Sheriff makes joint residence order for girl due to begin primary school despite both parents arguing for full residence

About this case:

• Citation:
  [2025] SC AIR 53
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff Anthony McGlennan

Pursuer A, the father of a child referred to as “Anne”, sought residence and interdict against Anne’s mother, B, and was originally granted interim residence until November 2023. In light of Anne reaching primary school age, the pursuer and defender both registered Anne at separate schools and agreed that the court should make an order for residence with Anne attending school in the town of the successful party.

The case was heard by Sheriff Anthony McGlennan in Airdrie Sheriff Court. Thompson, solicitor, appeared for the pursuer and Johnstone, solicitor, for the defender.

Predicated on health

The parties separated in June 2021, when Anne was seven months old. At this time, Anne began to reside with the pursuer at his mother’s house in Airdrie. The defender was awarded interim residential contact until November 2023, when her contact was adjusted to reflect Anne attending nursery in the Airdrie on Mondays and Tuesdays and a nursery in the defender’s town in North Strathclyde on the other days of the week.

Three child welfare reports were ordered by the court, each from the same reporter. In the final report, he recommended that residence be awarded to the defender on the basis that her new accommodation was much more suitable for her than her previous accommodation and that it would be best for her to attend a single school. He also noted that the defender’s health had improved considerably following the removal of her gallbladder in April 2022 and she was now able to be more involved in Anne’s life.

In his evidence, the pursuer expressed serious concerns about how Anne was cared for by the defender but nevertheless wished to promote contact. He felt that the child welfare reported had fabricated his report of Anne’s view that she would be happy to live with her mother and had skewed his questions to elicit responses from her that favoured the defender.

The pursuer’s solicitor submitted that to succeed, the defender required to present a compelling case that the status quo, under which the pursuer was Anne’s primary carer, should be departed from. The reporter’s reasoning was predicated on the defender’s improved health and accommodation, but did not set out why this meant Anne’s welfare would be better met by residing with her.

For the defender it was submitted that the criticism of the reporter by the pursuer should not be given weight. The reporter was an experienced solicitor and experienced in providing reports of this type. The defender’s status as Anne’s mother was a factor to be considered in applying the welfare principle, noting the decision of the House of Lords in Brixey v Lynas (1997) in which Lord Jauncey stated that the advantage to a very young child of being with its mother must be taken into account.

Not without flaw

In his decision, Sheriff McGlennan noted of the decision in Brixey: “This does not identify the existence in Scots Law of maternal preference as a default position. The ratio that a party’s status as a mother may be an ‘advantage’ that requires to be considered does appear to be untouched by subsequent authority. However, the ratio is heavily qualified.”

He continued: “I could not agree with the submission from the defender’s solicitor that Anne is a very young child. Anne is four years and seven months’ old and on the cusp of beginning school. Secondly, Anne has spent significant periods living apart from her mother. Even if it were correct to view Anne as a very young child, this was a circumstance which entailed that the defender’s status as the mother of Anne was not an ‘advantage’ that I required to consider.”

Considering the value of the child welfare reports, Sheriff McGlennan said: “I readily rejected the attacks on the probity of the child welfare reporter made by the pursuer (not supported by his solicitor). They were baseless. I found his reports to be of great assistance as sources of information. However, they were not without flaw, and I set aside the recommendation of the final report that the defender should be awarded residence.”

He explained further: “The reporter’s reasons fail to address the pursuer’s case. This is a fundamental flaw. They do not explain why he should not have residence, what the deficits in his circumstances are, including why the information from the health visitor and the lead practitioner were not significant factors. Bearing in mind also that there were no similar pieces of independent information supporting the defender’s case. As such, grateful although I was for the information his reports provided to the court, I could not find the reporter’s recommendation upon residence to be sound.”

On the nature of the final residence order, the sheriff concluded: “Maintaining the status quo of a settled arrangement assists a child’s welfare. It should be disturbed only with caution. Here the schooling issue required that there be disturbance. I examined how that might be best dealt with. The parent who was awarded residence during the school weeks would have Anne reside with them for a greater period than the other parent. If the parent with school week residence was the pursuer that would disturb the status quo less.”

The sheriff therefore made a joint residence order based on Anne attending school in Airdrie, with the pursuer awarded residence during the school week and the defender at weekends.