M AGAINST A [2023] ScotCS CSOH_80 (16 November 2023)

OUTER HOUSE, COURT OF SESSION

[2023] CSOH 80

F98/22

OPINION OF LORD STUART

In the cause

Pursuer

against

Defender

Pursuer: Laing; MacRoberts LLP

Defender: Morgan; Rutherford Sheridan

16 November 2023

Introduction

[1]

This action concerns the care arrangements for the parties' two children, born 17 June

2019 and 3 December 2020. Both parties seek various orders, some competing. Whilst,

when applying the relevant test, different children within a family must be considered from

the perspective of their particular needs, it is not suggested by either party in this case that

the care arrangements for the individual children should differ. Accordingly, I will refer to

"the children" throughout. The children currently reside with the defender, their mother, in

Aberdeen. The pursuer, their father, resides in Glasgow. The case called before me for

proof. The parties invited the court to adjudicate only on the pursuer's conclusion for an

order requiring the children to relocate to reside in the Glasgow area. Thereafter, counsel

requested that the court put the case out by order to consider any further orders in light of

the court's decision on relocation. Accordingly, this opinion addresses only relocation of the

children.

The applicable law

[2]

Both parties to this action hold full parental responsibilities and parental rights in

respect of the children. These responsibilities and rights are listed, respectively, in sections 1

and 2 of the Children (Scotland) Act 1995. Section 11(1) of the 1995 Act provides that the

court may, in the relevant circumstances, make orders in relation to:

(a)

Parental responsibilities;

(b)

Parental rights;

(c)

Guardianship; or

(d)

The administration of a child's property.

[3]

In terms of orders for relocation, section 11(2)(e) allows the court to make:

"(e)

an order regulating any specific question which has arisen, or may arise, in

connection with any of the matters mentioned in paragraphs (a)-(d) of

subsection (1) of this section (any such order being known as a `specific issue

order')"

[4]

The pursuer's conclusion for an order that the children relocate to reside in the

Glasgow area is a conclusion for a specific issue order.

[5]

The test to be applied by the court where an order under section 11, including a

specific issue order, is sought is set out in section 11(7), which provides:

"... in considering whether or not to make an order under subsection (1) above and

what order to make, the court

(a)

shall regard the welfare of the child concerned as its paramount

consideration and shall not make any such order unless it considers

that it would be better for the child that the order be made than that

none should be made at all;

(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;

(iii)

have regard to such views as he may express."

[6]

The children are 2 and 4 years old. Given their age, it is not practicable to have

regard to the children's views.

[7]

Accordingly, in considering whether to grant the pursuer's conclusion for relocation

of the children, the proper approach for this court to take is to consider whether, having

regard to the children's welfare as the paramount consideration, it would be better for the

children that the relocation order be made than for the court to make no order at all.

[8]

Further, any person reaching a major decision involving his or her fulfilling a

parental responsibility or exercising a parental right must also have regard, so far as

practicable, to the views of any other person who has parental responsibilities or parental

rights in relation to the child (section 6 of the 1995 Act).

[9]

The applicable law governing the approach that courts in this jurisdiction must take

to relocation is settled. In M v M 2012 SLT 428 a mother sought an order permitting her

children to relocate to England to live with her. The father opposed relocation on the basis

that the link between a child and their natural parent was so important in itself that it should

be preserved. In addressing the proper application of the section 11(7) test, Lord Emslie,

giving the opinion of the court, cited Lord Hope from Sanderson v McManus 1997 SC

(HL) 55. In Sanderson, an unmarried father sought access to his son (now contact). In

considering the test under section 3(2) of the Law Reform (Parent and Child)(Scotland)

Act 1986, the precursor to section 11(7), Lord Hope said:

"In my opinion the effect of sub-section (2) is clear. The court is given a wide

discretion as to the considerations pointing one way or the other which it may take

into account. But all other considerations must yield to the consideration which is

stated by the sub-section to be paramount, which is the welfare of the child. As it is

told that it `shall not' make any order relating to parental rights unless it is satisfied

that `to do so' will be in the best interests of the child, the onus is on the party who

seeks such an order to show on balance of probabilities that the welfare of the child

requires that the order be made in the child's best interests.

...

The natural relationship is a fact of life which it will always be proper to take into

account. But the importance which is to be attached to it must vary according to the

circumstances. This is a matter which must be decided not by applying any

presumption but upon an evaluation of the evidence. As with any other factor which

the court is asked to take into account, the question is whether contact with the

parent has something to offer which is likely to be of benefit to the child's welfare.

This question must be examined from the point of view of the child. ... Whatever the

view which is taken on this matter in the light of the evidence, the child's welfare is

paramount. The decision of the court will depend on its analysis of all the factors

which bear on the question what is in the best interests of the child." (my emphasis).

[10]

Having cited these passages from Sanderson Lord Emslie, in M v M, stated:

"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. ... Moreover, 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. 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." (my emphasis).

[11]

Here "best interests" is used synonymously with welfare and the tests set out in

section 3(2) of the 1986 Act and section 11(7) of the 1995 Act.

[12]

The above approach was confirmed by Lady Smith in the case of Donaldson v

Donaldson 2014 Fam LR 126 (Inner House) at paragraph 27 (albeit obiter) when her Ladyship

said:

"Since the decision of this court in the case of M v M it has been clear that, on an issue

of relocation, it is no part of our law that a judge requires to regard any particular

factor as having greater weight than any other. It would, for instance, be wrong to

proceed on the basis that there is a rule that the most crucial assessment required is

as to the effect that a refusal of the relocation application will have on the applicant.

This is often conveniently described as a `presumption free' approach; it accords with

the court's duty to regard the welfare of the child as the paramount consideration.

That is not to say that, in an individual case, there may not be features which are of

particular importance when considering the welfare of the individual child

concerned. The availability in each jurisdiction of some particular medical treatment

or educational provision that the child requires would be an example. Much will

depend on the facts of each case."

[13]

The above position differs to the approach in England where the reasonable plan of a

parent with sole primary care of a child, including the effect of the refusal of an application

to relocate by that parent, has been a material factor (Payne v Payne [2001] 2 WLR 1826).

Such an approach forms no part of the law of Scotland.

[14]

Finally, in questions of relocation it is neither instructive nor appropriate to try to

formulate any preconceived list of applicable factors. Relocation cases are fact sensitive and

scrutiny of the particular circumstances of the dispute and the child, all within the context of

section 11(7) as outlined above, is what matters (Donaldson v Donaldson; GL v JL

2017 FamLR 54).

Submissions

[15]

The pursuer does not challenge that the children should continue to reside with the

defender. In support of his conclusion for relocation of the children, Mr Laing focused his

submission around 13 evidential considerations. Prior to December 2021 the children were

habitually resident at the family home in the Glasgow area, where the pursuer was

"significantly" involved with the children's care. The pursuer's reasons for seeking

relocation were his desire to be actively involved in the children's upbringing, including

their education and health. In terms of affordability, the court could be satisfied that the

defender finding accommodation in Glasgow was not an insurmountable barrier. The

defender's mother could offer financial support and the pursuer's mother could help with

removal costs and a deposit for a flat. If living in Glasgow, the travelling time undertaken

by the children would be significantly reduced and this would allow more time for the

pursuer to spend with the children. That would be less stressful for the children. Since the

children have been in Aberdeen, the pursuer has had little involvement with the children's

health and education decisions. That would be easier if the children resided in the Glasgow

area. In terms of education, the children will experience a change in nursery in Aberdeen,

including a loss of friendships and acquisition of new ones. The defender has identified

Green Apple Nursery as a suitable nursery for the children, which is sufficiently close to his

home. It was important to note that if the children attended the Green Apple Nursery they

would remain together for a further year, which would not be the case in Aberdeen. The

children had demonstrated that they were capable of adapting to change. The defender had

conceded in cross-examination that it would be possible for her to work in Glasgow but in a

different role. The court is invited to reject any contention that the defender could not find

work in Glasgow and continue her role as carer for the children. The court should reject the

defender's evidence that relocation to Glasgow would prevent the children maintaining

their Latvian links in Aberdeen. There was no barrier to the children attending the Latvian

school in Aberdeen if based in Glasgow. The children could engage with their Latvian peers

by video call. The children would be able to spend more time with their paternal family in

Glasgow, who could also provide support for childcare to the defender. The lack of

childcare available in Aberdeen is likely to have an adverse effect on the children in the long

term. The children's maternal family could visit them in Glasgow.

[16]

Ms Morgan, on behalf of the defender, submitted that the order for relocation sought

disrupted the status quo, which had been in place since September 2022. The defender had

employment in Aberdeen. Her terms and conditions of employment were such that the

defender could meet her childcare responsibilities, pay for private rented accommodation

and meet nursery fees. There was no guarantee that the defender would obtain similar

employment in the Glasgow area. The defender's immigration status meant she could only

claim Universal Credit if in employment. In Aberdeen the children had security and

stability. They had places at nursery, which was a short drive from their house. They had

an enclosed garden. They had friends, both from school and from the Latvian community,

with whom they enjoyed playdates. The children were able to spend time with their

maternal and paternal families on a regular basis, irrespective of living in Aberdeen. There

was no dispute that this would continue if the children remained in Aberdeen. Uprooting

the children's lives in Aberdeen would not be in the children's best interest. Whilst it was

accepted that, if living in the Glasgow area, the children would likely have more contact

with the pursuer, there was no evidence to suggest that the pursuer did not already have a

strong relationship with the children and no evidence that that relationship would suffer if

the children continued to reside in Aberdeen. Further, there was insufficient information

before the court about what life would look like for the children were they to relocate to the

Glasgow area. For example in relation to where the children might live, or how much such

accommodation would cost, or what employment might reasonably be available to the

defender given her inability to simply transfer offices, or difficulties arising from her

immigration status, all of which would materially impact on the defender's ability to care for

the children. In all the circumstances, the pursuer had failed to discharge the onus on him to

demonstrate that, having regard to the welfare of the children as the paramount

consideration, it would be better to grant the order for relocation than no order be made at

all.

The evidence in connection with the issues before court

[17]

The issue before me relates to relocation of the children to the Glasgow area. Oral

evidence was taken from the pursuer and a number of his family members, each

supplementing affidavits lodged. Oral evidence was also taken from the defender, again

supplementing an affidavit. In respect of a number of other witnesses, joint minutes of

agreement were entered into agreeing that their affidavits be treated as the witnesses'

unchallenged evidence. Having reviewed this evidence, it seems to me that it fell into seven

broad areas. These largely mirror Mr Laing's evidential considerations and are:

The pursuer's reasons for seeking relocation

The care of the children, their development, health and education, including

the parties' contributions to the children's upbringing before and after

4 December 2021

The parties' respective employment

The parties' respective accommodation

Travelling and time spent with the pursuer

The importance of and engagement with the Latvian community

Family and other support

[18]

In terms of a joint minute of agreement it is agreed that the children's mother is a

Latvian national. The parties were friends before entering into a relationship in 2017. Prior

to 4 December 2021 the parties and children resided at the Glasgow address at which the

pursuer continues to reside. Prior to 4 December 2021 the children were registered with

medical and dental practices in the Glasgow area. On 4 December 2021 the defender took

the children to Latvia with the consent of the pursuer. Between February 2022 and

13 September 2022 the defender wrongfully retained the children in Latvia, returning to

Scotland on 13 September 2022. Since their return to Scotland the defender and the children

have resided in Aberdeen. Prior to January 2023 the pursuer had intermittent contact with

the children. Between January 2023 and April 2023 the pursuer had residential contact with

the children every other weekend. From April 2023 the pursuer has had residential contact

with the children every other weekend and indirect contact by way of a video call on a

Thursday evening.

[19]

Turning to the first of the identified areas of evidence, the pursuer' reasons for

seeking relocation of the children. In his affidavit the pursuer states he "would like to be

able to co-parent with" the defender. That was echoed in his oral evidence. I accept that the

pursuer would like to do so. As matters stand, the pursuer says, he has limited scope to be

involved in the children's education and health. The defender does not challenge that it

would be in the children's interests to have their father in their lives in a meaningful way.

Indeed, the evidence before the court supports that the defender has, since returning to

Scotland, taken steps to facilitate meaningful contact between the pursuer and the children.

At various parts of his affidavit however the pursuer states "it would be better for the boys

if [the defender] and I lived closer together so [the children] don't have to travel to see me ...

This is one reason why [the defender] should move back to Glasgow with the children" and

"I am wanting to be involved with my children and if they lived closer to me then I can be

more involved and see them more often." The above comments by the pursuer are

examples of a perspective where the pursuer appears to put his own desires before an

objective consideration of the children's needs and welfare. It was notable and instructive

that when asked in evidence what he would do if the children remained in Aberdeen in the

long term, the pursuer replied, without any real hesitation or apparent concern, he would

have to think about moving to Aberdeen. He then expressed the view, more by way of

afterthought, that that might be difficult as he would have to sell his house. But as discussed

below, the house is held in a family trust for his use. Further, his employment, again

discussed below, in contrast to the defender's, is temporary. In the end, I was left with the

impression that the pursuer appeared to confuse a desire to co-parent, largely on what

appeared to be his own terms, with an objective assessment of how that could or should be

achieved having regard to the welfare of the children as the paramount consideration and I

found little in the evidence of the pursuer's reasons from which to draw a favourable

inference in support of meeting the test for relocation.

[20]

In terms of the parties' respective employments, the defender is employed by a UK

company operating in the IT and Telecommunications field. Currently, she has a role as a

business development manager and is on a career progression programme with the aim of

being promoted to the position of Account Manager by the end of 2023 or beginning of 2024.

She is on target to achieve this. This would provide a pay rise and higher commissions.

Within Scotland the company operates in regions, with offices in Aberdeen and Glasgow.

The defender works in the Aberdeen region. This region has a discreet client base. On

promotion the defender would work within the Aberdeen region client base. The defender's

current position on the career development plan could not be transferred to the Glasgow

region. Any move to Glasgow would require the defender to obtain different employment.

[21]

Prior to March 2020 the pursuer worked as a chef. During the Covid pandemic the

pursuer was put on furlough and subsequently his employment was terminated. He does

not intend to return to that line of employment. In what appears to be around

November/December 2020 the defender assisted the pursuer to obtain employment within

the company she worked with. The pursuer currently works assisting a friend who is a

landscape gardener. He had been doing this for a couple of months at the date of his

June 2022 affidavit. The role is temporary. His intention is to find employment that allows

him to be an active parent. Beyond this the pursuer provided no specification of the type of

employment he proposed to find. The evidence in relation to the parties' respective

employment demonstrates that the defender is in secure employment in Aberdeen, with

good prospects, and is able to provide the children with security. In contrast, there is no

basis in the evidence that the pursuer is in a position to do likewise.

[22]

In terms of the parties' respective accommodation, the defender currently resides in a

privately rented, end terrace house with an upstairs and downstairs. It has adequate space

for the defender and the children. It has a large, enclosed private garden to the rear and

garden to the front. The house is located around a 10 minute drive from the children's

current nursery and the defender's work. It is located near Kincorth Hill Nature Reserve.

The witness JW in her affidavit comments positively about the defender's house.

[23]

The pursuer resides in a spacious house. The pursuer, defender and older child

moved to the house in November 2020. The younger child was born in December 2020. The

defender and the children resided at this house until they went to Latvia. The house is

located at a suitable distance from nurseries and other amenities. The house was purchased

by the pursuer's parents, is mortgage free and held in trust for the pursuer's use. The

reasons for this were not explained in evidence by the pursuer.

[24]

In relation to travelling and time spent with pursuer, the current arrangements mean

that the children travel for six hours every other weekend for direct contact with the pursuer

in Glasgow; three hours each way. This reduces the time the pursuer and the children can

spend together engaged in meaningful activities. I note the pursuer states in his affidavit "it

would be better for the boys if [the defender] and I lived closer together so [the children]

don't have to travel to see me." I agree that it is not in children's best interests for them to

spend considerable time travelling between Glasgow and Aberdeen facilitating contact with

the pursuer and that if the children lived closer to the pursuer, less time travelling might

well mean more time together. But I also note the witness JW's unchallenged evidence that

"It took [the children] a while to settle in Aberdeen. Now they are settled, in a good routine

and doing well." I have discussed the parties' respective employments and accommodation

above. I note that the children's paternal grandparents, live in St Andrews, equidistant

between Aberdeen and Glasgow. In what I consider to be an important passage of oral

evidence, the pursuer was asked what he would do if the children remained in Aberdeen in

the long run. I noted him to reply that he would have to think about moving to Aberdeen,

suggesting that that might be difficult as he would have to sell his house. However, the

house is not, in fact, owned by the pursuer. Rather, it appears to be held in trust having

been purchased by the pursuer's parents as discussed above. As with other aspects of his

evidence, the pursuer's position here is very much from his own perspective rather than

from the perspective of the welfare of his children. On the evidence before me, in relation to

the question of the children travelling, from the perspective of the welfare of the children,

there seems little to prevent the pursuer moving to be near his children and much to suggest

that the children should not be moved.

[25]

The parties agree that it is in the best interest of the children that they understand

and participate in their Latvian heritage. Part of the defender's reasoning for returning to

Aberdeen was the presence of an established Latvian community there. That community

allows the children to engage with their Latvian heritage and provides the defender with

some support. The children attend a Latvian school in Aberdeen, although not on a frequent

basis. The children have made friends with other children from the Latvian school and they

have had play dates. The Latvian community also arranges events that the children can

attend. In Aberdeen the children benefit from engagement with both Scottish and Latvian

traditions. Glasgow does not have an equivalent Latvian community. The pursuer

identified the opportunity to receive privately funded lesson in Latvian in Glasgow and

suggested that the children would be able to travel from Glasgow to Aberdeen to attend the

Latvian school. Such proposals by the pursuer are, in my judgement, further examples of

the pursuer's tendency to interpret matters from the perspective of his own desired outcome

rather than the children's perspective. It seems to me self-evident that the proposals

suggested by the pursuer would provide a poor substitute for living and being immersed

within an active community.

[26]

Turning to the issue of family and other support. Insofar as interacting with wider

family members, the evidence supports a submission that were the children to reside in the

Glasgow area they would have the potential to see more of their wider paternal family.

Whilst the extent to which that potential would actually materialise was not explored in any

detail in the evidence, I am prepared to accept that if located in the Glasgow area, the

children are likely to see more of their paternal family. The children's paternal grandparents

live in St Andrews and own a flat in Glasgow. The evidence was that St Andrews is

equidistant between the parties, so when the paternal grandparents are at home, there is less

force in a submission that living in the Glasgow area will provide greater opportunity for

their support. The defender's mother and other family members travel from Latvia every

couple of weeks to see the defender and the children and stay for between a couple of days

and a week. I find this evidence neutral to the question of relocation because the defender's

family would most likely visit wherever the defender and children were located.

[27]

In terms of providing support for the children, the primary responsibility for the care

and upbringing of the children lies with the parties and not others, whether family members

or otherwise. That said, almost all parents need some help or support from time to time and

here the availability of support, whether family or friends, is relevant. The evidence

suggests that the pursuer's parents have provided, and continue to provide, some support to

the pursuer and children. The pursuer's mother gave evidence that, whether at their flat in

Glasgow or in St Andrews she provided support to the pursuer and the children. She also

said in evidence that she would support the defender and the children in Aberdeen. The

pursuer's sister's evidence was that she had looked after the children on three occasions, the

last being around early 2021. When asked in evidence what practical support she might

offer to the defender, she gave as examples cooking, job interviews and flat viewings. The

pursuer's brothers' evidence did not address the question of support for the parties and the

children. The pursuer's aunt's affidavit stated that she lives close to pursuer and would

support the parties and the children if asked to do so.

[28]

As noted above in relation to visiting the defender and the children, whilst the

defender's family members' evidence was that they would travel to Aberdeen to support the

defender and the children, they would most likely travel to Glasgow to provide such

support, so, again, the evidence is neutral on the issue of support. Beyond support from

family members, the defender's evidence was that the Latvian community in Aberdeen has

a support network, which did not exist in Glasgow.

[29]

Turning to the care of the children, their development, health and education,

including the parties' contributions to the children's upbringing before and after 4 December

2021. This conflates a number of the separate areas identified by counsel in his submission

on behalf of the pursuer. I address these issues this way for two reasons. Firstly, the

pursuer asserts he was "significantly" involved in the children's care before 4 December

2021 and from this he asks the court to infer that he will be again if in a position to do so.

Secondly, it seems to me that an assessment of the care of the children, their development,

health and education is, to some extent at least, dependent on the factors identified above

and are best considered in the round and against the background of those factors.

[30]

The parties' agreed position in evidence was that the defender ought to be the

children's primary carer. That is therefore the starting position for a consideration of the

parties' respective contributions to the future care of the children, their development, health

and education.

[31]

The pursuer's behaviour and the extent of his contribution to the care of the children

before 4 December 2021 are matters of significant dispute. The defender stated that the

pursuer had a significant problem with drinking alcohol, which continued throughout their

relationship. He would drink late after work. On occasions he would miss the following

day's work and this caused him to change jobs. He would have frequent blackouts. After

the birth of the parties' older child, the pursuer helped for a few weeks but then began to go

out more in the evening and come home drunk. The pursuer's behaviour became

increasingly controlling. He was often angry and verbally abusive towards the defender. In

February 2020, towards the end of the defender's maternity leave, the defender's mother

stayed with the parties to help for around four months. In March 2020, as a consequence of

the pursuer's intoxication and aggressive behaviour, the defender, her mother and the eldest

(and then only) child were forced to leave the parties' flat and spend the night in a hotel. In

December 2021, just before the defender left for Latvia there was a further event when the

pursuer was aggressive towards the defender and her mother.

[32]

The defender's mother's affidavit is agreed to be unchallenged evidence. It contains

part hearsay and part first hand evidence. Following being contacted by the defender in

November 2019, the defender's mother visited the parties. She witnessed the pursuer

having been on a "drinking streak". The pursuer's eyes were red, his hands were trembling

and he was shouting and yelling at the defender. The pursuer's parents were present and

his father was angry with the pursuer. The defender's mother's affidavit refers to her stay

with the parties in the spring of 2020. She states that she witnessed the pursuer's drinking,

anger and disrespectful, aggressive and irritable behaviour. She makes reference to the

incident in March 2020 when she, the defender and the parties' eldest child were forced to

stay in a hotel overnight as a result of the pursuer's behaviour. Around a month before the

defender and the children went to Latvia in December 2021, the defender's mother visited

the parties. She states that she again witnessed the pursuer's constant drinking, aggression

and throwing tantrums. She states that during the month she stayed, communications about

money issues were a constant problem.

[33]

The defender's sister also prepared an affidavit that is agreed as unchallenged. After

the elder child's birth the defender's sister noticed that the defender was becoming harder

and harder to reach. The defender was reluctant to talk on the telephone and postponed

calls for weeks. When on the telephone the defender would stop their calls abruptly, saying

that the pursuer had come home and that he did not like the defender speaking Latvian.

Sometimes on their call the defender's sister could hear the pursuer sounding aggressive

and moody, which was alarming.

[34]

The pursuer's evidence was that he took the children for walks, took them

swimming and shopping, he bathed and changed them, he took them to medical

appointments, prepared meals for them, did laundry, cleaned the flat and sterilised bottles.

In relation to drinking alcohol the pursuer acknowledged that he did drink from time to

time but stated that it did not and does not interfere with his caring for the children. The

pursuer acknowledged that the defender had expressed concerns about his drinking alcohol

and that he did go to Alcoholics Anonymous at the request of the defender on one occasion.

The pursuer's mother gave evidence that the pursuer assisted as per the pursuer's evidence

above. The pursuer's mother stated that the pursuer drank alcohol no more than a normal

person and that he drank less after the children were born. The pursuer's sister stated that

the pursuer would cook, entertain the children and that he undertook a fair split of all of the

work of the elder child. The pursuer's brothers and aunt also gave evidence that the pursuer

was engaged as a father and that the pursuer would take the children out for walks and take

them swimming. The pursuer's siblings and cousins gave evidence that the pursuer did not

drink alcohol heavily and that he did not drink around the children. The evidence of the

pursuer's aunt and the pursuer's cousins was admitted by way of affidavit only and agreed

as unchallenged.

[35]

Finally in this regard, is the affidavit of JW, again agreed to be unchallenged

evidence. Whilst JW's own knowledge of the defender postdates the period before

4 December 2021, JW's involvement in her role as a domestic abuse support worker with the

defender contains support for aspects of the defender's account. It is, of course, possible that

the defender has engaged in a plan of deceit using JW to advance such evidence but that is,

in my judgement, unlikely given that the defender was brought to the attention of the

Domestic Abuse Team within Aberdeen City Council through a police concern report and

referral in October 2022. It was not the defender who initially contacted the police.

[36]

In assessing this evidence, subject to the exception below, I accept that the various

witnesses sought to tell the truth. However, and perhaps understandably, given the nature

of the dispute, I was left with the impression that significant parts of the evidence involved

witnesses advancing a "party line". Much of that appeared to have been done by reference

to what others, principally the parties, had told them or by drawing inferences from

snapshots directly experienced. In these circumstances, in reaching my conclusions on the

evidence, I have concentrated primarily on what the various witnesses were able to speak to

from their own experience. When doing so, I come to the conclusion that much of the direct

evidence is silent on the significant matters at the heart of the dispute in this area. I accept

that there were occasions, witnessed by the pursuer's siblings or cousins, where the pursuer

engaged with the children and did not drink alcohol. But these affidavits are notably silent

on much of the significant matters in dispute. On the other hand, the evidence from the

defender's mother, in particular, lends first hand support for the defender's evidence in

connection with the pursuer's use of alcohol and negative behaviour. Further, the specific

examples relating to the consequences of the pursuer's behaviour finds support in the

evidence of the pursuer's mother and brother, for example the need to take refuge in a hotel

in March 2020 and the fight between the pursuer and his brother on holiday.

[37]

Considering the evidence in the round, on balance, I accept defender's evidence

about state of the parties' relationship, the pursuer's drinking and behaviour and the

pursuer's contributions towards the care of the children. The exception to my assessment of

the evidence referred to above relates to the pursuer's express denials in connection with his

drinking alcohol and his behaviour towards the defender and her mother and his assertions

regarding his contributions towards the care of the parties' children. In my judgement, the

pursuer's position is not credible. Accordingly, I am not prepared to draw the inference I

am invited to do so in relation to the pursuer's asserted contributions towards the care of the

children before 4 December 2021.

[38]

That said, I do accept the pursuer's evidence that he loves his children and wants to

be involved in their lives going forwards and I do think it is in the children's best interests

for the pursuer to be so involved.

[39]

Turning to the question of nurseries, I accept the Green Apple nursery is a

well-regarded nursery but I do not accept that the evidence suggests the nursery currently

attended by the children in Aberdeen is inadequate and fails to meet the needs of the

children. Likewise, I do not accept that the elder child moving on from nursery for the

preschool year is detrimental to either child. Such a move would happen in any event and,

as is normal, the child will move on with his, or at least some of his, peer group, as children

do throughout their education. There is no evidence to suggest that current healthcare

provision for the children is not appropriate. On the basis of the evidence, there is no

advantage to the children from the perspective of education or health in relocation.

Conclusions

[40]

Drawing together my conclusions based on the evidence before me in relation to the

identified areas, in my judgement, the children are well settled in their current

circumstances in Aberdeen. They reside in appropriate accommodation. Their mother, who

it is agreed should be the children's primary carer, is in good employment in Aberdeen, with

prospects of promotion and is thereby in a position to provide for the children. They attend

nursery where they are doing well and they have a secure and identified path forward that

they will travel with friends and others known to them. They are part of a community that

supports both their Scottish and Latvian heritages where they have friends with whom they

play. Their paternal and maternal grandparents either are, or are located so as to allow them

to be, a meaningful part of the children's lives. Whilst the distance between the children and

the pursuer does have a negative impact on the children's ability to have direct contact with

the pursuer, I see no real impediment to the pursuer moving to be closer to his children. He

is in temporary employment. The house in which he resides is not owned by him. His own

parents, the children's paternal grandparents, with whom he is keen for the children to

spend time, live in St Andrews. In short, there is little, if any, benefit in requiring the

children to relocate. On the other hand, the evidence demonstrates that there are many

reasons to leave the children in their current circumstances and, to the extent the current

circumstances could be improved, they could best be improved by the pursuer taking action

rather the children. As set out above, the pursuer's perspective appears to be based on his

own subjective desires rather than an objective assessment of what is in his children's best

interest. In these circumstances, having regard to the welfare of the children as the

paramount consideration, it is my clear judgement that it would not be better to grant the

order for relocation sought than for no order to be made at all. Accordingly, I refuse to

make a specific issue order for the relocation of the children as second concluded for by the

pursuer.

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M AGAINST A [2023] ScotCS CSOH_80 (16 November 2023) URL: http://www.bailii.org/scot/cases/ScotCS/2023/2023_CSOH_80.html Cite as: [2023] ScotCS CSOH_80, [2023] CSOH 80

Scottish Court of Session Decisions