Lord ordinary allows return of children to USA at their own instance after finding of severe mental health impact

About this case:

• Citation:
  [2026] CSOH 47
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Braid

Pursuer PSC and defender NS were awarded shared residence of their three children by the Outer House in September 2025. However, two of their children, FC (13) and OC (11), sought to vary that decision as it did not accord with their expressed wish to return to the USA. Ceit-Anna MacLeod KC appeared as a curator ad litem, who expressed a view that the children should remain together and, while not the best outcome for the youngest child IC (8), returning them all to America was the option that did the least harm.

The minute was considered by Lord Braid, with the parties representing themselves, the first minuter represented by Scott KC, the second minuter by Ennis KC and Aitken, advocate, and the third minuter by McGregor KC and Critchley, advocate.

Risk of depressive crisis

Until 2024, the parties lived in America, most recently in Lake Tahoe, California, with all three of their children having birthright US citizenship and dual UK citizenship since 2019. The pursuer was a dual US-UK national, while the defender was a German national with indefinite leave to remain in the UK who formerly held a US Permanent Resident card. After moving to Scotland, in December 2024 the defender told the pursuer that she had decided to separate from him.

The pursuer had wished to return to America with the three children, which the defender opposed. The first and second minuters expressed that they wished to return to America with the pursuer, having fallen out with the defender after the separation. Following proof, Lady Tait found that it was not in the children’s best interests that they return to America, against a background of allegations of domestic violence by the pursuer, taking the view that the defender should remain involved in the children’s care.

The first and second minuters, the parties’ two sons, did not react well to the decision, particularly the first minuter F, and sought their own legal advice resulting in the minute to vary. Expert evidence was led from a psychologist, Dr MacKinlay, who opined that the minuters’ views were genuine reflections of their psychological states and in F’s case removal of his hope of returning to America would pose a substantial risk of a severe depressive crisis.

For the minuters, with whom the pursuer aligned his submissions, it was argued that F’s decline in mental state was a material change of circumstances from the September decision, and the best opportunity to alleviate that distress was to return him to America. Senior counsel for the curator ad litem added that the evidence pointed to it being in each child’s best interests to remain together as a sibling group, and I in particular would benefit from residential contact with the defender.

Their way of life

In his decision, Lord Braid was critical of the evidence of the first minuter, saying: “I gained a very clear sense from his evidence that F has simply not allowed himself to enjoy life in Scotland, as evidenced, for example, by his assertion that Scotland does not have ‘nature’ (I concede that he may have a point about the weather) and that he has been unable to pursue his former activities. I accept the defender’s evidence that all of the activities which he used to do, and more, have been offered to him but he has declined to take part.”

He added: “He also appears to have set his mind against learning in school, and to have a fixed view that the American system is ‘better’, which it may or may not be. Although there was other evidence that his talents lie on the sporting, rather than in the academic, field, it is incontrovertible that he is presently demotivated and is not achieving what academic potential he has.”

Considering the benefits to a return to America, Lord Braid said: “While the court should be slow to treat mere disappointment, even displeasure, at a decision as a reason to vary it, the information before the court about the mental health consequences for the boys of their being forced to stay in Scotland, with or without the pursuer, is so extreme as to provide a further, although not the only, reason for re-appraising the children’s welfare of new, having regard to the information now available, and to re-examine whether they should remain in Scotland or be allowed to return to America.”

He concluded: “It is not hard to understand why the boys, being American, wish to pursue an American way of life, which might not be better than life in Scotland but which is different; and which was, until relatively recently, their way of life. Those views are entitled to a great deal of respect, and carry considerable weight (even more so than at the time of the proof last year, since they are now nearly 9 months older). All of this leads inexorably to the conclusion that the welfare of F and O – the paramount consideration – is best served by their not only residing with the pursuer, but being allowed to do so in America.”

The minute was accordingly granted in respect of F and O.

Importance of sibling relationships

Considering whether the parties’ third child should remain with her siblings, Lord Braid noted: “It is never a happy state of affairs when, as here, the court is invited to choose the ‘least bad’ option for a child. Most of the welfare factors are much more evenly balanced in I’s case than in the case of the boys. She has settled much better to life in Scotland. There is nothing to suggest that she would miss one parent more than the other if her parents were living on separate continents. The defender is as able to care for her full-time as is the pursuer. I does not, or at least not yet, on the evidence, see herself as American with the same vehemence as her brothers.”

However, he concluded: “The factor which tips the scales in favour of allowing her to relocate with her brothers, but without the defender (as opposed to requiring her to remain in Scotland in the sole care of the defender) is the importance of her sibling relationships to her. In simple terms it would be less harmful to her to interfere with one significant relationship in her life (her mother), than three (her father and brothers). As I have already acknowledged, to her credit, the defender does not argue that the children should be separated, painful though that will be for her, since she recognises the importance of the sibling relationships to all of the children.”

In reaching this conclusion, Lord Braid noted that he made this order on the basis the defender should have a minimum of six weeks’ residential contact with I each year.