Summary of Opinion — Outer House, Court of Session ([2025] CSOH 90)

Factual and Procedural Background

This opinion, delivered by Judge Tait, concerns disputed residence and relocation applications following the parties' separation. The Pursuer and Defender married in 2006 in The State and lived there until mid-2024. They have three children: two sons (aged 12 and 10) and a daughter (aged 7). The family moved to The City in 2024. The parties separated on 4 December 2024. The Pursuer is a dual national of the United Kingdom and The State; the Defender is a national of another country and also holds lawful permanent residence in The State.

After separation, the Pursuer sought orders under the relevant child welfare statute (section 11 subsections (2)(c) and (e) of the Children (Scotland) Act 1995) to have the children reside with him and to remove them from The City to The State. The Defender responded seeking orders under section 11(2)(c) for residence arrangements in The City and opposed removal.

An expedited proof procedure was ordered because of the Pursuer's relocation application. Evidence was heard over multiple days (11 days in total). Witnesses included lay witnesses, clinicians and immigration law experts whose written reports were relied upon in evidence. The court heard contested evidence about: the parties' roles as carers while living in The State; the planning, purpose and expected duration of the move to The City; allegations of physical and verbal abuse by the Pursuer (including a contested incident in a motel bedroom in The State in mid-2024 involving the younger son); the children's current views about where they want to live; and the Defender's ability, in immigration terms, to return to and live and work in The State.

Legal Issues Presented

1. Whether it would be in each child's best interests (welfare) to make a residence order permitting the children to reside with the Pursuer and to relocate permanently to The State.
2. Whether it would be in each child's best interests to continue or adopt a shared-residence arrangement between the Pursuer and the Defender (including the existing shared care for the daughter and proposed shared care for the sons).
3. Whether the Defender can legally and practically return to The State to live and work such that a removal order would not prevent the children from maintaining a meaningful relationship with her.
4. Whether the evidence of alleged abuse (physical abuse to the younger son and verbal/emotional abuse towards the Defender) is established on the balance of probabilities and, if so, whether that engages the child-protection criteria in section 11(7B)–(7E) of the 1995 Act.
5. Admissibility of novel expert evidence (specifically evidence relating to "Child and Mother Sabotage" / CAMS) under the reliability principles articulated in Kennedy v Cordia.

Arguments of the Parties

Pursuer's Arguments

• The children are settled and previously had a happy, well‑established life in The State with strong community ties, schooling and extracurricular activities; returning to that life is in their best interests.
• The Pursuer asserted he was the primary carer from about 2017/2020 onward and that the household resources (family home, schools, clubs) in The State remain available.
• Even accepting some short-term upset, long-term advantages of returning to The State (education, support network, employment prospects for the Pursuer) favour relocation.
• The Pursuer denied the Defender's allegations of sustained abusive conduct; he characterised any physical interventions as limited, not amounting to the serious assaults alleged.
• On the Defender's immigration position, the Pursuer relied on evidence from immigration experts suggesting the Defender might be able to visit or regain status in The State under certain procedural options.

Defender's Arguments

• The Defender opposed relocation: she seeks the children to remain in The City so that she can continue to care for and safeguard them and rebuild relationships, particularly with the sons.
• The Defender denied that a return to The State is in the children's best interests given the evidence of abuse and the risk of further harm from the Pursuer.
• The Defender gave detailed evidence of incidents of physical assault against the younger son and of ongoing verbal and controlling behaviour by the Pursuer toward her and the children; she maintained that these facts engage the statutory protective considerations.
• The Defender asserted she had resigned from her post in The State and accepted posts in The City; she applied for indefinite leave to remain in The City and, given the immigration steps taken, argues she would likely be unable to return to live and work in The State on a long‑term basis.
• Experts instructed for the Defender (psychological and immigration) gave evidence about the Defender's psychological state, the children's possible influences and the realistic prospects (or limitations) for the Defender's returning to The State.

Table of Precedents Cited

Court's Reasoning and Analysis

Statutory framework: The court set out the statutory powers under section 11(2)(c) and (e) of the Children (Scotland) Act 1995 to make residence and specific issue orders and quoted section 11(7) directing that the child's welfare is the paramount consideration, together with the requirement to consider the child's wishes and feelings (age and maturity permitting). The court also identified section 11(7A)–(7E) (in particular the factors in 7B–7D) which require consideration of the need to protect the child from abuse or the risk of abuse and to consider whether co‑operation between relevant persons would be required under any order (section 11(7D)).

Admissibility of novel expert theory: The court considered an objection to the admissibility of evidence concerning "Child and Mother Sabotage" (CAMS). Applying the authority in Kennedy v Cordia the court concluded that CAMS was a relatively new label with insufficient reliable published body of knowledge to underpin admissible expert evidence and sustained the objection, excluding CAMS evidence.

Evaluation of evidence and credibility: The court heard detailed lay evidence from friends, neighbours and school staff, and expert evidence (psychological assessments and immigration law opinions). The court stated it took no issue with the credibility of the lay witnesses generally but found that the central contested issues were (i) the children's views and whether those views were the children's own or influenced; (ii) whether the Pursuer had behaved abusively to the children and the Defender; and (iii) the Defender's realistic ability to return to The State to live and thereby preserve regular contact with the children if they relocated.

Findings on abuse: After assessing the evidence, including the Defender's detailed testimony about an episode in a motel bedroom in mid‑2024 and corroborating secondary testimony that the Defender reported incidents to family and third parties, the court found the Defender to be a credible and reliable witness. The Pursuer's denials were considered. The court concluded that the Pursuer had been physically abusive to the boys, specifically accepting that the motel incident involved a kick to the younger son's abdomen as part of repeated episodes of intervention. The court also accepted the Defender's account of the Pursuer's verbal and demeaning behaviour toward her. The court did not find sufficient evidence to conclude that the Pursuer exercised financial control as alleged in the post‑separation solicitor correspondence context.

Engagement of statutory protective factors: Having found physical abuse and ongoing verbal abuse, the court concluded that the statutory protective factors in section 11(7B)–(7E) were engaged: the need to protect the children from abuse or risk of abuse; consideration of effects on the children; assessment of the Pursuer's ability to care for the children; and whether an order would require cooperation between the parties.

Children's wishes and influence: The court placed significant emphasis on the children's independently expressed wishes as reported by the court‑appointed child assessor (Attorney Edward). All three children expressed a preference to live with the Pursuer and return to The State; the two boys expressed strong and almost absolute opposition to residing with the Defender; the daughter expressed a preference for continuing shared care and was the most open to maintaining contact with both parents. The court considered contesting expert commentary which suggested the children's views might be influenced by conflict, loss, or coaching. The child assessor's reports were accepted in full; the court found no evidence in the interviews that the children's views were rehearsed or coached, although the assessor acknowledged limits and the potential need for further investigation if specific abuse allegations were proven.

Immigration evidence and practical feasibility: The court heard competing immigration expert evidence about the realistic prospect of the Defender returning to live and work in The State. One expert (Attorney Jackson) provided a relatively optimistic line that the Defender could preserve or reinstate lawful residence if she returned within certain timeframes and took procedural steps; the other expert (Attorney Rugendorf) emphasized that the Defender's resignation from employment in The State, acceptance of employment in The City, the application for indefinite stay in The City and other actions were highly likely to be treated as evidence of abandonment of permanent resident status in The State, making a reliable return to live and work in The State improbable and legally risky. The court concluded that the Deputy's (Defender's) steps made an immediate return to live and work in The State unlikely; the only assured short‑term option would be very limited stays (e.g., visitor entry) and other routes to long‑term residence would take substantial time and be uncertain.

Balancing welfare: The court carried out a careful balancing exercise. It acknowledged the strong and understandable wishes of the children to return to The State and their previously settled life there. However the court balanced those wishes against the findings of physical abuse and the statutory duty to protect children from abuse or risk of abuse. The court also weighed the Defender's continued significant parenting role (particularly for the daughter) and the practical reality that the Defender could not be guaranteed to live and work in The State on a long‑term basis if the children relocated. Considering the possibility of therapeutic restoration of relationships, the court concluded that the Defender's presence and ability to safeguard the children would best be secured if the children remained in The City with a shared‑residence arrangement rather than being removed to The State into the sole care of the Pursuer.

Cooperation and feasibility of shared care: The court noted imperfect but functional co‑operation between the parties post‑separation (noting the existing shared care arrangement for the daughter) and considered the statutory requirement to assess whether co‑operation would be required and appropriate. The court concluded that a shared residence order requiring parental cooperation was appropriate and could be expected to operate in the children's best interests.

Holding and Implications

Core ruling: The court refused the Pursuer's application for a residence order in his favour and refused the specific issue order authorising removal of the children from The City to The State. Instead, the court made a residence order for the children to reside equally between the parties (shared residence).

Implications (direct effect on the parties):

• The children will not be returned to The State to live in the sole care of the Pursuer; they are ordered to reside equally between the Pursuer's and the Defender's homes in The City.
• The Pursuer's relocation/removal application is dismissed; therefore the Pursuer must not remove the children from The City to The State as their habitual residence without further court authorisation or the Defender's consent.
• The decision emphasises protective considerations under section 11(7B)–(7E) of the Children (Scotland) Act 1995 and requires the parties to co‑operate to effect shared residence in the children's best interests.
• The court reserved all questions of expenses meantime.
• No wider legal precedent was stated beyond the application of established welfare principles and the exclusion of a novel expert label (CAMS) for lack of an adequate evidential foundation.

Judge Tait's conclusion underlines the court's approach: the children's welfare is paramount, their wishes matter but do not override protective obligations, and practical immigration realities are material when assessing whether a proposed relocation will allow the children to maintain a meaningful relationship with both parents.

Note on anonymization: All personal names, firm names and specific place names in the source opinion have been replaced by neutral, consistent placeholders (for example "Pursuer", "Defender", "Judge Tait", "Attorney [Last Name]", "Company A", "The Hospital", "The City", "The State") in order to comply with the anonymization instruction for this summary.