Seonaid Cochrane

PSC, the father, sought a specific issue order to relocate with the parties’ three children to the US, where the family had lived before their move to Scotland in July 2024. The mother, NS, resisted that application. Two of the children, F and O, lived with their father after separation and had very little contact with their mother. The child, I, split her time between both parents.

There were serious allegations made against the father of verbal, emotional and physical abuse of the children and separately, verbal and emotional abuse of the mother.

There were also immigration difficulties for the mother. There were questions about whether she would be able to return to the US on a permanent basis and concerns that temporary ESTAs may not be a viable option or allow for her to maintain a meaningful relationship with the children.

The children’s views

In determining what was in the children’s best interests, the court was clear about the duty to consider the children’s views in terms of s11(7) of the Children (Scotland) Act 1995.

The children gave very clearly expressed views. Child F and O were consistent and definitive in their desire to return to the US and to live with their father. F was open to contact with his mother if they returned to the US, but O did not want to see his mother again. The child, I, didn’t immediately want to change her situation although her preference would be to return to the US.

There was discussion about whether the children’s views, particularly those of F and O, were independently held or had been influenced. The court appointed child psychologist agreed that, if the children (and particularly O) suffered the abuse alleged then that “would place a different hue on the child’s presentation” (para 200) and would warrant further investigation. It was also accepted that the systematic dynamic around the child can influence their views; influence does not need to be active in the form of alienation or coaching.

The decision

The court refused the relocation application, ordering that the children remain in Scotland and that they split their time between their parents.

The court accepted the mother’s account of abuse, including an instance of the father repeatedly kicking the child O. In light of those findings, the factors in s11(7A) to (7E) of the 1995 Act needed to be considered. The court accepted that there was a risk that abuse would reoccur and that it was necessary to have protective factors put in place to safeguard the children. The court found that the mother’s significant involvement in the children’s lives would act as a protective factor against future abuse.

Shared care would require therapeutic input but was most likely to be successful if the family was all in the one place. The court accepted that the mother’s ability to return to the US was uncertain.

In concluding, Lady Tait stated: “I regret that I cannot do what the children want me to do. I do not dismiss their wishes. I have had to balance their wishes with keeping them safe and allowing them to access the care of both parents.”

Key takeaways

The decision emphasises that the child’s views are important but that even very strongly held views will not be determinative if the court considers that, looking at the short- and long-term consequences, the child’s best interests favour a different course.

The case is also an important reminder to carefully consider the remit of any psychologist or reporter taking the child’s views and to consider whether those views could be influenced by one or other party, whether actively or by the systematic dynamic around the child.

Seonaid Cochrane is an associate at SKO. She was lead agent with counsel, Marie Clark KC, for the mother.