Anonymized Summary of the Opinion (as delivered by Judge Tait on 5 September 2025)

Factual and Procedural Background

This summary is drawn exclusively from the provided opinion and uses anonymized role and entity labels.

The proof concerned the Pursuer's claims for (i) a residence order for the parties' two children and (ii) an interdict prohibiting their removal from the court's jurisdiction, and the Defender's claim for contact. In the pleadings the Defender had conceded that it was in the children's best interests to reside with the Pursuer.

The parties married in The State in 2014. There are two children of the marriage: Child A (born 2016) and Child B (born 2018). The Pursuer is a national of The Country and the Defender is a national of The State. In June 2022 the Pursuer and the children travelled to The Country to visit the Pursuer's parents. On 11 August 2022 the Pursuer informed the Defender that she and the children would not return to The State.

The Defender instituted proceedings in The State (Illinois) and obtained an order for return of the children. The Defender then raised Hague Convention proceedings in The Country seeking return; a return order was made and subsequently appealed and recalled on 17 March 2023.

The children have lived with the Pursuer in The Country since June 2022. The Defender visited in August 2022. Interim court orders provided for indirect (supervised) video contact and letterbox contact; there was no contact after 6 September 2024.

Procedurally, interim orders (including interim residence in favour of the Pursuer and an interim interdict against removal) were granted on 27 September 2022. The summons in this action followed the Hague Convention proceedings. A proof was assigned for August 2024. The Defender's solicitors withdrew in May 2024, and the Defender has been self‑represented since June 2024 after being given an opportunity to instruct new solicitors. The court provided assistance and allowed continuations to permit the Defender to adjust his defences.

At a pre‑proof hearing on 1 April 2025 the court refused the Defender's motion (which sought, among other things, to sist the action, recall interim interdicts, recognise the foreign judgments and restore parental rights). The Defender repeated similar motions and made wider submissions during the proof. A vulnerable witness application in respect of the Pursuer was granted unopposed; her evidence was taken by commissioner and her affidavits formed her evidence in chief.

Legal Issues Presented

1. Whether, applying the welfare test in section 11(7) of the Children (Scotland) Act 1995, it is in the children’s best interests to make a residence order in favour of the Pursuer (section 11(2)(c) and (f)).
2. Whether it is in the children's best interests to make a contact order in favour of the Defender (section 11(2)(d)).
3. Whether an interdict should be granted to prohibit removal of the children from the court's jurisdiction (section 35 of the Family Law Act 1986).
4. Whether the factors in section 11(7B)–(7E) (risk or history of abuse, effect on the child and on carers, and the appropriateness of orders requiring co‑operation) apply so as to influence the exercise of discretion on residence and contact.

Arguments of the Parties

Pursuer's Arguments

• The Pursuer sought a residence order for both children and interdicts preventing removal from the jurisdiction, relying on the welfare test in the 1995 Act and the interdicting power in the 1986 Act.
• She gave evidence of a long pattern of verbal, physical and sexual abuse by the Defender, some incidents occurring in the children's presence (examples included repeated physical assaults, an attempted strangulation in July 2020, threats involving a firearm, and a significant episode in which a knife was stabbed into a kitchen surface while the children were present).
• The Pursuer said the Defender sent a very large volume of abusive messages (over 1,000 pages of messages lodged in process), including sexually explicit messages; the Defender continued to send abusive material (including a naked photograph) while Hague Convention proceedings were ongoing.
• Medical and expert evidence (primary‑care records and a forensic psychological report) linked the Pursuer's symptoms (an Adjustment Disorder, anxiety, post‑traumatic symptoms) to the alleged abusive conduct and concluded that continuing contact would impede recovery and could harm the children and the Pursuer.
• The Pursuer described previous indirect supervised contact as distressing to her and confusing for the children; she feared the Defender would use contact to put pressure on or to obtain information from the children and that she could not safely facilitate contact.
• The Pursuer feared removal because the Defender had obtained an order in The State and knows the children's school; she sought an interdict to secure certainty and protection for the children.

Defender's Arguments

• The Defender denied physical violence and characterised his messages and some behaviours as responses to separation, distress and frustration at being apart from the children and at the court processes.
• He described a positive, active relationship with the children and produced photographs/videos and witness evidence intended to show his engagement and loving parenting (park visits, games, educational activities).
• The Defender accepted some messages were "snarky" or inappropriate, apologised for some language, and explained the naked photograph as an expression of vulnerability at an emotional low.
• He sought contact (a graduated programme: letters, emails, calls, supervised sessions, and eventual visits) and argued that a gradual re‑engagement would be appropriate given the time away from the children.
• The Defender advanced procedural and jurisdictional objections at several points (alleging procedural irregularities, forum‑shopping, breaches of international law and other broad complaints) and sought various remedies in that context; he also criticised aspects of the supervised contact reports and raised points about omitted matters in those reports.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
White v White (2001 SC 689)	Affirms the general principle that maintaining personal relations and direct contact with an absent parent is generally conducive to a child's welfare; but if there is nothing in the relevant material on which the court could properly rely to take that view, the application must fail.	The court used White to frame the starting point: contact is ordinarily desirable but must be supported by the material in the case; absence of supporting material means the court cannot make a contact order simply on the general principle.
NJDB v JEG (2012 SC (UKSC) 293)	Emphasises that the central issue is the effect of an order upon the welfare of the child and that judgments should focus on factors relevant to the court's exercise of discretion rather than peripheral factual disputes.	The court relied on this authority to structure its inquiry around the factors directly bearing on welfare (and not to be distracted by collateral or irrelevant disputes between the parties).
J v M (2016 SC 835)	Holds that before refusing parental contact a careful balancing exercise is required to identify weighty factors (sometimes called "exceptional circumstances") that justify such a serious step in the paramount interests of the child.	The court applied this standard in requiring a careful balancing of competing considerations and concluded that, on the facts, the necessary weighty factors existed to refuse contact.

Court's Reasoning and Analysis

The court set out the statutory framework at the outset: the orders sought were in terms of section 11(2)(c), (d) and (f) of the Children (Scotland) Act 1995 and the interdict power under section 35 of the Family Law Act 1986. Section 11(7) requires the court to regard the child's welfare as the paramount consideration and not to make an order unless it would be better for the child than making no order at all. The court was also directed by section 11(7A) to have regard to the matters set out in subsections 7B–7E, including the need to protect the child from abuse or the risk of abuse and the effect any abuse or risk might have on the child or on those with parental responsibilities.

The court reviewed three sources of evidence that were central to the decision: (i) the Pursuer's sworn affidavits and evidence (taken by commissioner), supported by contemporaneous diary entries; (ii) the documentary record of the Defender's messages (a very large volume of texts and images lodged in process) and the supervised contact records; and (iii) expert and medical material (primary‑care records and the forensic psychological reports).

On the contested facts the court made findings of credibility. The Pursuer gave evidence of repeated patterns of verbal, physical and sexual abuse (with particular incidents described in her evidence), and the court found that evidence to be credible and reliable. That factual finding was supported in the court's view by contemporaneous diary entries and by the recorded content and thematic analysis of the messages lodged in process.

The expert psychological evidence (from the forensic psychiatric/psychological expert instructed by the Pursuer) analysed almost 1,200 pages of messages and identified recurring themes (belittling and emotional abuse; economic control; misogyny; threats of violence; sexualised conduct; emotional dysregulation; and other disturbing content). The expert concluded that the Pursuer displayed symptoms consistent with an Adjustment Disorder and post‑traumatic symptoms and that those symptoms related directly to the pattern of abuse alleged. The expert expressed the view that the Pursuer's symptoms would not be expected to resolve if she had continuing contact with the Defender.

The court also took account of the children's views as recorded by the child welfare reporter and the supervised contact reports (Family Mediation West). The reporter consistently found that the children were largely unaware of the litigation and expressed fondness for the Defender; supervised sessions showed positive interactions in which the Defender expressed affection and engaged the children in conversation and activities. The court accepted that these interactions had positive elements and that the children had enjoyed aspects of their time with the Defender.

However, the court explained that these positive interactions had to be weighed in the whole circumstances. The statutory factors in section 11(7B) require the court to consider the need to protect the child from abuse or the risk of abuse and the effect such abuse might have on the child and on those carrying parental responsibilities. Applying those statutory provisions, the court was not satisfied that it would be appropriate to make a contact order. The court reached the following analytical conclusions:

• Although the Defender had engaged positively with the children in supervised sessions, that evidence did not demonstrate consistent safe parenting behaviour in the context of the wider factual background.
• The Defender had sent a substantial volume of abusive messages, and there was credible evidence of verbal, physical and sexual abuse of the Pursuer, some in the children's presence. The Defender could not (in the court's view) explain away or neutralise that material: the messages were an extension of the patterns identified by the expert and demonstrated continuing hostility.
• The Pursuer remained fearful for the children and for her own safety; the Pursuer's mental health had been adversely affected by the history of abuse and by the supervised contact process; she required medical care during the proceedings.
• Given the continuing pattern of abusive conduct, the court considered the risk to the children and to the Pursuer in the event of ordered contact and concluded that the threshold for refusing contact (the "weighty factors" or "exceptional circumstances" standard) was met on these facts.
• Section 11(7D) requires the court to consider whether an order is appropriate where the order would require two or more relevant persons to co‑operate. The court concluded that, given the Defender's persistent hostility and the historical conduct, it would be inappropriate to make an order that required co‑operation between the Pursuer and the Defender.

Having carried out the welfare balancing exercise mandated by statute and the authorities cited, the court concluded that contact (direct or indirect) would not be in the children's best interests on the present material; by contrast there was ample evidence to support a residence order in favour of the Pursuer, and there were legitimate grounds for granting interdictual protection against removal from the court's jurisdiction.

Holding and Implications

Core Ruling: The court made a residence order in favour of the Pursuer; granted an interdict prohibiting the Defender from removing the children from the jurisdiction of the court; and refused to make a contact order in favour of the Defender.

Immediate consequences for the parties:

• The children will legally reside with the Pursuer pursuant to the court's residence order.
• The Defender is interdicted from removing the children from the court's jurisdiction (an interdict under the Family Law Act 1986 was granted).
• No court‑ordered contact (direct or indirect) was granted to the Defender on the present material.

Wider implications: The opinion applies established statutory welfare principles (Children (Scotland) Act 1995, sections 11(7) and 11(7B)–(7E)) and existing case law (as cited) to the facts of this case. The judgment emphasises that, while parental contact is generally conducive to welfare, affirmative findings of abuse and risk can outweigh the general presumption. The opinion does not purport to establish a novel legal principle; its effect is to resolve the parties' disputes on the facts by applying the existing statutory framework and authorities.

Administrative note: questions of expenses were reserved by the court.