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Scottish Sheriff Court Decisions |
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You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> L.C. v. K.M. [2011] ScotSC 189 (06 December 2011) URL: http://www.bailii.org/scot/cases/ScotSC/2011/189.html Cite as: [2011] ScotSC 189 |
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SHERIFFDOM OF GRAMPIAN, HIGHLAND AND ISLANDS
AT STONEHAVEN
JUDGMENT
by
SHERIFF JOHN HALLEY, ADVOCATE
F161/07
LC
PURSUER
against
KM
DEFENDER
Act: Wise, Q.C., instructed by Simpson & Marwick, Aberdeen
Alt: Speir, Advocate, instructed by Taggart, Meil Mathers, Solicitors, Aberdeen
Stonehaven, 6 December 2011
The Sheriff, having resumed consideration of the cause finds in fact:
Finds in Fact and in Law:
THEREFORE
Sustains the 3rd and 4th pleas in law for the pursuer; sustains the 1st plea in law for the defender; quoad ultra repels the remaining pleas in law for the parties; continues the existing orders for residence and contact in force; and reserves all questions of expenses.
Sheriff John Halley, Advocate.
Note
Introduction
1. In this application for variation by Minute and Answers the pursuer craves a specific issue order providing that the pursuer may remove the parties' three children from the United Kingdom and take them to live in Auckland, New Zealand. The defender craves a residence order, which failing, a contact order in the event that the specific issue order is granted.
2. The parties' three children are AM, a girl aged 12; BM a boy aged 10; and IM, a boy aged 8. They are wonderful children who each have their own particular impressive attributes. All of the children attend XY School.
3. The parties divorced in 2008. A full and detailed judgment was issued in relation to the proceedings at that time. The issues which were the focus of dispute at that time related to residence of the children and the payment of school fees. The Sheriff's judgment, dated 22 December 2008, details a complete history of the parties' relationship to that date. I do not propose to rehearse many of those details. The judgment also determined issues relative to educational matters and the payment of fees for the children.
Residence and contact
4. Since about January 2008 the parties have operated a regime for residence and contact which was ultimately sanctioned by the Sheriff in the Court's interlocutor dated 22 December 2008. This regime is detailed in the interlocutor and reflected in no 6/4/9 of process. The regime provides that the children have their main home with the pursuer, in whose favour a residence order was made. The children reside with the defender for a significant proportion of the time. A residential contact order was made in the defender's favour by the Sheriff. In addition the regime provides for shared time with the parties during school holidays. It is clear from the Sheriff's judgment, dated 22 December 2008, that the proceedings at that time were concerned with issues which must have been difficult for the parties and for the children.
5. It is to the great credit of the parties, the children and the parties' present partners, that the contact and residence regime presently in operation since January 2008 has been made to work. It is clear on the evidence that this has been to the great benefit of all three children. Each of the children has a stable home with both the pursuer and the defender. Each of the children has his or her own bedroom in each of the parties' homes. Each of the children has positive and fulfilling relationships with their parents and with their parents' partners. It is clear that the children have thrived since December 2008 by virtue of the stability and predictability that the arrangements in place have provided. It is also clear that the adults have, to a considerable extent, had a clear understanding of their roles in the children's lives since December 2008. This is so notwithstanding the difficulties in relationships which clearly still exist following the parties' separation, divorce and the formation of new relationships thereafter. The adults involved in the children's lives have been able, to a clearly effective degree, to put their subjective feelings to one side and to focus properly upon the welfare of each of the children in the discharge of each adult's role in the contact and residence regime.
The witnesses
6. Evidence was led for the pursuer from the pursuer herself, HC and Ms LC, a teacher at XY School. I have no difficulty in finding HC and Ms LC to be credible and reliable witnesses.
7. Although I found the pursuer to be largely credible and reliable, my assessment of those matters is qualified. I agree with the assessment of the pursuer by the Sheriff in his judgment dated 22 December 2008. At para [123] of his Note, the Sheriff records:
"My assessment of the pursuer is that she is a very determined, strong willed and single-minded person. She likes to be in control. She is in a hurry to get on with her life and is impatient.".
8. Having heard and watched the pursuer giving her evidence in this action, I have made a very similar assessment of the pursuer. I wholly endorse the Sheriff's assessment as quoted from the 2008 judgment. In particular, I highlight the manner in which the proposal to relocate has been planned and taken forward by the pursuer, as commented upon below, albeit with legal advice. My impression is of a committed and capable mother who tends to act unilaterally, or, at least without properly consulting the defender, in making major decisions concerning the welfare of her children. In this case, regrettably, that tendency has resulted in the children, and the defender, being placed in prolonged stressful, but wholly avoidable, situations.
9. Evidence was led from the defender himself and his partner SM. I have no difficulty in finding the defender and SM to be credible and reliable in the essentials of the evidence given by them. I am satisfied that any discrepancies in the evidence of each of them on its own, or when compared with the other, were matters of detail and recollection. Both the defender and SM presented as apparently honest and caring people, particularly in relation to the children.
The proposal to relocate
10. The present issue arises because the pursuer's husband, HC, has been offered a very attractive opportunity to work in New Zealand. HC and the pursuer wish to take up that opportunity and to relocate to New Zealand with the children. This has been described as a once in a lifetime opportunity for HC 's career. In ordinary circumstances such a highly skilled professional would be able to determine whether or not he is able to take up such an opportunity uninhibited. However, HC and pursuer married in 2009. HC very much fulfils the role of stepfather to the children. HC fulfils that role extremely well. HC views this as implicit in the marriage vows he took when he married the pursuer. HC maintains that he will not be able to take advantage of the opportunity presented unless the pursuer and the children are permitted to relocate with him to New Zealand. The issue for the Court is whether it is in the best interests of each of the children that the pursuer is permitted to do so.
11. HC is a well qualified and experienced oil industry professional. His skills are in demand in that industry. He has been extremely successful in business related to that industry. He is a wealthy man as a result. The pursuer, HC and the children live in an extremely comfortable home which was said to be worth about £850,000. There is no mortgage. HC presently meets the children's school fees payments. HC has other substantial savings. There is a level of tension between the defender and HC which sometimes makes it difficult for each of them to operate comfortably around the children, for example if both are watching one of the children playing rugby or another team game.
12. HC was first engaged by GPG in December 2010. GPG are involved in oil and gas production and exploration. GPG produce 10,000 barrels of oil per day, generating about $1 million (New Zealand) per day. The value of the group was said to be in the order of $800 million (New Zealand), which was said to equate to about £400 million. After various business collaborations with GPG's CEO, MD, it was suggested to HC that he might be the person to replace MD in fulfilment of MDs wish to become an non executive director. HC was flattered. He never expected this once in a lifetime opportunity to come his way. The offer was eventually made. From HC's perspective, he has not yet been able to say yes to MD because the offer is not available unless HC is living in New Zealand. From HC's perspective he cannot commit to living in New Zealand unless the pursuer and the children can relocate with him.
13. HC went to New Zealand to work for GPG in March and April 2011. During this period he was obviously away from the pursuer and the children. He was joined by the pursuer in Auckland in April 2011 for a fact finding holiday. The pursuer formed a favourable impression of Auckland and New Zealand. The pursuer and HC decided that they would take steps to ensure that relocation of the children was possible. It was on her return home from this fact finding holiday that the pursuer consulted her solicitors. She sought advice about, "how to go about an international move", as the pursuer herself put matters, in April 2011.
14. 5/8/1 and 5/8/2 of process are details relative to HC's current employment contract with GPG, effective since July 2011. He is presently Group General Manager, employed by GSP Limited, a subsidiary company of GPG. It appears, by reference to 5/8/1, that the proposal that HC should become CEO of the GPG is also contingent upon the acquisition by the company of the shareholding of the present Chief Operations Officer ("COO"). In that event, there will be an opportunity for HC to participate in the equity of GPG. Since July 2011 HC has been living and working for most of the time in Auckland, New Zealand. On the evidence I accept that there is indeed an attractive opportunity for HC on the basis proposed by GPG.
Advancing the proposal to relocate
15. On her return from the fact finding holiday in New Zealand in April 2011, the pursuer immediately went about making arrangements to facilitate a move for herself, HC and the children. The first step she took was to seek legal advice as to how to go about such a move. She was given advice to effect that the views of the children would be a crucial factor.
16. By early May 2011 it is clear that the pursuer lost no time in addressing this crucial issue. 6/4/3 of process is a letter from the pursuer's solicitors to the defender intimating the pursuer's intention to take the children on a three week holiday to New Zealand between 8 and 29 August 2011. The raising of an action seeking a specific issue order in respect of the matter was threatened. The defender wanted a reciprocal arrangement which would be documented. Although the pursuer initially agreed to this, she changed her mind and 6/4/3 of process was the result. The defender consented to the holiday for the children.
17. It is significant that the pursuer had first raised the issue of the holiday directly with the defender. This was done based upon the pursuer's understanding of an obligation in terms of a Minute of Agreement between the parties. It was the defender's understanding of discussions that the pursuer initially agreed to his qualified proposal. The pursuer's failure to raise the issue of relocation of the children with the defender at this time is also significant. Instead of disclosing and discussing what, on any view, is a major decision involving the exercise of both parents' parental responsibilities and rights, the pursuer concealed the real issue from the defender. The justification for this was said to be that the pursuer was fearful that she would then have no control over how or whether the defender might raise the issue of relocation with the children. Nothing was said to the defender about the proposal to relocate the children until 27 August 2011 in a telephone call.
18. Therefore, when the children departed on holiday with the pursuer on 8 August 2011, neither the defender nor the children suspected that the intention of the pursuer was to show the children what life in New Zealand would be like, while there on holiday.
New Zealand Holiday August 2011
19. The first week of the holiday took place in Auckland. The pursuer explained that the holiday accommodation was modest and not of the standard that the family would be looking for if relocating. She did not want to be accused of making the accommodation overly attractive to the children. However, it is clear that the children participated in normal holiday excursions and activities, including going to the beach in the normal manner that children do. During the second week, the children were taken skiing to Queenstown, New Zealand. Queenstown is on the south island of New Zealand. The pursuer and HC flew there from Auckland with the children. They rented a floor of an impressive house in Wamaka with a spectacular view of the mountains.
20. It was at the end of that second week that the children were informed of the proposal to relocate to New Zealand. The children were given details suggesting that the family would be rich in the event of a move there. This was said to be on account of HC's employment opportunity. It is not surprising, in the circumstances, that AM and IM were both immediately excited at the prospect. BM, however, still required to think about it.
21. In the third week the pursuer looked at schools for the children. AM went to see the DS School for girls in Auckland. A prospectus is produced at 5/7/1 of process. I accept that the DS School is a very impressive educational establishment in which AM's educational prospects would prosper.
22. Similarly, KS School for boys in Auckland was identified as suitable for BM and IM. I accept that this is also a very impressive educational establishment in which BM and IM's educational prospects would prosper.
23. Both schools provide opportunities for pupils to achieve qualifications which are internationally accepted.
The children's views
24. HC described the issue of the children's desire to go to New Zealand as "the paramount hurdle". It is clear on the evidence that the pursuer introduced to the children the idea that the defender would be upset at the proposal to relocate. The children missing or not seeing the defender was identified by the children themselves, and by the pursuer, as the main disadvantage of the proposal. The pursuer knew, and acknowledges, that the children would see this issue as a disadvantage. However, it is significant that the pursuer introduced to the children the idea that the defender himself might relocate to New Zealand in the event that they did. This idea appears to have been introduced to the children before the defender even knew of the proposal to relocate the children. The children, of course, were immediately attracted to the idea.
25. Following upon the children's and the pursuer's telephone call to the defender on 27 August 2011, and the defender's refusal to consent, the children appear to have been given the understanding by the pursuer that they were not to discuss the proposal to relocate with the defender. This is what was said by the youngest child, IM, at the defender's dinner table on 16 September 2011. As the defender put it, he was deprived of any forum in which he could discuss the proposal with the children.
26. The evidence disclosed that there were at least two occasions on which the defender attempted to raise the subject with the children while they were living with the defender and SM during September 2011. On both occasions there was a level of upset caused to the children and, indeed, to the defender. These events led to the solicitor acting on behalf of AM and BM writing to the defender by letter dated 21 September 2011, which is 6/4/5 of process.
27. On the evidence, the manner in which the pursuer has planned and presented to the children the proposal to relocate is a matter of concern. Firstly, the children were introduced to the idea while on holiday. Secondly, the defender had no opportunity to properly contribute in any meaningful manner to the views formed by the children. He has a responsibility to do so. In the circumstances the children's views appear to have been formed to a considerable extent on the basis of unbalanced information and in exceptional, holiday, perhaps irresistible, circumstances.
28. Each of the children's views is available to the Court in Form F9. Each of the children has expressed a clear view that he or she wishes to go to New Zealand. However, each of the children has also expressed his or her love and concern at the prospect of seeing their father less often.
29. In addition to these expressions of view, the Court appointed a Reporter, by interlocutor dated 3 November 2011. The direction was to investigate and report to the Court on the views of each of the children. Concern had been expressed on the part of the defender at the manner in which the children's views had been previously obtained, at least from AM and BM, through the solicitor instructed for them though the pursuer's solicitors.
30. The report, number 23 of process, details the expressed views of each child. Those expressed views are fully consistent with each of the children's views as previously expressed. All are keen to move to New Zealand with the pursuer and HC. However, there are other issues of concern in relation to the children's expressed views. For example, AM is recorded as having said, inter alia, "So I do want to go but the thing that weighed me down was that I thought dad would think that I didn't love him anymore and I did.". Later, AM is reported to have said, in relation to what would happen if they did not go to New Zealand, "We might have to sell this house. We might not see [HC] as often.". These comments were made in the context of a thorough report, the Reporter having visited each child on two occasions - in each of the pursuer's and defender's homes. While the main thrust of the children's views is supportive of the proposal to relocate, the importance to each child of his or her personal relations with the defender is clear. A concern also arises in relation to the information conveyed to AM that her present home might have to be sold if the proposed move to New Zealand did not take place.
31. On the first day of the proof diet, an issue was raised with the Court that AM and BM wanted to speak directly to the Sheriff to communicate their views. Thereafter, the issue was canvassed with counsel. I was far from satisfied that, in the circumstances, speaking directly with all or any of the children was the most appropriate way forward in the particular circumstances presenting. Towards the end of the evidence, I therefore requested the same Reporter to provide a supplementary report on the current views of each of the children in relation to the proposal to relocate. The children's views, as reported in the Reporter's Supplementary Report, are entirely consistent with their views as previously expressed.
32. The children have each been given appropriate opportunity to express the views they wish to express. I have considered the views expressed by each of the children with great care. I am not satisfied that any of the children have been presented with appropriately balanced information, at appropriate times and in appropriate settings. In these circumstances the weight to be given to the views of each child is diminished.
33. In particular, the children are aware, to some extent, of the general nature of the difficulties which remain between the parties, their parents. They are not aware, nor should they be, of the detailed history of the relations between their parents, in relation to the discharge of parental responsibilities, as fully set out with a determination on the welfare of each child in the Sheriff's judgment dated 22 December 2008.
34. In my opinion, on the evidence, even AM, at age 12, cannot be taken to be of sufficient maturity to have expressed her view based on a full assessment of all of the factors relevant to such a relocation as is proposed. A full assessment requires to objectively consider all material aspects relative to the children's welfare. For example, the Court has previously been required to determine contested factual issues and, thereafter, to regulate the arrangements for residence and contact between the parties and their children. The Court has previously set out the reasons for that. On the evidence, AM does not know, and should not know, the details of why it was that the Court was required to regulate the parental responsibilities and rights of her parents. It is certain, however, that the Court's regulation of these matters has facilitated, to a workable extent, some repair to damaged relations in the best interests of each of the children. Everyone involved in the present regime knows where they stand.
35. A full and objective assessment also requires to consider, and give significant weight to, the fact that the arrangements endorsed by the Court in December 2008 have produced the requisite stability and predictability which is necessary to promote the welfare of the children. All are agreed that the present arrangements have been to the undoubted benefit of all of the children. Thus, it can confidently be said that the Court's regulation of matters relative to the welfare of each of the children has, without question, been in their best interests to date.
36. It is my assessment that the manner in which the pursuer has planned and taken the proposal to relocate forward, particularly in relation to bringing influence to bear on the children's views, has placed the children in quite stressful situations. This is especially so, from the children's perspective, in relation to their father whom they love. In my view this was wholly unnecessary. Had the issue been discussed with the defender well in advance of the holiday in August 2011, it might well have been that the defender's adverse view would have been communicated to the children. At least when they then visited New Zealand on holiday the children would then have been in a better position to apply some balance. Instead they were confronted by the overwhelmingly positive. From a child like perspective, in the circumstances, the proposal has been presented to them as irresistible.
37. Ms LC gave evidence that AM told her the pursuer kept pestering her and asking if she wanted to move to New Zealand. There was other evidence of suggestion by the pursuer that, if the move to New Zealand did not happen, the pursuer and HC might even have to sell their present house. It is difficult to resist the impression that the pursuer placed the children in needlessly worrying and stressful situations by virtue of her attempts to ensure their views on relocation were positive. The children have been unable to communicate meaningfully with their father on the subject of the proposed relocation. This has produced views on the part of the children which have been arrived at on the basis of unbalanced information.
38. The pursuer founds upon the children's statements to effect that they would be content with contact with the defender during school holidays, for the most part. In addition they would keep in touch by telephone, e-mail and Skype. In my view, it must be borne in mind that each of the children has never experienced not seeing the defender for a period greater that two weeks, except during the August holiday to New Zealand. I approach the children's views on this matter with great caution.
39. For these reasons I am extremely cautious about the weight to be attached to any of the children's views on the issue of relocation.
Submissions on the evidence
40. I am very grateful to both counsel for providing written submissions. On behalf of the pursuer, senior counsel submitted that there are six issues arising from the evidence bearing upon the issue of relocation. These were identified as:
(i) the children's current circumstances and the uncertainty about their future education;
(ii) the circumstances in which the opportunity to live in New Zealand has arisen including the financial situation;
(iii) the opportunities for the children in New Zealand;
(iv) the arrangements for contact following a move to New Zealand;
(v) the views expressed by the children and the weight to be attached to them; and
(vi) the attitude of the defender towards the proposed move.
41. Senior counsel submitted that, on a proper assessment of the evidence, the defender exhibited a less child centred approach than that of the pursuer. The defender's attitude was characterised as being focused on a dispute between the adults and the impact of the proposed relocation upon him. I do not accept that interpretation of the evidence. I interpret the evidence relative to the defender's attitude and approach to the issue of relocation of the children as substantially child focused. It can be assumed that there was considered to be good reason on the part of both parties to insert clause FIRST (c) into the 2007 Minute of Agreement between them (6/4/1 of process). As reflected in finding in fact 35, this obliges both parties to consult the other on any matter of importance concerning or affecting the children. There is also an obligation to have regard, in so far as practicable, to the views of the children. There are similar obligations stipulated in section 6(1) of the Children (Scotland) Act 1995. The requirement to consult arises because of the defender has parental responsibilities and rights. Their very purpose is to promote the welfare of each of the children. In relation to the issue of relocation there was no proper nor meaningful consultation with the defender. There ought to have been. The defender has been effectively disabled from fulfilling his parental responsibilities in respect of his children on the matter. I assess the defender, on the evidence, as very much child focussed. He organises his whole life around his children. It is beyond dispute that his children benefit from that.
42. A very impressive feature in the evidence was the detail given by both the pursuer and the defender about the defender's extended family's annual holiday to the Isle of Harris. This is the subject of findings in fact 17 to20. I was very impressed by this event which the children are part of. The children are able to know, through personal relations, a large group of people to whom they are related. This gathering very much reflects where the children come from, at least in part. The pursuer gave evidence that she envied the defender's large family. By contrast, pursuer has a smaller family group with whom the children have less direct personal relations on account of distance. Senior counsel founded upon the pursuer's evidence that she is willing to accommodate the Harris holiday if at all possible. I accept that evidence. However, the fact of the matter is that, on the evidence, it will not be possible to accommodate the event in 2012 if relocation of the children is permitted.
43. Senior counsel highlighted the pursuer's and the children's current dissatisfaction with XY School. This was based upon evidence that XY School is imminently changing its approach and focus to educational matters from being a "prep" school whose curriculum is based upon the common entrance requirements for public schools. XY School will imminently change to a Scottish educational curriculum with a view to enlarging its senior, or secondary level, school. This focus contrasts with XY's purpose to date which has been to feed the public schools with pupils who only complete preparatory education at XY. There was evidence from the pursuer and Ms LC to this effect and I have no difficulty in accepting that evidence.
44. The pursuer is concerned at the change in approach to education at XY School. She had investigated matters relative to the children's education in the summer of 2010, prior to the issue of relocation having been raised. At that time the pursuer and HC reached a tentative decision that Robert Gordon's independent school in Aberdeen was the most suitable since boarding schools were considered to be too expensive. There had been email correspondence between the parties, produced at 5/10/5 of process, reflecting the pursuer's desire for boarding school for the children. The defender's response clearly sets out his position that he does not agree with boarding school as a matter of principle. It is of interest to note that defender's response emphasises the need to, "...create the right environment for the kids to discuss this free from feelings that there is a pre-determined right answer.".
45. I accept that there is evidence of uncertainty about the children's, especially AM's, future education. The issue will require to be resolved whether in Scotland or New Zealand. In my view it is significant that the defender knew nothing about the pursuer's dissatisfaction with XY School prior to the issue of relocation being raised. It is difficult to resist the impression that, while there may be a legitimate issue to be discussed and resolved, more is being made of the issue by the pursuer in support of the application to relocate the children. That said, I do accept, on the evidence, that the schools identified and arranged in New Zealand are impressive schools. I have no doubt that that, if relocation was permitted, each of the children's education would be well served.
46. The pursuer gave evidence that the educational opportunities presented by the proposed move to New Zealand, by themselves, justified the necessarily restricted opportunities for contact between the children and the defender. I do not accept that proposition. It takes far too little account of the importance of safeguarding the children's direct personal relations with the defender, in the present regime, from which they have so clearly benefited together, and on a "one to one" basis, since January 2008.
47. The pursuer gave evidence that she has had many discussions with AM about AM's dissatisfaction with her present school and a desire to go to boarding school in the future. The defender knew nothing about this. Senior counsel submitted that the impression that should be formed was that the defender was failing to face up to the children's aspirations in relation to attendance at public schools. On the evidence, the defender does not accord a high priority to the need for private education for the children. I do not accept that that means he is failing to face up to the children's educational aspirations. On the contrary, I formed an impression of a father who is absolutely keen to promote learning, life skills and confidence in each of his children. He takes the opportunity to do so during the time when each child lives individually with the defender and SM. He is clearly in tune with their educational needs.
48. Finally, on the issue of education, it was submitted that it cannot be said that remaining in Scotland would result in continuity of education for AM and BM. I accept that, if relocation is not permitted, the issue will require to be discussed and resolved. It was further submitted, however, that, because staying in Scotland is uncertain in this respect, relocation requires to be considered. I accept that the uncertainty on the issue of education is one factor to be weighed in the balance.
49. In relation to factor (ii), I accept that the opportunity presented to HC, and the pursuer and the children, is an exceptional and attractive one. From the evidence I have heard it also appears to be a remunerative opportunity. From the pursuer and HC's perspective, the opportunity is presented for a potentially life changing relocation. It is another very important factor. It was submitted that HC's career opportunity would be lost if the application is refused. On the evidence, HC is required to be resident in New Zealand in order to assume the role of CEO of GPG. Unfortunately, the whole issue for HC appears to be complicated by the existence of the parental responsibilities of the defender and the objective assessment of each of the children's welfare in their whole circumstances. Those are the paramount considerations in this application.
50. Factor (iii) founded upon for the pursuer related to the opportunities for the children in New Zealand. It is clear to me that there are impressive educational and activity based opportunities available to the children if the application to relocate is successful. Whether or not they are better than those presently available in Scotland is unclear to me. The pursuer gave evidence of her own analysis and lower relative costs for better education. Senior counsel submitted that, in relation to comparisons of activities available in Scotland and New Zealand, respectively, what matters is whether the proposed move is in the children's best interests, comparing what may happen should they stay with what is available if they go. I agree that these are relevant matters.
51. On the evidence, the pursuer proposes to be a full time mother to the children and to her new baby when he or she is born. I accept the evidence contained in the Affidavitt of Dr Lena Crighton (5/10/4). I accept that there is medical evidence to support the argument that, if the proposed relocation of the children is to take place, it should take place prior to the birth of the new baby.
52. In relation to factor (iv), proposed arrangements for direct contact during New Zealand school holiday times were discussed at some length in the evidence and between counsel. It is clear that there is a workable strategy according to which "contact" can be maintained between the defender and the children if relocation is permitted. On the hypothesis that relocation is permitted, the level and detail of contact between the defender and the children is largely agreed. The total level of contact agreed is for 10 weeks per year, 9 of which would be during the children's school holidays (as depicted in 6/7/1 of process). Of those it is agreed that 6 weeks would be in the UK. GPG would pay for the cost of these flights. Of the remaining 4 weeks, 2 would be in New Zealand (one during school term, one during a New Zealand school holiday). The 2 remaining weeks would be at an agreed location, whether in the UK, New Zealand or another country.
53. I have addressed the issue of the children's views already (factor (v) for the pursuer). This issue is also a factor to be weighed in the balance, having regard to the compromised weight which is to be accorded to those expressed views.
54. I have commented on the issue raised as factor (vi), namely the attitude of the defender to the proposal to relocate.
55. Counsel for the defender founded upon the factors as detailed in his written submission in inviting the Court to refuse to grant the order sought by the pursuer. Various factors identified for the defender are detailed by reference to the Washington Declaration on International Family Relocation (March 2010). I note the various factors highlighted. For the avoidance of doubt, I proceed on the basis of the test in terms of section 11(7) of the Children (Scotland) Act 1995, however.
56. The defender founds upon the importance of the existing bond between the defender and each of the children. It is contended that these will be diminished if the defender's input into the children's lives is reduced from being "hands on" to being a "holiday Dad". The views of the children and the manner in which those views have been formed is also founded upon. Essentially, it is submitted, that as a result of the manner in which the children's views have been influenced by the pursuer, little weight should be given to those views.
57. Counsel submitted that, in relation to education for the children, there is no acceptable evidence that the children would do better at school in New Zealand than if they remain in Scotland. I agree. The defender founds upon his own assessment that it is not in the best interests of each of the children to relocate standing the settled and happy life which they currently enjoy. Counsel also submitted that, on the basis of past history, the pursuer cannot be trusted in relation fostering and facilitating contact in the event that relocation is permitted. The value of the current regime for residence and contact was also highlighted for the defender, as was the impact of the grant or refusal of the application on the children.
58. Counsel also submitted that there are likely to be problems in relation to contact between the defender and the children in the event that the application to relocate is successful. Counsel founded upon the absence of any provision for direct enforceability in New Zealand of a UK contact order.
59. On the basis of the various factors identified by counsel for the defender from the evidence, it was submitted that the pursuer's application should be refused.
The law
60. Counsel were agreed as to the applicable law in this case. The only applicable test is that set out in section 11(7) of the Children (Scotland) Act 1995. That provides:-
"(7) .......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; and
(b) taking account of the child's age and maturity, shall so far as practicable-
(i) give him an opportunity to indicate whether he wishes to express his views;
(ii) if he does so wish, give him an opportunity to express them; and
(iii) have regard to such views as he may express.".
61. The terms of section 11(7D) are also relevant. These provide:
"Where-
(a) the court is considering making an order under sub section (1) above; and
(b) in pursuance of that order two or more relevant persons would have to co-operate with one another as respects matters affecting the child, the court shall consider whether it would be appropriate to make to order.".
62. There is no presumption for or against a parent with a residence order relocating. In CM v SM [2011] CSIH 65, an Extra Division of the Inner House approved the submission that, "...the potentially controversial guidance embodied in Payne (Payne v Payne [2001] 2 WLR 1826) and other English case formed no part of the law of Scotland.".
63. The Court, therefore, must apply the welfare test, set out at paragraph 60 above. This includes the requirement to have regard to the children's views.
64. The Court has a duty in terms of section 11(7)(b), to have regard to such views as each child may express. This is a continuing duty upon the Court (S v S, 2002 SC 246).
65. In addition to the cases referred to above, Counsel referred to H v H, 2010 SLT 395; White v White, 2001 SC 689; Stewart v Stewart, unreported, Sheriff Gregor Murray, Aberdeen Sheriff Court, 18 November 2011; GD v EK, unreported, Sheriff William Holligan, Edinburgh Sheriff Court, 4 May 2011; and Osborne v Matthan (No 2), 1998 SC 682.
66. Having considered the legislation and the cases referred to, I approach the decision in this case, as I am required to do, with the welfare of each of the children AM, BM and IM as the paramount consideration. An order can only be made if it is better than no order being made. I also proceed on the basis of what is said in CM v SM, at paragraph 9:
"9 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. As Lord Caplan observed in Osborne v Matthan (No. 2) 1998 SC 682 , at p.704:
"... Scottish courts, in particular, have resisted the temptation to elevate the primacy of the parental claim into anything approaching a principle, far less a rule."
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.".
Conclusions
67. The Court is faced with a difficult and anxious matter in this application. There is anxiety for the parties, their partners and, most importantly, for the children. I approach my conclusions in relation to the application for permission to relocate by focusing upon what is best for AM, BM and IM and whether any order is necessary.
68. The opportunity presented to HC, and the pursuer and the children, is an exceptional and attractive one. However, in my opinion, the proposal to relocate takes far too little account of the importance of safeguarding the children's direct contact and personal relations with the defender, as determined to be necessary in the Sheriff's judgment dated 22 December 2008. I attach significant weight to the success of the present regime for residence and contact. It is beyond question that the regime in place has served the welfare of each of the children. The children have been happy and contented in their two homes. They have all benefited from the stability afforded by the arrangements presently in place. The best scenario, objectively viewed, is that these arrangements should continue.
69. It is clear that there is a workable strategy according to which "contact" can be maintained between the defender and the children if relocation is permitted. This is clearly also a matter about which the children are anxious. On any view, the opportunity for direct personal relations between the defender and the children would be significantly diminished in its frequency and, no doubt, quality. All of the children are at ages at which their activities with the defender (and with the pursuer) have benefited them. The "one to one" time each child spends at the defender's home appears to be a unique opportunity for the defender to direct and guide his children in the manner he has spoken about in evidence. This has obviously been to their great benefit in view of how matters have developed, operating in the present regime, since January 2008. Of course, it is of great importance that each of the children clearly thrives and benefits from the present arrangements in the care of the pursuer and HC also.
70. While it is clearly possible for communication to take place with the defender by e-mail, telephone and Skype, these media are likely to facilitate little more than a process of keeping in touch or passing on news. There is also an 11 hour time difference to be considered. At the children's ages, there is likely to be a significant qualitative week to week difference in the personal relations capable of being maintained between the defender and the children.
71. Against such a background, it remains unclear that school holiday times would be an acceptable substitute, when assessed from the perspective of each child's welfare, for the meaningful, regular, stable and predictable direct contact and personal relations which take place at present.
72. There is an issue of uncertainty about the present educational arrangements for AM in particular. On the evidence, AM would have required to move on from XY prep school in any event, on the pursuer's view of matters. It is no doubt important to AM that her friends are moving elsewhere. However, in my view, this is not a factor of determinative weight in support of the proposal to relocate. Taking the issue at its highest, it can be said that AM's school situation is uncertain. There are impressive schools available to each of the children in New Zealand if they are permitted to relocate. Although the issue of education, in this respect, is a very important one, it is clear that there are also schools in the Aberdeen area which could offer a high standard of education to the children. Indeed, the pursuer has researched this matter in some detail in summer 2010. In any event, the issue of the children's education is one which requires to be discussed with the defender.
73. The views which have been expressed by the children are issues of particular importance in my assessment. It is clear that all of the children want to relocate to New Zealand. I have had regard to the views expressed by AM, BM and IM at the different stages of expression. In my opinion, significant caution requires to be employed in assessing the weight to be given to those views. In my opinion it is clear that manner in which the children's views have been formed has been managed and influenced by the pursuer. This has been the case to the extent that the defender has been effectively disabled from communicating with any of the children about the major decision to relocate to New Zealand.
74. In considering whether to make the order sought by the pursuer, I am obliged to consider whether it would be appropriate to make an order in pursuance of which the parties would have to co-operate with one another, in terms of section 11(7D) of the Children (Scotland) Act 1995. The parties have co-operated successfully, though difficult at times, in the implementation of the present regime for residence and contact arrangements. They live in relative geographical proximity to one another. However, the pursuer has demonstrated a tendency to act unilaterally, and to fail to consult the defender, in major decisions affecting the children. This tendency compromises my confidence in predicting that, if permitted to relocate to new Zealand, the pursuer would do all she could to facilitate and promote each of the children's relationships with the defender.
75. I have considered the impact upon the children of not making the specific issue order which they ask the Court to make. In my view, these children ought not to have been placed in the stressful position in which they presently find themselves. The parties and their partners are urged, as a matter of the greatest priority in the children's best interests, to ensure that normality is resumed immediately. The pursuer said in her evidence that, if the order sought is not granted, the pursuer, HC and the children would re-group and get on with it. I encourage the pursuer in that course of action for the benefit of the children.
76. Having regard to all of the circumstances in this difficult, important and anxious matter, and proceeding on the basis that the welfare of each of AM, BM and IM are the paramount considerations, I am driven to the decision that the specific issue order sought by the pursuer should be refused. Further, I am driven to the decision that the extant order dated 22 December 2008 requires to remain in place in the best interests of each of the children.
77. I have not been addressed on the question of expenses and, accordingly, have reserved consideration of that matter.
78. I am grateful for the assistance of counsel in expediting this difficult matter within an extremely restricted timescale.
