Sheriff rejects father’s bid to alter shared residence arrangement amid ‘entrenched parental conflict’

About this case:

• Citation:
  [2026] SC HAM 105
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff J Speir

Sheriff J Speir held that the father had not provided a persuasive welfare-based reason for altering an arrangement under which the children, aged 12 and 10, had been living broadly equally with both parents since 2021. The sheriff also ordered an adjustment to the division of the proceeds of the former matrimonial home to take account of mortgage capital paid solely by the mother following separation.

The parties married in December 2011 and separated in July 2020. Their former matrimonial home in Lanarkshire was jointly owned and remained occupied by the defender and the children following separation. An equal shared care arrangement developed from around September 2021 and was formalised by an interlocutor in November 2023. By the time of proof, both daughters were happy and settled under that arrangement.

The pursuer sought an order under which the children would spend eight nights in every fortnight with him and six with their mother, together with a sole residence order in his favour. The defender opposed any change and sought continuation of the existing arrangement.

At proof, the pursuer was represented by Mr Thompson, solicitor, and the defender by Ms Agyako, solicitor.

Children content with existing arrangement

Relations between the parties had deteriorated substantially after separation. Among the disputes were disagreements concerning the children’s education, medical matters and appearance. Communication eventually ceased altogether in April 2025. A separate dispute over the elder daughter’s secondary school had previously required determination by the court. The pursuer made a placing request for one school without consulting the defender, while the child wished to attend another. His application for a specific issue order was refused and the child subsequently became settled at her preferred school.

The children’s views were obtained on three occasions by a child welfare reporter. In the original report in 2023 both expressed contentment with the arrangements and their time with each parent. The reporter observed that their “positivity about their lives and obvious love for their parents” contrasted sharply with their parents’ presentation of one another. A supplementary report in March 2025 recorded that both children wished the arrangements to continue. A further report later that year again found that both remained strongly attached to each parent and content with the status quo, although the elder daughter was beginning to gravitate towards spending more time with her mother. Sheriff Speir declined to obtain yet another report before deciding the case. Their views had remained consistent and he was conscious that repeated requests for her views were beginning to cause the elder daughter discomfort.

‘Parent with control’

The sheriff was critical of aspects of the pursuer’s case. His proposed arrangements had changed shortly before and during the proof. He initially sought a nine-to-five split in his favour before modifying that position in submissions to an eight-to-six division. Sheriff Speir said he was “unimpressed by him as both a party to this litigation and as a witness”, particularly because he had embarked upon proof without a clear practical proposal beyond a wish to be recognised as the parent with greater control.

The sheriff considered that the pursuer had demonstrated a “profound inability” to explain why the proposed alteration would advance the children’s interests. He added that a “self-serving and blinkered view” had affected his evidence, although he made clear that responsibility for the parents’ dysfunctional relationship did not rest solely with the pursuer. He considered that the defender also knew how to provoke adverse reactions and had contributed to the continuing conflict.

The pursuer had also relied on material he said he discovered through the defender’s Google account using one of the children’s devices. The sheriff accepted that he had been able to access the account because the device was linked to it, but did not accept that sexually explicit material had been present as alleged. He regarded much of the historic search material as peripheral to the children’s welfare and rejected the suggestion that it established serious safeguarding concerns.

‘Entrenched parental conflict’

Sheriff Speir applied section 11(7) of the Children (Scotland) Act 1995, identifying the relevant principles as the paramountcy of the children’s welfare, minimum intervention and the requirement to have regard to their views. He also referred to authority establishing that, although there is no strict legal onus in disputes of this kind, a parent seeking to disturb an established arrangement carries an evidential burden to place material before the court capable of justifying the change.

Applying those principles, the sheriff said he had “little hesitation” in rejecting the pursuer’s application. The existing arrangements were long established and were supported by the children, the defender and even the pursuer’s own mother. Sheriff Speir rejected the pursuer’s contention that becoming the principal resident parent would help counteract his perceived alienation and improve communication. He said: “Properly analysed this is not a case in which any serious concerns have been established rather it is characterised by entrenched parental conflict.”

The suggestion that recognising the pursuer as the main carer would lead to better communication was described by the sheriff as “fatuous”. Although communication between the parents remained a significant problem, both children continued to thrive under the existing arrangements. The sheriff therefore made a final shared residence order maintaining the current term-time pattern, together with provision for holidays, including alternate full weeks during the summer. He urged both parents to “put their mutual antipathy to the side” and work towards effective communication, adding: “I have no doubt that both parties clearly care for their children and it is incumbent upon them to place the children’s welfare above their differences.”

Mortgage payments justified adjustment

The remaining financial dispute concerned payments made by the defender towards the mortgage on the former matrimonial home after separation. She had met all mortgage payments until the property was sold in March 2025, paying just under £25,000 in capital and interest. The outstanding mortgage fell by £7,266.19 during that period. Sheriff Speir held that the appropriate figure for the purposes of section 9(1)(b) of the Family Law (Scotland) Act 1985 was the reduction in mortgage capital rather than the total payments made. That reduction represented both an economic advantage to the pursuer and a corresponding disadvantage to the defender.

The sheriff rejected the argument that this was offset by the defender having occupied the property. She had also paid the interest and other costs required to preserve the jointly owned asset, and the sheriff was not satisfied that she alone was responsible for delay in selling it. He similarly declined to treat aliment paid by the pursuer for the children as a corresponding economic disadvantage.

After the wider matrimonial property calculation was taken into account, the sheriff concluded that the pursuer owed the defender a balancing payment of £814.08. To achieve that result using the £51,956.09 net proceeds of sale held by the pursuer’s solicitors, he ordered that £1,628 first be paid to the defender, with the remaining balance then divided equally. Decree of divorce was also granted on the basis of more than two years’ non-cohabitation. The question of expenses was reserved.