JN against SN (Court of Session)

Factual and Procedural Background

The parties, referred to as the Appellant and Appellee, were married in Scotland in July 2016 and separated in October 2022. They have three children: one daughter aged 10 and two sons aged 5 and 4. The Appellant seeks a decree of divorce on the basis of separation exceeding two years, which is uncontested. Financial claims between the parties have been resolved by agreement and dismissed by the court.

Agreements have been reached regarding the future care of the daughter, who will reside primarily with the Appellant with contact to the Appellee on Fridays to Saturdays. The parties also agreed to alternate holiday care of the two sons equally, except for Christmas arrangements.

The remaining dispute concerns the term-time care arrangements for the two sons. The parties previously litigated this issue in the sheriff court, resulting in a shared care order on a week-about basis, which has operated for over two years. The Appellant appealed this decision to the Inner House, which refused the appeal. The current court now has exclusive jurisdiction to determine new care arrangements for the children, and the parties agree that the week-about arrangement no longer serves the children's best interests.

The Appellant proposes a care schedule largely based on a clinical psychologist's suggestion, with the sons residing primarily with her except for certain weekday and weekend periods with the Appellee. The Appellee proposes a two-week cycle with alternating care periods, including full weekends with the children. Both parties submitted fallback positions involving alternative care schedules.

The case involved evidence from the parties, expert psychologists, a social worker, and family members. The court found all witnesses credible but noted some partisanship. The Appellee was described as defensive and minimizing past poor conduct.

Legal Issues Presented

1. Whether a decree of divorce should be granted based on separation for more than two years.
2. What are the appropriate term-time care arrangements for the two sons that best serve their welfare interests under the Children (Scotland) Act 1995.
3. How the court should consider allegations of abuse and coercive control in determining care arrangements.
4. The relevance and treatment of a rape allegation made by the Appellant against the Appellee in the context of the care dispute.

Arguments of the Parties

Appellant's Arguments

• The Appellant seeks a decree of divorce uncontested on the ground of separation exceeding two years.
• She prefers a care arrangement for the sons largely based on the clinical psychologist's suggestion, which reduces long periods away from either parent and simplifies handovers.
• The Appellant emphasizes the harmful effects of the current week-about arrangement on the boys and on her own complex PTSD symptoms.
• She contends that the Appellee's preferred arrangement exemplifies coercive control and is unreasonably pursued.
• The Appellant highlights past abusive conduct and coercive control by the Appellee as relevant to the care arrangements.

Appellee's Arguments

• The Appellee does not oppose the divorce but contests the care arrangements proposed by the Appellant.
• He proposes a two-week care cycle preserving full weekends with the children, arguing this continuity is less disruptive, particularly for the son with possible autistic spectrum diagnosis.
• The Appellee contends that the psychologist's suggested arrangement is too fragmented and would complicate routines and his ability to work.
• He denies the relevance of the rape allegation and disputes the characterization of his past conduct as coercive control.
• The Appellee acknowledges some past breaches of court orders but states he has complied with non-harassment orders since December 2022.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
2024 SLT 1153	Refusal of appeal against sheriff court care order; confirms prior judicial decision on shared care arrangements.	The court noted the appeal was refused and the existing arrangement had operated for over two years but confirmed it had exclusive jurisdiction to make new orders.

Court's Reasoning and Analysis

The court first confirmed the uncontested basis for granting the decree of divorce due to separation for more than two years. It then focused on the welfare of the children, applying the Children (Scotland) Act 1995, particularly section 11, which emphasizes the paramount consideration of the child's welfare and requires the court to consider the child's views as far as practicable.

The court disregarded the rape allegation as irrelevant to the core issue of care arrangements, following the Inner House guidance that such allegations, while justiciable, were not essential to the dispute and should not influence the court's decision.

Evidence of abuse and coercive control by the Appellee was accepted as relevant under section 11(7B) to (7D) of the 1995 Act. The Appellee's past convictions for domestically aggravated offences were acknowledged, but the court noted no current risk to the children, and that the Appellant's fear warranted minimizing required contact to reduce distress.

The court considered the children's developmental needs, including the sons' developmental delays and possible autism spectrum condition. It gave weight to expert evidence, particularly from the appointed Child Welfare Reporter, a clinical psychologist, who recommended avoiding long periods (seven days or more) away from either parent. The court also considered the children's limited and mixed expressed views, finding them insufficient to decisively favor one arrangement over another.

The court analyzed the competing care proposals. It found the existing week-about arrangement unsuitable due to the length of time the boys spent away from each parent and the exacerbation of the Appellant's PTSD symptoms. The Appellee's 2:2:5:5 proposal was rejected primarily because it still involved long absences from each parent and could confuse the son with special needs. The psychologist's suggested arrangement was also found unsuitable due to its fragmentation and practical difficulties affecting routines and parental employment.

The court preferred a compromise between the fallback positions: a 3:3:4:4 care arrangement that balanced time with both parents, limited handovers, and allowed meaningful weekend time for both. The court adjusted handover times slightly to afford the Appellant additional afternoon time and to provide the Appellee with one-on-one time with the daughter every second Saturday.

The court emphasized the necessity of cooperation and communication between the parties for the children's welfare going forward, acknowledging recent improvements and encouraging ad hoc variations with reasonable notice.

Holding and Implications

The court granted the decree of divorce based on separation exceeding two years.

The court ordered the following term-time care arrangement for the two sons: In week one, the Appellant shall have care from Sunday at 12:30 pm until Wednesday at education, and the Appellee from Wednesday at education until Saturday at 1:00 pm. In week two, the Appellant shall have care from Saturday at 1:00 pm until Wednesday at education, and the Appellee from Wednesday at education until Sunday at 12:30 pm.

This arrangement aims to serve the children's welfare by limiting long absences from either parent, providing routine and stability, and allowing meaningful weekend time with both parents. The court also gave effect to the parties' agreements regarding the daughter and holiday care.

No expenses were awarded to either party. The court did not establish new legal precedent but reinforced the primacy of child welfare and the appropriate application of the Children (Scotland) Act 1995 in care disputes.