases allocated to me, to accommodate further
diets in order to conclude these proceedings expeditiously. The agents are to be commended for working
with the court in seeking to have this matter concluded as swiftly as
possible. In particular, they are to be
commended for their extensive use of affidavits as evidence in chief and for
the collaborative and sensitive approach taken by them in identifying and
instructing an expert in relation to J’s self-harming behaviour, the details of
which only became known during the course of the proof.
[8] As the actions have not been formally
conjoined, I have prepared a separate judgment in the action at the instance of
DC. My decision and the reasons for my
decision are the same in each case.
Background
[9] The salient facts of the history of the parties’
relationship, of the relationship between the defender and DC, and of the
proposals for relocation, are set out in the findings in fact.
[10] Since the breakdown of her relationships
with the pursuer and with DC, the defender has demonstrated that she is a
resourceful, determined and dedicated mother.
She has taken great care to support the children academically. Both boys speak fluent French. The defender has encouraged and supported
extra-curricular activities, including swimming, climbing, hiking and camping. J plays for a local football team and was delighted
to have been awarded Players Player of the Year Award in 2015. There is a very strong bond between both
children, and a very strong bond between the defender and the children.
The
evidence for the defender
[11] The defender led at the proof. Affidavits had been lodged for the defender, for
JB, her partner, and for Mr Neil Ward, the defender’s counsellor (items 15, 29
and 16 of process in F590/15). These
were supplemented by their evidence during examination in chief and cross
examination. Affidavits were lodged for
DCt, the defender’s father and SL-T, the defender’s friend (items 27 and 28 of
process in F590/15). I also heard
evidence from Mr Joe Nee, a psychologist and Dr Sivakumar Appan, a Consultant
Psychiatrist both of whom spoke to the content of their reports.
[12] I found the defender’s evidence to be
generally reliable and credible, however, chapters of her evidence were, in my
judgment, coloured by her clear desire to relocate. The defender exaggerated her accounts of
difficulties she had experienced with the pursuer and with DC. Her perception of some of the difficulties
she had experienced in these relationships did not reflect the evidence. She
downplayed her past self-harming behaviour.
Where her evidence conflicted with that of DC or the pursuer, I have
preferred the evidence of DC and the pursuer.
[13] On behalf of the defender, I also heard
evidence from JB, her fiancée. It
transpired during JB’s evidence that he may have had access to certain
affidavits lodged in this case. I did
not however, find any basis for concluding that he had tailored his evidence in
light of the content of such affidavits.
I found his evidence to be reliable and credible.
[14] Dr Appan is a Consultant Forensic
Psychiatrist. He spoke to his report (item
6/194-203 of process). He was a
confident, articulate, impressive and amply qualified expert witness. He had an excellent command of the
information he had considered when he compiled his report, which included the
defender’s medical records. He met with
and interviewed the defender on 22 August 2015 for over four hours. He explained that the interview had been
lengthy in particular, because he was aware that the defender had self-harmed
in the past and he wished to explore this in detail. I found his evidence to be measured, reliable
and credible.
[15] Mr Ward is a counsellor and has worked
with the defender since 2011. He adopted
his affidavit and spoke to assisting the defender with developing coping
mechanisms for managing stress. I found
his evidence reliable and credible.
The evidence for the pursuer
[16] An affidavit had been lodged for the
pursuer which was supplemented by his evidence during examination in chief and
cross examination. The pursuer also
relied upon the affidavits of the following witnesses namely (a) CM, the
pursuer’s mother; (b) IQ, the pursuer’s brother; and (c) TS, the pursuer’s
friend (items 16, 17 and 18 of process).
[17] I found the pursuer’s evidence reliable
and credible. In particular, it was
clear to me that the pursuer was not motivated by any desire to interfere with
or undermine the defender’s relationship with JB. The pursuer was very keen to repair his
relationship with the defender which had been damaged by the current dispute
and to work with her, in J’s best interests.
The
evidence for DC
[18] In respect of the action at the instance
of DC, two affidavits had been lodged for DC (items 20 and 21 of process in
F590/15) and an affidavit had been lodged for KV, DC’s previous partner and
mother of his son, E (item 23 of process in F590/15). The evidence of both DC and KV was
supplemented by their evidence during examination in chief and cross
examination. Affidavits were also lodged
for (a) FM, a psychotherapist who had worked with DC; (b) SC, DC’s sister; (c) E,
DC’s son and (d) VC, DC’s mother (items 22, 24, 25 and 26 of process in
F590/15). I also heard evidence from
Professor Thomas MacKay, a psychologist instructed on behalf of DC.
[19] I found the evidence of DC and of KV to be
reliable and credible. It was clear to
me that DC was motivated by a desire to do what was best for F; he wished to
see the defender happy in her relationship with JB and was acutely aware that
if she were not permitted to relocate to Exeter, the defender would understandably
be disappointed.
[20] DC’s agents had also lodged a report by Dr
Jacqueline Law (item 5/5/29 of process in F590/15), a psychologist who had been
asked to provide an opinion inter alia upon
the defender’s mental health based upon an
assessment of the defender’s medical records, affidavits and the reports of Mr
Nee and Dr Appan. She had not met with
the defender. In terms of the joint
minute between the parties, her report was accepted as her evidence without the
necessity of being spoken to.
The
agreed evidence of Dr Katherine Edward
[21] Evidence having been led of J’s
self-harming behaviour and conflicting evidence having been laid before the
court as to J’s views, parties addressed me on further procedure. It was agreed that parties would jointly
instruct Dr Katherine Edward. Her report dated 3 November 2015 (item 5/6/28 of
process in F590/15) was admitted into evidence by agreement without the
necessity of being spoken to. I am
grateful to Dr Edward for producing her report in a very short timescale. Dr Edward’s report was thorough, well
balanced and focussed. It was of considerable
assistance.
Submissions
[22] The parties helpfully produced written
submissions and I will not rehearse these at length there. There was no dispute as to the applicable
law. Each party addressed me on the
issue of the reliability and credibility of the witnesses.
[23] In short, on behalf of the defender, Ms
Matheson submitted that there existed a tension between Article 8 and Article 2
of Protocol 4 of the European Convection of Human Rights. She submitted that the court must have regard
to the detrimental impact upon the children that would be caused by a refusal
of the wishes of the primary carer. In
particular, she referred me to paragraph 53 of the Inner House decision in M v M 2012 SLT 428. She submitted that I should have regard in
addition to the factors set out in the Washington Declaration on International
Family Relocation. She then addressed me
in relation to the application of each of those factors to the present case. In addition, she submitted that I should also
pay regard to (a) the pursuer’s purported consent to the proposed relocation,
(b) the need to treat the children as a family unit, (c) the fact that it is a
desirable time for F to move as he is now at school age, and (d) the defender’s
new relationship.
[24] On behalf of the pursuer, Mr Moss adopted
the submissions made by Mr Bell. He
submitted that the defender had failed to satisfy the court that it was in J’s
best interests for the specific issue order to be granted; there was no
evidence that relocation would be better than the status quo. He submitted
that real doubt arose as to the defender’s ability to cope in the stressful
situation of moving to a new city, a new job, dealing with new schools and a
new relationship. He referred to the risk
that the relationship with JB may not endure.
He submitted that J had expressed no enthusiasm for the move and has in
fact expressed the view that he would wish to see more of his father. He
submitted that it could be inferred that J had expressed a view to remain in
Glasgow.
[25] On behalf of DC, Mr Bell submitted that
the following considerations were relevant in this case namely (a) the
reasonableness of the move, (b) the importance of contact and the extent to
which contact can be maintained, (c) the effect of the move on the children,
(d) the extent to which a child may gain from a relationship with family
members as a result of the move, (e) the children’s views, and (f) the effect
of refusal of a specific issue order on the applicant. He addressed me on the evidence in relation
to each factor. He submitted that the
two most important factors to be weighed in the balance are (a) that F is
settled and happy in Glasgow notwithstanding the defender’s attempts to
destabilise him, and (b) a move will result in the loss of his current
relationship with DC. Mr Bell submitted
that caution required to be exercised in applying Sheriff Morrison QC’s comments
in M v M 2008 Fam. L.R. 90 (to the
effect that the court will give considerable weight to the wish to move of a
custodial parent and that the court will be reluctant to interfere with the
right of a person to live where he or she chooses) to this case. He referred to the comments of the Inner
House in M v M supra. He submitted that the defender required to
discharge the dual burden identified by the Inner House in M v M.
Discussion
[26] I will deal with the following issues,
namely (a) the objections to the admissibility of evidence, (b) the disputed
issues of fact, (c) the applicable law, and (d) the factors which are relevant
to my decision.
The
admissibility of evidence
The
admissibility of the expert evidence – Mr Nee and Professor MacKay
[27] The parties to this action, and DC,
obtained by way of joint remit, a report from Joe Nee, an independent child
psychologist. He was instructed to
prepare a report commenting upon the following 18 issues:
1. The extent of F and J’s
knowledge regarding the relocation.
2. F and J’s views about the
proposed relocation to Exeter.
3. F and J’s views about the
possibility of remaining in Glasgow, either to live with their mum, or to live
with their dad.
4. The degree of weight that could
be given to each child’s views, given their respective ages and levels of
maturity.
5. The extent of each child’s
understanding of what the relocation involves and the consequences of the
relocation for them.
6. Are the children’s views their
own genuinely held views?
7. Are the children aware that
they could remain in Glasgow with their fathers?
8. The likely emotional and
psychological impact upon each child of contact following a different pattern
to that currently being followed, in the event of the move taking place.
9. The likely emotional and
psychological impact upon each child of being separated from their fathers.
10. The likely emotional and
psychological impact upon each child of being separated from their mother.
11. The extent to which any impact
detailed in response to 9 or 10 above could be mitigated by contact
arrangements.
12. The likely emotional and
psychological impact upon F of being separated from his half-brother for any
length of time and of living apart from him.
13. The likely emotional and
psychological impact upon J of being separated from his half-brother for any
length of time and of living apart from him.
14. The extent to which any impact
detailed in points 12 or 13 above could be mitigated by visits and contact by
Skype.
15. The potential impact upon the
wider family dynamic of the order sought being refused.
16. The potential impact upon the
children’s relationships with their natural fathers in the event that the order
is granted.
17. The potential impact upon the
children’s relationships with their mother in the event that the order is
either refused or granted.
18. The nature of and extent to
which any negative effects of refusal of the relocation sought upon the
children’s mother would be likely to impact upon the children’s emotional and
psychological wellbeing.
[28] At a pre-proof hearing on 4 August 2015,
the defender’s productions (which included Mr Nee’s report dated 31 July 2015
(item 6/156-193 of process)) were tendered and received. The proof assigned for 5, 6 and 7 August was
discharged, on DC’s motion. The proof
was re-assigned for 5 days commencing on 7 September. On the morning of the first day of the proof,
when this matter first called before me, I was addressed by Mr Bell, Mr Moss
and Ms Matheson. Mr Bell explained that
the previous proof had been discharged to allow DC to obtain a report from an
alternative expert. Mr Bell sought to
lodge a report from Professor MacKay, a Consultant Psychologist. Mr Bell referred in particular to page 34 of
Mr Nee’s report in which Mr Nee had concluded that “both J and F should remain together in the care of their mother and
move to Exeter and have significant contact arrangements with their father
during the school holidays and at other times pre-negotiated”. Mr Bell
submitted that this conclusion vitiated the content of the report in its
entirety as Mr Nee had sought to usurp the function of the court; the remainder
of his report was tainted by bias. It
was Mr Bell’s position that Mr Nee’s evidence should not be admitted but that
if it were to be admitted, he should be entitled to lodge the report of, and to
lead, the evidence of Professor MacKay.
On behalf of the defender, Ms Matheson submitted that Mr Nee had been
appointed by way of a joint remit and his evidence ought not to be excluded
simply because one party had now produced a report from a competing
expert. She submitted that Mr Nee had
answered all of the questions which he had been asked to address and that his
conclusion was simply a summary of his findings. I allowed the report by Professor MacKay to
be lodged.
[29] On the fourth day of the proof, prior to
Mr Nee being called to give evidence, Mr Bell renewed his objection. On this occasion, he objected both on the
basis previously stated and also by reference to the Inner House decision of Kennedy v Cordia (Services) LLP 2015 SC
154. He submitted that the opinions
expressed by Mr Nee were his own subjective views rather than the result of the
application of any scientific principle.
He referred to the critique of Mr Nee’s report by Professor MacKay and
noted that Mr Nee had referred to authorities and research papers which were
not listed in the bibliography and that Professor MacKay had criticised the
methodology used by Mr Nee. At this
stage, no issue was raised in relation to Mr Nee’s qualifications or
expertise.
[30] Having reviewed Professor MacKay’s report,
I noted that at page 24 of that report, Professor MacKay had concluded “relocation will in my view have significant
potential to be the greater of the two risks.
It will change, immediately and for the long term future, the nature of
the parenting relationships experienced by F and his father, and I could put
forward no argument to say that I thought that would be in his best interests”. In my judgment, a preliminary review of these
reports suggested that both authors were equally susceptible to the criticism
of having sought to usurp the function of this court by opining on the very
question to be determined by this court. Whether their conclusions had vitiated
the entire contents of their reports was a matter to be assessed after a
consideration of their evidence. Whether
the remaining criticisms of Mr Nee’s report were well founded was also, in my
judgment, not a matter upon which I could form a view without hearing the
evidence of these witnesses – to do so would have involved a determination of
the merits of the criticisms made by Professor MacKay.
[31] Moreover, and more importantly, it was
acknowledged by all parties that Mr Nee was the only individual (the parties
aside) who was in a position to speak to J’s views. It would not, in my judgment, have been in
the children’s best interests to delay the proof nor to have the children
required to attend for interview again, with another unfamiliar independent
third party; J had already been interviewed by Mr Nee and F had already met
with both Mr Nee and Professor MacKay.
[32] In those circumstances, I allowed Mr Nee’s
evidence to be heard subject to all questions of relevancy and competency.
[33] While this matter was at avizandum, the
Supreme Court issued its judgment in Kennedy
v Cordia (Services) LLP [2016] UKSC 6, which provides very useful guidance
in relation to the use of expert evidence.
In particular, at paragraph 40 of that judgment, their Lordships
considered the admissibility of factual evidence from a skilled witness:
“Experts can and often do give
evidence of fact as well as opinion evidence.
A skilled witness, like any non-expert witness, can give evidence of
what he or she has observed if it is relevant to a fact in issue . . . There
are no special rules governing the admissibility of such factual evidence from
a skilled witness”.
[34] Having heard the evidence, I am not
prepared to admit either Mr Nee or Professor MacKay’s evidence as expert
opinion evidence. I have treated as
admissible only those parts of their evidence they were able to speak to as
witnesses to fact, in particular, in relation to their interviews with, and
observations of, the parties and the children. My reasons for so doing are as
follows.
[35] There would appear to have been an
assumption on the part of the agents in this case that it was necessary to lead
evidence from a child psychologist. While agents are to be commended for
seeking to agree a joint remit in order to expedite the proof, any assumption
that a child psychologist is necessary in a case such as this is, in my
judgment, ill-founded and misguided.
There is a growing practice among practitioners in the sheriff courts to
rely upon the evidence of child psychologists in family actions. Child psychologists are highly trained and
highly qualified individuals who can provide invaluable assistance to the
courts in difficult family cases. They
take great care in diagnosing and treating children with the required
sensitivity and skill. However, the
appointment of a child psychologist will inevitably involve an intrusive and
detailed interview with a child which can, by its very nature, be a daunting
and distressing experience for him or her, notwithstanding every effort on the
part of the interviewer to put the child at ease. Often, it will follow upon meetings which a
child may already have had with a child welfare reporter, or after a child has
been given an opportunity to express his or her views by completion of a Form
F9. A child psychologist ought not, in
my judgment, to be instructed as a matter of routine, nor should it be the
norm, unless there are objectively justifiable reasons for doing so, in the
child’s best interests. While each case
will turn on its own facts, in the absence of any factual basis for concluding
or suspecting that a child is suffering from, or affected by, or is likely to
be suffering from or affected by, an underlying psychological issue, requiring
the input of a suitably qualified expert, the basis for appointing a child
psychologist must be questionable.
Careful consideration ought also to be given to the nature of the
evidence proposed to be led from such a psychologist, the nature of his or her
instruction, and to the weight to be attached to any opinions expressed.
[36] In the present cases, at the time of the
appointments of Mr Nee and Professor MacKay, there was no factual basis for
concluding or suspecting that either J or F was suffering from or affected by,
or likely to be suffering from or affected by, any underlying psychological
issue which required the input of a child psychologist. There was no suggestion that either child was
anything other than a normal, ordinary, intelligent, sensitive and resilient
child, facing the ordinary, everyday challenges of other children of similar
age and maturity. It transpired that
there was no dispute that each child had a strong and loving bond with both
parents. There was, in particular,
neither a basis nor a need, for a discussion of the theory of attachment (a set of concepts that explain the emergence of an emotional bond between an infant and primary caregiver and the way in which this bond affects the child’s behavioural and emotional development into adulthood) or of parental alienation (the unjustified influencing of a child by one parent to denigrate
or reject the other parent, in an effort to undermine and interfere with the
child's relationship with that parent).
Both the theory of attachment and the issue of parental alienation were
referred to at length in Mr Nee’s report, during his evidence and during the
critique of his report by Professor MacKay.
[37] The classic exposition of the role of an expert witness
remains that set out by Lord President Cooper in Davie v Magistrates of
Edinburgh 1953 S.C. 34 at page 40:
”Expert witnesses, however skilled or
eminent, can give no more than evidence. They cannot usurp the
functions of the jury or a judge sitting as a jury … Their duty is to furnish
the judge or jury with the necessary scientific criteria for testing the
accuracy of their conclusions, so as to enable the judge or jury to form their
own independent judgment by the application of these criteria to the facts
proved in evidence … the decision is for the judge or jury”.
[38] More
recently, in Kennedy v Cordia (Services) LLP, supra (at para 44), the Supreme Court
set out four considerations which govern the admissibility of skilled evidence,
namely
(i) whether the proposed skilled evidence will assist the court
in its task;
(ii) whether the witness has the necessary knowledge and
experience;
(iii) whether
the witness is impartial in his or her presentation and assessment of the
evidence; and
(iv) whether
there is a reliable body of knowledge or experience to underpin the expert’s
evidence.
[39] In
relation to the first consideration, the Supreme Court referred with approval
to the opinion of the High Court of Justiciary in Wilson (Brian) v HM Advocate 2009 JC 336, and in particular to the
test set out by Lord Wheatley (at para 58):
“[T]he
subject-matter under discussion must be necessary for the proper resolution of
the dispute, and be such that a judge or jury without instruction or advice in
the particular area of knowledge or experience would be unable to reach a sound
conclusion without the help of a witness who had such specialised knowledge or
experience.”
[40] Applying
that test, was the evidence of Mr Nee and Professor MacKay as to the risks
associated with, or of the emotional or psychological impact upon the children
of, any orders the court may make, or refuse to make, necessary for the proper
resolution of this dispute? In my judgment,
it was not. Did it assist the court in its task? In my judgment, it did
not. These courts are very familiar with
matters involving a judgment of what may or may not be in the best interests of
children. Where such cases involve normal, ordinary children, with
no underlying diagnosed or suspected psychological condition, facing the
ordinary, everyday challenges of other children of similar age and maturity,
the courts are well versed in carefully analysing the competing risks and
benefits of any order they may make, or refuse to make. How such children may react or adjust to any
such orders is a matter which is well within the ordinary human experience,
within judicial knowledge and is a matter of common sense. As explained in the decision of the Court of
Appeal in R v Turner [1975] QB 834:
“An expert's opinion is
admissible to furnish the court with scientific information which is likely to
be outside the experience and knowledge of a judge or jury. If on the proven
facts a judge or jury can form their own conclusions without help, then the
opinion of an expert is unnecessary. In such a case if it is given dressed up
in scientific jargon it may make judgment more difficult. The fact that an
expert witness has impressive scientific qualifications does not by that fact
alone make his opinion on matters of human nature and behaviour within the
limits of normality any more helpful than that of the jurors themselves . . ”
Those comments are equally applicable to expert
opinion evidence offered in civil cases.
In my judgment, the evidence of Mr Nee and that of Professor MacKay in
relation to the likely impact upon the children of any orders the court may
make, or refuse to make, was unnecessary and for that reason, inadmissible.
[41] Even
if I were persuaded that such evidence was necessary, having examined the
evidence in light of the fourth consideration referred to by the Supreme Court
in Kennedy v Cordia (services) LLP, supra, I am satisfied that there was no
reliable body of knowledge or experience to underpin that evidence. In Wilson
(Brian) v HM Advocate, supra, Lord Wheatley stated the test
thus (at para 58):
“[T]he subject-matter in
question must be part of a recognised body of science or experience which is
suitably acknowledged as being useful and reliable, and properly capable of
reaching and justifying the opinions offered, and the witness must demonstrate
a sufficiently authoritative understanding of the theory and practice of the
subject.”
Both witnesses had purported to analyse the risks
associated with relocation and to compare those risks with the risks of
retaining the status quo. Professor MacKay had concluded (on page 24 of
his report) that “[r]elocation will in my
view have significant potential to be the greater of the two risks”. However, Professor MacKay noted in his report
that “...while psychological risk
assessment is highly structured and quite far advanced in other fields, such as
offender recidivism, it is relatively poorly developed in relation to many of
the key issues here, and there are no standard risk assessments protocols that
would cover the issue of relocation”.
Mr Nee accepted the accuracy of that statement during cross examination.
[42] What
both experts were doing, in my judgment, was the very task that this court is
entrusted with – an analysis of all
relevant risks and benefits. They were
purporting to do so without the advantage of seeing and hearing all parties
giving evidence and being cross examined thereon (X v Y 2002 SLT (Sh Ct) 161 at page
168). They did not appear to be applying
“a
recognised body of science or experience which is suitably acknowledged as
being useful and reliable, and properly capable of reaching and justifying the
opinions offered”
in relation to any particular psychological risk identified by them. They accepted that there was no recognised
psychological standard risk assessment methodology to be applied to the facts
of this case. For all of these reasons,
I have found the evidence of both witnesses, to the extent that such evidence was
presented to the court as expert opinion evidence, to be inadmissible.
[43] One
further matter requires comment. Rather
astonishingly, during cross examination by Mr Bell, Mr Nee’s qualifications and
experience to act as an expert witness, were challenged. That challenge was not foreshadowed in
Professor MacKay’s report. Indeed, it
would appear that those instructing Mr Bell had identified Mr Nee as a suitably
qualified child psychologist and had proposed his appointment (page 2 of
Mr Nee’s report). Moreover, they
had expressed the view that in the absence of a joint remit, they may wish to
lead evidence from Mr Nee, as an expert on behalf of DC. At page 3 of his report, Mr Nee notes that he
was advised by DC’s agents “that should
[the other parties] prefer not to conjoin in the instruction then [DC] would
wish to instruct me directly”. In
those circumstances, it was, in my judgment, unbecoming and rather surprising
for an attack to be mounted upon Mr Nee’s credentials.
[44] Under cross examination, Mr Nee accepted
that he is not a chartered psychologist.
He accepted that he is not registered with the Health and Care
Professionals Council as a practitioner psychologist. He accepted that he is not subject to the
continuing professional development requirements of any professional body. He accepted that his report contained
material errors, parts of it had been ‘cut and pasted’ from other reports, and
that he had strayed beyond his remit. He
accepted that upon meeting DC, he had told DC that he would face difficulties
in preventing the relocation proposed by the defender, however, he maintained
that he had not proceeded on the basis that the wishes of the primary carer
should be preferred. He maintained that
his qualifications and the breadth and depth of his experience qualified him to
provide an opinion to the court, as a man of skill, on the 18 questions posed. It
is unnecessary for me to form a view as to whether Mr Nee is qualified to act
as an expert witness in the area of child psychology. I note in passing however, that Mr Nee is
a psychologist who has enjoyed an impressive professional career. Since 1997, he has worked with a number of
local authorities, prisons, health boards and voluntary organisations, the
Scottish Government and the Children’s Hearing System, in an advisory and
consultancy role. He has worked extensively with foster families and adoptive
parents. He has prepared reports for, and provided evidence in, a number of
cases in the Scottish courts.
[45] Finally, and very unfortunately, during
the course of the proof, I heard evidence from the pursuer that J had engaged
in self-harming and violent behaviour.
He described him as anxious and his behaviour as extreme. He spoke of J having ‘clawed his throat’. The
pursuer spoke to these incidents occurring after the proof had commenced. There now appeared to be a factual basis for
concluding or suspecting that J was suffering from or affected by, or likely to
be suffering from or affected by, an underlying psychological issue which
required the input of a child psychologist, and which had not been disclosed
to, or addressed by, Mr Nee or Professor MacKay. It was clear that a focussed report from a
child psychologist would be of assistance to the court and parties were invited
to instruct such a report. A report was
obtained from Dr Katherine Edward (item 5/6/28 of process in F590/15) and
admitted in evidence without the necessity of being spoken to. I will return to the content of that report.
Objections
to the admissibility of other evidence
[46] The parties also insisted upon their
objections to the following evidence which was heard under reservation as to
its competency and relevancy.
[47] On behalf of the defender, Ms Matheson had
objected to questions put to DC during examination in chief, in relation to his
engagement in mediation with the defender.
Those questions were limited to when, and how often, mediation took
place. In addition, at paragraph 24 of
his affidavit (item 20 of process in F590/15), DC had referred to various
discussions which took place during mediation.
Ms Matheson referred me to section 1 of the Civil Evidence (Family
Mediation) (Scotland) Act 1995 which, put short, renders inadmissible, in civil
proceedings, any evidence of what has occurred (including what is said, written
or observed) during a qualifying ‘family mediation’. In my judgment, the
objection is well founded in relation to those parts of paragraph 24 of DC’s
affidavit which refer to what occurred during mediation. Ms Matheson’s objection is accordingly
sustained in relation to the sentences in paragraph 24 commencing ‘I found [M]
to be very good . . .’ and the subsequent eight sentences. However, in my
judgement, section 1 of the Civil Evidence (Family Mediation) (Scotland) Act
1995 does not render inadmissible evidence elicited from DC as to whether the
parties had engaged in mediation and if so, how often. The fact that mediation has taken place does
not fall with the scope of section 1 of that Act which is confined to ‘what
occurred during family mediation’. The objection, to that extent, is
accordingly repelled.
[48] On behalf of DC, objection was taken to parts
of Mr Ward’s affidavit on the basis that Mr Ward was purporting to provide
expert evidence to the court regarding the defender’s mental health. Ms Matheson submitted that he was not being
led as an expert witness, but rather as a witness to fact. I heard this evidence under reservation. Having considered the evidence, I am
satisfied that there was no part of Mr Ward’s evidence which was offered as
expert opinion evidence. He spoke only to
the counselling he had undertaken with the defender and any opinion he may have
offered in particular, at paragraph 7 of his affidavit, is one to which I
attach no weight.
Disputed issues of fact
[49] There were a number of factual
disputes. Those which I considered to be
relevant to my decision were (a) whether the defender was (and is) suffering
from a mental health illness, (b) the extent of the defender’s self-harming
behaviours, (c) the defender’s allegations of an assault upon her by DC, (d) the
defender’s allegations of bullying and controlling behaviour by the pursuer and
by DC, (e) whether the defender had assaulted F, and (f) whether the pursuer
had consented to the proposed relocation.
I deal with each of these below.
Is the defender suffering from a
mental health illness?
[50] Having met with the defender, Dr Appan
concluded that there did not appear to be any evidence to suggest that she was
suffering from the symptoms of a mental health illness. He assessed her speech,
her appearance and her behaviour, together with the information she had
imparted to him. He had also examined her medical records.
[51] In his report, Dr Appan states: “[I]t is my opinion that [the defender] does
not have a mental disorder within the meaning of the Mental Health (Care and
Treatment) (Scotland) Act 2003. [The
defender] does not have a history of suffering from a major mental illness such
as paranoid schizophrenia or severe depression.
She has never been admitted to a psychiatric hospital in the past and
has never received regular contact with local mental health services. She has presented with isolated episodes of self-harm
which appear to have occurred in the context of highly emotional and intense
stressful states, more recently in relation to relationship difficulties.” During his evidence in chief, he explained
that the defender had experienced discrete periods of low mood during highly
stressful situations which had resulted in her use of maladaptive coping
strategies, however, there was no underlying mental health illness. He noted that she had not been prescribed
anti-depressants and had not been diagnosed as suffering from depression. Finally, he noted that there appeared to be no
evidence to suggest that the defender’s ability to care for her children had
been impaired due to mental health difficulties: several health professionals
had consistently opined that she did not pose a risk to her children. In this
regard, Dr Appan referred in particular to the opinion expressed by the defender’s
general practitioner, Dr Cullen (item 6/63-64 of process). During cross examination by Mr Bell, Dr
Appan was referred to the photographs of the injury sustained by F (item 5/3/6
of process in F590/15) and it was put to him that this injury had been
deliberately inflicted upon F, by the defender. He maintained that it did not affect his
opinion on the defender’s mental health or her ability to care for the
children.
[52] At
paragraph 2.4 of her report (item 5/5/29 of process in F590/15), Dr Law
concluded had that “there is evidence of
[the defender] suffering from Major Depressive Episodes . . .” At paragraph
4.16, Dr Law concluded that “[the
defender] presents with maladaptive
personality traits predominantly relating to histrionic and narcissistic
characteristics”. Dr Appan was
highly critical of Dr Law’s analysis which had been a ‘paper assessment’. He noted that the defender’s medical records
did not disclose a finding by any clinical professional that the defender
suffered from depression. He noted that Dr Law was a psychologist and not a
psychiatrist and moreover that to come to a diagnostic conclusion, it was
imperative that a clinician examine and assess an individual. He noted that Dr Law had not done so. He would not be prepared to form a diagnostic
view based on third party accounts; Dr Law had relied upon the contents of the
affidavits provided to her. I note
that at paragraph 3.5 of her report, Dr Law also accepted that “a person requires to be interviewed for
assessment purposes”. Professor
MacKay also addressed the defender’s mental health in his report and during his
evidence. Again, he did so without the
benefit of meeting with and assessing the defender and without access to Dr
Appan’s report. In those circumstances,
I have preferred the evidence of Dr Appan to the evidence of Dr Law and
Professor MacKay.
[53] I found Dr Appan’s evidence
compelling. It is clear, in my judgment,
that the defender has not suffered from, and is not currently suffering from,
any mental health illness which has any bearing upon her ability to care for
the children. Indeed, I note that
neither father is seeking any order for residence on such grounds, in the event
that the defender is not permitted to relocate with the children. They each accepted that she is a loving,
caring and devoted mother. The defender
has however suffered from discrete episodes of self-harming, the extent and
effect of which was the subject of detailed examination and cross examination.
The extent of the defender’s
self-harming behaviour
[54] The defender accepted that she had
self-harmed in the past, at times of intense stress (para 38 of her
affidavit). It was her position that her
self-harming was a reaction to the pursuer and DC’s abusive behaviour towards
her and occurred after she was diagnosed with Lymphocytic Hypophysitis and
again during the breakdown of her relationship with DC. It was her position that owing to the work she
had done with Neil Ward, her counsellor, her self-harming was not an on-going
or recurrent matter, and in any case, that she now understood the triggers and
how to control self-harming urges. Mr
Ward spoke to
assisting the defender to develop coping mechanisms to deal with stressful situations,
such as relaxation and breathing techniques.
He was asked whether the defender’s self-harming behaviours had been the
focus of the counselling sessions. He
explained that they had not.
[55] Both the pursuer and DC spoke to witnessing
the defender self-harming during their respective relationships. The pursuer spoke to an incident in July 2014
during which, while dealing with the ill-health of the pursuer’s pet cat, the
defender had ‘clawed at her face’, pulled her hair and shouted at him. The defender did not recognise the pursuer’s
description of her behaviour. In
relation to this incident, I preferred the evidence of the pursuer. It was clear that the defender had been very
disturbed by the suffering of the pet cat, describing it as a ‘very emotional
situation’. The pursuer’s description of
her reaction to this was very similar to the descriptions provided by both the
pursuer and DC of previous episodes of self-harm. It was clear from his evidence that the
pursuer had been concerned for the defender’s safety upon witnessing the
incident.
[56] The defender denied that the children, in
particular J, had witnessed any of her self-harming behaviour. During interview with Dr Edwards, J described
his mother as going ‘crazy’ sometimes.
Dr Edwards concluded that J had some sense of mirroring his mother’s
behaviour. However, J did not disclose to
Dr Edwards any details of his own self-harming behaviour or of the defender
engaging in such behaviours.
[57] During his evidence, Dr Appan spoke to the
defender having sought professional help to understand and manage her previous
self-harming behaviours. He formed the
view that following a four year period of counselling, the defender had
successfully developed better coping mechanisms to deal with stress. It was put to him however, that the defender
had been referred to psychiatric services by her general practitioner and had
not attended on at least two occasions, prior to 2012. Dr Appan was unable to draw any inference
from this non-attendance. He was asked
whether he would change his opinion if there was evidence that the defender had
self-harmed in 2014. He explained that
his opinion might be affected by such evidence, but that he would require to understand
the details of the incident. No details
of the incident were put to him. He
concluded that while it was impossible for any clinician to accurately predict
future behaviour, the prognosis with regards to the future of the defender’s
mental health appeared to be very favourable.
[58] The defender referred to the intense
stress of the current proceedings. She
maintained that she had not, during the currency of these proceedings, resorted
to self-harm. Mr Bartley gave evidence
that he had not witnessed any episodes of self-harming by the defender. Dr Appan noted that there had been no relapse
during the current proceedings of which he was aware.
[59] In my judgment, with the exception of the
incident in July 2014, there was insufficient evidence before the court to
conclude, on a balance of probabilities, that the defender is continuing to engage
in self-harming behaviour. It is clear
from the evidence that the defender has self-harmed in the past and has developed
mechanisms to help her cope with stressful situations. The risk of a re-occurrence cannot however be
excluded.
[60] It was submitted on behalf of the pursuer
and DC that they could monitor the defender’s state of mind and any impact that
may have upon the children, should the defender and the children continue to
reside in Glasgow. Dr Appan questioned
whether a lay person could have the skills and expertise to do so. In any event, it was accepted by both the
pursuer and by DC that communication between the parties was now very poor and
that they barely spent a few minutes together during meetings to drop off or
collect J or F. In such circumstances,
their ability to monitor the defender’s state of mind, even if they had the
skills to do so, would be very limited indeed.
The allegation of assault upon
the defender
[61] It was the defender’s position that she
had been assaulted by DC in August 2011.
It was her position that she had attempted to discuss how she felt about
their relationship; that DC had been aggressive and invalidating and would not
listen to her; and that he pushed her across the kitchen with force causing her
to fall against the kitchen worktop, breaking her finger as she did so.
[62] It was DC’s position that he had attempted
to discuss the defender’s self-harming behaviour with her; that she became agitated;
that he restrained her as she attempted to slap herself on her face; that she
began to hit herself on the head with her shoes; that he had again attempted to
restrain her; that she lost her footing and she fell to the ground; that he
dialled 999 because he was concerned that she had injured her head; that upon
attendance at hospital, she advised medical staff that he had assaulted her;
that he advised the medical staff that she had been self-harming and he had
restrained her; and that she then admitted to medical staff that she had been
self-harming. It was DC’s position that,
at a later stage, the defender had threatened to take F to France with her and
that he had, under legal advice, taken possession of F’s passport; when the
defender became aware of this, she reported the assault to the police.
[63] I preferred DC’s evidence in relation to
this incident, namely that the defender’s injury was sustained when he
attempted to restrain her. I found the
defender’s evidence to be unreliable for the following reasons (a) her
affidavit made no mention of her self-harming during the incident (paragraphs
32-34 of her affidavit item 15 of process), the concession that she had done so
came during cross examination by Mr Bell; (b) she accepted during cross examination
that she had not advised the medical staff that she had been self-harming and
accepted that she withdrew the allegation of assault made to the medical staff;
(c) she accepted that she had been confused and ‘not sure of what had happened’
during the incident; and (d) she accepted that she made no complaint to the
police in relation to the incident until several weeks later when she had
discovered that DC had possession of F’s passport.
[64] On behalf of the defender, I was referred
to section 11(7B) of the 1995 Act which lists the matters to which the court is
to have regard when considering whether or not to make an order under section
11(1) of the Act. In particular, in
terms of section 11(7B)(d), the court shall have regard to “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
. . . those responsibilities.” It was
submitted that I did not require to find that there had been abuse nor that
there was a risk of abuse – it was sufficient for there to be a finding that
the defender believed there to have
been abuse or the risk of abuse. No authority was cited in support of such a
proposition. That proposition would require an entirely subjective approach to
be applied to the legislation. I cannot
accept that proposition as being sound in law.
The allegations of controlling
and bullying behaviour
[65] It was the defender’s position that she
had been subjected to controlling and bullying behaviour at the hands of the
pursuer and DC. It was her position that
she needed to protect herself physically and emotionally from the pursuer and
from DC. It was her position that
remaining in Glasgow would expose her to ‘continued bullying’ from the pursuer
and from DC.
[66] In relation to the pursuer’s conduct, the
defender relied upon his previous conviction in 2007 under section 127 of the
Communications Act 2003 and upon his reaction to her proposed relocation.
[67] In relation to DC, the defender spoke of her
general unhappiness during their relationship.
In terms of examples of controlling or bullying behaviour, she made
reference inter alia to being
forbidden from unpacking boxes when she moved into the flat in the west end of
Glasgow with DC (relying upon photographs forming items 6/116-119 of process, which DC
maintained were photographs of his son, E’s room and of parts of the flat which
were largely unused); to being forced by DC to remain in bed and rest when she
felt it was unnecessary; to being excluded from discussions regarding DC’s son,
E; to being assaulted by him in August 2011; to his constant involvement in F’s
life to the point of suffocating her own role as F’s mother; to the
difficulties in arranging and revising contact or holiday arrangements.
[68] With regards to the pursuer, with the
exception of the abusive text messages sent by him in 2007 shortly after the
breakdown of the relationship, the defender was unable to refer to any other
examples of controlling or bullying behaviour which were not related to the
pursuer’s reaction to the defender’s proposed relocation. It was clear that the relationship between
the pursuer and the defender has been an amicable one for a number of years
with contact operating flexibly and with each supporting the other’s parenting
role. The defender referred to the
pursuer as ‘her friend’ prior to the commencement of the current dispute.
[69] With regards to DC, I have already dealt
with the allegation of assault. I accept
that there has been a greater degree of hostility between the defender and DC. However, having reviewed the email and text
communications between the parties (items 5/3/5 of process in F590/15) it is
apparent that they were able to communicate on civil terms following the
breakdown of their relationship, and that they had also operated contact
flexibly. It is not surprising that on
occasion, terse messages have been exchanged when the parties have sought to organise
and re-organise holiday and other arrangements.
I accept that communication could be better and that DC’s response to
holiday requests in particular could be more prompt. However, there was no basis for me to
conclude that DC has sought to exert any control over the defender or to bully
her since the breakdown of their relationship.
Indeed, it was apparent from the evidence that parties had sought to
work through their differences with the assistance of mediators and solicitors;
that DC had, during the currency of the relationship, sought to obtain medical assistance
for the defender in relation to her low mood and self-harming behaviour; and
that DC has provided considerable financial support to the defender and to F.
[70] In my judgment, there was little or no
evidential support for the proposition that the defender required to protect
herself physically and emotionally from the pursuer or from
DC; nor that remaining in Glasgow would expose her to ‘continued bullying’ from
the pursuer or from DC. Indeed, it was
the defender’s position that her contact with the pursuer and with DC was now limited
to a few minutes during handovers, thereby restricting considerably any
exposure she could have to any such behaviour in any event. Moreover, the defender’s allegations did not
sit well (a) with the level and the nature of the contact she proposed in the
event that she were permitted to move to Exeter, which included allowing DC and
the pursuer to reside in her home during contact, and (b) with her actively
encouraging the pursuer to relocate to Exeter and to find employment there, in
the event that she were permitted to relocate.
The injury sustained by F
[71] Photographs showing a lump and bruise to
F’s forehead were lodged by DC (item 5/3/6 of process in F590/15). DC spoke to having seen these injuries on 8
June 2015 and to being told by F that ‘mummy hit me’. The pursuer spoke to being told by J that J,
the defender, JB and F had gone trekking.
The pursuer spoke to J advising him that the defender had hit F because
‘he was moaning all the time’.
[72] The defender denied this. She explained that she had been walking
through woodlands with the children and JB, holding both a phone and a map in
her hand. The phone fell from her hand,
striking F on the head.
[73] Mr Nee spoke to F regarding this incident during
his meeting with F. Mr Nee noted that F
smiled when he was asked about it and displayed no signs of trauma. On speaking to J, Mr Nee noted that J
recounted that F had been complaining that he did not want to walk and that his
mother had accidentally dropped her phone on F’s head. Mr Nee spoke to J ‘acting out’ the
scene. Mr Nee formed the impression that
he was recounting a real memory and had not been coached to provide a
particular account.
[74] In relation to this incident, I preferred
the evidence of the defender which was supported by that of Mr Nee and JB.
[75] However, while in my judgment, the injury
sustained by F in June 2015 was accidental, there was sufficient reliable and
credible evidence before the court to conclude, on a balance of probabilities, that
the defender has used physical means of chastisement. There was sufficient reliable and credible
evidence that the defender is prone to emotional and angry outbursts,
particularly in times of stress. The
defender denied that she was prone to losing her temper or that she had
disciplined J by slapping and pulling him.
She accepted however, that she had smacked the children on their bottoms
(para 59 of the defender’s affidavit) and explained that enforcing discipline
by such means is common practice in France although she understood that this
was not culturally acceptable in the UK.
In her report, having spoken with J, Dr Edward noted “that he was aware that
what makes his mother angry is when he and his brother do not behave or do not
listen to her. At this point he stated
that sometimes his mother hits him when she is crazy. He told me that he does not like it when this
happens and it makes him scared”. Both the pursuer and DC spoke to witnessing
the defender striking J during their relationships with her. The pursuer spoke of noting marks on J’s face
and to being told by J that the pursuer had struck him for not doing his
homework correctly.
Did the pursuer consent to the
proposed relocation?
[76] It was the defender’s position that she
had sought and obtained the pursuer’s consent to the proposed relocation. She spoke to the exchange of text messages
between them (items 6/90-106 of process).
It was her position that he had withdrawn his consent upon becoming
aware of her relationship with JB and had formed an ‘unholy alliance’ with DC
to defeat her attempts to relocate.
[77] The pursuer had previously consented to
the defender moving to France with J in 2009, a move which he believed at the
time would be permanent. He accepted
that the defender’s parents provided significant emotional and financial
support to her and believed that she would benefit from that. While he was surprised to hear of the
defender’s desire to move to the Isle of Mull from France, he consented to that
move as J would be closer to him. He was
delighted to have J back in Glasgow when the defender returned in 2011 to
reside with DC.
[78] It was the pursuer’s position that the
defender had first mentioned the possibility of moving to England in January 2015,
in order to be closer to her parents. It
was his position that he too was unhappy in Glasgow at the time, and that the
exchanges of text messages between them reflected his own discontent. With reference to the text message in which
he stated that he ‘fully approved of the move to Bristol’, he explained that
this was one of a number of locations which the defender had mentioned, that he
had been in the Bristol area at the time, and that he was simply expressing the
opinion that it appeared to be a desirable place to live. In his view, ‘she would have known that I was
not serious . . . this was off the top of the head nonsense’. It was his position that he first became
aware that the defender was intent on relocating to Exeter to reside with JB
during a meeting with the defender in March 2015. He did not believe that the move was in J’s
best interests and took legal advice. It
was the pursuer’s position that the defender had sought to manipulate him by
obtaining his consent to the proposed relocation in order to strengthen her
position against any challenge to the relocation by DC.
[79] It was clear from the evidence that the
pursuer had consented in the past to the defender’s relocations to France and subsequently
to the Isle of Mull. However, at the
time of the exchange of text messages upon which the defender now relied, the
defender had at best been economical with the truth in relation to the proposed
relocation, at worst, she had been disingenuous. The pursuer could not, in those circumstances,
be said to have provided informed consent.
Moreover, I am satisfied, having heard the pursuer’s evidence and having
read the nature of the past text communications between the parties, that the
pursuer is prone to making casual remarks with little forethought. Knowing the pursuer as well as she does, the
defender would have been aware of this.
In those circumstances, it is surprising that on a matter as important
as this, she would have interpreted an informal text exchange based on a
partial explanation of her plans as constituting the pursuer’s consent.
The
applicable law
[80] In terms of section 11(7) of the 1995 Act,
in considering whether or not to make a specific issue order, the court:
“(a) shall regard the welfare of the child
concerned as its paramount consideration and shall not make any such order
unless it considers that it would be better for the child that the order be
made than that none should be made at all; 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.”
[81] It is now well settled that the welfare of
the children concerned is paramount in relation to the determination of an
application under section 11(2)(e) of the 1995 Act and falls to be judged without any reliance on any
presumptive rule or guideline tending to favour the wishes or interests of
either parent. The weight to be given to
such wishes or interests must, as with any other factor, be such weight as the
court deems appropriate in the particular circumstances of an individual case: M v M 2012, supra at paragraph 9. A party seeking such an order must undertake
the dual evidential burden of showing (i) that relocation would actually be in
the best interests of the children, and (ii) that, again, from the children’s
perspective, it would be better for a specific issue order to be made by the
court than for no order to be made at all (M
v M 2012, supra at paragraph 57). A party seeking to alter the status quo has some liability to furnish
the court with material potentially capable of justifying the making of the
order (S v S 2012 Fam LR 32 at page
34, paragraph 10). However, it is clear
that there is no legal onus of proof upon such a party (White v White 2001 SC 689).
[82] Sheriff Morrison QC’s decision in M v M 2008 supra represents, in my judgment, a very helpful child welfare-centred,
presumption-free approach to the factors which may be relevant. The factors which the learned Sheriff sets
out in his decision are not guidelines, as he has explained in his subsequent
decision, L v L 2013 (unreported),
but are factors that might be relevant and ought to be considered. The Washington Declaration on International
Family Relocation also sets out a non-exhaustive list of factors which might be
relevant, but also recognises the paramount consideration as being that which
is in the best interests of the child.
The
factors to be considered
Reasonableness of the proposed
move and the defender’s motive
[84] I am satisfied that the defender is not
motivated by any desire to seek to undermine the relationship which each child
enjoys with his father. She spoke of the
importance of contact and she appreciated that each father had a great deal to
offer. The defender referred in her
evidence to having ‘a strong track record of commitment’ to contact. I accept that this has generally been the
case. However, I consider the
submissions by both Mr Moss and Mr Bell, that the defender’s approach to the
proposed relocation has been demonstrative of a lack of respect for the roles
played by the pursuer and DC in the children’s lives, to be well founded.
[85] The defender described her proposal as
constituting a ‘comprehensive family plan’ allowing her to create a secure
family unit which she could not have in Glasgow; ‘a personal plan’ because she
wished to live with JB; and ‘a professional plan’ because she viewed it as
allowing her to build on her career. With
regards to the latter, the employment which has been offered to the defender
was broadly comparable to that which she currently enjoys in Glasgow and I am
not satisfied that the proposed move is motivated by any desire to further her
career. With regards to the creation of
a secure family unit, while it is true that the defender’s proposals would
allow her to reside in family with JB, I am not satisfied that it could be said
that the children are not currently enjoying a secure family environment and
(save for J’s self-harming behaviours since the commencement of the proof),
both children appear to be thriving.
[86] It was the defender’s position that she
felt isolated in Glasgow. Many of her
friends have moved out of the city. It
was her position that she lacked emotional and practical support in
Glasgow. In my judgment, the defender
has underestimated and undervalued the scale and nature of the practical
support which both the pursuer and DC have been able to provide to her, the
financial support which DC has provided to her (and is willing to continue to
provide) and the emotional support which the pursuer had hitherto made
available to her.
[87] In my judgment, but for the relationship
with JB, the defender would not be contemplating a move to Exeter. She stated in her affidavit “my relationship
with [JB] is the reason for my proposed move to Exeter.” The defender has an
entirely legitimate reason for seeking to relocate to Exeter. From her perspective, the proposed relocation
is therefore entirely reasonable. She
also expressed the view that she wanted to be in a more rural environment,
closer to nature and to be able to enjoy outdoor pursuits. However, the reasonableness of the proposed
relocation must be considered from the perspective of what is in the children’s
best interests. In my judgment, the
defender has assumed that what is reasonable for her, must be in the best
interests of the children. I was not
persuaded by the defender’s evidence that Exeter would provide a better
environment for the children than Glasgow, nor that there was any child-centred
reason for the move.
[88] It was submitted on behalf of the pursuer
and on behalf of DC that the defender was impulsive and there was a risk that
her relationship with JB would not endure.
The defender was previously
married in October 1999 to a man she had known for under one year. They separated in 2003. She commenced her relationship with the
pursuer in 2004. That relationship endured
for approximately one year. She entered
into a relationship with DC in early 2007.
That relationship deteriorated and she returned to France with J between
October 2009 and August 2010 where J attended pre-school. In August 2010, she moved to the Isle of Mull
where J commenced his primary school education.
In April 2011, she moved back to Glasgow to reside with DC. Her relationship with DC ended in around
August 2011. She admitted under cross
examination that she had been in a brief relationship with another man
thereafter in 2013, however, that relationship came to an end as he was
unwilling to leave Glasgow.
[89] She first met JB in July 2014. JB first met J and F in October 2014 when he
spent a weekend in Glasgow. He met the
children again in November 2014 when they enjoyed a day trip to the west
coast. The longest period of time JB has
spent with the children has been a period of 10 days over the Christmas holiday
period in 2014/2015. Since then, he has
spent time with the children on average, twice a month at weekends, and for
longer periods during holidays (a week in May 2015 and a week in June/July
2015). The defender and JB made a
decision to cohabit in early 2015, some three months after JB had first met the
children. They got engaged in March
2015. The children first visited JB in
Exeter in March 2015. The defender
purchased a property in Exeter in April 2015.
The defender and JB have not yet cohabited. The longest period they have spent together,
as a family, is 10 days. JB has no
children and no experience of parenting although he is close to his young
nephews and nieces.
[90] The defender and JB are clearly committed
to each other. As the defender pointed out, their relationship was an open and
transparent one and through these proceedings, JB had been privy to a great
deal of personal information regarding the defender. However, I find that there
is some force in the submissions made on behalf of the pursuer and DC. The proposed new living arrangements are
untested and appear to have been formulated at a time when JB had spent very
little time with the children. Whilst
the risk cannot be quantified, there is a risk that their relationship will not
endure. In the event of difficulties in
their relationship, the defender has no friends or family in Exeter upon whom
she could rely for support, nor will she have ready access to her counsellor,
Mr Ward.
[91] In addition, there was very little
evidence of the nature of the bond between the children and JB. Mr Nee did not have the opportunity to observe
any interaction between JB and the children.
JB certainly spoke of the children in affectionate terms. The defender
also spoke to the easy and natural relationship he had with the children. I note however that when Mr Nee asked F to
draw an ‘eco map’, F made no mention of JB.
When specifically asked about JB, F said that ‘he played games with him’
(item 6/116 of process). Mr Nee noted
that J had seen the house and the farm in Exeter, however, he does not appear
to have noted any comments made by J about JB.
Indeed, he notes that J ‘said that he was confused why they had to go to
Exeter’ (item 6/169 of process). When Dr
Edwards discussed the possibility of a move to England with J, she noted that J
said ‘there might be some good things about moving’ and referred only to
getting better weather and being able to play more football (page 5 of item
5/6/28 of process in F590/15).
[92] In the circumstances, the proposed
relocation is not, in my judgment, reasonable, when viewed from the perspective
of what is in the children’s best interests.
The
importance of contact with the pursuer and with DC
[93] It is clear that J has a very close bond
with his father and that contact with his father is very important to him. J described the pursuer as ‘relaxed’ and
spoke of spending ‘peaceful’ weekends with the pursuer, when he was interviewed
by Dr Edward. The pursuer’s friend, Mr
Stuart, described the relationship as ‘grand’ and referred to the exposure that
J has had to music and different communities through his relationship with his
father (paragraph 7 of his affidavit item 18 of process). The pursuer’s brother, Mr IQ describes them
as ‘joined at the hip’ (paragraph 9 of his affidavit item 17 of process). The pursuer’s mother describes J as someone
who ‘absolutely dotes on his dad’ (paragraph 6 of her affidavit item 16 of
process). The pursuer has sought out
accommodation to be close to J. He has
been a constant presence in J’s life since J returned to reside in Glasgow. He
was visibly moved during his evidence when he contemplated the prospect of J
moving to Exeter.
[94] The defender did not dispute the strength
of the relationship between the pursuer and J, nor that maintaining that
relationship was important for J. The
strength of that relationship is a matter to which I attach significant
weight. The defender referred to
photographs of the pursuer and J which had been posted on Facebook by the
pursuer and which had been superimposed with inappropriate images representing
adult themes. I was not persuaded that
these photographs were demonstrative of the pursuer’s poor parenting or lack of
judgment nor that they were a matter which I required to take into account in
reaching a decision on the proposed relocation.
In any event, I preferred the evidence of the pursuer, that he was
unaware of the adult nature of the images and that creating the photograph had
been a spontaneous act of thoughtless fun.
[95] It was also clear that F had a very close
bond with his father, DC and that contact with his father is very important to
him. DC spoke of F becoming upset in August 2015, when he realised that his
father would not be moving to Exeter with him.
Their relationship is described as ‘easy and relaxed’ (DC’s mother’s
affidavit item 26 of process in F590/15).
He is described as ‘utterly
devoted’ to F (DC’s sister’s affidavit item 24 of process in F590/15). He too was visibly moved during his evidence
when he contemplated the prospect of F moving to Exeter. It is clear that he
has successfully co-parented his son E with his ex-partner, Ms KV.
[96] The defender did not dispute the strength
of the relationship between DC and F, nor that maintaining that relationship
was important for F. The strength of that relationship is a matter to which I attach
significant weight.
The
importance of contact with other family members
[97] F currently sees his half-sibling, E, up
to three times a week and at weekends when F is with DC. E is now 18 years old and is very close to
F. F has spoken of his maternal and
paternal grandparents and of E as people who love him (Mr Nee’s report item
6/166 of process).
[98] J is also very close to his maternal
grandparents with whom he has spent most summer holidays in France. He benefits from his relationship with his
paternal uncle with whom he enjoys playing football and his paternal
grandmother whom he sees around once a month.
During his contact with his father on alternate weekends, J spends time
with his paternal aunt and her three children.
[99] A move to Exeter will bring the children
geographically closer to their maternal grandparents and will bring F closer to
some of his extended paternal family in London.
It was not disputed that the children benefit from and very much enjoy
the time they are able to spend with their maternal grandparents and indeed, J
has expressed the view that he would like to see more of them. The strength of their relationship was
evident from the terms of the defender’s father affidavit (item 27 of process
in F590/15). However, the children are already able to enjoy the company of
their maternal grandparents during school holidays. Any benefit derived in terms of travelling
the shorter distance to France is far outweighed by the distance which the
children will require to travel to Glasgow, on a frequent basis, for contact
with their fathers and extended families.
A move to Exeter will inevitably involve a diminution in the level of
contact the children have with their extended paternal families, and is liable
to have a negative effect upon those relationships. While I accept that there is a significant
age gap between E and F, that E is now studying at university and may not be in
a position to enjoy F’s company to the extent that he has in past, a move to
Exeter would involve a fundamental change to the nature of the relationship
between F and E. In light of the nature
of the relationship between E and the defender (E’s affidavit item 25 of
process in F590/15), and E’s university commitments, it is likely F and E would
only enjoy each other’s company during F’s visits to Glasgow.
The
extent to which contact between father and child can be maintained
[100] I have set out in the findings in fact the
defender’s proposed arrangements for contact in the event of relocation. I have set out the costs associated with
those arrangements, in so far as they can be estimated.
[101] In my judgment, even if the pursuer and DC
were able to meet the necessary costs of travel and accommodation, the
defender’s proposals represent a significant reduction in the level of contact which
the children currently enjoy with their fathers and will have an adverse impact
upon those relationships. While the
defender proposed a generous level of holiday contact, and contact on alternate
weekends, such contact could not compensate for the day to day involvement in
the children’s lives currently enjoyed by their fathers. The pursuer and DC fulfil a ‘parenting role’
and not a ‘visiting role’ as spoken to by Professor MacKay during his
evidence. In the event of relocation,
the pursuer and DC would have very little involvement in schooling or after
school activities. There is the risk
that the children will, in time, find the travel too onerous and may express a
disinclination to travel to Glasgow, even with the encouragement and support of
the defender. As they grow older, they
are also likely to wish to spend more of their free time with friends in
Exeter. While contact can also be
maintained by telephone and electronic communication, at his tender years F, in
particular, is likely to find such communication difficult and his interest is
likely to wane. The strong bond which
currently exists between the children and their fathers will be put at
risk. Moreover, the level of holiday
contact proposed by the defender leaves her with very limited holiday periods
with the children, which in my judgment, is likely to become a source of
frustration for her.
[102] The pursuer has very limited means and would
not be in a position to meet the costs of accommodation in, or travel to and
from, Exeter, even with the defender sharing the costs of weekend travel,
assisting with holiday travelling costs and by using the unaccompanied minors
service on certain airlines, as the defender proposed. DC does have the financial means and the
resources to meet the costs of accommodation in, and of travel to and from,
Exeter. While I accept that his income is erratic in
light of the nature of his work, he has access to substantial capital funds and
to trust funds which could be made available to him, if necessary. In passing, I would note that the disparity
between the fathers in relation to their financial means could, in the event of
relocation, lead to a disparity in the level of contact each child might enjoy
with his father. In that event, in light of J’s sensitive and anxious nature,
there is a risk that J might feel resentful and view the situation as unfair.
[103] The defender invited the court to consider
the possibility that both fathers could relocate to Exeter, or to a city nearby,
in order to maintain their relationships with the children. In the circumstances of this case, that was,
in my judgment, an entirely unrealistic and unworkable proposal, and was
particularly astonishing in light of the defender’s position that part of her
motivation for relocating was precisely to remove the degree of proximity which
currently exists between herself, the pursuer and DC. The pursuer has family in Glasgow. DC has an
established network of colleagues in Glasgow with whom he collaborates to
produce his artwork. He also wishes to
remain close to his son, E, in Glasgow.
[104] The adverse impact upon the children’s
relationships with their respective fathers is a matter to which I attach
significant weight.
The
extent to which the children may gain from the proposed relocation
[105] The defender has purchased a three storey
town house in Exeter which is within walking distance of the city centre. It takes 25 minutes to drive to JB’s farm
from the house. It would provide a high standard of accommodation for the
children. The children have enjoyed the
time spent in the house and on JB’s farm.
There are a number of amenities in close proximity. The defender has obtained offers of
placements for the children at schools nearby which have been rated as
‘outstanding’ and ‘good’ in the latest OFSTED Inspections. The defender has secured a place for J in the
local under 11s football team. In the
event of a relocation, the defender would propose to use the breakfast club and
after school facility to accommodate her working hours. The children will have access to a wide range
of outdoor activities, enjoy the benefits of being close to nature and have
ready access to a number of beaches.
They would benefit from a relationship with JB and his parents, all of
whom are keen to be part of the children’s lives. I have no doubt that JB and
his parents will strive to provide a loving family environment for the
children.
[106] It was submitted, on behalf of the defender,
that the court required to carry out a comparison of what was on offer in
Exeter with the uncertainty which existed for the defender and the children in
Glasgow. In particular, I was asked to
take account of the nature of the defender’s temporary and unsuitable
accommodation. However, I do not accept
that the situation which has been created by the defender in Glasgow is the
correct basis upon which to make such a comparison. The defender has acted precipitously by
purchasing a house in Exeter without having obtained the pursuer or DC’s
consent to the proposed move; by moving into temporary accommodation and
choosing to send most of the family’s belongings, including items such as the
children’s TV, J’s X-box and other toys, to Exeter; by removing J from his
football team; and by advising J that he would not be returning to school in
August 2015 when the proof in this action had been discharged and
re-assigned. She has sought to mislead both
the pursuer and DC, or alternatively she has been very economical with the
truth, regarding her proposals and in relation to the purchase of the property. She has steadfastly chosen to remain in the accommodation
described as ‘unsuitable’ despite the offer of financial assistance from DC to
secure alternative rented accommodation. It was her position that she had
purchased the property in Exeter because she believed that she required to
present the court with ‘a concrete relocation plan.’ I did not find this explanation convincing. According to the defender, she purchased the
property at a time when she believed she already had the pursuer’s consent to
relocate, thus there was no question of her seeking a specific issue order in
respect of J. She described the email
which she sent to DC in April 2015 as ‘her announcement’ of her plans to relocate
(item 6/37 of process). She invited a
discussion on the issue of contact only.
She sought to present DC and the court with a fait accompli.
[107] On the evidence presented to me, I am not
persuaded that Exeter offers better amenities or schooling than that which is
available to the children in Glasgow; they are broadly comparable. To the extent that the children enjoy being
on the farm and having access to outdoor pursuits, they are able to derive
these benefits during their visits to Exeter with the defender at present. While the children will undoubtedly benefit
from the relationships with JB and his parents, I am unable to conclude that
these would outweigh the very significant losses in the close relationships
they have in Glasgow with their fathers and their paternal families. In relation to the issue of accommodation,
the defender has the means of securing accommodation in Glasgow. She has a capital asset, namely the house in
Exeter, at her disposal. She is in
employment. DC has offered to assist her
financially with securing alternative accommodation in the short term.
The
children’s views
[108] Regarding J’s views on the proposed move to
Exeter, Dr Edward’s report states the following:
“I asked J directly how he felt
about how things are arranged at the moment, and he told me that he likes
things as they are now. He then said
that he might like to see more of his father, and also that he enjoys seeing
his cousins on a Saturday morning when his father has to work . . . . . I spoke
with J about the possibility of a moving to England, which he clearly
understands may happen. He told me
initially that he does not really want to move but he “will go along with what
mum says”. He then said that there might
be some good things about moving, and I asked what they were and he referred to
getting better weather in England so he could play more football. However, he stated that he also does not want
to move as Dad has told him that he is going to try and get a bigger house. . .
. I asked J what [his] father thought about the move, and he told me that his
Dad thinks that J should be able to choose if he wants to go or stay. I asked what his mother thought and he told
me that she wants to move to be closer to her boyfriend and her parents. I asked him about these individuals and he
was positive about them but did not give much description of interactions. I specifically asked J what he would choose
to do and he told me that he does not know what he wants. He would like for the Judge to choose for him. J understands that if he moves he will see
his father less often but when they meet it will be for longer chunks of
time. He does not know if that would be
better or worse than how things are now because he has not tried it, but he was
clear that he does like it how it is”.
[109] J was asked about the possibility of moving
school. While he stated that there was a
specific classmate that he would be happy to get away from, he also stated that
he would not like to leave his friends.
He stated that he would miss his father and his friends if he were to
move, but also stated that he misses his maternal grandparents at present.
[110] Dr Edward concluded that “J initially expressed reluctance to move to
England and presented the sense that he ‘goes along with’ his mother’s
wishes. However, with further
exploration it is less clear that J is sure whether moving or staying would be
the better option. This uncertainty
appeared to me in discussion to be an accurate portrayal of his views. J does appear to have a strong relationship
with his father and I strongly suspect that he would not like to see their time
together reduced”.
[111] I was invited by Mr Moss to conclude that J
had expressed no enthusiasm for the move.
He submitted that it could be inferred from the statements he has made
that J preferred the status quo. I was invited by Ms Matheson to conclude that J
had declined to express a view.
[112] J presents as a child who does not wish to
make a decision as he does not wish to disappoint either of his parents. He did not appear to be keen to discuss the
move to Exeter with Mr Nee. However, it
can be inferred from J’s discussion with Dr Edward that he prefers the status quo and would in fact wish to see
more of his father. I find Dr Edward’s assessment that J would not like to see
his time with his father reduced as a fair analysis of his position. It is not surprising that a child in these
circumstances would prefer to maintain the status
quo and would not wish to be separated from family and friends. I have had regard to J’s view in arriving at
my decision, but I have not attached significant weight to his view in light of
the ambiguous terms in which it has been expressed.
[113] F is not of sufficient age and maturity to
express a view. It is clear that he
cannot fully comprehend what a move to Exeter would entail at his age.
The
effect of the move on the children
[114] The defender emphasised throughout her
evidence that change can be a positive experience and it is good for the
children to learn to adapt. I am
satisfied that the children, and in particular, F, could eventually adapt to
the proposed new living arrangements in Exeter.
They would be living in suitable accommodation and their needs would be
met by the defender and by JB.
[115] However, on the evidence led before me, I am
less satisfied that J will learn to adapt in the short and medium term. Having assessed J using the Beck Youth
Inventories assessments, Dr Edward concluded that J presented with particular
concerns regarding low self-concept and elevated anxiety symptoms. She noted that there was evidence of mild depression. She cautioned that “specific care will require to be taken to ensure that J can benefit
from a stable and calm living situation”.
For J, the defender’s proposals involve a move to a new city, a new
home, a new school, limited contact with his father, paternal family members
and friends, and giving up his position in his local football team which he
clearly enjoys.
[116] J had benefited from a stable and calm
living situation prior to the defender’s decision to relocate and prior to her
moving the children into temporary accommodation. In particular, he appears to enjoy the
relaxing pace of the time with his father.
I am satisfied, on the evidence presented to me, including photographs
of J’s injuries (item 5/1 of process) that J has engaged in self-harming
behaviour and has done so when angry and frustrated. Such behaviours had not
been exhibited prior to the commencement of these proceedings. There was little evidence that the defender
had given careful consideration to the impact upon J in the event of a move,
nor did she explain satisfactorily how she proposed to manage J’s self-harming
behaviour. I formed the impression that she was minimising J’s behaviour during
her evidence, albeit that she expressed her genuine concern for him. Dr Edward was unable to form a view upon the
triggers for J’s behaviour, however she noted that he had a sense of going
‘crazy’ like his mother. The defender
attributed such behaviour to J’s exposure to conflicting parenting styles. It was her position that relocation would
remove J from such exposure. She
appeared unwilling to consider the possibility that his self-harming behaviour
might be linked to the conflict which had been created by her decision to
relocate. She accepted during cross
examination that she had taken J to see her GP ‘out of respect’ for the
pursuer, but she appeared to have reservations about the value of medical
intervention in the circumstances.
[117] The need to ensure a stable and calm living
situation for J in particular is a matter to which I have attached significant
weight.
The
effect of refusal upon the defender
[118] I accept the defender’s evidence that she
will be ‘devastated and crushed’ in the event that she is not permitted to
relocate. She described life in Glasgow
as being a ‘life with no hope of being geographically close to the people I
love’. She was very tearful and upset
during this chapter of her evidence. In
her affidavit, she described it as being ‘very difficult and extremely painful’
to picture herself in Glasgow, ‘where the boys would be homeless’ and where she
perceives that she ‘would be at the mercy of the relentless bullying’ of both
the pursuer and DC. Mr Ward noted that
the defender would find living in Glasgow ‘very curtailing’ and that she would
feel trapped. Similar comments were made
by Mr Nee, by JB and by the defender’s father in his affidavit (item 27 of
process). The defender felt that
remaining in Glasgow would not allow her to be the mother she knew she could be
for the children.
[119] I accept also that JB is not in a position
to move to Glasgow in light of his commitment to his parents and his
involvement in the family farming partnership.
JB and the defender have made a commitment to each other and plan to be
married. While they both accepted that a
long distance relationship would entail difficulties, they were both resolved
to make every effort to sustain their relationship. That is exactly what they have done since
late 2014.
[120] I accept that a refusal of the order sought
by the defender may adversely affect the defender’s psychological wellbeing and
in turn, may have a detrimental impact upon the children. However, the defender has the benefit of the
emotional support she derives from JB, and she explained in her evidence that in
the event of the court refusing the order she sought, she would seek out any
support she required, including from her counsellor, Mr Ward. Dr Appan gave consideration to
whether an unfavourable outcome in this process might cause the defender to
lapse back into using maladaptive coping strategies (i.e. self-harming
behaviours). Dr Appan noted that the
defender appeared to be psychologically and emotionally equipped to deal with
an unfavourable decision and would continue to cope to the best of her
abilities. This was an outcome which she
was prepared to deal with.
Conclusion
[121] Having considered all of the relevant
factors and having regard to the welfare of the children as the paramount
consideration, I am not satisfied that the proposed relocation is in the
children’s best interests or that it is better that such an order be made than
no order be made at all. I have paid due
regard to the wishes of the defender and to the effect of a refusal of the
order upon her. I recognise that
relocation has the potential to improve the quality of the defender’s life and
this in turn could impact positively upon the children. However, I do not
consider that in this case, this factor is one to which significant or dominant
weight falls to be attached. As stated in the decision of the Inner House in M
v M supra (at para 53):
“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 or were at an age when a change of school was in any event inevitable.
In other cases, however, the position might be quite different, with a proposed
move having much less to commend it and there being strong countervailing
factors.”
[122] In this case, strong countervailing factors
exist. Most importantly, the children
benefit from a very close bond with their fathers and the proposed relocation
will involve a significant diminution in the quality of those
relationships. Viewed from the
children’s perspective, the proposed relocation is not reasonable. The children
are happy and settled in Glasgow and I am not persuaded, having regard to the welfare
of the children, that interference with the status
quo is justified in the circumstances.
Decision
[123] Accordingly, I shall repel the defender’s
fifth plea in law and refuse the defender’s third crave. In the event that I did so, Mr Moss intimated
that the pursuer would not insist upon his second crave seeking an order for
residence. I shall repel the pursuer’s
second plea in law, as not insisted upon.
[124] The defender sought an order for residence
in respect of J. The pursuer has at no
time sought to interfere with or challenge the defender’s position as primary
carer for J or as the parent with whom J resides. I am not persuaded that it would be better
for J that such an order be made than not. Accordingly, I shall repel the
fourth plea in law for the defender and refuse the defender’s first crave.
[125] The pursuer sought interdict preventing the
defender from removing J from the jurisdiction of this court. I am not persuaded that the defender has
attempted to do so; in relation to her relocation plans, she informed both
fathers of her intentions and in the face of their opposition she has sought a
specific issue order. At no time has she
sought to breach the terms of an undertaking she has provided to this
court. I am not persuaded that an
interdict is necessary nor that it would be better for J that such an order be
made than not. Accordingly, I shall
repel the pursuer’s first plea in law and refuse the pursuer’s first crave.
[126] I shall assign a hearing in this case, to
call together with a hearing in the action at the instance of DC, to deal with
the issue of expenses and to consider whether any orders in relation to contact
are necessary.