“The Maximum-Separation Principle” Outer House, Court of Session offers new guidance on the optimum length of continuous absence from each parent and on excluding non-germane abuse allegations in child-care litigation – JN v SN ([2025] CSOH 72)

1. Introduction

JN v SN arose from a divorce action between JN (the pursuer–mother) and SN (the defender–father). While the divorce itself and most financial matters were agreed, the Court was required to fix term-time arrangements for the parties’ two sons, J (5) and O (4). A previous sheriff-court order had imposed a week-about (7:7) regime, upheld on appeal by the Inner House (2024 SLT 1153). After two years of operation both parents accepted that the 7-day blocks were no longer in the boys’ best interests, yet they could not agree a replacement pattern.

Key competing proposals were:

• Pursuer’s primary: 3:2:1:1:3:2:1:1 (Dr Potter suggestion);
• Defender’s primary: 2:2:5:5 (fortnightly cycle);
• Pursuer’s fall-back: 4:3 split;
• Defender’s fall-back: 3:3:4:4.

The sole live issue was therefore: Which pattern best served the children’s welfare under s 11 of the Children (Scotland) Act 1995?

2. Summary of the Judgment

Lord Braid granted decree of divorce and made a fresh section 11 order adopting the defender’s refined 3:3:4:4 timetable (slightly modified to give the pursuer a full Sunday afternoon). He rejected:

• the 2:2:5:5 cycle as leaving 5-day absences which were still too long;
• Dr Potter’s 3:2:1:1 pattern as too “staccato”, disruptive for routine, and economically restrictive for the father;
• the pursuer’s argument that the boys’ alleged preference demanded more time with her, holding the evidential tools (FRT and “thumbs-up” game) too weak to carry decisive weight.

In doing so the Court articulated two principles of wider significance:

1. The Maximum-Separation Principle: for very young children in shared-care scenarios, regular absences of more than about five consecutive nights from either parent are “potentially harmful” and should be avoided unless compelling circumstances indicate otherwise.
2. The Relevance Principle on Abuse Allegations: where a serious allegation (here, rape) is expressly disclaimed as relevant to child-welfare issues, it must be entirely ignored; neither its truth nor its mere assertion may be allowed to hover “in the background”.

3. Detailed Analysis

3.1 Precedents and Authorities Cited

• Inner House appeal: JN v SN 2024 SLT 1153 – confirmed week-about order and clarified case-management expectations in family proofs; provided context for the present proceedings.
• Domestic legislation:
  • Children (Scotland) Act 1995, s 11(7)–(7E) – welfare as paramount consideration; mandatory consideration of abuse.
  • Domicile and Matrimonial Proceedings Act 1973, s 10 – jurisdictional transition from sheriff court to Court of Session.
  • Family Law Act 1986, ss 11 & 15 – cessation of earlier sheriff-court orders once Court of Session acts.
• International:
  • UNCRC Art 12 and General Comment No 12 – child’s right to be heard irrespective of age.
• Psychological tools: Bene–Anthony Family Relations Test (FRT) and “thumbs-up” technique referenced but not judicial precedents per se.

3.2 Court’s Legal Reasoning

a) Paramountcy and Section 11(7B)–(7D)

Lord Braid commenced with the statutory paramountcy test. He accepted expert evidence (Dr Potter & Dr Reynolds) that prolonged separation from either parent and ongoing parental conflict both jeopardise welfare. Section 11(7B)(d) required assessment of the defender’s past domestic-abuse convictions but, crucially, those convictions did not impugn his care-giving ability; rather, they reinforced the need to minimise inter-parental confrontation.

b) The “Maximum-Separation” Finding

Evidence from both experts converged on the harm caused by seven-day blocks. No party disagreed. The Court therefore formulated, in practical terms, a ceiling of approximately five consecutive nights away from either parent for children of comparable age, absent special factors – a ratio it labelled “too long” in the 2:2:5:5 proposal. This observation crystallises a principle now apt to guide future Scottish shared-care cases.

c) Evaluation of the Competing Schedules

Each schedule was tested against four criteria:

1. Length of continuous absence;
2. Simplicity and predictability of routine (especially for J’s possible ASD traits);
3. Economic feasibility for both parents;
4. Preservation of sibling relationships and meaningful weekend blocks.

The refined 3:3:4:4 model scored best overall: absences capped at four nights, single mid-week handovers, and alternating full weekends for both parents.

d) Treatment of the Rape Allegation – The Relevance Principle

Echoing the Inner House guidance, the Lord Ordinary held that where an allegation is not advanced as affecting the children’s safety or parental capacity, it is impermissible to allow it any evidential or “atmospheric” weight. This ensures fairness and sharpens the evidential focus in child-welfare litigation.

3.3 Anticipated Impact

• Family-court practice – Sheriffs and Lords Ordinary can cite JN v SN when asked to determine optimum rota lengths; seven-night blocks for under-8s may now face stricter scrutiny.
• Case-management & pleadings – Parties (and counsel) will note the Court’s firm rejection of keeping “irrelevant” abuse allegations in the background. Expect tighter interlocutory orders excising such averments.
• Domestic-abuse jurisprudence – Judgment recognises past abuse’s indirect effect (impact on the other parent’s caregiving) even where direct risk to children is absent, offering a nuanced template for s 11(7B) analysis.
• Child-participation methods – The Court’s scepticism about FRT utility for very young children may prompt practitioners to supplement or rethink traditional tools.

4. Simplifying the Complexities

3:3:4:4 timetable

A fortnightly cycle: three nights with Parent A, three nights with Parent B, four nights with A, four nights with B (then repeats). It caps separation at four nights and gives each parent alternating “long” weekends.

Domestic-aggravated convictions

Scottish summary-court convictions flagged as involving domestic abuse. They trigger mandatory scrutiny under s 11(7B) of the 1995 Act.

FRT (Bene-Anthony Family Relations Test)

A projective exercise using picture cards and a “post-box” to gauge how a child feels about family members. Reliability decreases with very young or non-verbal children.

Complex PTSD (C-PTSD)

A trauma-related condition marked by intrusive flashbacks, emotional dysregulation and negative self-perception. Evidence showed the mother’s symptoms worsen during week-long separations from her sons.

5. Conclusion

JN v SN contributes two notable clarifications to Scottish family law:

1. The Maximum-Separation Principle – extended, routine absences (≈ 7 nights) from either parent are disfavoured for very young children; a four-to-five-night ceiling is preferable unless circumstances dictate otherwise.
2. The Relevance Principle regarding abuse allegations – if a serious allegation is conceded to be immaterial to child welfare, the court must exclude it entirely; its mere existence cannot colour the fact-finding exercise.

Beyond these precedents, the decision underscores the perennial themes of Scottish child-law: welfare supremacy, evidence-based scheduling, and the pressing need for separated parents to adopt cooperative, “child-centred” communication. Future litigants and counsel would do well to absorb Lord Braid’s admonition: protracted conflict, not parenting style, is what harms children most.