AH AGAINST SH

Factual and Procedural Background

The parties, referred to as Pursuer and Defender, were married in The City in 2011. The Defender initiated divorce proceedings in 2018, which were later discontinued following a reconciliation in early 2019. The Pursuer has a history of substance misuse and underwent three periods of residential rehabilitation, most recently from December 2019 to May 2020 at The Hospital. The Defender removed herself and the children from the matrimonial home in March 2020. The parties had entered into a pre-nuptial agreement before marriage. There are three children of the marriage, aged between 5 and 9 years at the time of the opinion. The dispute concerns residence, contact, relocation, and schooling arrangements for the children.

Following separation in 2020, the Pursuer initially had no contact with the children. From August 2020, a structured contact arrangement was established, including supervised visits and FaceTime calls. The parties agreed to share holiday contact equally. Both parties seek residence orders for the children, with the Pursuer seeking specific issue orders regarding schooling, and the Defender seeking permission to relocate with the children to England.

Legal Issues Presented

1. Whether residence orders should be granted in favour of the Pursuer or the Defender concerning the children.
2. Whether specific issue orders should be made regarding the schooling of the children.
3. Whether the Defender should be permitted to relocate with the children to England.
4. What arrangements should be made for contact between the Pursuer and the children during term time and holidays.

Arguments of the Parties

Pursuer's Arguments

• The Pursuer sought residence orders for the children during the school term on a bi-weekly basis, with specific issue orders for schooling arrangements.
• Offered undertakings to refrain from assault, attend regular hair testing, and use a third party for handovers where necessary.
• Relied on evidence of his commitment to abstinence from substances and engagement with professionals to demonstrate suitability for shared care.
• Submitted that the Defender's proposed relocation plan was vague and would disrupt the children's schooling and contact with the Pursuer.
• Contended that the children’s expressed wishes were against relocation to England.

Defender's Arguments

• The Defender sought residence orders in her favour and specific issue orders permitting relocation to England with the children.
• Proposed direct and indirect contact arrangements for the Pursuer during term time, including supervised contact until summer 2022.
• Emphasised the Defender’s diagnosis of complex post-traumatic stress disorder linked to domestic abuse and the need for a safe environment to commence treatment.
• Argued that relocation would provide better employment opportunities and schooling for the children, along with a supportive network.
• Submitted that shared care was not appropriate given the history of abuse and substance misuse, and that relocation would promote the children’s welfare.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully evaluated the evidence concerning the parties’ histories, the children’s welfare, and the proposed arrangements. It accepted the diagnoses of complex post-traumatic stress disorder for the Defender but found insufficient evidence to attribute this condition primarily to the Pursuer’s conduct during the marriage. The court accepted that domestic abuse had occurred, particularly an incident involving intimidating behaviour by the Pursuer, but rejected some other abuse allegations due to lack of corroboration.

The court noted the Defender’s genuine perception of threat, which required her to be in a stable and safe environment to commence treatment. However, the evidence did not support relocation to England as necessary; a move within Scotland would suffice for treatment and safety.

The proposed relocation plan was found to be vague and impractical, involving temporary accommodation and uncertain schooling and employment arrangements. The children’s expressed wishes were against relocation, and the plan would disrupt their schooling and contact with the Pursuer.

The court gave significant weight to expert evidence indicating that the Pursuer had demonstrated commitment to abstinence from substances, engaged with professionals, and posed no current risk to the children’s safety. The children were found to be resilient and well-functioning, with a strong attachment to both parents.

Shared care during term time was deemed achievable and in the children’s best interests, balancing the need for stability and meaningful parental involvement. The court declined to make specific issue orders regarding schooling to avoid restricting the Defender’s ability to relocate within Scotland.

The court also addressed contact arrangements, the role of the nanny who had supervised contact, and the importance of practical communication methods between parties to minimize conflict.

Holding and Implications

The court GRANTED residence orders for the children to reside with the Pursuer during the school term for six nights in every fourteen and with the Defender for eight nights in every fourteen, on a specified bi-weekly pattern commencing September 2021. The arrangement allows for alternate weekends and meaningful involvement in schooling and recreational activities.

The court REFUSED the specific issue orders sought by the Pursuer regarding schooling and the Defender’s application for relocation to England with the children.

The interim interdict preventing the Pursuer from driving the children was recalled. No order was made regarding supervision of contact, although the court expressed hope that the existing nanny would continue to support contact informally until the end of 2021, with the parties to agree an alternative person thereafter.

The decision directly affects the residence and contact arrangements of the parties and children, emphasizing the paramount importance of the children’s welfare and stability. No new legal precedents were established, with the court applying established principles and case law to the facts presented.