Which parent should the child live with after separation?

The courts will often have difficult issues to deal with when it comes to deciding where children in a marriage should reside after the parents have separated. In a recent case heard in Edinburgh a father appealed the sheriff’s decision to make a residence order in the Mother’s favour, which allowed her to live anywhere in the UK. The appeal court had to decide if the sheriff had made errors in arriving at his decision. 

The sheriff had a difficult decision to make and this was acknowledged by the court. Whilst the Mother had custody, the issue of relocation to England caused further dispute between her and her ex-husband. A move would mean temporary upheaval but, it was argued, potential long-term stability for her and her children; better employment opportunities, closer to family and friends, and a better social life, overall having a positive impact on the children. She was also in a new relationship which was stable and, as was argued, had every chance of resulting in marriage, further cementing the prospects of a stable and balanced family life. However, the father who remained in Scotland had also enjoyed a very good relationship with the children, as had his extended family. They had all taken part in assisting in caring for the child. This, with the added issue of the younger child having various physical difficulties including partial deafness and eyesight problems, meant he required a particular degree of stability. Furthermore, the mother had gone with the children to England at various points without the permission of the father, or the court, and her conduct in this regard was called into question. It was not though practical to expect the mother’s new partner to move to Scotland given his own difficulties with his daughter.

The best interests of the child were of paramount importance as is always the case, and as the statute makes clear. Section 11(7)(b) of the Children (Scotland) Act 1995 clearly states a child’s views will be taken into account. Circumstances may mean this is not possible and in this instance, due to the difficulties with the children, it was though not practical to seek their views. It was clear that the children were happy and settled where they were, but not allowing the mother to relocate with her children to be with her partner would also be unfairly prejudicial to her and that, in turn could be detrimental to the children. Ultimately, it was a difficult question of whether the mother’s long term happiness outweighed the short term discomfort that may be experienced by the children during the upheaval of moving and changing schools. On appeal, it was argued that the sheriff had not made sufficient weight of these factors, and there were doubts over the true financial situation and long term prospects of the relationship between the Mother and her partner. At the appeal, the court did find that the sheriff had made errors in promoting the interests of the mother over the welfare of the children. The appeal court sent the case back to the Sheriff court so that on a new application by the mother, there would be a more stringent test on her to show that a move would not be detrimental to her children and it would be in their interests for a court to make a specific order. The fact of the existing residence of the children with their mother was unchanged.