PSC and others against NS (Court of Session)

Factual and Procedural Background

This opinion, delivered by Judge [Last Name], concerns a family action in which the Plaintiff sought to relocate three children from The State to The State (their previous habitual residence in The City). The underlying proof was decided in a prior interlocutor dated 30 September 2025 (the "September decision") by Judge [Last Name], which awarded shared residence of the children and refused the Plaintiff's application under section 11(2) of the Children (Scotland) Act 1995 for permission to relocate to The State (Country of origin). Two of the children (the First Minuter and the Second Minuter) later lodged minutes seeking variation of that interlocutor so as to (in substance) discharge the shared residence order, grant sole residence to the Plaintiff, and permit relocation to The State. The Third Minuter (through a curator ad litem) engaged in the process and the Plaintiff supported the boys' minutes. The Defendant opposed relocation. The question for the court was (a) when the court may revisit care arrangements after a decision after proof, and (b) whether, on the new material before the court, the September decision should be varied for any or all of the children.

Legal Issues Presented

1. In what circumstances may the court revisit or vary care arrangements previously determined after proof in a family action?
2. If the court may revisit the arrangements in this case, ought the September decision to be varied to award sole residence to the Plaintiff for the children and to permit relocation to The State?
3. If relocation is appropriate for some children, whether the Third Minuter should also relocate and what contact should be ordered for the non-resident parent.

Arguments of the Parties

First Minuter (First child)

• Submitted that there is a material change of circumstances: the September decision has not been implemented and shared residence is unworkable; the Defendant cannot act as the protective factor envisaged.
• Urged that the child's views are genuine and that relocation to The State is necessary to address identity, mental health and educational concerns (relying on clinical evidence).
• Invoked the UNCRC framework as informing a holistic welfare assessment.

Second Minuter (Second child)

• Aligned with the First Minuter: the welfare of the child requires relocation; shared residence is impracticable; clinical evidence supports genuineness of views and risk if forced to remain.
• Argued siblings should remain together and that sole residence for the boys with the Plaintiff, plus relocation, should be granted.

Third Minuter (Third child) / Curator ad litem

• Curator's interim position: it would be in the Third Minuter's best interests to move to The State with the siblings if the boys are permitted to go; preferred outcome was keeping siblings together.
• Noted that no option fully avoided harm and the court must choose the least harmful option for the Third Minuter.

Plaintiff

• Supported the minutes of the First and Second Minuters; contended that the boys' views are genuine and that the prognosis in Scotland is poor for them.
• Asserted ability to meet the children's needs in The State and proposed practical arrangements for schooling and activities.

Defendant

• Opposed relocation and argued the court should instead vary the residence orders to reflect that shared residence for the boys is unworkable while keeping the Third Minuter in the Defendant's care.
• Relied on the September decision's findings of past abuse as a significant risk factor and criticised aspects of the psychologists' reports that supported relocation.
• Proposed foster care or placement with a family member as an alternative to relocation for therapeutic purposes (though no such family member was identified in evidence).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
[2025] CSOH 90	The earlier interlocutor (September decision) setting out findings-in-fact and the original residence and refusal of relocation.	The court treated those findings as final and not open to challenge; they provided the factual backdrop against which variation was considered.
M v M 2012 SLT 428	Confirms welfare-centric, presumption-free approach to relocation/specific issue orders.	Affirmed that no presumption exists for or against relocation and section 11 welfare considerations govern.
Donaldson v Donaldson 2014 Fam LR 126	Supports welfare-focused, presumption-free approach in relocation cases.	Reinforced the court's approach to apply the welfare test without a relocation presumption.
MCB v NMF 2018 SCLR 660	Emphasises fact-sensitive nature of relocation decisions and that no exhaustive factor list is appropriate.	Supported the court's refusal to adopt a rigid factors list and to assess the matter on its facts.
JU v NU 2026 Fam LR 10	Definition and approach to assessment of abuse and risk under section 11(7C).	Guided the court's assessment of past abuse as a risk factor to be weighed in the welfare analysis.
Petition of X [2026] CSOH 15, 2026 SLT 239	Addresses respect for welfare of a child indirectly affected by decisions regarding another child (UNCRC-related consideration).	Noted but held to make no practical difference because the court was deciding for all children simultaneously.
Sanderson v McManus 1997 SC(HL) 55	Principle that no decision about parental rights is absolutely final and welfare remains reviewable.	Supported the proposition that orders affecting children can be revisited where welfare reasons justify it.
S v S 1965 SLT 131	Early authority on competency of a minute to vary and on whether change in circumstances is required.	Used to show that variation may be competent even where change in circumstances is not pleaded narrowly; informed the court's approach to competency.
Wilkinson & Norrie, The Law Relating to Parent and Child in Scotland (3rd ed, 2013)	Practice note that there is no formal statutory requirement of material change but repeated applications without change may be an abuse of process.	Helped frame the court's view that while material change is ordinarily required, the welfare gateway remains open and flexible.
AND v KWL 2021 Fam LR 123	Explains the purpose of the minute to vary procedure as enabling reconsideration of prior child welfare orders.	Supported the court's conclusion that the procedure permits examination of why prior decisions were made and whether circumstances merit further involvement.
SA v DA and MF (unreported, Edinburgh Sheriff Court, F42/08, 23 July 2015)	Discussion of the applicable test for receiving a minute to vary.	Considered in the court's survey of authorities on when to entertain a minute to vary.
AB v JB [2025] SC EDIN 62	Applied test and principles on reception of a minute to vary.	Referenced as part of the jurisprudential context for the court's approach.
Lord Advocate's References [2025] HCJAC 2	Considered in submissions about applicability of the UNCRC (Incorporation) Act to the court's functions.	Discussed but the court concluded the point was unnecessary to decide because section 11 is applied in a UNCRC-friendly manner in any event.

Court's Reasoning and Analysis

The court proceeded in two stages. First it addressed competency to vary the earlier interlocutor and the applicable legal framework. The court summarised section 11 of the Children (Scotland) Act 1995 (paramountcy of welfare, need to be better for the child, regard to views, consideration of abuse/risk and parental co-operation). The court reviewed authorities on minutes to vary and material change, concluding that while finality is important the welfare of children permits reconsideration where "something" has changed so as to render reconsideration appropriate.

Applying those principles, the court found the minutes competent because the shared-residence arrangement ordered in September had proved unworkable in practice for the two older children: (i) the boys had continued to reside with the Plaintiff and had not participated in shared care, (ii) no therapeutic intervention — envisaged at the earlier proof — had taken place and none was realistically prospectively likely while the boys remained resident in The State, and (iii) there was compelling evidence about detrimental effects on the boys' mental health if they were compelled to remain.

The court evaluated expert evidence. It accepted the evidence of the clinical psychologist who had interviewed the two boys (that their views were genuine, consistent and articulated, and that forcible maintenance of the original arrangement posed serious mental-health risks) and accepted the court-appointed psychologist's assessment of the Third Minuter. It attached less weight to the critique by the other expert who had not interviewed the children and whose opinions were expressed in terms of possibility.

On abuse, the court accepted that past abuse is an indicator of risk but concluded that, on the evidence, the risk did not outweigh other welfare considerations; the Plaintiff, as primary carer for the boys for over a year, was capable of meeting their needs.

Balancing the factors under section 11, including the children's views, identity, mental-health risks, sibling relationships and practical considerations about schooling and accommodation, the court determined it was better for the two older children to reside with the Plaintiff and to be permitted to relocate to The State. The court then turned to the Third Minuter and concluded that, although her welfare factors were more evenly balanced, the central importance of sibling relationships and the absence of a practicable shared-care arrangement in the short to medium term meant it was better for her to relocate with her siblings, subject to provision for meaningful residential contact with the Defendant.

Holding and Implications

INTERLOCUTOR VARIED: SOLE RESIDENCE AND RELOCATION GRANTED

Holding (core ruling): The court sustained the pleas-in-law for the First and Second Minuters and the Plaintiff and repelled the Defendant's pleas-in-law. The interlocutor of 30 September 2025 was varied to provide that the three children shall reside with the Plaintiff; the Plaintiff is permitted to remove the children from Scotland to The State; the children's passports held by the court are to be released to the Plaintiff; the Defendant is entitled to a minimum of six weeks of residential contact per year with the Third Minuter; and no expenses were awarded between the parties.

Implications: The direct effect is that the two older children (First and Second Minuters) are to reside with the Plaintiff and to relocate to The State, and the Third Minuter will also relocate with them (with the shared-care arrangement continuing only until her move). The court emphasised that this outcome does not overturn the correctness of the earlier September decision but reflects exceptional, changed circumstances: the original shared-residence order proved unworkable and the children's welfare (including serious mental-health risks) required a different solution. The decision was confined to these facts and the court noted it did not establish a new general rule.