The recent Court of Session judgement of AH against SH has once again provided food for thought for Family Lawyers both in relation to the issue of relocation, protection from abuse and shared care.
Both parties sought residence orders in respect of their three children. The father also sought an order for children to attend specific schools with the mother seeking an order for the court to allow her to move to reside with the children in England.
The father had a history of substance misuse he accepted that he had an addictive personality. He accepted he had used cannabis on an increasing basis and began using tranquilisers in 2018 and 2019. He had attended a rehabilitation hospital during the court of the marriage. A consultant psychiatrist gave evidence about the risk of relapse for the pursuer and opined that if he continued to maintain his abstinence of substance misuse as he had done since departure from the facility in May 2020, he did not perceive any risk to the children in respect of non-residential or residential care by him.
The parties also jointly instructed an experienced forensic clinical psychologist to prepare a report in respect of matters of risks concerning the father. It was felt that the father was positive and future focused on his children. The contact arrangements that were in place were supported by a nanny who had known two of the children since birth and one since the age of one.
The history of spousal abuse in the case was a prominent factor according to one of the experts. The father did accepted that he had behaved in fear inducing and intimidating way towards the mother. That alone was sufficient for the psychologist to determine that spousal abuse was present in the case. The risks prevented by the husband would increase if he began using substances. Despite this the psychologist did not feel there were obstacles to shared care. He concluded that he had no reservations about the father’s ability to parent but he was aware of substance misuse and the potential for relapse.
A considerable focus for the mother, who wished to relocate to England was that she had suffered post-traumatic stress as a result of the pursuer's behaviour towards her. She described various incidents over the course of the marriage in which she had been subjected to abusive behaviour by the pursuer. She was enthusiastic about a move to England. She described a network of support available to her in that area and compared that to the limited support available in the area where she was presently residing. She had been offered a placement on a teacher training course in England. She felt relocation would provide her with employment and the children with excellent schools to attend.
The mother struggled however with the specifics of the proposed relocation under cross examination. She wasn’t clear about the school arrangements. She did not know the travel times to the area in England that she wished to move to. She proposed that if the father were to have contact with the children she had the option of a flat in London and had relatives in England. She was unable to confirm the state of that property as she had never attended.
A consultant forensic and clinical psychologist gave evidence on behalf of the mother. She adhered to her opinion that the mother presented her with a diagnosis of complex post-traumatic stress disorder. Although this was a treatable condition she opined that a person would need to feel safe from any potential future threat in order for treatment to be effective. The environment of the person was accordingly relevant in considering matters of treatability. She accepted that certain conditions would assist and the helpfulness of any treatment namely the father not approaching the mother, with handovers happening via school but she also confirmed this could be achieved not necessarily by moving down south to England.
The father asked the court to grant a residence order providing that the children would reside with him during the school term time for seven nights in every fourteen and for one half of the school holidays, the children to reside with their mother the rest of the time. Undertakings were offered on his behalf that he would not assault or attempt to assault the mother, threaten her with physical violence, shout at her or be verbally abusive towards her and that he would not enter or remain in any property in which she was living without her consent. He also undertook until January 2025 to would attend for hair testing on a three monthly basis and to instruct that copies of reports in respect thereof were provided to the mother by the party who arranged the test. He opposed the relocation to England as not being in the best interests of the children nor in accordance with their views.
On the contrary, the mother asked the court to grant a residence order in her favour and to make an order permitting her and the children to reside in England. She proposed that a contact order would be ordered for the father to have contact during school term time every second weekend from after school on a Friday until the commencement of school on a Monday morning and regular Facetime contact.
Senior counsel for the mother referred to the criteria set out in the Children Scotland Act in respect of the protection of a child from any abuse or risk of abuse. It was argued that the court required to consider the impact and the welfare of the children of the abuse and domestic abuse suffered by the mother and that the pursuer's longstanding addiction continued to pose a risk to the children. Whilst it wasn’t disputed that it was in the best interest of the children to maintain a relationship with their father the benefits for the children in moving to reside with the mother in England outweighed the potential detriment to them. Standing the two significant factors of history of abuse and substance misuse it was argued that shared care was not appropriate.
Whilst the Court was in no doubt that the mother had suffered from domestic abuse and that she had a real perception of threat that the father was a danger to her, the judge was not satisfied that a proper basis had been made out that the mother’s condition and prospective treatment required relocation to the south of England. Much was made of the lack of practicality associated with the plan and the fact that the children did not want to move.
Accepting that there had been abuse in the past in the case the question arose for the court as to what it should attribute to that in the determination of issues of contact and residence. The judge's impression was that the issues of domestic abuse arose in the context of the admitted significant and longstanding issues of the substance misuse on the part of the father. The judge was also of the view that if there was to be a relapse on behalf of the father then this may give rise to a risk in the future of abuse by him. The judge was very much persuaded however by the evidence of the consultants about the significant reduction in risk of relapse following a successful two year period of abstinence. The court felt that the father appeared to be committed to long term abstinence and was child focused.
The court concluded that notwithstanding all of the above, in all of the circumstances shared care was achievable during term time. An order for shared care was granted on the basis of the children spending 6 nights with their father in every 14 night period.
In these types of matters, each case will turn on its facts and circumstances. The decision, however, does again highlight how very difficult it is to persuade a court that relocation is in the best interests of a child even against a background of a number of issues. The court’s decision on shared care is also interesting in the sense that it still concluded that was workable notwithstanding the matters raised in connection with abuse.