Anonymous Summary of Court Opinion

Factual and Procedural Background

This opinion, delivered by Judge Braid, concerns an application by the Pursuer seeking a specific issue order under section 11(2)(e) of the Children (Scotland) Act 1995 permitting him to relocate with the parties' three children to a southern county referred to in the opinion as The City. The parties married in 2012 and separated in 2024. The children, three boys, have lived in The State (the country referenced in the opinion) and until recently were cared for on an approximately 50:50 shared basis. The Pursuer has already moved to The City for employment reasons and seeks an order to permit the children to move to The City to enable shared care; alternatively, he seeks primary residence in The City if the Defender will not relocate. The Defender opposes relocation and says she will remain in The State and cannot afford to relocate; she seeks arrangements as close as possible to shared care locally. A curator ad litem was appointed to represent the children's interests. The court proceeded to hear evidence including expert evidence from Attorney MacKinlay (a clinical psychologist) and submissions from the parties and the curator before reaching a decision on relocation and the further regulation of care arrangements.

Legal Issues Presented

1. Whether the court should make a specific issue order under section 11(2)(e) of the Children (Scotland) Act 1995 permitting the Pursuer to relocate with the children to The City.
2. If relocation is permitted but the Defender does not move, whether the court should make a residence order under section 11(2)(c) placing primary residence with the Pursuer in The City.
3. More generally, what arrangements as to residence and contact best accord with the children's welfare, having regard to the welfare principle, the no-order principle and the children's views.

Arguments of the Parties

Pursuer's Arguments

• Relocation to The City is in the children's best interests because it would enable shared care and a stable routine around the Pursuer's employment, with acceptable schools and housing options available.
• The Pursuer was entitled to take the The City job and should not be criticised for doing so; the Defender had previously encouraged him to take such opportunities.
• If the Defender will not relocate, the Pursuer submitted that he should have primary residence in The City because he could meet the children's practical and emotional needs more effectively there.
• As a fallback if relocation were refused, the Pursuer sought an order for substantial term-time and holiday contact and for some minimum schedule in the coming year.

Defender's Arguments

• The Defender opposed relocation because she neither wishes nor can afford to relocate to The City; relocation would substantially reduce her contact with the children and harm the children.
• Remaining in The State offers greater immediate stability: the children can remain in their current schools, maintain friendships and local support networks.
• The Pursuer should not be assumed entitled to relocate the family to suit his career; it would be unreasonable to require the Defender to move to accommodate his employment.
• If relocation is refused, the Defender proposed that the court should defer detailed residence and contact orders to allow the parties to consider appropriate arrangements in light of the relocation decision.

Curator's Arguments

• The curator supported relocation to The City only if adequate and realistic financial support and arrangements were in place to enable the Defender also to relocate to within a reasonable driving distance (approximately 30–40 minutes) so that shared care could be achieved.
• Absent such realistic financial provision for the Defender to relocate, the curator considered the least-worst outcome to be that the children remain in The State with the Defender, with a minimum of fortnightly contact by the Pursuer and enhanced holiday contact where possible.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began from the statutory framework under section 11 of the Children (Scotland) Act 1995 and the well-established principles that (a) the child's welfare is paramount, (b) the court should not make an order unless it would be better for the child than making no order (the no-order principle), and (c) the child's views must be sought and considered so far as practicable.

The court considered the statutory provisions that require attention to abuse or the risk of abuse, and to whether cooperative arrangements necessary for any order would be appropriate (section 11(7A)–(7D)). Although the parties made competing allegations of domestic abuse against each other, neither asserted that the children were at direct risk; nonetheless, the court found the Pursuer's covert recordings and monitoring behaviour concerning and recognised that compelling the Defender to relocate might be perceived by her as a continuation of controlling behaviour, a factor relevant under the statutory welfare considerations.

The court placed significant weight on the expert evidence of Attorney MacKinlay, who assessed attachment, parenting styles, the children's presentation and the psychological consequences of different care scenarios. Attorney MacKinlay concluded that shared care (50:50) was ideal for the children's welfare but noted that the parties' differing parenting styles were complementary and that the children would be disadvantaged by any substantial reduction in time with either parent. She also assessed the likely emotional impact on each child of the various scenarios, highlighting particular vulnerability for the youngest child to substantial reductions in time with the Defender.

The court then compared life in The City (The City scenario) and life in The State (remaining scenario). On The City scenario, the court found that although the Pursuer's plan could offer acceptable schooling and routine when the Pursuer had care, it depended on the Defender also relocating into suitable accommodation close enough for shared care. The evidence established that the Defender presently could not realistically afford such relocation, and that the financial assistance offered by the Pursuer was uncertain and not tested. Accordingly, if relocation were ordered, the practical effect would likely be the Pursuer becoming primary carer in The City and a major reduction in the children's contact with the Defender — an outcome the expert deemed damaging, particularly for the youngest child.

The court considered the Defender's local accommodation option (including short-term accommodation offered by a support organisation) and the benefits of the children remaining in their current schools and support networks. The principal disadvantage of remaining in The State was the substantial reduction in the Pursuer's term-time contact if he refused to return to The State for work — which he repeatedly stated he would not do — and the consequent risk that the Pursuer would become a visitor rather than an active co-parent. Nevertheless, the court found that the overall degree of stability and lesser risk of immediate harm weighed marginally in favour of the children remaining in The State.

The court balanced the children's expressed views (both older children preferring to spend equal time with each parent) and the practical realities (financial capacity, accommodation, likely cooperation required for shared care, the Pursuer's employment volatility) and concluded that, on balance, permitting relocation would carry greater and more immediate risk of harm to the children's welfare than refusing it. The court therefore determined relocation was not the appropriate order.

Holding and Implications

Core Ruling: RELOCATION REFUSED

The court refused the Pursuer's application for a specific issue order permitting relocation of the children to The City and sustained the Defender's plea in law. The court also repelled the Pursuer's alternative plea for primary residence in The City.

Direct implications for the parties:

• The children are to remain in The State with the Defender (at least as the immediate outcome determined in this opinion).
• The court will put the case out by order to determine how the children's care arrangements are to be regulated going forward; the detailed regulation of residence and contact was deferred for further procedural steps.
• No broader or binding new precedent was established; the decision was fact-specific and reached by applying established principles to the particular factual matrix before the court.

Notes on Anonymization and Sources

This summary is strictly based on the information contained in the provided court opinion and uses role-based placeholders for personal names and identifiers in order to preserve anonymity in accordance with the instructions given for this task.