Scottish Sheriff Court Decisions

 

 

F358/09

JUDGEMENT OF SHERIFF ELIZABETH T McFARLANE   in the cause   SMcC Pursuer;   against   JMcC Defender: ­­­­­­­­­­­­­­­­­________________

 

Act: Mr Moss, Ross Harper, Solicitors, Glasgow

 

Alt: Mrs Hewitt, McKinnon Hewitt,

Solicitors, Irvine

 

 

KILMARNOCK: 10 November 2010.

 

The Sheriff, having resumed consideration of the cause, Finds in Fact:

 

(1)          The Pursuer is 33 years of age. She is employed as a pharmacist. The Defender is 33 years of age and is employed as a support worker.

 

(2)          The parties were married on 9 June 2001. Their daughter, EMcC, was born on 22 August 2005.

 

(3)          The parties lived together until 23 April 2008 when they separated and they were divorced at Kilmarnock Sheriff Court on 17 September 2009. No orders were made in relation to EMcC at the time of the divorce being granted.

 

(4)          Since the parties separated they have shared the care of EMcC.

 

 

 

 

(5)          EMcC currently attends a primary school in Kilwinning. She is currently in primary one and has settled well in her first year at school. EMcC is a happy, healthy and well-adjusted child.

 

(6)          EMcC has regular weekly contact with her maternal grandmother with whom the Pursuer resides. She also has regular weekly contact with her paternal grandparents and her paternal uncle and aunt. In particular, EMcC's maternal aunt has been closely involved with EMcC and has been present at a number of milestones in EMcC's life.

 

(7)          After the parties separated, they came to an arrangement whereby they would both spend equal time with EMcC. This has by and large happened. The parties met once a month to arrange the following months care plan for EMcC. The Defender works a shift pattern and accordingly, the parties met to arrange the following months care plan once the Defender knew his shift pattern for the following month.

 

(8)          This arrangement has worked well since the parties separated and has allowed EMcC to spend almost equal time with each of her parents since the parties separated.

 

(9)          The Pursuer met her current partner, ST, on the internet in or around January 2009.

 

(10)      ST is 33 years old and is employed full time as a supply co-ordinator. He lives and works in Birmingham.

 

(11)      The Pursuer met ST in person for the first time on 9 February 2009. Since then the Pursuer has travelled to Birmingham to visit ST on approximately eight occasions and ST has visited the Pursuer in Scotland on approximately seven occasions.

 

(12)      In or around December 2009, the Pursuer and ST started to consider their future together and looked at the possibility of ST moving to Kilwinning.

 

(13)      Certain enquiries were made by the Pursuer and ST regarding the availability of jobs in the Kilwinning area. There were no appropriate jobs available at that time. There have been no further enquiries since December 2009 as to the possibility of ST obtaining employment in the Kilwinning area.

 

(14)      In January 2010, the Pursuer and ST concluded that it would be better for the Pursuer to move to Birmingham with EMcC.

 

(15)      The Pursuer's lawyer wrote to the Defender on 3 March 2010 indicating to him that it was the Pursuer's intention to move to Birmingham with EMcC no later than the summer of 2010. In response to that letter, the Defender raised proceedings to interdict the Pursuer from moving to Birmingham with EMcC.

 

(16)      If the Pursuer was allowed to move to Birmingham with EMcC, they would reside with ST, who currently lives with his mother and his step-father. The property available is a three bedroom house in the Kitts Green area of Birmingham.

 

(17)      If EMcC was to move to Birmingham with the Pursuer and live with ST, there would be a place available for her at a local primary school. The Pursuer has attended at the primary school and is satisfied that it would be an appropriate school for EMcC to attend.

 

(18)      The Pursuer has proposed a contact arrangement to the Defender which would allow the Defender contact with EMcC once a month from Friday to Sunday and to share the school holiday periods.

 

(19)      The contact proposal put forward by the Pursuer is substantially less than the situation currently enjoyed by EMcC who, effectively, spends equal time with both her parents.

 

(20)      The Pursuer wishes to move to Birmingham to be with ST.

 

(21)      If the Pursuer had not met ST then she would not be considering a move to Birmingham.

 

(22)      EMcC does not wish to move to live in Birmingham. She wishes ST to move to Kilwinning.

 

Finds in fact and law that it is not in the best interests of the child, EMcC, that the Pursuer be allowed to remove her from Scotland to live permanently in Birmingham.

 

Therefore refuses to grant the Pursuer's second crave for a specific issue order allowing the Pursuer to move said child, EMcC, to live in Birmingham; refuses the Defender's second crave for interdict as no longer being necessary; refuses the Pursuer's first crave and the Defender's first crave for residence; repels the Defender's first and second pleas in law; repels the Pursuer's fourth and fifth pleas in law; makes no finding of expenses due to or by either party.

 

 

 

Note

 

Introduction

This is a case in which the Defender seeks an interdict against the Pursuer from removing the child of their marriage outwith the jurisdiction of North Strathclyde. The Pursuer seeks a specific issue order allowing her to remove the child to live with her in the Birmingham area. Both parties seek a residence order.

 

Prior to the evidential hearing, I ordered a local member of the Bar to prepare a report and this was available on 21 June 2010.

 

Thereafter, I heard evidence over two days on 24 August 2010 and on 21 October 2010. Given the nature of the order sought by the Pursuer, I was invited to allow the Pursuer's evidence to be led first.

 

The Pursuer gave evidence supported by her partner, ST and her mother, MC.

 

The Defender gave evidence, supported by his father, JMcC, his mother, DMcC, his brother, TMcC and his sister-in-law, EMcC Senior.

 

I also interviewed the child after the evidence had been concluded on 21 October 2010. Although the solicitor who prepared the Bar Report in June 2010 indicated that in her view, the child was too young to express a view, I felt obliged to obtain her views. Obviously the weight that I attached to her views would be an issue for me to consider.

 

Background

The evidence that I heard from the parties and their various witnesses was largely uncontroversial. Following their separation the parties had largely agreed a shared care arrangement between themselves which allowed both sides of their extended family, but in particular the Defender's family, to have considerable input with EMcC. The parties had relied heavily on the Defender's family for child care almost immediately after EMcC's birth when the Pursuer returned to work fulltime. The Defender's brother and sister-in-law are EMcC's godparents and they had taken this role very seriously. They took EMcC to church every Sunday from an early age. The Defender's sister-in-law had been present when EMcC took her first step, ate her first solids and cut her first tooth.

 

Due to the Defender's work shift pattern, the parties would meet on a monthly basis to discuss the care arrangements for EMcC for the following month based on the Defender's shift pattern. The Defender's mother would then type up the rota and a copy of a sample of the rota was produced at 6/1/4 of Process. This document clearly shows that EMcC spent approximately half her time with each parent on a monthly basis.

 

I was told that EMcC had attended the local nursery school since August 2009. She made good progress during her time at nursery and she recently started primary one at the local primary school with a number of the friends that she had made at nursery. I was also told that she attends dancing classes which she enjoys.

 

Although there were one or two criticisms of the Pursuer by members of the Defender's family, these did not amount to much and I am in no doubt that EMcC is well loved and cared for by both her parents and all members of her extended family. The Pursuer was rather critical of the current care arrangement. She seemed to think that it was confusing for EMcC and did not provide the stability that she requires. The Defender did not agree with this proposition and was of the opinion that EMcC understood the arrangement in place and coped well with it. It did seem to me that the arrangement worked well because the parties made it work. I think the Pursuer was perhaps a little more cynical about the shared care arrangement at this stage because this might add support for her application to move to Birmingham.

 

The Pursuer met her partner, ST, on the internet in January 2009. They met for the first time in February 2009 and since then they had visited each other approximately fifteen times, either in Birmingham or in Kilwinning. EMcC had been present on a number of those occasions but not all of them. It would appear that EMcC has a good relationship with ST and enjoys his company. ST lives with his mother and step-father in Birmingham. He has two sisters and a brother living in the local area. His two sisters are married with children. In particular, one of his sisters has two children who have met EMcC and with whom she has formed friendships.

 

ST has had a number of jobs in the past six or seven years. He has had approximately ten to twelve jobs in that time frame. His current employment commenced in April 2007. He earns approximately £24,000 per annum. The Pursuer is currently employed part time as a pharmacist and currently works forty eight hours over a four week rota period. This involves her working in the evening, one or two days a week and on a Saturday. The Pursuer indicated that she had tried to obtain full time employment but had been unable to. She also had difficulty obtaining locum work.

 

The Pursuer and ST had decided in December 2009 to start looking at their future together which initially involved looking at the possibility of ST moving to Kilwinning. Enquiries were made through ST's employers to see if there were any vacancies in the Glasgow area. These enquiries proved unfruitful as did other employment enquiries. Thereafter, the Pursuer looked at opportunities for her to move to Birmingham and it appeared to her that job prospects in Birmingham were better than in Kilwinning. The Pursuer believes that there are more possibilities of employment for herself in the Birmingham area which would allow her to stop working in the evening and simply work during school hours. She indicated that she had received a call back following one job application but had not been able to take the matter further pending the determination of this case. In any event, she would not work initially if she moved to Birmingham with EMcC because she would want to make sure that EMcC was settled.

 

The Pursuer and ST would live initially with ST's mother and step-father in a three bedroom house. ST's mother is employed full time as a supervisor at a bus depot and is on constant back shift. ST's step-father is disabled and therefore does not work. Neither ST nor his mother can drive. The long term plan would be for the Pursuer and ST to obtain their own accommodation.

 

The Pursuer was quite clear in her evidence that she was moving to Birmingham to be with ST. She has no other connection with Birmingham and if she had not met ST then she would not be considering a move to Birmingham. She accepted that the move to Birmingham would seriously curtail EMcC's contact with the Defender. However, she understood the importance of the relationship between EMcC and the Defender so she would accommodate contact as frequently as possible. The contact proposal had been put forward in a letter from her solicitor to the Defender's solicitor, dated 19 August 2010 (Number 6/5/1 of Process).

 

The Pursuer accepted in her evidence that EMcC's principal attachment was shared equally between herself and the Defender. ST stated in his evidence that the preferred option would be for him to move to Scotland as this would be fairer all round and result in less disruption for EMcC. He indicated quite clearly that if the Pursuer was not allowed to take EMcC to live in Birmingham then he would move to Scotland and continue to search for a job.

 

The Pursuer's mother gave evidence in support of her daughter's move to Birmingham. The Pursuer's mother did not seem to think that the Pursuer had any concerns regarding the current and shared care arrangement and even when prompted by Mr. Moss to consider that EMcC was confused with the current arrangements, the Pursuer's mother did not agree. The Pursuer's mother seemed to think that the move would be good for EMcC because the Pursuer would be better off financially to provide for EMcC. Apparently there are better chances of employment in Birmingham for the Pursuer and more prospects there to provide for EMcC.

 

The Pursuer is quite clear that she will not move to Birmingham if she is not allowed to take EMcC with her. She believes that it is in EMcC's best interests to move to Birmingham although it is absolutely clear that she would not be moving, or considering a move to Birmingham, if she had not met ST. The Pursuer has been to the local primary school near ST's home where EMcC would attend if the move were allowed. She produced some information regarding the school (Numbers 5/4/6 and 5/4/7 of Process). She also produced a letter (Number 5/1 of Process) confirming that a place was available for EMcC at the school. I have no doubt that the school in question would be a perfectly satisfactory school for EMcC, if she were to move to the Birmingham area.

 

The Defender and his witnesses were obviously keen to highlight the success of the shared care arrangement which has been in place since EMcC was born. I have to say I heard nothing to persuade me that the arrangement, which is to the credit of both parties, has been anything other than a success. The Defender and his witnesses were all of the view that the move to Birmingham would be detrimental to the very close relationships that EMcC has with them all including the Pursuer's mother. They were adamant that the move was not in EMcC's best interests and that the Pursuer was only moving to further her relationship with ST. That same end could be achieved with ST moving to Scotland.

 

I met with EMcC at the conclusion of the evidence. What struck me immediately when I went out to collect EMcC from the foyer of the court building was that she was sitting happily between both parties. From the terms of the Bar Report it was also clear that there was a great deal of co-operation between the parties and this has clearly had an impact on EMcC. She appears to me to be a very happy, settled and well adjusted child.

 

As far as EMcC's views are concerned, she does like ST and spoke of him and his sister's children with whom she plays when she visits Birmingham. When I suggested to her that ST could move to Kilwinning, she agreed he could and that way she would get to see everybody. Despite the fact that EMcC is clearly a bright little girl, I have to guard against attaching too much weight to her views given the limited understanding that she must have of what is being proposed by the Pursuer.

 

 

Submissions

Mr. Moss for the Pursuer referred me to the cases of Fourman v Fourman, 1998 Family Law Reports 98, X v Y 2007 Family Law Reports 153 (a case of my own) and the English court of Appeal Decision in Payne v Payne (CA) (2001) 2WLR. Mrs. Hewitt for the Defender referred me to Sheriff Morrison's decision in AM v IM, reported 28 June 2008 and the decision of Sheriff Fiona Reith in KM v MG, reported 15 April 2010.

 

It has to be said from the outset that all these cases refer to situations where a parent has been seeking to take a child or children outwith the United Kingdom. In this case, a mother is seeking to remove a child to another part of the United Kingdom which technically means in my view that Section 2(3) of the Children (Scotland) Act 1995 does not apply.

 

This is a case in which the Pursuer is seeking to relocate to Birmingham and she has asked the Court's permission to take the child of the parties' marriage with her. On the other hand, the Defender is seeking to interdict the Pursuer from removing the child from the jurisdiction of North Strathclyde. Accordingly, in terms of Section 11(7) of the 1995 Act, the Court must consider the following three factors:

 

(1)          that the welfare of the child concerned is of paramount consideration,

(2)          that the Court must not make an order unless it would be better for the child that the order be made, rather than that none should be made, and

(3)          that the Court, taking account of the child's age and maturity, must have regard to the views of the child.

 

Mr Moss, on behalf of the Pursuer, referred to the factors detailed in the Payne case. These are that:

 

(1)          the child's welfare is paramount,

(2)          there is no presumption in favour of, or against, an order allowing a child to move,

(3)          that the party seeking to move the child has reasonable plans,

(4)          the proposals of the plan have been scrutinised with care,

(5)          there is a genuine motivation on the part of the parent seeking to move,

(6)          the effect on the party seeking to move and any refusal to allow that party to leave,

(7)          the effect on the child of any reduction or denial of contact with the other parent, and

(8)          the impact on the parent left behind.

 

Mr Moss argued that the Pursuer wishes to relocate to Birmingham because she is involved in a stable and committed relationship with ST. They want to live together. They had looked at the other option of ST moving to Scotland but they had reached the conclusion that it was better for the Pursuer to move to Birmingham. ST is in full time employment. The Pursuer is in part time employment. There is adequate accommodation for them at ST's mother's home and there is a school place available for EMcC. The Pursuer is satisfied that the arrangements will meet the needs of EMcC. EMcC has spent time in Birmingham and has enjoyed her time there. The child has a close relationship with ST and the Pursuer has put forward satisfactory proposals for contact with the Defender. Accordingly, Mr Moss argued that the Court could be satisfied that reasonable plans had been put in place and those plans had been carefully thought out. The Pursuer's motivation was genuine. Mr Moss confirmed the Pursuer's evidence that EMcC's relationship with the Defender was extremely important and she recognised that in her proposals for contact. These contact proposals were reasonable and the Pursuer could not be accused of seeking to cut the Defender out of EMcC's life. Mr Moss questioned whether it was reasonable for the Defender to prevent the Pursuer from moving on with her life. In the event that the Court would not allow EMcC to move to Birmingham with the Pursuer then the Pursuer would not move. ST would move up to Scotland.

 

Mr Moss referred me to the report which had been prepared by Miss Templeton. Again, Miss Templeton did not believe that there was any hint of the Pursuer seeking to cut the Defender out of EMcC's life. She highlighted the financial reasons being the main reason for the Pursuer wishing to move to Birmingham rather than ST moving to Scotland.

 

In Mr Moss's submission, the Pursuer had put forward a case that meets the relevant test. He suggested that the current arrangement which has been in place for some time brought about some uncertainty for EMcC. No two months were the same. If the Pursuer was allowed to move to Birmingham with EMcC, then she would have one home. She would live with her mother in Birmingham and have contact with her father.

 

Mrs. Hewitt for the Defender argued that the circumstances of this case are very different from the other cases cited. The other cases started with the premise that the parent seeking to move already had a residence order. In this case, neither party has a residence order. The parties have shared the care of EMcC since her birth and following their separation. A detailed shared care plan was put into operation. This arrangement has worked successfully and that is the starting point for this discussion. The arrangement has brought enormous stability for EMcC and the stable environment within which EMcC has thrived has been created by the Pursuer, the Defender and members of their extended families.

 

If EMcC was allowed to move to Birmingham with the Pursuer, she would lose the significant contact that she has not only with the Defender, but with the other significant people in her life, including the Pursuer's mother, the Defender's parents and the Defender's brother and sister-in-law. All these people have been intricately involved in EMcC's life from the day of her birth.

 

Mrs Hewitt disagreed with Mr Moss stating that the Pursuer's plan was ill thought out and unreasonable. The solution of ST moving to Scotland had not been adequately explored. ST had attempted to look for a job. However, this search for employment had been rather half-hearted. ST had not registered with any agencies and had not sought a transfer through his own employers since December 2009. Mrs Hewitt highlighted the fact that ST had admitted in evidence to having numerous jobs during the last twelve year period. These jobs had been in various fields and Mrs Hewitt was critical of the fact that ST had not made a significant attempt to seek alternative employment in Scotland. On the other hand, the Pursuer has a degree in pharmacy and the potential to work full time, earning a significant income. Again, her attempts to seek full time employment in Scotland had not been properly explored.

 

The issue of family support was highlighted by Mrs Hewitt. At the moment EMcC is happy at school and has a wide family support network which means that she does not have to attend after school care. Mrs Hewitt highlighted the fact that the Pursuer has no family in the Birmingham area and there was no evidence that the Pursuer would have any assistance with child care. Neither ST nor his mother drive. His mother works full time and is on constant backshift. One of his sisters works and there was no evidence that the Pursuer had even met his other sister.

 

It was the Defender's position that the Pursuer's motive to move to Birmingham was to be with ST. She has no job, no home and her plans to get her own house with ST seemed far fetched given the financial situation they would be in if she was allowed to move. Mrs Hewitt's position was that the Pursuer's motivation was purely selfish and no account was being taken of what was best for EMcC.

 

The contact proposals put forward by the Pursuer fell far short of the current arrangement of shared care. Mrs Hewitt's position was that the shared care arrangement which has been in place for five years is fundamental to this case. Mrs Hewitt also highlighted the very close relationship that EMcC has with members of the parties' extended family and the way in which she benefits from those relationships. She highlighted the regular and constant contact that EMcC has had with members of the extended families. In her submission, the bonds between EMcC and these other members of the family were much closer than normal and should not be altered. The Defender did not wish to become a "weekend and holiday dad" which is what the contact proposal outlined by the Pursuer would effectively make him. EMcC was used to a shared residence arrangement and the contact with her father would be diminished substantially if the Pursuer was to move to Birmingham with her.

 

Whilst Mrs Hewitt accepted that EMcC's view would have to be considered in light of her age and maturity, she did point out that EMcC had stated that she wished to remain in Kilwinning and was happy with the idea of ST moving to Kilwinning.

 

Looking at the effect of the move on the Pursuer and the potential refusal to allow her to move, Mrs Hewitt suggested that there was no immediate impact on the Pursuer. There would be no effect financially because the Pursuer would continue to work as she was at present. ST could move up to Scotland and potentially get a new job here. The upheaval and disruption that would be caused to EMcC if the move was allowed would be detrimental to the best interests of EMcC. There would be little or no effect of refusal on the Pursuer and as far as EMcC was concerned, if the order was refused then this would have a positive effect on her welfare because the status quo would remain and this would be in her best interests.

 

Mrs Hewitt urged me to refuse the Pursuer's specific issue order and to grant a residence order to both parties.

 

Decision

I will deal with the relevant factors highlighted in the Payne case in turn:

 

Reasonableness

I do not consider the Pursuer's decision to move to Birmingham with EMcC as reasonable. I agree with Mrs Hewitt that a crucial factor in this case is that there has been a shared residence arrangement between the parties for EMcC's entire life. That arrangement has worked well and EMcC certainly appears to have benefited from the stable and carefully planned arrangement that the parties have put in place. She is a credit to both parties and I commend them on the way in which they have handled themselves in relation to EMcC's care following their separation.

 

Against that background, I have to consider whether it is in the best interests of EMcC to be moved to Birmingham. Such a move would of necessity diminish the very regular contact that she has had with the Defender and the extended members of his family. By the Pursuer's own admission, she would not be moving to Birmingham had she not met ST. The reason why she is moving to Birmingham is to be with ST. The reason he is not moving to Scotland is because the Pursuer believes that it is more financially viable for her to move to Birmingham. I am not persuaded by that argument and there was simply not enough evidence to conclude that that is the case. ST is not a skilled worker who has any qualifications. He has had numerous jobs over the past twelve years and if he moved to Scotland, whilst he may not obtain employment in the same firm within which he is currently employed, I have no doubt that he would be able to obtain employment of some sort, given his work history. On the other hand, the Pursuer is a pharmacist with a university degree. She works part time and earns a good income from that part time employment together with locum work that she carries out on a fairly regular basis. If she moves to Birmingham, she would not work initially and therefore would lose her independent source of income.

 

If the Pursuer and EMcC were to move to Birmingham, they would live initially with ST in his parent's home. They would not be able to purchase their own accommodation on ST's income alone and it is not clear whether they would be able to purchase their own accommodation in the area in which ST resides at present.

 

The Pursuer does not have any family in Birmingham. All other members of EMcC's family on her mother's side and father's side live in Kilwinning.

 

As far as the school is concerned, I have no reason to doubt that if EMcC was to move to that school that she would do anything other than settle in and make new friends. However, this is only one factor to consider against many others.

 

I do not think that the Defender's proposed move can be described as reasonable.

Motive

There is no suggestion that the Pursuer wants to move to Birmingham to thwart the Defender's contact with EMcC. The Pursuer wishes to live with her new partner, ST. I see no reason why the Pursuer's partner, ST, cannot move to live in Kilwinning. I do not accept on the evidence before me that EMcC will grow up in a better environment if the Pursuer is allowed to move to Birmingham rather than stay in Kilwinning. It seems to me that ST can easily move to Kilwinning and as he accepted in his evidence, this would cause much less disruption to EMcC and be fairer all round.

 

The importance of contact with the Defender

EMcC has a very close relationship with the Defender and members of his extended family. I have already indicated the significant weight that I have attached to this arrangement and in my view, the significant impact that a move to Birmingham would have on the arrangement.

 

I do not consider that the proposed contact arrangement put forward by the Pursuer in the event that she is allowed to move to Birmingham is in any way satisfactory given what has been the arrangement until now. Accordingly, I find that the close relationship that EMcC has with the Defender would be adversely affected if the Pursuer moves to Birmingham.

 

Importance of child's relationship with family members

I am in no doubt that there is a strong bond between EMcC and her paternal and maternal relatives. The Pursuer's mother lives in Kilwinning and indeed the Pursuer and EMcC live in her home at present. EMcC sees her paternal grandparents and her paternal aunt and uncle regularly and they are all actively involved in the child care arrangements.

 

The bond between EMcC and these relatives would be adversely affected if the Pursuer was allowed to move to Birmingham with EMcC.

The extent to which contact between the father and child can be maintained

The Pursuer has put forward a contact arrangement which is clearly limited given the distance between Kilwinning and Birmingham. The proposal is for the Defender to see EMcC one weekend a month from Friday to Sunday. This arrangement would involve a significant amount of travelling for EMcC and would effectively mean that the Defender would only have one full day with her in Kilwinning each month. During this time, the Defender would want EMcC to spend time with his relatives. The extended holiday contact proposed would allow for more meaningful contact to take place, but it is still a massive reduction from what EMcC is currently used to as far as seeing the Defender and his family are concerned. Whilst contact between EMcC and the Defender would be maintained it would obviously not be of the same quality or quantity as they have been used to until now. This is a significant factor in this case.

 

The extent to which the child may gain from family relationships as a result of the move

Neither the Pursuer nor the Defender has family in Birmingham. I appreciate that the Pursuer's new partner, ST, lives in Birmingham with his family but to be fair, with the exception of ST, these people are relative strangers to EMcC.

 

The child's views

Whilst I spoke to EMcC about the Pursuer's plans to move to Birmingham, I cannot attach a huge amount of weight to her views, given her young age and limited understanding. She knows that Birmingham is far away and that if she moved to Birmingham with the Pursuer she would not see the Defender as often. I do not think that a child of five years old has any perception as to how the distance between Birmingham and Kilwinning would impact on the relationship that she has with her father and members of his family. When I spoke to EMcC about the possibility of ST moving to Kilwinning, she readily agreed that this would be good, because she would get to see everybody.

 

The effect of the move on the child

EMcC would be removed from her father, his extended family and her mother's extended family. The only family she would have in Birmingham would be her mother. Whilst they would hope that the relationship between them would develop, the Pursuer and ST have never lived together and have only spent short periods of time together during the last eighteen months. Neither party highlighted this in their submissions to me but I think it is relevant. It seems to me to be a huge move for EMcC to be expected to make, when the Pursuer and ST have actually never lived together or been together for more than a week at a time.

 

It would appear from the evidence available to me and given EMcC's personality, that she probably would ultimately settle in Birmingham but as previously indicated, I do not accept that the proposed contact arrangements could ever be a substitute for the very significant contact that she has with the Defender at present. I think this would be detrimental to EMcC and it should be avoided unless absolutely necessary. I do not consider that the Pursuer's proposed move to Birmingham is necessary - far from it.

 

I agree with Mrs Hewitt that the disadvantages that a move to Birmingham would involve significantly outweigh the advantages of staying in Kilwinning.

 

The effect of refusal on the Pursuer and the child

Since the Pursuer and ST both indicate in their evidence that ST would move to Scotland if the Pursuer was not permitted to take EMcC to Birmingham, then I see very little impact on the Pursuer's main objective and that is to live with ST. I am not persuaded that the Pursuer's concerns that ST moving to Kilwinning is not a financially viable option. I do not think it has been property explored and there is no evidence before me that would tend to show that remaining in Kilwinning would mean that the Pursuer and ST were any better or worse off financially.

 

If the order is refused, then the status quo remains and that, in my view, appears to be what is best for EMcC.

 

Best interests of the child

I do not consider it to be in EMcC's best interests to make an order to allow the Pursuer to take her to live in Birmingham. The Pursuer's proposal does not seem to me to be reasonable. There is no requirement for the Pursuer to move to Birmingham. The substantial contact that EMcC has with her father, members of his family and her maternal family indicate a close bond which will be materially affected if she moves to Birmingham. EMcC wants to remain living in Kilwinning. Accordingly, I refuse to make the specific issue order for the Pursuer to take EMcC to Birmingham.

 

I think it is in the best interests of EMcC that the shared residence arrangement which has hitherto operated successfully should remain in place. I was urged by Mrs Hewitt to make a residence order in favour of both parties. I am not persuaded that such an order is needed given that both parties retain full parental rights and responsibilities in relation to EMcC. Following the "no order" principle of the 1995 Act, I fail to see how a residence order in favour of both parties takes them any further from the position they both currently enjoy. Accordingly, I do not consider it necessary for an order to be made in favour of either party and the status quo will remain.