Introduction

The case of AH Against SH [2021] CSOH 71 was heard in the Outer House of the Scottish Court of Session on July 16, 2021. This dispute arose from the dissolution of the marriage between AH (the Pursuer) and SH (the Defender), who have three children: D (aged 9), W (aged 7), and B (aged 5). The core issues revolved around residence orders, contact arrangements, relocation proposals, and the best interests of the children amidst allegations of substance misuse and domestic abuse.

Summary of the Judgment

The court deliberated extensively on the residence and contact arrangements for the children following the separation of the parents. Both parties sought residence orders, with the Pursuer also requesting specific issue orders concerning the children's schooling, while the Defender sought relocation to England. The court meticulously examined evidence related to substance misuse by the Pursuer, allegations of domestic abuse, the children's well-being, and the feasibility of the proposed relocation.

Ultimately, the court ruled in favor of establishing shared residence arrangements during the school term, denying the Defender's relocation request. The children were to reside with the Pursuer for six nights and with the Defender for eight nights on a bi-weekly basis during term time, while maintaining agreed-upon holiday arrangements. Specific issue orders concerning schooling were also declined, allowing flexibility for the parties to manage schooling in the future.

Analysis

Precedents Cited

Senior counsel for the Pursuer referenced several key cases in relation to relocation under section 11(7) of the Children (Scotland) Act 1995, including M v M 2012 SLT 428, S v S 2012 Fam LR 32, Donaldson v Donaldson 2014 Fam LR 126, GL v JL 2017 Fam LR 54, and MCB v NMF 2018 SCLR 660. These cases generally emphasize the paramountcy of the child's best interests and the need for a balanced approach when considering relocation, ensuring minimal disruption to the child's life and maintaining meaningful relationships with both parents.

Legal Reasoning

The court applied a multifaceted analysis focusing on the best interests of the children, a cornerstone of family law. This involved evaluating the stability of each parent's environment, the children's expressed wishes, and the potential impact of proposed arrangements on their welfare. Key considerations included:

• Substance Misuse: The Pursuer acknowledged a history of substance misuse but demonstrated proactive measures, including rehabilitation and ongoing hair testing, indicating a commitment to long-term abstinence.
• Allegations of Domestic Abuse: While the Defender attested to instances of intimidation, the court found limited corroborative evidence, distinguishing perceived threats from substantiated abuse.
• Children's Well-being: Expert testimonies highlighted the children's resilience and their preferences regarding living arrangements.
• Relocation Feasibility: The proposed relocation lacked practical clarity, with uncertainties surrounding accommodation, schooling, and the Defender's training commitments, leading the court to question its viability.

The court also considered expert opinions from psychiatrists and psychologists, reinforcing the importance of a stable environment and manageable risk factors related to the Pursuer's past behaviors.

Impact

This judgment reinforces the significance of shared residence arrangements, especially when both parents exhibit a commitment to the children's welfare despite personal challenges. It underscores that relocation must be substantiated with clear, practical plans that prioritize the children's stability and expressed wishes. Additionally, the decision highlights the necessity for courts to balance historical allegations with current evidence, ensuring that decisions are rooted in the present best interests of the children rather than past grievances.

Complex Concepts Simplified

Residence Orders

Residence orders determine with which parent the children will live. In this case, the court established a bi-weekly rotation, granting significant time with both parents to foster their relationships with the children.

Specific Issue Orders

These orders address specific matters like schooling or relocation. Here, the court declined such orders, allowing the parents flexibility to decide on schooling while maintaining the residence arrangement.

Relocation Application

When a parent seeks to move to a different geographic location, the court assesses whether the move serves the children's best interests without causing undue disruption. The Defender's proposal to relocate to England was deemed impractical and not in line with the children's preferences.

Balancing Test

The court employs a balancing test to weigh the benefits and drawbacks of each proposed arrangement, ensuring the outcome serves the children's welfare above all.

Conclusion

The judgment in AH Against SH [2021] CSOH 71 exemplifies a thoughtful and child-centric approach to resolving complex family disputes. By prioritizing shared residence and addressing the practicalities of each party's circumstances, the court ensures that the children's stability and relationships with both parents are maintained. The refusal to grant relocation underscores the necessity for clear, actionable plans that align with the children's best interests and expressed wishes. This case serves as a valuable precedent for future family law matters, emphasizing the importance of flexibility, evidence-based decision-making, and the paramountcy of child welfare in judicial determinations.