Safeguarding Over Preference in Child Relocation: Abuse Risk and the Feasibility of Ongoing Maternal Involvement Trump Unanimous Child Wishes; Novel “CAMS” Evidence Excluded — PSC v NS [2025] CSOH 90

Introduction

In PSC against NS [2025] CSOH 90, Lady Tait (Outer House, Court of Session) refused a father’s application for a residence order and a specific issue order permitting him to relocate three children (aged 12, 10 and 7) from Scotland back to the United States. The decision confronts a difficult confluence of factors: all three children clearly and consistently expressed a wish to live with their father in the US; the court found the father had physically assaulted the 10-year-old son and had been verbally abusive to the mother; the mother’s ability to return to and reside/work in the US was uncertain and, in the near term, likely limited; and the parties had recently moved from the US to Scotland following a long-considered plan, against a backdrop of marital breakdown.

Against this factual matrix, the court applied the Children (Scotland) Act 1995, section 11—particularly the safeguarding duties in section 11(7A)–(7E)—and Article 12 UNCRC (as incorporated in Scots law by the 2024 Act). The case is also notable for excluding expert evidence on “Child and Mother Sabotage” (CAMS) as not grounded in a sufficiently reliable body of knowledge, applying Kennedy v Cordia 2016 SC (UKSC) 59.

The core disputes were:

Whether the children should reside with the father and be allowed to relocate to the US, or remain in Scotland under arrangements involving both parents;
The weight to be given to each child’s strongly expressed views favouring relocation;
Whether the father’s conduct toward the mother and particularly toward the child O amounted to abuse and how that informed the welfare analysis;
The mother’s immigration position and realistic feasibility of her living/working in, or even repeatedly visiting, the US if the children relocated.

Summary of the Judgment

After 11 days of proof, Lady Tait:

Refused the father’s applications for a residence order in his favour and for a specific issue order permitting relocation of the children to the US.
Made a residence order for the children to reside equally between the parents (continuing the shared care pattern for the youngest child and moving towards shared care for the boys with therapeutic support).
Found the father had been physically abusive to the 10-year-old boy in May 2024 and verbally abusive to the mother (with the May 2024 incident described as a “definite kick” to the abdomen within a repeated assault).
Held that the safeguarding duties under section 11(7A)–(7E) required prioritising protection and the protective role of the mother over the children’s relocation preferences.
Concluded that the mother’s near-term ability to reside or regularly be present in the US was uncertain and likely constrained, reducing her capacity to provide a “protective factor” if the children relocated.
Accepted the child psychologist’s account of the children’s views as genuinely held but noted that views—however strongly expressed—are not determinative where safeguarding concerns are engaged.
Excluded CAMS evidence as not supported by a reliable body of knowledge, applying Kennedy v Cordia.
Reserved expenses.

Analysis

Statutory Framework and Principles

Children (Scotland) Act 1995, s11(2)(c) and (e): residence and specific issue orders.
s11(7): welfare as the paramount consideration; “no order” principle; ascertain and have regard to children’s views in line with age and maturity.
s11(7A)–(7E): mandatory consideration of safeguarding factors, including risks of abuse, impact of abuse, caregiving ability of an abusive parent, and the effect on the other parent’s ability to exercise responsibilities. Also the requirement under s11(7D) to consider whether an order requiring parental cooperation is appropriate.
UNCRC Article 12 (via the 2024 Incorporation Act): reinforces the importance of hearing and giving due weight to the child’s views.
Removal abroad without consent/order is unlawful where both parents have PRRs: 1995 Act, s2(3).

Precedents and Their Influence

M v M 2012 SLT 428 (Extra Division): Welfare is paramount; no preconceived leaning to the rights/interests of others. Lady Tait’s balancing exercise is faithful to this orthodox starting point.
Donaldson v Donaldson 2014 Fam LR 126: No presumption in favour of any factor; each case turns on its facts. The court eschewed any checklist and engaged in a fact-sensitive appraisal.
GL v JL 2017 Fam LR 54; MCB v NMF 2018 SCLR 660: Emphasise case-by-case scrutiny, especially in relocation disputes. This judgment is methodical in evaluating the specific evidential matrix (children’s lived experiences in both countries; immigration feasibility; safeguarding risks).
J v J 2004 Fam LR 20: Long-term benefits can justify orders despite short-term upset. Here, the converse was applied: the court prioritised long-term safety and maintenance of a protective relationship despite short-term disappointment in not returning to the US.
Kennedy v Cordia (Services) LLP 2016 SC (UKSC) 59: Expert evidence must be underpinned by a reliable body of knowledge. Lady Tait sustained an objection to “Child and Mother Sabotage (CAMS)” evidence as novel and insufficiently grounded—a significant evidential ruling.

Findings of Fact That Drove the Legal Reasoning

Care roles pre-separation: From 2020 both parents were actively involved. The court declined to make the label “primary carer” determinative; that debate did little to resolve the real issues.
Children’s views: All three children expressed a clear preference to live with the father in the US. The boys vehemently rejected living with the mother. The youngest had a more balanced stance and benefitted from shared care.
Abuse findings: The court accepted the mother’s detailed account of a serious assault on O in May 2024 and a pattern of verbal abuse towards the mother. That engaged section 11(7A)–(7E).
Immigration practicality: The mother’s near-term ability to live/work in the US was uncertain, with a real risk of being questioned at the border and losing LPR status, and significant practical and legal hurdles to sustained presence via ESTA or otherwise. This directly impacted the feasibility of her ongoing protective role if relocation were allowed.
Therapeutic needs: Professional input was recommended to repair the boys’ relationship with their mother; this would be better pursued while the children remain in Scotland with ready access to both parents.

The Court’s Legal Reasoning

Lady Tait carefully balanced three pillars: the children’s views; safeguarding under s11(7A)–(7E); and the practical feasibility of preserving meaningful relationships with both parents.

Weight to children’s views: The court accepted Dr Edward’s assessment that the views were genuinely held, not coached, and deeply felt. But views are not dispositive. The court explicitly recognised that safeguarding can, and here did, outweigh unanimous child preference.
Safeguarding priority: Having found physical abuse of O and a pattern of verbal abuse to the mother, the court applied s11(7A) robustly. The mother’s presence was framed as a “protective factor.” Relocation would attenuate that protection, particularly given the mother’s immigration constraints, and risk entrenching the boys’ complete rejection of the mother.
Feasibility of ongoing maternal involvement: The court gave substantive weight to the immigration evidence. Even if ESTA visits were possible, they would be short, discretionary, and potentially jeopardised by perceived overuse or immigrant intent. The unpredictability of US re-entry as an LPR after a prolonged absence further weakened the case that the mother could safely and reliably exercise protective functions if the children moved.
Shared care and co-operation: Despite imperfect communication, the parties had operated shared care for the youngest and could be expected to do so for all children with support. Section 11(7D) was satisfied.
Therapeutic pathway: The court envisaged therapy as the mechanism to try to restore the boys’ relationship with their mother—something more plausible in Scotland than if they were relocated away from her.

Treatment of Expert Evidence

Children’s views experts: The court accepted Dr Edward’s methodology and conclusions within the scope of her remit. While Dr Willemsen urged a broader systems-based assessment (including interviewing parents) before attributing weight to the children’s views, Lady Tait found Dr Edward’s approach appropriate to the remit. Importantly, Dr Edward accepted that abuse—if established—could alter the interpretation of the boys’ presentation, and she advocated therapeutic intervention after residence is settled.
Forensic psychology of the mother: Dr Jones diagnosed an Adjustment Disorder largely linked to ruptured relationships with the children; Dr Petrie criticised the methodology (single remote interview; lack of collateral verification). The judgment ultimately did not turn on this diagnosis and placed limited reliance on it.
Immigration experts: Both sides’ US immigration experts broadly converged on risk but differed in emphasis. The court was persuaded that the mother’s LPR re-entry was uncertain and that ESTA/B-visa reliance is an unstable foundation for sustained protective involvement. The UK immigration position (ILR) meant she could live/work in Scotland and travel provided absences do not risk ILR lapse.
CAMS evidence excluded: Applying Kennedy v Cordia, Lady Tait held CAMS lacks a sufficiently reliable body of knowledge for admissibility. This is a clear signal about the evidential threshold for novel behavioural constructs in Scottish family litigation.

Impact and Significance

The judgment crystallises several important points for relocation jurisprudence and family procedure in Scotland:

Safeguarding can trump unanimous child preference: Even when every child powerfully wishes to relocate, s11(7A)–(7E) duties may require refusal where abuse risk exists and where the protective role of the other parent would be diluted by relocation.
Feasibility of the left-behind parent’s presence is a legitimate and central welfare factor: The court’s focus on real-world immigration constraints is instructive. A parent’s limited ability to live or reliably visit the destination jurisdiction weighs heavily against relocation if that parent is needed as a protective factor.
“Return” relocations are still relocations: That the move would be back to a familiar home environment (where the children once thrived) did not diminish the court’s duty to apply the full s11 welfare and safeguarding analysis.
Expert evidence: quality control matters: Novel constructs like CAMS will be filtered rigorously under Kennedy v Cordia. Practitioners should ensure any psycho-legal theory invoked has a demonstrable, reliable knowledge base.
UNCRC Article 12 respected but not determinative: The court took the children’s views seriously, recorded them fully, and explained why, despite those views, welfare and safeguarding required a different outcome.
Therapeutic repair as part of welfare planning: The court foregrounded therapy to address the boys’ rupture with their mother, indicating a judicial willingness to link outcome to a concrete therapeutic pathway.

Complex Concepts Simplified

Residence Order and Specific Issue Order

Residence order decides with whom (and if shared, in what proportions) a child under 16 is to live.
Specific issue order answers a particular question about parental responsibilities/rights—here, whether the father could remove the children from Scotland to the US.

The Welfare and Safeguarding Tests (Children (Scotland) Act 1995)

Paramountcy: The child’s welfare is the court’s paramount consideration.
No order principle: The court should only make an order if better than making none.
Views of the child: The court must, where practicable, ascertain and have regard to the child’s views in line with age/maturity.
Safeguarding (s11(7A)–(7E)): The court must consider risks of abuse, its impact, whether an abusive parent can safely care for the child, and whether the other parent’s ability to exercise responsibilities would be affected.

UNCRC Article 12 (as Incorporated in Scotland)

Children have the right to express their views in all matters affecting them; those views should be given due weight according to age and maturity. The court did so here, but safeguarding considerations ultimately controlled the outcome.

US Immigration Concepts Relevant to Welfare Analysis

LPR (Green Card holder): Long absences, changes of intent, and foreign employment can trigger findings of abandonment. Re-entry is discretionary and can involve questioning, referral to immigration court, or pressure to sign Form I‑407 (abandonment).
ESTA: Visitor permission (up to 90 days per entry) is discretionary and can be refused for perceived overuse or suspected immigrant intent; not a reliable basis for sustained parenting time.
SB-1 Returning Resident Visa: Rarely granted; requires proof that prolonged absence was beyond the person’s control.
Re-entry permits: Must be applied for while in the US; of limited practical utility once already abroad.

Protective Factor

A “protective factor” is a presence or arrangement that lowers risk of harm—here, the mother’s ongoing involvement in Scotland was considered protective in light of findings of abuse by the father.

“Parental Alienation” vs. Children’s Reactions to Disruption

The court accepted that the boys were alienated from their mother but did not find evidence of “active alienation” by the father on the facts presented. It recognised that children’s rejection can stem from complex losses (move, separation) and that therapy may be needed, especially if abuse has occurred.

Practical Takeaways for Practitioners

In relocation disputes, anticipate a rigorous safeguarding analysis under s11(7A)–(7E), even where children’s views overwhelmingly favour relocation.
Where the left-behind parent’s role is protective, the practical feasibility of that parent living in or reliably visiting the destination country may be decisive—secure robust immigration evidence.
Do not rely on novel psycho-legal constructs without a demonstrably reliable knowledge base; Kennedy v Cordia gatekeeping will apply.
Children’s views evidence should be carefully taken and contextualised; if abuse is established, its implications for apparent alignment/rejection must be addressed.
Therapeutic planning can be integral to the welfare outcome; propose concrete, realistic intervention pathways.

Conclusion

PSC v NS is a careful reaffirmation—sharpened by contemporary realities—of orthodox Scottish family law principles. It shows that:

Children’s views are central and must be recorded and respected, but they do not override the court’s safeguarding duty under s11(7A)–(7E).
The protective presence of a non-relocating parent, especially in the wake of proven abuse, can outweigh the powerful pull of returning to a previously happy life abroad.
Immigration feasibility is a legitimate, sometimes determinative, component of the welfare calculus in cross-border relocation cases.
Courts will police the admissibility of novel expert theories; unsupported constructs such as CAMS will be excluded under Kennedy v Cordia.

Ultimately, Lady Tait chose a path that prioritises safety, therapeutic repair, and the maintenance of meaningful relationships with both parents, even at the cost of disappointing children who longed to return to the US. The decision underscores that in Scottish relocation cases, safeguarding and practicable protection of the child’s relationships will prevail over preference where those vectors point in different directions.