SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES AND GALLOWAY
F479/02
| | JUDGMENT OF SHERIFF PRINCIPAL B A LOCKHART |
| in the cause |
| ALEXANDER McSHANE |
| Pursuer and Appellant |
| against |
| ELIZABETH CLAIRE DURYEA |
| | Defender and Respondent |
Act: J Buchanan, of Messrs Buchanan Burton, Ease Kilbride
Alt: Miss B H Smith, of Messrs Ross Harper, East Kilbride
HAMILTON: 13 December 2005
The Sheriff Principal, having resumed consideration of the appeal, refuses the appeal and adheres to the Sheriff's interlocutor of 12 April 2005 complained of; finds the appellant liable to the respondent in the expenses of the appeal procedure; allows an account of expenses to be given in and remits the same when lodged to the Auditor of Court to tax and to report.
NOTE:
Background to the appeal
1. The Sheriff found that the appellant was the natural father of Joshua Robert Duryea who was born on 1 December 2000. He made an order granting the appellant parental rights and responsibilities in respect of Joshua Robert Duryea in terms of section 1 and 2 of the Children (Scotland) Act 1995. He made a contact order confirming the contact which was already being enjoyed by the appellant, namely every Friday from noon until 4.00 pm and residential contact with the child every Saturday from 1.00 pm until Sunday at 2.00 pm. The appellant took no issue with these elements of the Sheriff's interlocutor.
2. However the Sheriff further granted a specific issue order in terms of section 11(2)(e) of the Children (Scotland) Act 1995 allowing the respondent to return to the United States of America with the child Joshua Robert Duryea on condition that the respondent notify the appellant of the date of her departure three months in advance of her departure and of her home address, e-mail address and home telephone number, including any variations thereof while resident in the United States of America. Additionally he made a further contact order for the three month period prior to the respondent's departure to the United States of America. During that period contact would be increased on each alternate weekend to residential contact with the child Joshua Robert Duryea every Friday at noon until Sunday at 2.00 pm. The Sheriff further allowed the appellant contact with the child during any holiday or vacation the respondent spent in the United Kingdom, the appellant being entitled to residential contact to the child for one half of his stay in the country. The Sheriff ordered telephone contact between the appellant and the child while the child was in the United States of America on each Sunday at a time to be mutually arranged between the parties. It was against these latter findings that the present appeal was directed.
Submissions for pursuer and appellant
3. Solicitor for the appellant submitted that it was clear that the Sheriff had been satisfied that the appellant was a suitable person to have parental rights and responsibilities in the child and that the contact with the child had been working well. It was submitted on behalf of the appellant that the Sheriff had failed to weigh in the balance properly the fact that the appellant had established contact with the child, contact was working well and there was a good bond between the father and child. It could be inferred from the facts that the natural father was going to be a good influence on the child. This had been recognised by the Sheriff as he had been granted parental rights and responsibilities. However, notwithstanding this, the Sheriff had effectively taken it all away by granting the specific issue order in favour of the respondent which allowed her to take the child to America.
4. Solicitor for the appellant submitted that it was better that a child retain contact with both parents - it was good for the child's emotional development. In this case the child was maintaining contact with his father. Solicitor for the appellant accepted that, having reviewed the authorities, if a mother has residence and is the natural carer (the position in this case) and there was no issue of disturbing the residence position, then, to a large extent, the mother's determination of where she should live with the child should be accepted by the court. It was accepted in terms of the Children (Scotland) Act 1995 that the mother's determination of where she should live in the United Kingdom should be unaffected by the concerns of the absent parent. It was submitted that, even if the mother decided to take the child out of the jurisdiction, if she had a reasonable plan, a Sheriff was entitled to take that into account and accept the mother's decision to live elsewhere, although that might affect contact to the extent of making it virtually impossible or reducing it to a large extent. If the mother, who was the natural carer, had in place a reasonable plan, the court would be slow to intervene.
5. It was submitted in this case that there was no evidence of proper consideration being given by the respondent to the proposal to move to the United States of America. On that basis, it was submitted that there was no material before the court from which the court could conclude that there was in place a reasonable plan for the future welfare of the child.
6. It was submitted that what the Sheriff had done in this case was effectively to grant the respondent carte blanche to take the child to the United States of America whenever she wished. There was no specific date referred to in the pleadings as to when she intended to go.
7. It was pointed out on behalf of the appellant that, having been granted parental rights and responsibilities and a contact order to formalise the current arrangements, the Sheriff had proceeded to increase contact during the three month period before the child left this country for the United States of America. It was submitted on behalf of the appellant that the increase in contact prior to departure did not fit with a proper determination of the case. What effectively the Sheriff was doing was allowing contact, awarding the appellant parental rights and responsibilities, and then, while allowing the respondent to take the child to the United States of America, adding a condition that, for the three month period before departure to the United States of America, contact was to be on a more extensive basis than had originally been exercised.
8. It was submitted that the decision to increase contact during that three month period was not a proper use of the Sheriff's discretion. It was submitted that the Sheriff could only make an order to increase contact when he had heard the facts relating to contact at the time of the proposed increase. The judgment decreed that, whatever happened, the appellant would get increased contact triggered by the respondent fixing a time to go to the United States of America. It was the appellant's position that an increase in contact should not be triggered by the respondent's decision to go to the United States of America, but by a proper consideration of the all the facts.
9. It was argued for the appellant that the Sheriff had made this decision to increase contact because he did not have proper material before him to make a specific issue order. What the Sheriff was doing, it was argued, was giving the appellant a sop because of his decision to make a specific issue order by allowing the increased contact prior to departure. It was submitted that that sop demonstrated that the Sheriff did not weigh the balancing exercise properly and did not give proper consideration to whether the respondent had a clear plan regarding her emigration to the United States of America.
10. Having criticised the Sheriff's decision to award increased contact in the three months prior to departure, solicitor for the appellant then preceded to attack the making of the specific issue order. He referred to various authorities. First the case of Re M (Leave to remove child from jurisdiction) 1999 2FLR 334. In that case a Bulgarian mother and Nigerian father entered the United Kingdom and sought asylum. Thereafter they separated. The mother took the view that although she had applied for asylum, the application in the United Kingdom might not be successful. She accordingly applied to emigrate to Canada. The Canadian authorities were not prepared to look at her application unless a court gave her permission to move the child from the jurisdiction. In that case she could not provide the court with the sort concrete proposals which would normally accompany an application for leave to remove a child from the jurisdiction, such as specific information about jobs, accommodation and schools, and detailed arrangements for contact with the father, as it was not possible to form such plans until after she had made the application. In that case the mother's leave to remove to Canada, if and when she was granted permanent residence there, was made conditional on the making of reasonable contact proposals once the plans for removal were more advanced. The appellant's position was that this was the only decided case where leave was granted without the court being aware of specific arrangements being made for the welfare of the children after emigration.
11. I was also referred to the case of Payne v Payne 2001 1FLR 1052 at 1065 where Thorpe LJ suggested the following discipline as a prelude to conclusion:
| "Pose the question: Is the mother's application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child's life? Then ask is the mother's application realistic, by which I mean founded on practical proposals both well researched and investigated. If the application fails either of these tests refusal will inevitably follow". |
| It was submitted that on the evidence the respondent's application passed the first test in that the application, from the evidence, was genuine and was not motivated by selfish desire. It was submitted, however, that she failed in establishing that the application was realistic in the sense that it was not founded on practical proposals which were both well researched and investigated. |
12. I was further referred to the case of M v M 2000 FLR 84. This was an application by a mother who wanted to go to the United States with her three children. She had made a life in the United Kingdom, but she was now divorced and had a new partner. The issue in the case was whether she should be allowed to go to the United States. In that case the pursuer was born of American parents in the United Stated and had an American passport. Contact was taking place in the United Kingdom with a father that was proving difficult. Schooling arrangements in the United Kingdom were appropriate and she had allowed contact. The issue in the case was whether, when the pursuer stated she wanted to go to the United States, there were well researched and proper reasons put before the judge to allow him to make the decision that she should be allowed to go with the children to the United States. In that case the pursuer had family in the United States, there was a family business in which she had interest, she had made her plans over a substantial period and there was a reasonable expectation that the pursuer and her new husband would be able to provide a materially better life for the children there. In that case it was held that the pursuer did have proper and reasonable plans. She had been going to board meetings in America several times each year and she had combined these trips with visits to her mother. She had an offer of employment with the company in the position of regional asset manager for the Arizona operations. In that case also there were specific proposals for contact.
In the present case, it was submitted, there were no proper plans. It was submitted that the case of M v M made it clear that there had required to be evidence before the court to allow a proper and reasoned decision to be made as to whether it was in the children's interests to allow them to leave the jurisdiction. It was submitted that in M v M there was acceptable evidence before the court; in this case it was submitted there was not. |
13. It was submitted on behalf of the appellant that all the authorities indicated that the party taking the child out of the jurisdiction had to have a clear plan in place. It was accepted that the court would be slow to interfere with the reasonable exercise by someone of their choice of residence. But it was submitted that there were no proper plan put forward here and the judgment by the Sheriff failed the test of reasonability.
14. I was referred to various sections of the evidence taken at the proof which, it was submitted, gave a flavour of the situation that there was no worked out plans to allow the court to be satisfied that it was appropriate to make a specific issue order. It was submitted that the following areas were vague:
| a. Future contact. The respondent had stated in evidence that the appellant was more than welcome to come over to visit the child in the United States, and she would want to return to the United Kingdom to visit her mother and sisters. However nothing had been worked out. There was no proper plan in place regarding future contact. It was submitted that there should be such a proper plan put to the court for approval. b. Residence in America. The respondent had stated that she proposed to live with her father who had remarried. The respondent had only met her father's new wife for some three weeks during a holiday to America. Although the lady had got on fine with the child during the three week holiday, there was no guarantee about how they would get on in future. The respondent proposed that initially in they would live with her father and her father's new wife, but there appeared to be no consideration of whether this would work in the future. The decision was made on the basis of a three week holiday. c. Future accommodation. No specific time limit had been given as to how long the respondent would live with her father and his new wife before obtaining her own premises. No ground work had been done about finding a property of her own. d. Employment. No specific arrangements had been made regarding the respondent's employment although her father had indicated to her that she would be able to get a job in his company. It is a construction company and she would be employed in the office. It was all verbal and nothing had been confirmed in writing. e. Nursery arrangements for the child. The respondent had looked at two nurseries when in Sacramento in America but was not able to give confirmed details. |
15. It was submitted on behalf of the appellant that, while a woman with a residence order was entitled to determine the residence, this was subject to there being a reasonable plan or reasonable proposals put before the judge deciding the case. It was submitted that this was lacking in this case. All the court had was a "wish list".
16. It was submitted there was no evidence to allow the Sheriff to make a specific issue order. I was asked to adhere to the Sheriff's first and second findings and the fifth finding insofar as it related to the existing contact. I was asked to sustain the appeal in respect of the Sheriff's remaining findings.
17. It was pointed out that the appellant was not now legally aided but it was submitted there should be no expenses due to or by either party in respect of the appeal. I was not asked to interfere with the Sheriff's finding of expenses in the interlocutor complained of.
Submissions for the defender and respondent
18. It was submitted by solicitor for the respondent that in his judgment, the Sheriff had made it quite clear that he had taken everything into account, including the existing bond between the child and the father. He had made extensive reference to case law. He had taken into account that both parents shared parental rights and responsibilities. He had referred specifically to the case of M v M where the court allowed relocation including in the consideration "balancing the negative fact of reducing contact with the natural father and moving the children from Scottish to American school". It was pointed out that there was no schooling issue here as the child had yet to start school.
19. It was accepted that the evidence demonstrated that contact was working well and that there was a bond between the appellant and the child. It was submitted that there was no case law to vouch the proposition that, where contact was working well and a bond had been established, that is a good reason to prevent the parent having residence taking the child abroad.
20. In this case the respondent was an American with a US passport and the child, although born in the United Kingdom had a US passport issued with the consent of the appellant.
21. It was submitted that there was evidence of a plan for the respondent staying in America. There had been lodged in process photographs of the family home belonging to the respondent's father. The respondent had given evidence that she could get employment in her father's company. Moreover, the appellant had said that he had taken steps to find out if he could get employment in the United States of America, and he seemed to think there was a strong possibility that he could get work there (page 81). He had no other ties here, no other children. He was currently earning £350 net per week.
22. As far as education was concerned the appellant conceded (page 84) that you could have a good education over there. When asked "on a par with here?" He replied "possibly". It was submitted that there was evidence from the respondent, her mother and her sister that it had always been her intention to return to the United States of America where she has a real connection. The respondent's mother had said that she had not put her name down for housing in the United Kingdom because she did not think she would be here. This was not a recent whim. It had always been her intention to move to the United States of America.
23. The respondent had always discussed with the appellant the question of going to the United States of America (pages 172 and 176). When asked about the appellant's view, the respondent said: "He has always felt it would be in Joshua's best interest, he thought it a good place for him to grow up until recently he changed his mind" (page 172).
24. As far as contact was concerned the respondent said: "I told him he was always very welcome to visit and I would also be coming back here as often as I could afford, definitely once a year" (page 176). There was evidence that the cost of a flight to America on the internet could be £250-£300 return. The appellant was earning £350 net per week. It would appear that the cost of contact visits would not be a problem. There was also evidence from the respondent that the appellant had been offered a good job in Florida (page 177).
25. Additionally the respondent had stated that she had checked out hospital, elementary school and nursery arrangements (page 173). The respondent had been told that she would be able to get a job as an office worker in her father's construction company (page 174). The respondent had been in America from 1981-1984 then from 1988-1995. Her plan was that after about six months she would rent her own apartment in Sacramento.
26. It was pointed out that the Sheriff had referred to the case of M v M in his judgment at page 15 line 5 "I am conscious of the likely effect of relocation of Joshua to the US upon the pursuer. The paramount consideration however must always be the best interests of the child and not the wishes of the parent however laudable, constructive and well motivated that parents intentions are to the child. I am therefore conscious of the likely negative effect upon the pursuer that a decision to allow Joshua to be relocated to America upon the pursuer.".
27. The Sheriff also referred to the case of Payne v Payne supra where it was stated:
| "The reasonable proposals of the parent with a residence order wishing to live abroad carried great weight; these proposals had to be scrutinised with care and the court needed to be satisfied that there was a genuine motivation for the move and not the intention to end contact between the child and the other parent. Where there was a real dispute as to which parent should be granted a residence order and the decision as to which parent was more suitable was finely balanced then the future plans of each parent for the child were clearly relevant, and the proposed removal of the child from school, surroundings and other family might be another important factor. However where, as here, the residence issue was clear then plans for removal from the jurisdiction would not be likely to be significant in a decision over residence." |
28. It was submitted that the move was clearly genuine in this case. Given the ease of travel between the United Kingdom and United States of America there should be no difficulty in the appellant exercising substantial contact, albeit not on the present regular basis. Given that the appellant's evidence that he was earning £350 net per week and living with his parents, it was submitted he should be readily able to afford the cost of travel to the United States of America.
29. The respondent's mother confirmed in evidence that the respondent would come to visit her in the United Kingdom. The appellant would then be able to enjoy contact in terms of the Sheriff's interlocutor. She also said: "Her father works for a construction company who told her they are always looking for people to work in the office - in fact they offered her work over the holidays." (page 141).
30. The solicitor for the respondent referred me to the undernoted additional authorities:
| Huddart v Huddart 1961 SLT (Notes) 71 in that case Lord Walker said "I have every sympathy with the pursuer in the event of his children going to Australia. It would, as I think he said, probably be impossible in any foreseeable future that he should see his children. That, however, is an interest personal to himself rather than an interest of the children at this particular age which they have reached. On balance the view that I have taken is that it is clearly in the interests of the children that they should be in the custody of their mother. Her proposal to take them to Australia is, in my opinion, a reasonable exercise of her tutorial power." |
| In Johnson v Francis 1982 SLT 285 it was held that: "balancing the advantages for the children and maintaining regular contact with their father against the advantages of the children to be obtained in immigration, that it was in their best interest to be allowed to emigrate and decree pronounced accordingly.". Lord Murray stated at page 286: "The central issue which I have to decide is thus whether it is in the best interests of the two boys that they should emigrate to Australia with Mr and Mrs Francis, thereby in effect depriving them of access to their own father during their formative years, or whether they should remain in Scotland and enjoy access to him on the basis sought in the minute. It being conceded by Mr Johnson that it is in the best interest of the boys that they remain in Mrs Francis' custody, the issue between the parties in this case can be distinguished from the case Huddart v Huddart to which I was referred. In that case Lord Walker, in the Outer House, faced with competing claims for the custody of the two daughters of the parties whose mother wished to take them with her to Australia, decided that it was in the best interests of the daughters to remain in the custody of their mother, that the mother's proposals to take her daughters with her to Australia was in the circumstances of that case a reasonable exercise of her power of the tutrix, and that, although this would deprive them of access to their family, this circumstance was not sufficient to outweigh the overall advantages of the proposed move. He accordingly granted authority. The present case is stronger for the minuter in that the children are both boys, for whom it is no doubt more important to maintain a paternal link during their formative years.". |
| I was also referred to M v M supra. In that case the defender argued that the pursuer's plans: "were born of whim and ill thought out, and that she did not have the experience or training to be an effective part of the family business. It was held that the pursuer had good reason to make the proposed move to the US and had made her plans over a substantial period though there was nothing approaching an absolute need for her to go to the US ... the pursuer and new husband would be able to provide a materially better life for the children there ... these factors outweighed the negative factors of reduced contact with the defender and moving schools." It was also stated at 15-20: "The question therefore remains whether it is in the best interests of the children that they go with the pursuer to the United States as she proposes ... I have come to the clear view that on the balance of the evidence it is ... inevitably with any plans and hopes there is a degree of uncertainty." |
31. It was submitted that in this case it was inevitable that there was a degree of uncertainty at this stage. The respondent's arrangements at this stage could not be concrete. She could not know exactly how long she would stay with her father. She could not be specific about future jobs and nursery arrangements. Her intentions were flexible. What she did have was a home and a job to go to. Her outline plans would be considered in detail as and when necessary.
32. I was also referred to Payne v Payne supra at page 1057 Thorpe LJ stated:
| "The modern law regulating applications for the emigration of children begins with the decision of this court in Poel v Poel 1971 WLR 1469. I doubt that the judges deciding the case recognised how influential it would prove to be. While emphasising that the court would have regard primarily to the welfare of the child, both Sachs LJ and Whin LJ emphasised the importance of recognising and supporting the function of the primary carer. That consideration was most clearly expressed by Sachs LJ when he said at 1473 'When a marriage breaks up, a situation normally arises when the child of that marriage, instead of being in the joint custody of both parents, must of necessity become one who is in the custody of a single parent. Once that position has arisen and the custody is working well, this court should not lightly interfere with such reasonable way of life as is selected by that parent to whom custody has been rightly given ... the way in which the parent who properly has custody of the child may chose in a reasonable manner to order his or her way of life is one of those things which the parent who has not been given custody may well have to bear, even though one has every sympathy with the latter on some of the results.'" |
33. At 1073 Payne v Payne supra Dame Elizabeth Butler Sloss, quoting a previous decision of her own in the unreported decision of Moody v Field said:
| "The question therefore in each case is, is the proposed move a reasonable one from the point of view of the adults involved? If the answer is yes, then leave should only be refused if it is clearly shown beyond any doubt that the interests of the children and the interests of the custodial parent are incompatible ... the court in principle should not interfere with the reasonable decision of the custodial parent." |
| Dame Butler Sloss at page 1079 suggested that the following considerations should be in the forefront of the mind of the judge trying one of these difficult issues: "a. The welfare of the child is always paramount. b. There is no presumption ... in favour of the applicant parent. c. The reasonable proposals of the parent with a residence order wishing to live abroad carry great weight. d. Consequently the proposals have to be scrutinised with care and the court needs to be satisfied there is a genuine motivation for the move and not the intention to bring contact between the child and the other parent to an end. e. The effect upon the applicant parent and the new family of the child of the refusal of leave is very important. f. The effect upon the child of the denial of contact with the other parent and in some cases his family is very important. g. The opportunity for continuing contact between the child and the parent left behind may be very significant." |
34. I was further referred to Poel v Poel 1971 WLR 1469 - referred to by the Sheriff at page 13 of his judgment where he:
| "... there should be no interference with any reasonable mode of life selected by the parent having custody unless absolutely essential". |
35. I was also referred to Re M (Application to remove from jurisdiction) 1998 1FLR 848.
| "... there had to be some compelling reason to justify a court preventing the custodial parent from taking a reasonable decision to live outside the jurisdiction." |
| It was further submitted that there was nothing in the judgment in that case which said there had to be concrete proposals. What was required was that there should be reasonable proposals in place. |
36. It was submitted that the Sheriff's judgment took account of this case law and I should not interfere with his decision to make a specific issue order.
37. As far as the submissions made on behalf of the appellant were concerned, the solicitor for the respondent made the following additional submissions.
| a. Increased contact prior to departure. It was submitted that this was in no way incompatible with the decision which the Sheriff finally made. It was submitted the Sheriff was trying to ensure that the bond between the child and the father remained in place. Esto he was wrong to do this, it was submitted that that decision did not effect his judgement regarding the removing of the child from the jurisdiction. b. Carte blanche to the respondent to remove the child as no date given. It was submitted there was no need for a date to be given. The child could not go to the United States until the medical treatment had been completed and it was only at the time of proof that the medical treatment did in fact finish. At the date of the proof the respondent was not in a position to give a specific date as the question of removal or otherwise was still a live issue. It was suggested that the approach taken by the Sheriff to the matter was a reasonable one. c. The tests set out in Payne v Payne that the proposals had to be genuine and realistic. It was submitted that it was not disputed that the application was genuine as there was a substantial body of evidence, which the appellant did not challenge, that it had always been the respondent's intention to return to the United States. It was suggested that the proposals were realistic in that practical proposals had been put forward regarding accommodation, employment and education for the child. It was clear that future contact would not be a problem. |
38. I was asked to refuse the appeal and adhere to the Sheriff's interlocutor.
39. Solicitor for the respondent made no submissions to me regarding the expenses of the original proof where both sides were legally aided. However, as the appellant, since the proof, had not had the benefit of legal aid it was submitted that expenses of the appeal should follow success. If I adhered to the interlocutor, the expenses of the appeal should go to the respondent.
Decision
40. I do not criticise the approach taken by the Sheriff in this case or the decision which he has reached. He has accurately set out the law applicable and considered all the factual issues which arise in the case.
41. It is clear that it is in the best interests of Joshua that he should be with his mother. Her decision to return to the United States, on the basis of the evidence which was led at the proof and accepted by the Sheriff, was a genuine one. The question for the court is whether it is in the child's best interests. The Sheriff, for the reasons set out in his note, concluded that such a move was in the child's best interests. I look at the seven considerations set out by Dame Butler Sloss at page 1079 in the case of Payne v Payne supra and I comment as follows:
| a. "The welfare of the child is always paramount." In his judgment the Sheriff has carefully considered the welfare of the child in reaching his decision. b. "There is no presumption ... in favour of the applicant parent." In his judgment the Sheriff did not proceed by way of any presumption. c. "The reasonable proposals of the parent with a residence order wishing to live abroad carry great weight." The Sheriff has set out the proposals of the respondent. He has properly considered them to be reasonable. There was evidence to which I have referred in the notes that the respondent had a firm address to go to live with her father and his new wife. She had an offer of full-time employment. Nursery and schooling facilities were available and could be finalised on arrival in the United States. Health care insurance would be arranged as part of the employment package. The respondent would welcome the appellant in to the United States for the purpose of visiting his son. Travel is easily accessed and well within the appellant's budget. Additionally the respondent proposes to return to the United Kingdom at least once a year to visit her own family when contact could be arranged. It would not be practicable to put in hand at this stage more detailed arrangements. d. "Consequently the proposals have to scrutinised with care and the court needs to be satisfied that there is a genuine motivation for the move and not the intention to bring contact between the child and the other parent to an end." It is clear that the proposals have been scrutinised with care. It was accepted by both sides that there was a genuine motivation for the move. The Sheriff accepted that it was not the respondent's intention to bring contact between the child and the appellant to an end. e. "The effect upon the application parent and the new family of the child of a refusal of leave is very important." This was noted. f. "The effect upon the child of the denial of contact with the other parent and in some cases his family is very important." In the proposed arrangements outlined under c., this would be minimised. g. "The opportunity for continuing contact between the child and the parent left behind may be very significant." Again this is canvassed under c.. |
42. It appears to me that attention has been given to all the relevant considerations set out by Dame Butler Sloss.
43. The Sheriff's decision to give increased contact during the three month period prior to departure in my view is a very human one and not one which deserves the criticism which was attached to it by the solicitor for the appellant.
44. The main argument by the solicitor for the appellant was that the plans of the respondent were so inspecific that the court did not have proper material before it to allow specific issue order to be made. I do not accept that submission. The plans made by the respondent are appropriate and if brought to fruition as envisaged should work well in the interests of the child. The respondent has done all that was reasonable at this stage. There is no reason why there should not be substantial contact with the appellant. The tenor of the evidence does not suggest bad faith on the part of the respondent. At this stage there is no cause to doubt the respondent would make the child available to the appellant should he choose to visit the United States, or to allow him contact with the child when she returns to the United Kingdom to visit her mother. There is no reason to believe that there will be any requirement in due course to resort to the courts of Southern California.
45. It is accepted that it is appropriate that the child should reside with the respondent. As I have said, I consider the Sheriff has applied the appropriate tests required by law to the factual situation which he has found to exist. In particular it seems to me that the tests set out by Dame Butler Sloss in Payne v Payne supra have been met.
46. I also refer to the undernoted dicta, which I consider to be relevant in this case, which confirm that the approach adopted by the Sheriff was the correct one.
| (a) Thorpe LJ in Payne v Payne: "The way in which the parent who properly has custody of the child may chose in a reasonable manner to order his or her way of life is one of those things which the parent who has not been given custody may well have to bear, even though one has every sympathy with the latter on some of the results." |
| I consider that the respondent has made her choice in a reasonable manner. (b) Dame Butler Sloss in Payne v Payne supra: "the question therefore in each case is, is the proposed move a reasonable one from the point of view of the adults involved. If the answer is yes, then leave should only be refused if it clearly shown beyond any doubt that the interests of the children and the interest of the custodial parent are incompatible ... the court in principle should not interfere with a reasonable decision of the custodial parent." I agree with the Sheriff that the respondent, as the custodial parent, has made a reasonable decision. |
| (c) Poel v Poel supra: "... there should be no interference with any reasonable mode of life selected by the parent having custody unless absolutely essential" There was no "essential" reason advanced to me that the respondent's reasonable decision should not be implemented. |
| (d) Re M supra: "... there had to be some compelling reason to justify a court preventing the custodial parent from taking a reasonable decision to live outside the jurisdiction." No compelling reason has been advanced. |
47. In this case it is clear from the Sheriff's interlocutor and note that the respondent has made a reasonable decision to live outwith the jurisdiction and there is in place what I consider to be reasonable proposals for the future welfare of the child. It is my opinion that the Sheriff was well entitled to take the view he did and I am not disposed to interfere with his judgment.
48. As far as expenses are concerned, I was not invited to interfere with the decision of no expenses due to or by either party made by the Sheriff. In view of the fact that the appellant is no longer legally aided, the solicitor for the respondent submitted that, if I were with the respondent in respect of the appeal, the expenses of the appeal should be granted to the respondent against the appellant. That appears to me to be reasonable and I have taken that course.