CG v. JG


[2014] CSOH 88



in the cause







Pursuer: McAlpine; Turcan Connell

Defender: Jamieson; Francis Gill & Co (for Thompson & Brown)

25 March 2014

[1] The parties were married in 2005 and divorced in 2010. There is one child of the marriage, a boy, born on 24 October 2005 who is now 8 years of age ("the child"). The child has resided with the defender in Scotland since the parties separated. The child is habitually resident in Scotland. The pursuer has resided throughout this period in Dubai, United Arab Emirates. The pursuer has enjoyed regular contact with the child since 2007 by virtue of an order of this court dated 4 October 2007 and subsequently varied by interlocutors dated 7 January 2009, 28 May 2010, 17 March 2011, 30 March 2012 and 14 March 2013. Contact has been exercised, on a residential basis, in Scotland, France and Switzerland. There has been no contact in Dubai. The present proceedings concern two Minutes, one lodged by either party. In the defender's Minute she seeks authority of the court to relocate with the child of the marriage to Bahrain. This application is opposed by the pursuer. The pursuer's Minute seeks contact with the child in Dubai and an increase in the period currently allowed for summer contact. I heard evidence in relation to both these Minutes at a diet of proof.

[2] The background facts may be summarised relatively succinctly. The defender gave evidence on her own behalf. She stated that the pursuer is a French National whom she met in Dubai in 2004. At that time the pursuer was employed in that country by a major multinational corporation. The defender had also been working in Dubai at this time as a fuel trader, albeit that at the actual time of her meeting the pursuer she was on the point of returning to the United Kingdom to a new job in London. The relationship apparently blossomed quickly, albeit that the defender did return to work in London. For a period of time the parties commuted at the weekends between Dubai and London in order to facilitate their relationship. After a period of months, the pursuer arranged a transfer within the company he was working for to their London office, moved to that city and very shortly thereafter commenced cohabitation with the defender.

[3] After cohabitation had commenced the relationship began to experience difficulties. The pursuer did not enjoy living in the United Kingdom and did not like his job in London. He began to experience what the defender considered to be bouts of depression during which his behaviour towards the defender deteriorated. The defender became pregnant. This was not well received by the pursuer and resulted in an episode in which she maintains that he physically and verbally abused her. Most unfortunately she suffered a miscarriage when she was 14 weeks pregnant. Notwithstanding the deterioration in the pursuer's behaviour towards the defender and his discontent when she became pregnant, she conceived again in 2005. As already noted, the child was born in October 2005. The parties arranged to marry, initially setting a date in February 2006. This date required to be postponed because of the pursuer's behaviour immediately prior to the proposed date of the ceremony. It was rearranged and they were ultimately married in March 2006.

[4] After the birth of the child, and whilst the defender was still on maternity leave, the parties returned to Dubai in order that the pursuer could recommence his career in that country. The defender had owned a flat in Dubai which she had retained when she had returned to London and on their return to the United Arab Emirates, the couple and the child lived in that flat. The marriage in Dubai was not happy. The pursuer continued to experience depressive bouts during which his behaviour to the defender was unacceptable. She became concerned both for his health and for her own physical safety. She formed the view that the pursuer was suffering from some form of psychiatric illness and made arrangements for him to see a number of psychiatrists. He did not appear to get on with the psychiatrists and little appears to have come of his early efforts to seek psychiatric assistance or counselling. A psychiatrist was eventually found who commanded the pursuer's confidence. He saw this person on a number of occasions. The defender also attended on that person on a number of occasions for counselling. Whilst this was ongoing there occurred an episode when the pursuer behaved in a most upsetting and unusual fashion towards the defender which caused her to be, in her own words, "terrified" for her and the child's safety. The episode, in brief, consisted of the pursuer for no apparent reason throwing the defender's collection of DVDs and CDs into the wheelie bin outside the flat. Thereafter he destroyed by the use of scissors a large quantity of her clothing and destroyed a designer handbag, which he had only recently purchased for her, with a Stanley knife. He then destroyed items of jewellery and personal belongings of the defender with a hammer. As a result of this episode the defender left the matrimonial home with the child. She initially stayed with a female friend in Dubai but after approximately two weeks returned to her parents' home in Biggar, Scotland.

[5] The defender accepted that she informed the pursuer that she was returning to Scotland only on holiday. In fact it was her intention, or at least she developed the intention very shortly after returning to Scotland, of never returning to Dubai with the child. As a matter of fact she has never returned to Dubai and the child has remained with her in Scotland to the present date.

[6] Following her return to Scotland, the defender and the child initially resided with her parents. The present proceedings were instituted in October 2006. As already noted, the defender and the pursuer were divorced in 2010. She has subsequently remarried and has a child by her new husband, a boy now aged 2 years. At the time of the proof she was again pregnant, with the baby due in July 2014. The defender, the child and her new husband and child have lived together in Biggar. The defender's husband was employed on a contracting basis in the oil industry, working in the North Sea. It was explained that whilst well paid, this job was on a contract to contract basis and was felt to lack security. In or about early September 2013 the defender's husband was "head-hunted" with an offer of a job in Bahrain. The job was extremely well paid, with a substantial tax free salary and the possibility of share options in the employing company. In addition, the job offer carried many ancillary benefits such as payment for accommodation, private education and private medical health insurance. Moreover, the job was for a contractual period of three years with the prospect of that contract being renewed thereafter. The offer of the job was made on a very tight timescale and required to be accepted within a number of days of the offer being made. The defender and her husband considered the offer and the effect it would have on the family unit, including the interests of the child. Having considered the matter they were anxious that he should accept this employment which they regarded as being in the interests of the whole family, including the child. He did accept the employment and moved to Bahrain in November 2013. It was that job move which gave rise to the defender's present application in her Minute to this court.

[7] So far as contact with the child of her marriage to the pursuer is concerned, she did not initially concede contact and the pursuer required to raise these proceedings in order to obtain an award of contact. This he did by interlocutor dated 4 October 2007. He obtained an award of residential contact to be exercised at various times in Scotland. This contact was exercised by the pursuer travelling to Scotland from Dubai and staying for a period of about a week at a time in hotels in Edinburgh where he took a room for himself and his son. This contact appears to have worked satisfactorily. In addition, the pursuer obtained residential contact at his parents' address, in Provence in Southern France or in Switzerland where the pursuer and his extended family were in the habit of having skiing holidays in the winter. Again, this contact appears to have worked well. It was not disputed by the defender that contact worked in a satisfactory fashion. The defender accepted that the child had a good relationship with both his paternal grandparents, his uncle and his cousin. She also accepted that the relationship with his paternal family fostered by this contact was beneficial to his educational and social development. The pursuer has throughout the period since 2008 consistently sought contact in Dubai. It is only in relation to contact in Dubai that there has been resistance from the defender. Put shortly, whilst she herself accepted that she did not like the pursuer, nor did she trust him, her only objective reason for resisting contact in Dubai was a fear that, primarily on grounds of revenge and "to get at" her, the pursuer would retain the child if he were permitted to take him to Dubai. If that occurred, then the defender's fear was that Dubai, not being a signatory to the Hague Convention on International Child Abduction she would be unable to effect his return from that jurisdiction. She was also fearful that the courts in Dubai operated under Sharia law and would not in any event be sympathetic to any application she might make in these courts seeking the return of the child. These reasons had been enunciated by her in her opposition to motions by the pursuer over the years for contact in Dubai. Her opposition had always been successful and contact had never been permitted in Dubai. In evidence she expressed the view that the pursuer was acting in some way wrongly by continuing to seek contact in Dubai. When pressed by myself to give some objective reason as to why the pursuer was acting in any way wrongly by seeking to obtain an order from a court vested with jurisdiction for contact in Dubai, she was unable to come up with any substantive reason for holding this view.

[8] The defender accepted in cross-examination that she had taken unilateral decisions, of a significant nature, in relation to the care and upbringing of the child. The decision, already mentioned, to leave Dubai with the child and reside in Scotland fell into that category. She also accepted that she had not consulted the pursuer in relation to the school attended by the child. She had not had the child christened nor did he attend church. She herself held no religious beliefs but was aware that the pursuer's family were Roman Catholics and that, in deference to his father's beliefs, the pursuer would have preferred the child to have had a Christian upbringing. These and other matters concerning the child's upbringing were not the subject of discussion between the defender and the pursuer. She had on occasion refused to allow the regular weekly contact by Skype which had been arranged between the child and the pursuer. She accepted that these decisions were hers alone, but maintained that in each instance there was a justifiable reason for the interruption.

[9] In relation to the proposed move to Bahrain, the defender's position was that it was in the overall best interests of the family, that is herself, the child, her new husband, her son by her second husband and the new baby when it arrives in July, to move to that country. The primary reason why this was seen as advantageous was the greater job security and material wellbeing afforded by her husband's employment in that country. In reaching that decision she had considered the best interests of the child. She considered that greater family security was in general to the child's advantage. She had made efforts to check that there was suitable schooling available in Bahrain. She had identified, and made contact with two private schools. The fees for these schools would be paid by the allowance provided by her husband's employment. She stated in evidence that the schools were of a high standard. She had visited the schools and spoken to staff. She was impressed by the standard of educational offered. Both schools followed English curricula. Places were available in the schools for the child. She saw no reason why the pursuer could not communicate with the schools to obtain information and reports on the child's progress in the same manner as he did with the child's current school in Scotland. She produced prospectuses and brochures relative to the schools which, in general, supported the evidence she advanced in relation to their standards and curriculum. She pointed out that the boy was doing well at school and appeared to be academically able. This evidence was supported by a recent report card and the most up-to-date interim report card relative to the child. Given the child's ability she considered there would be no particular difficulty in him adapting to a school in Bahrain. Beyond these considerations she expressed the view that the child was looking forward to going to Bahrain and being schooled in that country and that the different social environment likely to be experienced in a school in Bahrain would be advantageous to his overall development. Contact with the child's maternal relations would be maintained by holiday visits of relatives to Bahrain and by return visits to Scotland by the defender, the child and the other family members.

[10] She was asked both in examination-in-chief and cross-examination about the current geo-political situation in Bahrain and, in particular, the unrest widely covered in the UK and international media, civil disruption and insurrection which occurred in that country in 2010 and has continued thereafter. She acknowledged that such unrest had taken place and, further, that there were still incidents of violence and protests in Bahrain and some of the outlying villages on that island. Her position in relation to the current situation was informed both by what she had read in the British press and on the internet and by publications from the United Kingdom Foreign and Commonwealth Office. In addition her husband had resided in Bahrain since November 2013 and reported to her regularly on the situation in that country. She herself had visited Bahrain in January 2014 and formed, at least to some extent, an impression of the current situation. Whilst in Bahrain she had met, through her husband, members of the Bahraini ex-patriot community and discussed the situation with those persons. Her evidence was that the civil unrest and protests were confined to certain areas and did not unduly concern the ex-patriot community. The ex-patriot community resided in defined areas, normally in "gated" communities, those being urban settlements surrounded by walls with security guards controlling who entered. Unrest and protest was not aimed at the ex-patriot community. There were tens of thousands of ex-patriots living and working in Bahrain who, in her view, suffered no particular inconvenience or risk by the disturbances. Most importantly she relied upon the guidance issued by the Foreign and Commonwealth Office which currently did not rate Bahrain as hazardous for travel. She stated that she would not take a child of hers into an area where there was known danger.

[11] Having regard to all the foregoing the defender expressed the view that it was both safe and reasonable and, more pertinently, in the best interests of her child that he should travel with her and the remainder of the family to Bahrain.

[12] In relation to the pursuer's application for contact in Dubai her principal ground of objection was the lack of reciprocal enforcement of judgments between Scotland and that country. In relation to his request for increased periods of contact she considered that those were not, at the current time, in the best interests of the child.

[13] Beyond her own evidence the pursuer had cited as witnesses a school teacher at the primary school attended by the child, the child's general practitioner and her father. In accordance with procedure agreed at a pre-proof procedural hearing, signed statements from the primary school teacher and the general practitioner had been lodged in process in advance of the proof and the pursuer and his advisers had the opportunity to consider them. The statements were accepted by the pursuer and in terms of a joint minute it was agreed that the statements could be accepted as the evidence of these persons. In essence, these documents confirmed that the child was well cared for and looked after by the defender. He was well adjusted in his current family. He was healthy. He was academically able and progressing well at school.

[14] The pursuer gave evidence on his own behalf. He had lived in Dubai since 2002, with the exception of the period where he lived and worked and cohabited with the defender in London. He had lived in Dubai continuously since August 2005. He was currently employed by a French company in Dubai as the general manager for the Middle East. In the course of his employment he travelled extensively within that region and, on occasion, beyond. He owned a villa in the Sport City district of Dubai. The villa comprised a living room, an office, three bedrooms and a kitchen. It was adjacent to a golf course which he, in common with other residents of the area in which he lived, had unrestricted access to. The housing complex also had a swimming pool used by residents. The swimming pool was approximately 100 metres from the villa. He had purchased the villa "off the shelf", that is before it was built in 2007 but due to building delays, was not able to take entry until 2013. He currently lived in that accommodation with his present partner, a lady by the name of JD, who gave evidence by video link from Dubai. He had cohabited with JD for approximately 4 years. The defender had raised the issue of cohabiting non-married couples in Dubai in her evidence and maintained that such domestic arrangements were illegal in that country. She had expressed the view, and concern, that if the domestic arrangements of the pursuer and JD were to come to the attention of the authorities, as might for example happen if there were a break-in in their villa, there could be repercussions. This caused her concern in relation to the child staying in Dubai. The pursuer stated in evidence that he had experienced no problems during his period of cohabitation with JD. He was aware of many other people who had similar domestic arrangements in Dubai. He did not think that the defender's concerns in this regard were realistic. JD had met the child during periods of contact both in Scotland and in France and Switzerland. The pursuer maintained that she had a good and strong relationship with the child.

[15] In relation to the relationship between the pursuer and the defender the pursuer accepted quite frankly that his behaviour towards the defender had been unacceptable. He accepted that he had been verbally abusive towards her. He accepted that he had been physically violent towards her. He did not dispute that she had been justified in ceasing to cohabit with him. Insofar as I could determine from his evidence his only real complaint in relation to the termination of the marriage was that she had retained the child in Scotland without his consent. The evidence of both the defender and the pursuer in this regard was at one and is as I have already narrated. With the pursuer's consent, the defender left Dubai with the child shortly after the incident I described earlier in this opinion. The pursuer expected her to return with the child to Dubai and his state of knowledge in this regard was confirmed by the defender herself. As already noted, during the time she was in Scotland she decided to remain in this country. On her failure to return to Dubai as anticipated, the pursuer almost immediately instituted these proceedings in Scotland seeking return of the child, which failing contact with the child.

[16] The pursuer gave evidence about the course of that litigation and its rather protracted history until the present day. Essentially, on the pursuer's evidence, despite opposition from the defender, the pursuer had obtained contact with the child. This contact had initially been limited but had over the years been extended until he now enjoyed a week's residential contact at the Christmas/New Year period to be exercised in France, a week's residential contact to be exercised in Scotland in March, three weeks residential contact to be exercised in France in the summer of each year and a week's residential contact in Scotland at the October school holiday period. All these periods of contact had been ordered by the court. The pursuer obtempered these orders. He had never failed to return the child to the defender. He maintained that he would always respect the orders of the court.

[17] The defender in her evidence had complained that the pursuer did not obtemper the order made in the Sheriff Court at Lanark in relation to aliment for the child. Aliment had been ordered for the child at the rate of £400 per calendar month. The defender maintained that the pursuer had only paid £200 per calendar month and was in arrears to the extent of some £13,000 or thereby to date. The pursuer's position in relation to this was that he paid £200 per month and, in addition, paid the sum of £1,000 to the defender twice each year, once in the spring and once in the autumn. These payments were said to be for the child's fares in relation to travelling to and from contact. His position was that this was full satisfaction of his alimentary obligation.

[18] In relation to contact the pursuer's position was that this worked well. He always picked the child up from Biggar, or when contact was to be exercised in France from the airport at either Marseilles or Geneva. There were difficulties in arranging pickup and drop off of the child, this, on the evidence of the pursuer, because the defender was uncommunicative and refused to have any direct contact with him. There were some texts but, insofar as I followed the evidence, essentially critical arrangements were usually made through the medium of the pursuer's Edinburgh solicitors, Messrs Turcan Connell. This arrangement seemed to work reasonably well, albeit on being questioned by me, the pursuer was clear that there was a not insignificant cost involved and that he would prefer some form of arrangement which did not necessitate the involvement of solicitors. His position was that if the defender behaved in a more "grown up" way arrangements could be worked out satisfactorily.

[19] Beyond matters such as the detail of pickup and drop off, contact worked well. Contact appeared always to be exercised with the pursuer's extended family. That family comprised the pursuer, his mother and father, his brother and his brother's son, the cousin of the child, who was approximately 18 months younger than the child. In the summer, contact was exercised in the house of the pursuer's parents in Nimes in Provence. Some photographs of the house during contact periods were produced. The house appeared to be a modern, comfortable family home. There was a swimming pool in the garden. The house appeared to offer suitable and satisfactory accommodation for the child during periods of contact. In summer periods the extended family indulged in what would be regarded as entirely normal family activities suitable for young children. These included boating, trips to the seaside on the Mediterranean, going to visit the various historical and scenic attractions in Provence, enjoying such local spectacles as the bull running in various Provencal towns and, apparently an important feature for the boy, playing football. The child evidently got on very well with his younger cousin. His grandfather, a retired school teacher, was anxious to ensure that the boy was aware of his French heritage and culture. He sought to encourage and assist the child in the development of his French language skills.

[20] Winter contact took place either in the pursuer's brother's flat in a town in Haut Savoie close to the French/Swiss border or in a chalet at a skiing resort rented for the holiday. The arrangement appears to have been very similar to that in the summer with the exception that skiing and other winter sports replaced the summer sports enjoyed in the South of France in summertime.

[21] When contact was exercised in Scotland in spring and autumn, the pursuer and his parents stayed in various hotels in Edinburgh and visited historical and tourist sites in and around Scotland.

[22] The pursuer's position was that he wished this pattern of contact to continue albeit that he considered he should be allowed one extra week in the summer. He also, and significantly, wished to be allowed to take the child for contact visits to Dubai. His stated reasons for this were that he wished the child not only to see where he lived but also to have his own room and facilities within his home. Whilst accepting that there was no reciprocal enforcement of decrees between Dubai and Scotland, he maintained that he had never breached a Scottish court order in relation to contact. He stated that he had no intention of retaining the child in Dubai.

[23] Beyond this the pursuer opposed the defender's application to relocate with the child to Bahrain. He did not consider that such a move was in the child's best interests. He stated five reasons for his opposition: (1) that the child had his roots in Scotland and a move would upset his current life and routine; (2) that the child was settled in Biggar and that in that town enjoyed the support of his extended maternal family which comprised his grandparents, an uncle and an aunt and several cousins. Disruption of the extended family would be detrimental to his wellbeing; (3) He was settled and doing well at school in Biggar, this would disrupted by moving to Bahrain; (4) contact with his French extended family would be more difficult were he to reside in Bahrain and (5) the lack of any reciprocal enforcement provisions in relation to Scots decrees in Bahrain.

[24] Beyond these reasons the pursuer also had concerns about the geo-political situation in Bahrain. He too had provided various newspaper and web pages reporting incidents of violence, including violence in the village where the defender and her family apparently intended to settle in Bahrain. He also pointed out that he himself had not travelled, on the instructions of his employers, to Bahrain since 2010. While this was at least partially for commercial reasons, there appeared to be a downturn of business in Bahrain, it also was connected with the civil unrest being experienced in Bahrain. He also produced a letter from HSBC, a major multi-national bank, which apparently identified Bahrain as an area of risk in the Gulf. He did not consider that Bahrain was a suitable place for his son to be brought up in.

[25] The pursuer also led evidence from his father, MG, his brother, AG and, as already noted his cohabitee JD. I need not rehearse the evidence of these witnesses in detail. MG was a 70 year old retired school teacher. He resided in Nimes with his wife. He gave clear and full evidence in relation both to his relationship with his grandson and to the arrangements which were operated during periods of contact. In regard to his relationship with his grandson, he gave evidence that he loved the boy, very much enjoyed having him stay with the family and took pleasure and pride in assisting in his social and intellectual development. He was, naturally, anxious to ensure that the boy was aware of his French roots and was as familiar as possible with French customs and society. In answer to questions put by myself, he indicated that he regarded it as advantageous that the child should have both Scottish and French heritage and that this would give him a broader and wider outlook on life in general.

[26] AG was employed in a senior capacity by a Swiss company in Geneva. He is the father of one son, the cousin of the child. He again confirmed the nature of contact that the pursuer had with the child in France over the Christmas/New Year period and in the summer. His evidence was in accordance with that of the pursuer and the pursuer's father. He himself indicated his willingness to continue with these arrangements and also confirmed that his son and the child got on well together and were great friends.

[27] JD also gave evidence. She confirmed that she had resided with the pursuer for approximately 4 years. She described herself as the pursuer's "partner" and described their relationship as "loving". She had met the pursuer's parents, his brother and his nephew. She got on well with all those persons. She had also met the child both in Scotland and in France. She also occasionally saw him during Skype contact with his father. She said she got on well with the child. She confirmed the accommodation available in the villa she occupied with the pursuer. She expressed the view that it would be good for the child to visit and stay with his father in Dubai. She was questioned about her relationship with the pursuer. She stated that the pursuer had never been violent to her. He had never been aggressive to her. He had never been verbally abusive towards her. The pursuer's behaviour towards her had never caused her to have any concerns about her own safety.

[28] Beyond this evidence, I also afforded myself the opportunity of interviewing the child. For this purpose I saw him, in the company of my clerk, in chambers on the final day of the proof. He was brought to my chambers by his maternal grandfather. He was a polite, well mannered, confident and intelligent boy of 8 years of age who was obviously well cared for and looked after. I asked him about both his parents, his step-father, his half-brother, his maternal and paternal grandparents, his uncles and aunts and cousins. I also asked him about his school, his hobbies and interests and his attitude both to a move to Bahrain and to possibly visiting his father in Dubai. All of my questions were open and the interview was, insofar as I was able, conducted in a conversational and relaxed manner. The boy answered all questions in an open and friendly manner, without hesitation, without any sign of being coached and with no detectable bias in favour of either parent. The answers he gave demonstrated, as I have already noted, that he was intelligent. Whilst I am no expert, his general demeanour and the answers to the questions suggested to me that his educational and social development were at least age appropriate if not somewhat in advance of his chronological age. He was able to confirm that he enjoyed a happy and contented home life with his mother, step-father and half-sibling. He was aware that a new baby was due in July, he hoped for a boy. He saw his maternal grandparents most days and got on well with them. He liked his step-father, whom he referred to by his Christian name. He had regular contact with his cousins and aunt and uncle who all lived in the same town. He was aware that his mother and step-father wished to move to Bahrain. He had been told about the proposed move and he had been told something of Bahrain. He thought the prospect of the move was "exciting", albeit that the prospect of living in premises with a swimming pool appeared to be a high priority in this regard. He had thought about leaving his current school and going to a new school. He was not particularly concerned about this but accepted that he would miss some of his school friends. He did however point out that he would be coming back to Scotland on holiday trips and would be able to resume acquaintanceship with these persons at that time. In relation to his father, the pursuer, he spoke warmly of him and said he enjoyed his contact. He said he liked his French grandparents, his uncle and was particularly effusive in his praise for his French cousin, who is 18 months younger than him. He said he enjoyed playing with his French cousin, particularly football and in the swimming pool at his French grandparents' house. He was aware that his father wished to see him in his house in Dubai. He seemed relaxed about the prospect of going to Dubai and thought that it would "nice" to have his own bedroom in his father's house. He was aware that his mother was concerned that if he went to Dubai his father would "keep him there" and not allow him to return. It appeared to me that the only inference I could draw from this piece of information was that his mother had enunciated her concerns in that regard in his presence or to him.

[29] Against that evidential background, counsel for the defender submitted that it had been established that the defender was a good mother. She complied with court orders. She had considered the best interests of the child when she had discussed with her husband the prospect of him accepting the offer of employment in Bahrain. The job in Bahrain offered greater security and, moreover, material benefit to the whole family. This in turn was to the benefit of the child. She had considered the availability of accommodation in Bahrain and the suitability of schooling in that country for the child Taking all these factors into consideration she had come to the view that it was in the child's best interests to go to Bahrain. Her decision was justified and consent thereto should be granted by the court. In relation to the pursuer's position, she accepted that the child was properly and well looked after during contact visits. There was no objection in principle to the issue of contact. There were only two issues to which she had objection. First, she objected to contact in Dubai. Her only objective reason for objecting to this was the lack of the ability to enforce any Scots order in relation to contact in the courts of that country. Even that objection was subject to qualification in that she would be prepared to accept contact in Dubai when the child reached the age of 12 years. The reason for this qualification was said to be that by that age the boy would be able to take decisions for himself in the event that his father wrongfully retained him in Dubai. The second objection was to a proposed increase in contact from three weeks in the summer to four weeks in the summer. Objection to this increase was on the basis that it would occupy most of the child's summer holidays each year.

[30] Counsel for the pursuer first drew my attention to the statutory framework which he submitted governed the present applications. The statutory framework was to be found in section 2(3), 11(2)(e) and 11(7) of the Children (Scotland) Act 1995. In particular the last of those provisions provided:

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

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

It was submitted that these provisions had been the subject of consideration, in a manner that was binding upon me, in the recent case of M v M 2012 SLT 248. My attention was drawn to a passage in the Opinion of the Court (delivered by Lord Emslie) at paragraph [9] in the following terms:

"On the binding authority of the decision in Sanderson, it can in our opinion be said with confidence that the requirements contained within section 11(7) of the 1995 Act effectively preclude 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 within any other factor, be such weighed as the court deems appropriate in the particular circumstances of an individual case. In the end, the welfare and best interests of the child or children concerned are paramount, and fall to be judged without any preconceived leaning in favour of the rights and interests of others."

[31] After consideration of the legal background, counsel for the pursuer submitted that there was insufficient evidence available to the court to enable it to be satisfied that the test set forth in section 11(7) of the Children (Scotland) Act 1995 had been satisfied. It was pointed out that the only evidence in relation to Bahrain as a prospective residence for the child had come from the defender herself. The only other evidence adduced by the defender, that of the primary school teacher and the general practitioner, had been relative to his present residence, care and schooling in Scotland and had no bearing on the issue of residence in Bahrain. No evidence had been adduced from the child's maternal grandparents or any other maternal relative. The child's step-father, the defender's husband, had not given evidence notwithstanding the fact that he had, on the evidence of the defender, been in Scotland shortly before the proof. In these circumstances the defender was entirely reliant upon her own evidence. Moreover there was no confirmation as to the housing arrangements that would operate in Bahrain or that a place in an appropriate and suitable school was available. Whilst the defender had spoken to these matters, no document such as lease or right of occupancy or a title in relation to property had been produced. No letter from a school confirming a place for the child had been produced. It was submitted that there was not even a document from an appropriate official body confirming that the defender herself and the child would have the right to reside on a long term basis in Bahrain. It was further submitted that the defender had produced no material which could satisfy the court that it was in fact safe in Bahrain. By contrast the pursuer had produced information including letters from a multinational company which threw doubt on the safety of Bahrain as a residence at present.

[32] This submission was developed by stating that the court should not in any event accept the defender as a reliable and credible witness. In this regard it was observed that, by her own admission, that she had in a number of respects taken unilateral action in relation to aspects of the care and welfare of the child. Some of these decisions were directly detrimental to the pursuer's interests, such as the unilateral decision to temporarily withhold Skype contact. In the event that the court could not accept the defender as a credible and reliable witness there was simply no evidence available to the court in support of the defender's application.

[33] By contrast the pursuer had adduced witnesses who supported his position and confirmed that contact worked satisfactorily. He had complied with every court order in respect of contact. He had given evidence of five objective reasons why the child should not be removed from his present domestic arrangements in Scotland.

[34] In determining these issues, I firstly accept that the submissions made by counsel for the pursuer in respect to the applicable law were correct. In particular I accept that I am bound by the decision in M v M (supra) and, on that authority, proceed on the basis that there is no presumptive rule or guidance in favour of the wishes or interests of either parent. The issues before me must be considered having regard to all relevant factors with the interests of the child being paramount in that exercise.

[35] The next issue which I require to consider is the reliability and credibility of witnesses. In this regard my impression was that all of the witnesses were genuinely attempting to assist the court. They all gave evidence clearly and concisely and without undue emotion. So far as the pursuer's father, his brother and JD were concerned, I have no hesitation in stating that I found them reliable and credible. Insofar as the pursuer and defender are concerned, it was plain that there had been considerable animosity between them, perhaps particularly on the part of the defender towards the pursuer. This has undoubtedly, and if regrettably, given rise to difficulties. The most obvious difficulty is that these parties have been unable to agree the issue of contact without annual recourse to the courts. They are both intelligent and able persons and I feel bound to state that their inability to put their own emotional feelings to one side and to act in the best interests of their child by considering the issue of contact in a mature and reasonable fashion without recourse to the courts is, at the very least, regrettable. I consider that the parties, as parents, share responsibility for the child and consequently have a duty to talk to each other sensibly and constructively about matters of importance pertaining to their child. Contact, and arrangements for contact, would in my view fall within the ambit of that duty. I consider that every effort should be taken by the parties to ensure both that contact takes place and that arrangements to facilitate such contact are discussed and agreed. That said, I do not consider that these factors have any real bearing on the issue of their reliability and credibility of the parties as witnesses. In the end of the day I could find no reason to doubt the reliability or credibility of either the pursuer or the defender. It follows that I proceed upon the basis that I accept the evidence of both of those persons. There are a number of areas where there is a direct conflict in their evidence, the most obvious examples being exactly what happened at a handover of the child at Geneva airport and further, in relation to the breakdown of Skype contact. In relation to those matters I simply make no determination. I am comfortable with that decision as I do not think these issues are relevant to the issue I have to determine.

[36] I turn now to consider the two applications. In relation to the defender's application to relocate to Bahrain, I accept that her husband received an unsolicited offer of a job in that country in September 2013. The job was for the reasons she explained, advantageous for the family unit as a whole. I accept that the defender and her husband discussed whether he should accept this job offer and that such discussions took into account the interests of the child. I accept that the defender considered the position of the pursuer as part of this process, forming the view that he would approve of the move as it meant the child would be nearer to him, albeit that line of thought proved to be incorrect. Whilst the decision to accept the offer was made quickly, I do not consider that any criticism can be made of that. The defender's explanation that the job offer was open for only a short period seems to me to be plausible. I have some difficulties in relation to both the proposed housing arrangements and schooling in Bahrain. I accept that the defender investigated both these matters. I also accept that she is satisfied that suitable arrangements are in place and that her belief is objective and properly based. My difficulty comes from the consideration, pointed out by counsel for the pursuer, that there is no independent proof or corroboration of these matters. Whilst corroboration is, of course, not strictly necessary in a case concerning the welfare of the child, it would in my view have been both appropriate and of great assistance to the court to have had such corroborative evidence. Moreover, in the circumstances of the present case, where the court facilitated an early proof by allowing evidence by way of affidavit or signed statement, it should not have been particularly difficult to have provided such evidence to the court. I will return to this issue at a later stage in this opinion.

[37] In relation to the geo-political situation currently pertaining in Bahrain and any risks that might raise to the child, I again only had the evidence of the defender herself. In fairness, she had discussed the matter with her husband who has been resident in Bahrain since November 2013 and also gave evidence that she had discussed it with ex-patriots living in Bahrain when she visited that country in early 2014. These factors are of some value to the court albeit they can hardly be regarded as authoritative and, in my view, it would be unsafe to place too much reliance on them. The various media extracts produced by both parties were subject to the criticism of selectivity. It appeared to me that the most authoritative information available to me was in documents emanating from the United Kingdom Foreign and Commonwealth Office. In that regard there must again be some criticism of the way the defender's case was presented in that although documents were available from the United Kingdom Foreign and Commonwealth Office, albeit produced by the pursuer, such documents were not spoken to in any coherent way by a witness for the defender. Putting together all the evidence available to me, it would appear to be the case that the best information currently available is that demonstrations and protests do continue in Bahrain, albeit that those do not appear to be directed against the ex-patriot community and involve only Bahraini citizens.

[38] The pursuer's opposition to relocation to Bahrain was enunciated in five, objectively based criticisms. The criticisms involving the child's maternal family contacts in Scotland and his schooling in that country whilst objectively based, must, in my view, be balanced against the overall position of the family. Moreover, I consider that the defender as a caring and sensible mother, will have factored these considerations in her decision to seek this order. Whilst plainly it is the best interests of the child which must be paramount, I do not consider that I can overlook the importance of the benefit to him of the security and material well-being of the family unit as a whole. So far as the pursuer's concern about the child's continuing links with his French family are concerned, these are again objectively based. I do not however consider that they must necessarily be imperilled in any real and significant manner by a relocation to Bahrain. Provided proper and adequate contact can be continued, which is on the facts, the situation in the present case, I consider the French links, which are undoubtedly of benefit to the child, can be maintained. The pursuer's concern remains his fear that when the defender is in Bahrain, and therefore in a jurisdiction where no Scots court order can be enforced, she will not allow him contact. I regard the pursuer's fear in this regard to be overstated. Whilst as a matter of fact it is correct that a Scots court order in relation to contact cannot be enforced in Bahrain, I have to consider that in the context of the case as a whole. I have already indicated that I found the defender reliable and credible. In that regard she gave evidence that her intention was to reside with her family in Bahrain for a period of between 3 to probably 10 or so years and then return to Scotland. The family home in Scotland was owned by her. There was substantial equity in that property. The house seems not to be sold and, moreover, the defender and her husband intended to return to Scotland eventually and reside in that country. Her primary connection therefore in my view remained with Scotland. She also said in evidence that she would obtemper any Scots court order. I do not consider that I can disregard that.

[39] When I consider all these factors I have come to the view that, at least as a matter of principle, it has been established that it would be in the best interests of the child that he be allowed to be relocated with his mother and her family in Bahrain. There is however a qualification to that. As I indicated at an earlier stage in this opinion, I have seen no confirmation that the defender and her husband have obtained the tenancy or ownership of a property in Bahrain suitable for the accommodation of their family, including the child. Similarly, I have seen no confirmation that a place exists in either of the two schools, that is St Christopher's School or Naheem School, which the defender mentioned in evidence. Thirdly, I have seen no confirmation that the defender has been granted a right of residence in Bahrain by that country's government. It follows that before I would be prepared to make any order, I would require to see documentary evidence establishing that these three matters had been resolved.

[40] I turn now to consider the pursuer's Minute. I can deal with this relatively shortly. I am satisfied, it is not the subject of dispute, that the pursuer is a suitable person to exercise residential contact with the child. In relation to the issue of contact in Dubai, the defender's only real concern is the lack of her ability to enforce any order of the Scottish court in that jurisdiction. It is, as with Bahrain, a fact that there is no reciprocal enforcement treaty in existence between the United Kingdom and Dubai. Having regard to that consideration, the defender's concerns cannot be said to be totally without objective basis. That said, I do consider that her concerns are over-stated. The pursuer is correct to point out that he has obtempered court orders in relation to contact for some 6 or so years. I have already stated that I find him reliable and credible and therefore have no reason to doubt the sincerity of his statement given in evidence that he had every intention of continuing to comply with any order made by the Scottish court. The matter was however addressed directly in his counsel's submissions when a proposal for an undertaking in relation to contact in Dubai was made. That proposal was that during periods of contact in Dubai the pursuer would surrender his French passport to a third party to be agreed with the defender, the suggestion being that a Bahraini lawyer would be a suitable third party. The pursuer would only be entitled to the return of his passport when the child was delivered safely back to the custody of the defender. In my view that is a sensible suggestion which would alleviate any fears in relation to the issue of the return of the child. The pursuer's employment requires him to travel and accordingly, for the purposes of such employment, he requires his passport. Once surrendered to a third party, he would in a practical sense, be unable to obtain a new passport because the defender could, in the event of the child not being returned, report the pursuer's behaviour to the French authorities who would therefore be aware that he should not obtain a new passport.

[41] Having regard to these factors, I am of the view that the pursuer's application to be allowed to exercise contact in Dubai should, again as a matter of principle, be allowed. This will however be subject to the court seeing evidence of an agreement in relation to the pursuer's passport along the lines I have already described being put in place.

[42] There remains the issue of the pursuer's application for an extension of the period of contact in the summer to one of four weeks rather than three weeks. This is essentially a practical matter. In favour of this extension is the fact that it would allow the child's contact with his French family to be increased with consequent benefits to his general social development. I am of the view that this would be advantageous to the child. Against that, there is the consideration that it would allow the pursuer to enjoy the majority of the school summer holiday period which might be regarded as unfair. Both arguments have attractions and merit. I consider that a sensible and pragmatic solution would be to allow the pursuer four weeks contact in each alternate year. Again I would wish to see written proposals in relation to this before making a final order. I shall appoint the cause to call by order to enable parties to obtain the aforementioned documentation. I reserve meantime the question of expenses.