EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Hardie Lord Emslie Lord Wheatley	[2011] CSIH NO. 65 XA10/11 OPINION OF THE COURT delivered by LORD EMSLIE in appeal from the Sheriff Court at Edinburgh in causa by SM Pursuer and Appellant; against CM Defender and Respondent: _______

For the Pursuer and Appellant: Dewar QC, Bell; Balfour & Manson LLP

For the Defender and Respondent: Wild; Aitken, Nairn WS

12 October 2011

I Introduction

[1] In this appeal from a decision of the Sheriff Principal of Lothian and Borders, sitting at Edinburgh, the parties are respectively husband and wife. They were married on 10 April 2003. There are two children of the marriage, D now aged about 71/2 and A nearly 5. The pursuer also has an older son from a previous marriage. Sadly, the parties' relationship has broken down and they have not lived together since April 2009. Both parties are now in relationships with others, the husband pursuer with a lady living locally in (XX), and the wife defender with a man ("MM") whose home, business and family are in Berkshire.

[2] In August 2008 the defender attempted to remove the children from the jurisdiction of the Scottish courts, and it required a court order, pronounced on 5 September 2008, to secure the children's return to this country. Thereafter, of consent, the defender was granted a residence order in respect of both children on 4 November 2008. Since then, she has lived with them in the former matrimonial home in (YY), and this has enabled regular and frequent contact to be enjoyed by the pursuer, as their father, and by other members of his family. The defender, however, now wishes to relocate to join MM permanently in the south of England, and a dispute has arisen as to whether she should be permitted to take the children with her. In particular, by Minute of Variation lodged in August 2009, the pursuer craves a residence order in his own favour, failing which variation of the defender's pre-existing residence order so as to oblige her to remain in the (YY) area. For her part, and in direct conflict with the pursuer's wishes, the defender seeks an order permitting the children to relocate and live with her in England.

[3] On 1 June 2010, after several days of proof, the Sheriff refused both of the pursuer's craves, sustained the defender's second plea-in-law and granted her a fresh residence order in terms of section 11(2)(e) of the Children (Scotland) Act 1995 ("the 1995 Act") "... providing that (D) and (A), the children of the marriage between the parties and under the age of 16 years reside with the Defender within England or Scotland ...". The pursuer appealed against that decision to the Sheriff Principal, but on 13 January 2011 the appeal was refused. He now appeals further to this court, maintaining that, in considering the relocation issue, the Sheriff (and in his turn the Sheriff Principal) erred in law and otherwise reached conclusions which were plainly wrong.

II The legal background

[4] Disputes involving parental rights and child welfare issues are notoriously sensitive and difficult to resolve. As Lord Fraser explained in G v G (Minors: Custody Appeal) 1985 1 WLR 647, at p.651:

"The jurisdiction in such cases is one of great difficulty, as every judge who has to exercise it must be aware. The main reason is that in most of these cases there is no right answer. All practicable answers are to some extent unsatisfactory and therefore to some extent wrong, and the best that can be done is to find an answer that is reasonably satisfactory."

[5] Important statutory guidance is now to be found in section 11 of the 1995 Act. Subsection (1) clothes the court with jurisdiction to make a wide range of relevant orders. By virtue of subsection (2) these include inter alia:

"...

(c) an order regulating the arrangements as to-

(i)                  with whom ...

a child under the age of sixteen years is to live (any such order being known as a 'residence order');

(d) an order regulating the arrangements for maintaining personal relations and direct contact between a child under that age and a person with whom the child is not, or will not be, living (any such order being known as a 'contact order');

(e) an order regulating any specific question which has arisen, or may arise, in connection with any of the matters mentioned in ... subsection (1) of this section (any such order being known as a 'specific issue order'); ...".

Subsection (7) then goes on to lay down important rules or principles to which the court must have regard. In particular, in considering whether or not to make an order under subsection (1) ... and what order to make, the court

"...

(a) shall regard the welfare of the child concerned as its paramount consideration and shall not make any such order unless it considers that it would be better for the child that the order be made than that none should be made at all; and

(b) taking account of the child's age and maturity, shall so far as practicable-

(i) give him an opportunity to indicate whether he wishes to express his views;

(ii) if he does so wish, give him an opportunity to express them; and

(iii) have regard to such views as he may express".

Further provision is contained in subsection (7D) as follows:

"Where -

(a) the court is considering making an order under sub section (1) above; and

(b) in pursuance of the order two or more relevant persons would have to co-operate with one another as respects matters affecting the child, the court shall consider whether it would be appropriate to make the order".

[6] The foregoing statutory emphasis on the welfare and best interests of children reflects an international consensus which has developed over several decades. Previously, courts were more inclined to focus on the competing rights and interests of parents, and in relocation disputes special significance was often accorded to the wishes of a child's primary carer pursuant to an award of custody (now "residence"). By way of illustration, in the well known English case of Poel v Poel 1970 1 WLR 1469, Sachs J (at p.1473) said this:

"When a marriage breaks up, a situation normally arises where the child of that marriage, instead of being in the joint custody of both parents, must of necessity become one who is in the custody of a single parent. Once that position has arisen and the custody is working well, this court should not lightly interfere with such reasonable way of life as is selected by that parent to whom custody has been rightly given. Any such interference may ... produce considerable strains which would not only be unfair to the parent whose way of life is interfered with but also to any new marriage of that parent. In that way it might well in due course reflect on the welfare of the child. The way in which the parent who properly has custody of a child may choose in a reasonable manner to order his or her way of life is one of those things which the parent who has not been given custody may well have to bear, even though one has every sympathy with the latter on some of the results".

This echoed the view of Winn LJ in the same case (at p.1471) to the effect that the making of an order for custody in favour of one of the parents must be regarded as a "very dominant factor" in such a dispute.

[7] On the other side of the coin, in cases where relocation was not in issue, the "traditional" view appeared to favour a grant of access (now "contact") to the non-custodial parent in virtually all circumstances. In Sanderson v McManus 1997 SC HL 55, the House of Lords in a Scottish appeal made it clear that there could be no presumptive doctrine along such lines, since that would be incompatible with the court's statutory obligation to treat the welfare of an affected child as the paramount consideration. In that case it was argued on behalf of the father that, in the absence of strong reasons to the contrary, the link between a child and his natural parent was so important in itself that it should be preserved. It was in the best interests of the child to maintain that link, and its maintenance was conducive to the welfare of the child. Section 3(2) of the Law Reform (Parent and Child) (Scotland) Act 1986 (the precursor of section 11(7)(a) of the 1995 Act) did not, it was said, alter that fundamental point. In rejecting this argument as unsound, Lord Hope, with whose speech all of their Lordships agreed, said (at pp.63-64):

"The ... question ... is whether the natural link between the child and his parent is so important that the court must always seek to preserve it unless there are strong reasons to the contrary. Whatever may have been the position at common law, the effect of section 3(2) of the Act of 1986 has been to remove any rule or principle to this effect ...

... The natural relationship is a fact of life which it will always be proper to take into account. But the importance which is to be attached to it must vary according to the circumstances. This is a matter which must be decided not by applying any presumption but upon an evaluation of the evidence. As with any factor which the court is asked to take into account, the question is whether contact with the parent has something to offer which is likely to be of benefit to the child's welfare. This question must be examined from the point of view of the child. It may normally be assumed that the child will benefit from continued contact with the natural parent. But there may be cases where it is plain on the evidence that it has nothing to offer at all. There may be other cases where the evidence will show that continued contact is likely to be harmful. Whatever the view which is taken on this matter in the light of the evidence, the child's welfare is paramount. The decision of the court will depend on its analysis of all the factors which bear on the question what is in the best interests of the child".

[8] As regards the effect of section 3(2) of the 1986 Act, Lord Hope had (at p.62) previously observed:

"In my opinion the effect of subsection (2) is clear. The court is given a wide discretion as to the considerations pointing one way or the other which it may take into account. But all other considerations must yield to the consideration which is stated by the subsection to be paramount, which is the welfare of the child. As it is told that it 'shall not' make any order relating to parental rights unless it is satisfied that 'to do so' will be in the best interests of the child, the onus is on the party who seeks such an order to show on balance of probabilities that the welfare of the child requires that the order be made in the child's best interests."

[9] On the binding authority of the decision in Sanderson, it can in our opinion be said with confidence that the requirements contained within section 11(7) of the 1995 Act effectively preclude reliance on any presumptive rule or guideline tending to favour the wishes or interests of either parent. As Lord Caplan observed in Osborne v Matthan (No. 2) 1998 SC 682, at p.704:

"... Scottish courts, in particular, have resisted the temptation to elevate the primacy of the parental claim into anything approaching a principle, far less a rule."

Moreover, the weight to be given to such wishes or interests must, as with any other factor, be such weight as the court deems appropriate in the particular circumstances of an individual case. In the end, the welfare and best interests of the child or children concerned are paramount, and fall to be judged without any preconceived leaning in favour of the rights and interests of others.

[10] So far as we can judge, however, the position south of the border is a little less straightforward. Under section 1 of the Children Act 1989 (the English equivalent of section 11 of the 1995 Act), the welfare of children is again the paramount consideration, but although this receives consistent judicial recognition the legacy of Poel in relocation cases is still evident to the present day. In Tyler v Tyler 1989 2 FLR 158, at pp.160-1 Kerr LJ, having carried out a wide-ranging review of reported cases in this area, summarised their effect as follows:

"I also accept that this line of authority shows that where the custodial parent herself, it was the mother in all those cases, has a genuine and reasonable desire to emigrate then the court should hesitate long before refusing permission to take the children".

[11] In both MH v JP (Child: Immigration) 1995 2 FLR 106 and In Re C (Leave to Remove from Jurisdiction) 2000 2 FLR 457, Thorpe LJ went so far as to describe the prevailing guidance as a "presumption" that reasonable proposals from the custodial parent should receive the endorsement of the court. Despite expressly regretting the use of the term "presumption" in the later case of Payne v Payne 2001 2 WLR 1826, he went on to emphasise and explain the value and basis of the guidance before concluding (at para.32):

"Thus in most relocation cases the most crucial assessment and finding for the judge is likely to be the effect of the refusal of the application on the mother's future psychological and emotional stability".

In his view (at para.33) section 1 of the Children Act 1989 was essentially a procedural reform which did not require any reconsideration of the court's consistent direction for the determination of relocation cases. And, in the end, both Thorpe LJ (at para.41) and Dame Elizabeth Butler-Sloss P (at paras.83-85) affirmed that the reasonable proposals of the residential parent wishing to relocate continued to be a factor entitled to great weight.

[12] Common sense suggests that, in some cases at least, the denial of a residential parent's legitimate wish to relocate may be productive of resentment and frustration. As Thorpe LJ expressed it in Payne (at para.31):

"Logically and as a matter of experience the child cannot draw emotional and psychological security and stability from the dependency unless the primary carer herself is emotionally and psychologically stable and secure".

Again, in some cases, such resentment and frustration may come to impact adversely on the wellbeing of the child or children concerned. But, as many critics have observed, both before and after Payne was decided, and as counsel for the defender very fairly accepted before us in the present case, such consequences are by no means inevitable and a universal assumption that they will follow, or indeed that the best interests of affected children will necessarily coincide with the wishes and interests of the residential parent, would appear to be misplaced. Recent judicial disquiet over this aspect of the Payne approach is to be found in cases such as Re AR (A child: Relocation) 2010 2 FLR 1577, Re H (Leave to Remove) 2010 2 FLR 1875 and Re W (Children) (Relocation: Permission) 2011 2 FCR 261.

[13] In the second of these cases, Wilson LJ (at paras.[22] and [23]) summarised the perceived difficulty in these terms:

"[22] There is also, as most family lawyers know, an attack on the series of questions which ... Thorpe LJ suggested as apt for a judge to put to himself in determining such an application. The charge is that they represent an impermissible gloss on the inquiry into welfare ... There is also a significant argument to the effect that, although the case of Payne was determined only nine years ago, it represents the culmination of domestic jurisprudence which had evolved since 1970, ie over a time when (so it is said) the value to the child of a relationship with the non-residential parent was far less well recognised.

[23] Mr Ward brings to our attention that the controversy surrounding Payne v Payne has already been recognised even within this court. He refers to the decision of Wall LJ in Re D (Leave to remove: Appeal) 2010 2 FLR 1605 Wall LJ said, at [33]:

'There has been considerable criticism of Payne v Payne in certain quarters and there is a perfectly respectable argument for the proposition that it places too great an emphasis on the wishes and feelings of the relocating parent and ignores or relegates the harm done [to] children by a permanent breach of the relationship which children have with the left-behind parent'.

With respect, I wonder whether is any respectable argument for the proposition that the decision in Payne 'ignores' the harm of which Wall LJ there spoke. I would agree, however, that there is at any rate a respectable argument for the proposition that it inappropriately 'relegates' such harm to a level below that of the harm likely to be sustained by a child through the negative impact upon the applicant of refusal of the application".

[14] Nevertheless the Court of Appeal went on to affirm the binding nature of the guidance in Payne, and in Re W (at para.[13]) Sir Nicholas Wall P described Payne as "... not only the latest leading case on 'relocation' in the English jurisprudence, but also a reserved decision of this court and binding on us". He then went on to observe (at para.[23]):

"I do not propose to embark upon my own assessment of the criteria to be taken into account when deciding a relocation application. All that I am prepared to state at this stage is that the decision falls to be taken on what the court perceives to be in the best interests of the children concerned. Their welfare is our paramount consideration. The court must also apply the criteria and guidance set out in Payne v Payne" (emphasis added).

Similar views were expressed by the other judges in that case, Lloyd LJ and Elias LJ.

[15] At the hearing before us, counsel for both parties submitted (in our view correctly) that the potentially controversial guidance embodied in Payne and other English cases formed no part of the law of Scotland. According to counsel, nothing resembling a presumption, rule or principle in favour of the rights and interests of either parent could be allowed to distort or override the court's judgment as to where, in all the circumstances of an individual case, the welfare and best interests of the children may be thought to lie. For present purposes, the decision of the House of Lords in Sanderson was authoritative to that effect; it had been cited and applied by the Inner House in Osborne; and an even more recent decision in which a presumption-free approach had been followed (although previous cases including Payne were found helpful in identifying factors which ought to be considered) was that of Sheriff Morrison in M v M 2008 Fam LR 90.

III The role of an appellate court

[16] Where a judge of fact makes findings, or reaches conclusions, which are based on his having heard evidence from witnesses, these will not lightly be disturbed on appeal. As Lord Thankerton explained in the leading case of Thomas v Thomas 1947 SC HL 45, at p.54:

"(1) Where a question of fact has been tried by a Judge without a jury, and there is no question of misdirection of himself by the Judge, an appellate court which is disposed to come to a different conclusion on the printed evidence should not do so unless it is satisfied that any advantage enjoyed by the trial Judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial Judge's conclusion. (2) The appellate Court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence. (3) The appellate Court, either because the reasons given by the trial Judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate Court. It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case, and, it may be, the individual case in question. It will hardly be disputed that consistorial cases form a class in which it is generally most important to see and hear the witnesses, and particularly the spouses themselves ...".

Similar observations are to be found in the speech of Lord Macmillan in the same case at p.59. Clearly, if the judge of fact misdirects himself, or applies some wrong principle, or takes into account irrelevant considerations, or omits to notice relevant matters, or fails to give adequate reasons, an appeal will in the normal way be open on a point of law. But in the absence of any such failing, the ultimate evaluation of factual evidence is primarily a matter for the judge concerned.

[17] In child custody cases a comparable rule applies. In G v G, Lord Fraser in the House of Lords (at p.650) referred with approval to the judgment of Sir John Arnold P in the court below to the following effect:

"I believe that if the court comes to the conclusion, when examining the decision at first instance, that there is so blatant an error in the conclusion that it could only have been reached if the judge below had erred in his method of decision - sometimes called the balancing exercise - then the court is at liberty to interfere; but that, if the observation of the appellate court extends no further than that the decision in terms of the result of the balancing exercise was one with which they might, or do, disagree as a matter of result, then that by itself is not enough ...

... what this court should seek to do is to answer the question whether the court discerns a wrongness in the result of so striking a character as to make it a legitimate conclusion that there must have been an error of method - apart, of course, from a disclosed inclusion of irrelevant or exclusion of relevant matters".

And (at p.652) his Lordship went on to express his own conclusion as follows:

"... the appellate court should only interfere when they consider that the judge of first instance has not merely preferred an imperfect solution which is different from an alternative imperfect solution which the Court of Appeal might or would have adopted, but has exceeded the generous ambit within which a reasonable disagreement is possible. The principle was stated in this House by my noble and learned friend Lord Scarman in B v W (Wardship: Appeal) 1979 1 WLR 1041, where ... he said, at p.1055:

"But at the end of the day the court may not intervene unless it is satisfied either that the judge exercised his discretion upon a wrong principle or that, the judge's decision being so plainly wrong, he must have exercised his discretion wrongly."

[18] There can in our view be no doubt that Lord Fraser's treatment of these issues has stood the test of time. His observations are frequently cited in court; they were cited and thereafter applied by the Inner House in Osborne; and in Re W Sir Nicholas Wall P took the trouble to set them out ad longum in the early part of his judgment. There may be room for argument as to how far a child welfare decision is truly an exercise of judicial discretion - on which point see the opinion of the Lord Justice General (Rodger) in Osborne (at pp.688-9) -, but it still seems to us that the general principles to be applied are clear and must be held to determine the proper role of an appellate court in a case of this kind.

[19] It only remains to note that in the course of his speech in the case of Sanderson Lord Hope (at p.58) also drew attention to the undesirability of protracted appellate proceedings in the field of child welfare, highlighting in that context the real difficulties which an appellate court may face in contemplating the affirmation or reversal of a prior decision after a material lapse of time:

"If there is a succession of appeals, the passage of time is likely also to give rise to difficulty. Decisions in these cases are taken in the light of the facts and circumstances as presented to the judge at the time of the proof. But circumstances change as the child gets older, and the parties to the dispute may change their ways and form new relationships. The greater the interval between the taking of the evidence from the witnesses and the hearing of each appeal the more unsatisfactory the situation is likely to become. The stronger will be the argument that the appellate court should not disturb the status quo ...".

And, turning to the particular circumstances of that case, his Lordship went on to say this:

"It would not be right for your Lordships, if minded to allow this appeal, simply to reverse the decision of the judge at first instance and order that the pursuer be awarded access to the child. At the very least some further inquiry would be necessary. This may bring new facts to light which may show that, whatever the position may have been four years ago, it would not now be in the interests of the child that the pursuer should be awarded access".

IV The Sheriff's decision

[20] The dilemma which faced the Sheriff after more than five days of proof in the present case, as revealed in his own judgment, was undoubtedly acute. On the one hand, the defender as primary carer of the two children pursuant to an existing residence order was pressing for permission to take them to live with her in the south of England. In this connection she asserted isolation and unhappiness in the local community where she lived; financial constraints, in the absence of employment, which might compel the sale of the former matrimonial home within the foreseeable future; a desire to be closer to her own parents and other relatives in England; and above all the prospect of a stable future for the children in Berkshire if she could finally be free to move in with, and hopefully marry, MM with whom she had had a relationship of nearly two years duration. Living with MM would also be likely to improve the defender's financial situation, and the material wellbeing of the children. MM's business already produced a fair annual income, and the defender (with a university degree and marketing skills) could even see a potential for expansion of that business. As against that, the pursuer and other members of his family had always enjoyed a close and loving relationship with both children; extensive and flexible local contact was available on alternate weekends and on several days each week; the children were happy and settled where they were; their schooling had begun; and the defender's proposals would effectively break up the family to the extent of making realistic continuing contact extremely difficult, if not impossible, for the future. Further factors relied on by the pursuer were his own relatively limited income and means; the possibly precarious nature of the defender's relationship with MM which lay at the heart of her proposed move; uncertainty as to how the children would settle into a new educational environment to which they had so far had little or no exposure; and in particular a real concern, based on serious criticisms of her past conduct, that the defender could not be trusted to promote the continued contact on which the parental bond between the children and their father depended.

[21] A major added complication was that the elder child D had a range of special needs. He had been born with certain digestive problems; a degree of deafness meant that he had to wear hearing aids; gradual correction of a squint required special glasses; there had been behavioural challenges; and developmental delay (probably due to deafness) had led to his being around 18 months behind others of his age. On account of his special needs, and the age of his younger sister, the parties were agreed that it would be inappropriate for either child to be asked to express views for the purposes of section 11(7)(b) of the 1995 Act. Fortunately D's condition was already improving, and he would quite soon catch up with his contemporaries, but he was still a child for whom familiar surroundings and a settled routine with strong boundaries were said to be of real value and importance. Current school arrangements, with specialist help, had been particularly successful, and accordingly any transition to a different and unfamiliar school in the south of England would have to be managed gradually and with great sensitivity by the professionals involved.

[22] Against that background, the Sheriff clearly recognised that, in reaching his findings and conclusions, he must apply the fundamental welfare test set out in section 11(7)(a) of the 1995 Act. Statements to this effect were, as counsel for the defender submitted, "... peppered throughout his judgment". In this regard, he undeniably addressed a wide range of potentially relevant factors, as derived from decided cases including Payne, and furthermore gave consideration to whether the principal difficulties on which the parties had respectively laid stress were capable of being resolved. Had matters ended there, the Sheriff's decision might only have been open to challenge in this appeal on the ground that his "balancing" of the competing factors had produced a result which was "plainly wrong".

[23] There is, however, a further thread which pervades the judgment, namely a discernible regard to the further guidance contained in the English case of Payne to the effect that (at the very least) great weight must be accorded to the reasonable desire of a residential parent to relocate. To refuse genuine and realistic proposals, so ran the theory, must be taken to risk adverse effects on that parent's happiness and state of mind, and in turn it must be assumed that this would, or at least might, adversely affect the welfare and best interests of the children.

[24] By way of illustration, the following passages appear in the judgment:

"After the final separation, all of (the defender's) actings have been directed towards achieving that original objective - a move to (C) ... to be with (MM). I do therefore regard much of her conduct as being self-centred and to achieve her own objectives. I did give serious consideration as to whether the Court should, having identified the scheme, allow it to succeed. It does, but only because I have concluded it is in the best interests of the two children that they reside with their mother - and that it is an unreasonable restraint to insist that she stays in (XX)" (p.33) ...

"Despite the Defender's protest that she lacks support and would wish to have much closer and more immediate contact with her parents, her sister and her children, I am in little doubt that the main and perhaps even single important reason for the move is that the Defender wants to set up home with (MM). But inevitably the best interests of the children are going to be affected by the state of mind and outlook of the Defender. As I have indicated, it does seem to me that her relationship with (MM) is now established and have (sic) survived a significant period. No one can know the future when they do live together in what might be described as more ordinary life and times. Everyone's future is uncertain. But having considered all of the other elements and factors keeping the interests of the children are (sic) paramount, I have come to the conclusion that it is not helpful to them to frustrate the liberty and independence of the Defender to live where she chooses within the United Kingdom" (pp.39-40) ...

"Whilst I agree with counsel for the Pursuer that the Defender has exaggerated the extent of her isolation in (YY) as well as the extent of her support network in England, it is beyond doubt that she is much closer to her family members who might be two hours drive away when she lives in Berkshire than they are at present. It does seem to me that given the establishment of the relationship with (MM) and the limitations which might otherwise exist for the Defender as mother of two young children in (XX), there would be an adverse impact on the Defender if the order is refused. Whilst (MM) did indicate that if the order was refused and the Defender requires to stay in Scotland he would consider moving here, I doubt whether that is ultimately practical for him. His relationship with his own daughter L who he described as 'emotionally vulnerable' as well as the difficulties of establishing a new business in a location where he is not known ... would all militate against such a move" (p.44) ...

"It does seem to me to create a significant harmful prospect for the children if their mother's desire to set up home with (MM) is either frustrated entirely or put under the significant difficulties which a move to (XX) would inevitably create for (MM). The Pursuer's position is very justifiable because easy exercise of his parental rights and responsibilities is being altered to his disadvantage. But I have to find a balance and it seems to me that to oblige the Defender to remain in (XX) becomes unreasonable when all of the factors are considered and to do that is a restriction on her freedom of movement that should not be insisted upon in all of the circumstances" (pp.46-7).

[25] While admittedly some of these passages include mention of assumed consequential effects on the children, it is in our view hard to resist the conclusion that the major focus was on the defender's position, coupled with the notion, failing strong grounds to the contrary, that her reasonable wish to live elsewhere in the United Kingdom should not be restrained. Much of the terminology in the passages to which we have just made reference is reminiscent of the terms and tone of the judgments in Payne, and we regard it as significant that, at p.46, the Sheriff proceeded to ask himself, and then answer, particular questions which were suggested as appropriate by Thorpe LJ in connection with the prevailing guidance in that case. Not surprisingly, having regard to the established tract of authority of which Payne forms part, these questions were again largely concerned with the position of the defender as the residential parent, and the Sheriff's final words (already quoted) at pp.46-7 duly bore to "balance" the competing interests of the parties themselves.

[26] Among the significant further complications disclosed in the Sheriff's judgment is a real lack of certainty as to whether, and if so to what extent and in what form, realistic contact arrangements could be devised in place of the regular and frequent local contact which would come to an end if the defender and children were to move to England. The parties had specifically asked the Sheriff not to deal with contact at the proof, apparently fearing an escalation of its cost and duration, but we were informed that their intention - in the event superseded by the pursuer's appeal to the Sheriff Principal - had been to address contact in earnest once the major issue of relocation was determined. Be that as it may, the Sheriff clearly regarded extensive future contact arrangements as a vital component of his decision, yet had to content himself with a review of mere possibilities. In the end he bore to conclude, "... with hesitation" (p.41), that "... with effort on the pursuer's part" (p.40) continuing contact with the children might be preserved. At the same time, however, he drew attention to problems as to (i) how this could be funded, and (ii) whether the defender could, given her past conduct, be trusted to facilitate suitable and sufficient arrangements. In the former context, the Sheriff appeared to envisage repeated trips by the pursuer down south, largely at his own expense notwithstanding restricted means, and without consideration of the material reduction in quality of contact which such trips, with no domestic base, were liable to represent. As acknowledged at p.42, moreover, such arrangements would regrettably fail to address the children's inevitable loss of the close and regular contact which they had hitherto enjoyed with the pursuer's sister and mother.

[27] As regards the problem of the defender's trustworthiness, the Sheriff expressed severe criticisms of her conduct and evidence at pp.31-2. In particular he did not find the defender to be "invariably reliable". Her unreliability, and a tendency to avoid responsibility for past conduct, were a concern. References then followed to deviousness, wilfulness, manipulation, and behaviour calculated to achieve whatever result she had in mind. As the Sheriff saw it, the defender seemed to form views about what she wanted and would not then allow any person or event to frustrate that. Her past conduct, for instance in removing the children from Scotland on more than one occasion without the permission of the pursuer or the court, was held to indicate a determination to have her own way "without consideration of others and the pursuer in particular". In the result, after returning to the defender's "impulsive" and "selfish" behaviour at p.39, the Sheriff went so far (at p.42) as to acknowledge that the defender might have in mind the objective of doing ".... all she could to frustrate contact and to try to remove the Pursuer from the children's lives". His conclusion (at pp.42-3) was that only an order of the court would be likely to secure the degree of cooperation required. Nevertheless the Sheriff proceeded to grant the specific issue order in unrestricted terms, without any court order for contact being in place, and without any obvious guarantee of the defender's attitude once her move to Berkshire was completed. There is no indication that he had regard, in this context, to the statutory requirement set out in section 11(7D) of the 1995 Act.

[28] Another significant difficulty, as is apparent from the Sheriff's judgment, concerned the question whether, and if so how, when and through whose efforts an acceptable transition between schools might be achieved for the children (particularly D with his special needs) in the event of a move to the south of England. Much evidence was led on this issue, and on the risk of D being adversely affected if he were to be removed from the familiar surroundings of an excellent primary school in (XX) where he had made dramatic progress over the previous 18 months or more. Referring to the defender's enforced return to Scotland with the children pursuant to the court order of 5 September 2008, the Sheriff (at p.30) said:

"The defender may not agree but it seems to me that on all of the evidence the result has been of major benefit to (D). He was returned to Scotland, to a home where he felt settled, to a school environment where he was known and where he had already begun to recognise his surroundings and routine. He then made what everyone agrees has been excellent progress throughout his period in nursery school and then in particular his period since August 2009 in the primary 1 class taught by (PP) with the very valuable support from (QQ) and (RR) responding to (his) particular needs and problems".

[29] The evidence bearing on the proposed transition was perhaps less than clear cut, but the Sheriff's overall impression may be seen from the following passages:

"I agree with the Pursuer's counsel that the children are happy and settled in (YY) and that is the obvious starting point. I agree also that change does involve risk to (D) in particular although to a degree also for (A). ... As at (October 2009), (the court reporter) was very concerned that (D) should not be moved because he would not be able to cope with the challenge that that presents. That concern did exist then for the teachers. I am satisfied on the evidence from all of the schoolteachers that none of them share that concern now, whether or not they did in October 2009. All of the teachers seemed to agree that provided there was a good deal of exchange of information between (ZZ) and the proposed new school at WH, and they expected that that would happen, then a managed transition would probably (emphasis added) not have significant adverse effects for (D). There is a risk - but then there must even be a risk attached to him staying in (ZZ) because no one can predict what will happen with his friendships. He has shown the ability to develop new friendships ... The schools are of similar size. Support for (D's) hearing problems is available as is other learning support. No one, even children can be immune from change in their lives and it may be thought at least arguable that it is to (D's) benefit to learn to deal with what is a significant change but in an organised and non-threatening way. Accordingly, I do not regard the change of school as a reason to insist that (D) stay in Scotland - or that (A) must do so. I consider that any risk that does exist in this move is the same risk that would exist for any child facing a move" (pp.37-8) ...

"... the evidence I do have is that (D) can deal with change provided it is introduced with planning, care and not undue suddenness. He has adapted to the introduction of new people into his life together with the travelling (a reference to fortnightly visits down south with the defender). His school relationships are developing so that he is no longer dependent upon J and his sister alone for company" (p.38)

"... I have already commented upon the risks that do arise if (D) moves school but which I find as in al (sic) of the circumstances acceptable provided they are properly managed" (p.44).

[30] At p.43, however, dealing specifically with the effect of a move on D, the Sheriff records his view of the evidence of one of D's teachers in these terms:

"... although change is undesirable for (D) (emphasis added) it can be managed with sufficient care and the involvement of the receiving professionals".

At p.23 of the judgment, moreover, the submission of counsel for the defender is recorded to the effect that although two of the teachers said it was better to move a child earlier than later in primary school, one of them (QQ) "... would prefer D to stay on for another year". Nowhere in the judgement, however, is there any discussion as to how, when or by whom the acknowledged risks would actually be managed, bearing in mind both the degree of geographical separation between the two schools and the constraints of the school calendar (with apparent differences as between Scotland and England).

[31] The significance of the foregoing omission is perhaps highlighted by the following passage in the evidence of (SS), D's head teacher, (at p.511 of the transcript) to which our attention was drawn in the course of the hearing:

"You told the Reporter that you were concerned (D's) behaviour would regress if he were taken out of the environment, was that at the time when he had only been at school for about ten weeks? - It would still be a concern just now just because if everything were removed at the same time, all the normalities, that would be a concern, so yes it would be a concern at the moment as well.

Would your view change at the end of the academic year? - I think it would still be a concern for (D) whether it's tomorrow, the end of this year, two years time, it would still be, continue to be a concern.

Would your position be it would be managed if it were to happen very carefully? - Yes."

This followed an observation at p.492 to the effect that, where a child was involved, transitional plans separated by even six weeks or two months might have to be very different. According to senior counsel for the pursuer these were difficult matters, and it simply could not be assumed - as the Sheriff clearly had done - that everything would just fall into place. There remained a very real risk here which the Sheriff had significantly underplayed.

[32] As regards any adverse impact on the defender if her desire to move south to be with MM were to be further delayed, the Sheriff's finding (at p.44) is expressed in general terms and without particular specification. Earlier on the same page, he accepts "... that the defender has exaggerated the extent of her isolation in (YY) as well as the extent of her support network in England", and in line with that (at p.38) he records

"... the fact that she has lived satisfactorily in (YY) and has brought about real progress in (D) during the last 18 months and that therefore her life there could continue. I am not greatly convinced by her evidence that she lacks support/friends. It seems to me that she has become involved in the school and community in ways which assist her children and from which she also derives benefit."

The significance of these observations, it may be thought, is that it was a court order pronounced on 5 September 2008 which forced the defender to return to Scotland with the children after she had attempted to remove them from the jurisdiction of the Scottish courts. The defender later gave an undertaking to the court that she would not remove the children from their current address until the conclusion of the proof, and the effect of that undertaking has been continued to the present date by further orders of the court. There is, however, no clear indication that the defender, or a fortiori either child, has yet suffered any material adverse effect on account of the degree of compulsion which has kept them all in Scotland so far.

[33] Additional uncertainties apparent on the face of the Sheriff's judgment concern (a) the financial situation of both parties, and (b) the prospects of the defender's relationship with MM surviving in the longer term. As to the former, pages 36-7 of the judgment contain passages tending to confirm the difficulty of assessing the financial position of the pursuer, the defender and MM. While the Sheriff's conclusion at p.37 is that the defender's financial circumstances "... do appear to improve at least to some degree when she is sharing accommodation with (MM)", that seems to envisage a sale of the former matrimonial home in (YY). However, since the house is matrimonial property, any sale or distribution of proceeds may require to await the outcome of divorce proceedings at some unspecified date in the future. So far as the latter issue is concerned, the claimed "stability" of the defender's relationship with MM is questioned at p.39, and the Sheriff raises the possibility "... that the enforced separation and the difficulties in some ways act as part of the adhesive for the relationship rather than driving the parties apart ...". It is no doubt true that the Sheriff holds out some hope for the future, based on 12-18 months commitment to one another and the maintenance of apparently strong links throughout that time, but that tentative approach must be taken subject to the qualifications noted. On the evidence, of course, the defender and MM have not yet had the opportunity of living together for any extended period, nor has MM had the experience of caring, on a long-term basis, for D with his special needs.

[34] Finally, on a procedural note, it may be observed that many of the matters to which reference is made in the preceding paragraphs of this opinion are not reflected by the Sheriff in any findings in fact. While the overall picture presented in the Sheriff's note cannot be ignored, it is unsatisfactory that formal findings are absent on potentially important issues. There are, for example, no findings as to whether adequate continuing contact arrangements are likely to be achievable. Equally, there are no findings as to the precise manner or likely timing of any transfer between schools for D and A, despite the Sheriff's understanding that a gradual and sensitively-managed transition was an essential component of his overall conclusion.

V The appeal to the Sheriff Principal

[35] Taking advantage of many of the foregoing features of the judgment, counsel for the pursuer contended that the Sheriff had erred in law et separatim, on the facts, had reached a conclusion that was plainly wrong. The Sheriff Principal, however, while describing as "unfortunate" and "regrettable" the wording of the Sheriff's important conclusion at p.33, was ultimately prepared to hold that the Sheriff had indeed applied the law as directed by section 11(7) of the 1995 Act. However, having been urged by counsel for the defender to follow the line of English authority from Poel to Payne, the Sheriff Principal (at para.39) went on to affirm that the Sheriff's decision was

"... in line with the type of common sense considerations articulated by Sachs LJ in Poel, namely that a restraint on a reasonable mode of life selected by a parent having custody 'might well in due course reflect on the welfare of the child'".

[36] As regards the proposed transition between schools, the Sheriff Principal was again prepared to support the defender's position, and to treat the risk involved for D as "... the same risk as would exist for any child facing a move". His "real concern" related to the issue of continuing contact. In particular, the Sheriff's note was thought to convey "mixed messages" regarding the position of the defender, but in the end the Sheriff Principal was prepared (at para.46) to defer to the view of the Sheriff who had seen and heard the parties in evidence. In reaching the conclusion he did, the Sheriff Principal was also influenced (at para.48) by the unsatisfactory nature of the status quo from the defender's perspective, and a fear that if the Sheriff's disposal was not upheld it would only be a matter of time before she made a further request to move south.

[37] It only remains to note that, when subsequently granting leave to appeal to this court on 25 January 2011, the Sheriff Principal inter alia said this:

"1. Although it will inevitably result in delay in resolving this case, I feel compelled to grant leave to appeal. There are two issues (at least) which are worthy of review, these being (1) whether I was correct in holding that the Sheriff had not erred in his approach to this case in relation to application of the 'welfare' test, and (2) whether the question of continuing contact was satisfactorily determined."

VI The present appeal

[38] In a succinct address, senior counsel for the pursuer submitted that both the Sheriff and the Sheriff Principal had demonstrably gone wrong on the relocation issue, and that the specific issue order granted in the defender's favour should be recalled. However, the children's continued residence with the defender was no longer in dispute. Accordingly, in the event of this appeal being successful, no further order would be required. On the other hand, if the specific issue order were to stand, there would have to be an urgent remit to the Sheriff on the unresolved question of future contact.

[39] Briefly "distilled", there were said to be two major defects in the Sheriff's judgment. First, the fundamental welfare and non-intervention tests in section 11(7)(a) of the 1995 Act had not been properly applied. In line with English authorities (notably Payne) which did not reflect the law of Scotland, excessive and unwarranted weight had been accorded to the defender's desire to relocate and to the assumed potential consequences if that desire were thwarted. As against the children's best interests even equal weight would have been improper, but the Sheriff had gone further. The plainest indications to that effect, at pp.33, 44 and 46-7 of his judgment, could not be ignored. Conversely, the fact that the children were well settled in (XX), benefiting from both excellent schooling and extensive flexible contact with the pursuer and other family members, appeared to count for very little. The whole judgment was thus flawed; no proper balancing assessment consistent with section 11(7)(a) had been carried out; from the children's perspective there was no good reason to make the disputed specific issue order; and in purporting to take that course the Sheriff had materially erred in law. As authoritatively affirmed by the House of Lords in the case Sanderson, Scots law permitted no doctrinal leaning in favour of the interests of either parent, and the weight to be given to such interests must depend on the particular circumstances of an individual case.

[40] Second, the treatment of key factual issues was in any event badly flawed, and the resulting conclusions were plainly wrong and could not be permitted to stand. The tests for interference in Thomas v Thomas and G v G were met. As regards future contact, the Sheriff clearly regarded suitable and sufficient arrangements as an essential requirement. He had, however, contented himself with mere possibilities and had sought to brush aside obvious problems without having any evidential basis for so doing. The pursuer's ability to fund continued contact arrangements was the subject of unfounded speculation at p.41 of the judgment; even a cursory assessment of the pursuer's means should have ruled that out; it was in any event unclear why the pursuer should be expected to bear such a burden; furthermore, contact in England with substantial travel requirements and no domestic base would represent a gross reduction in quality by comparison with the status quo; and in light of the Sheriff's scathing criticisms of the defender, and his acknowledgement (having seen and heard her in the witness box) that she might well have the objective of cutting the children off from the pursuer altogether, it was astonishing that he had gone on to assume (even with hesitation) that she would comply with court orders in the future. She had twice clandestinely removed the children from Scotland in the past; she had made false representations to a court in England; and in the pursuer's estimation there was no prospect of the necessary goodwill and co-operation being available from the defender once she and the children were down south.

[41] Moreover, on the vexed question of whether, and if so when and how, a long-distance transition between schools could be achieved without harm to the children, and to D in particular, the Sheriff had again erred in contenting himself with speculative possibilities. This was wholly inadequate where a young child with special needs was involved. All of the professional witnesses agreed that, for D, any change from what was settled and familiar represented a risk; as recorded by the Sheriff at p.43 of his judgment, (QQ) deemed any such change undesirable; other factors adverse to a move for D included (QQ's) expressed preference (recorded by the Sheriff at p.23) for D to stay where he was for another year, taken together with the concerns which (SS) had voiced in evidence at pp.492 and 511; and in the absence of any firm indication as to how, when or by whom it would be managed the Sheriff's apparent faith in a gradual and sensitive transition was patently misplaced. The Sheriff Principal's acceptance (at para.42) that the risk to D was the same as for any other child was, moreover, at variance with all of the professional evidence in the case.

[42] A further serious criticism was that the Sheriff had made no findings in fact, or at least inadequate findings, on crucial matters canvassed in his note. His decision therefore embodied even greater uncertainty than the note itself disclosed, and no proper basis for applying the fundamental statutory tests in terms of section 11(7)(a). There were, for instance, no findings as to (i) the importance to the children of current contact arrangements with the pursuer, his mother and sister; (ii) the likely impact on the children if these arrangements were lost or materially diminished; (iii) the practicality of suitable and sufficient contact if the defender were to move to England, with particular reference to the pursuer's financial capacity and the extent to which the defender could be trusted to co-operate; (iv) the impact, if any, on the defender or on either child, if a specific issue order were refused at this stage; and (v) whether, and if so when, how and through whom a gradual and carefully organised transition between schools would realistically occur. Had the Sheriff attempted to make detailed findings on such issues, it was said, he would not have reached the conclusions he did. The general confusion was such that the Sheriff had not even sought to recall the contact order of 4 November 2008 with which the special issue order conflicted. If necessary, this court should make supplementary findings to rectify the Sheriff's omissions. As before, however, the parties were agreed that it would not be appropriate to canvass either child's views in that connection.

[43] In all the circumstances no positive benefit to the children, as opposed to the defender herself, had been shown to flow from the relocation proposed. But for the defender's wish to move south to be with MM, there would be no possible reason to disturb and disrupt the children's settled and happy life in (YY) where they could see both parents, and other family members, on a regular and frequent basis. Both the Sheriff and Sheriff Principal had clearly had regard to the English guidance contained in Payne and other cases, and in so doing had failed properly to apply the fundamental statutory tests in section 11(7)(a) of the 1995 Act. It was for the defender to demonstrate that the proposed move, and the making of a specific issue order, were justified from the perspective of the children's best interests. In terms of the statute, no such order should be made unless shown to be better for the children than the making of no order at all. The defender had failed to discharge that burden, and the speculative possibilities and uncertainties which characterised important aspects of the Sheriff's judgment were a wholly inadequate foundation for the conclusion which he reached. For all of these reasons, the decisions of the Sheriff and Sheriff Principal should be set aside, and the disputed order should be recalled.

[44] For the defender, counsel's reply in supplement of her written note of argument was careful and restrained. In seeking to support the decisions complained of, she contended in particular (i) that the Sheriff had considered all relevant factors, as derived from the authorities cited to him; (ii) that in evaluating these factors he had applied no presumption in favour of the defender's proposed move; (iii) that it was evident from the judgment that the statutory test under section 11(7)(a) of the 1995 Act had been properly applied; (iv) that the weight to be accorded to the various factors was a matter for the Sheriff to determine; and (v) that in all the circumstances it could not be said that either he or the Sheriff Principal had erred in law or had otherwise gone plainly wrong.

[45] As regards the fundamental statutory welfare test, the Sheriff had (as he expressly confirmed) applied that test in weighing up relevant factors from p.34 onwards. He had not been asked to give dominant weight to the defender's proposals, and had not done so. His evaluation of factors had concerned the particular circumstances of this case, rather than any pre-ordained guidelines. While the conclusion set out at p.33 was, at the very least, unfortunately worded, the Sheriff's later observations at pp.46-7 showed that the best interests of the children were very much in his mind. Payne and other cases gave helpful guidance as to the range of factors which might normally be considered in a case of this kind, but beyond that such cases had no application in a Scottish context and the Sheriff had given no unequivocal indication that he thought otherwise. On the contrary, p.38 confirmed that he had not regarded the defender's wish to move as decisive or determinative, and the best interests of the children were considered, not only in the note, but also in the critical findings at p.8.

[46] If the threshold for the making of a relevant order was met in terms of the statute, there was then no obligation on the Sheriff to take a minimalist approach. He was entitled to approve whatever outcome seemed to him to be most conducive to the future welfare of the children, bearing in mind that clarity and certainty were desirable objectives in themselves. It could not be said that the Sheriff had failed to take account of the fact that the children were currently well settled and enjoyed extensive contact with the pursuer and other members of his family. However, he was also entitled to weigh up (i) the impending instability of the defender's present situation, both financial and emotional, especially if her current state benefits (including mortgage repayments) were curtailed; (ii) the unsettling effect on the children of repeated short-term visits to England; and (iii) the prospective advantages of what would hopefully become a family home in Berkshire where suitable schooling for the children had already been identified. No doubt the transition would have to be carefully and sensitively managed, but on the evidence the Sheriff was entitled to hold that this would be achievable and that D's recent progress would enable him to cope.

[47] At the conclusion of the proof, and on the evidence before him, the Sheriff was also entitled to be satisfied that adequate continuing contact arrangements might be secured for the future. He was not then asked by either party to go further. The defender's "base plan" proposals were recorded at pp.20-21 of the judgment, and these would (but for the pursuer's appeal to the Sheriff Principal) have been the starting point for negotiations, and if necessary a further hearing, on contact in or after June 2010. There was no reason to doubt that the defender would comply with any order of the court. With hindsight, it might admittedly have been better for the Sheriff to "firm up" on contact before deciding whether or not to grant the specific issue order, but that did not invalidate the conclusions actually reached on the parties' dispute as focused before him. On the whole matter, as held by the Sheriff Principal at para.47, the Sheriff's decision was within the scope of his discretion and could not be regarded as completely wrong. As the Lord Justice General had observed in Osborne at p.689, this was the sort of case with which an appellate court should be very slow to interfere, and in all the circumstances the pursuer's appeal should be refused.

VII Discussion

[48] Echoing the sentiments expressed by Lord Hope when the case of Sanderson came before the House of Lords, as also the observations of their Lordships in Thomas v Thomas and G v G, (all as already discussed at parts II and III of this opinion), we regard the court's task in an appeal of this kind as one of particular difficulty. In many other categories of appeal demonstration of a material error, in law or in fact, by the court below leaves matters at large for the appellate court which can then come to fresh conclusions of its own. But properly informed findings and conclusions on the sensitive and fluid issues which tend to characterise child welfare disputes are peculiarly within the province of the judge who has the advantage of seeing and hearing the witnesses. There is moreover a real danger, where time has passed since the date of any proof, that the recorded evidence ceases to provide a reliable basis for any de novo re-assessment of the current and future wellbeing and best interests of children.

[49] Significant limitations on our proper role in the present case are thus evident from the start. We would not, for example, regard it as practicable to make additional or different findings in fact, or a fortiori to make any new order in substitution for the one complained of, where the evidence taken in early 2010 runs to very nearly one thousand pages of transcript and we were not addressed on that evidence in any detail. Nor could we sensibly contemplate the making of such findings or order where (unlike the Sheriff) we have seen and heard none of the witnesses, and where merely to affirm apparent evidential judgments in the Sheriff's note, many of which are controversial, might so easily be productive of error. In addition, we have a real concern as to how far the passage of time since the evidence was led may have altered material aspects of the parties' and, more importantly, the children's situation. For example, D has now embarked on a new school year in Primary 3, and A has started in Primary 1; their interests and attitudes will inevitably have developed over the past 18 months; the parties' current finances are unknown, although the pursuer has apparently become unemployed; and we are in no position to judge the present state of the defender's relationship with MM or the stability of MM's business and domestic situation. In such circumstances we are mindful of Lord Hope's strictures in the case of Sanderson (at p.62) as to the position of any court contemplating the possibility of making a relevant order:

"The court must....be able to conclude that it would be in the child's best interests that the order should be made. If it is unable to come to that view, the proper course for it to take is to make no order."

[50] For practical purposes, as it seems to us, the only issue which we can properly determine is whether the specific issue order appealed against should be affirmed or recalled. In this respect, the first question is logically whether either or both of the decisions reached in the courts below can be said to reflect a material error of approach going beyond the mere evaluation of relevant facts and circumstances. In particular did the Sheriff fail, in judging the relocation issue, to apply the fundamental requirements of section 11(7)(a) of the 1995 Act? Did he misdirect himself in bearing, in the same context, to apply guidance derived from Payne and other English cases? Did he attach undue importance to the defender's desire to leave Scotland and to the assumed adverse consequences if that desire were thwarted? And if so, did that inappropriately deflect his attention from where the children's best interests might lie?

[51] In addressing these questions, we have given careful and anxious consideration to the Sheriff's findings and extensive note. We have also had regard to the views expressed by an experienced and respected Sheriff Principal, noting in particular that the first key area of concern which he judged to be worthy of review, and as meriting leave to appeal, was

"... (1) whether I was correct in holding that the Sheriff had not erred in his approach to this case in relation to application of the 'welfare' test".

There is, of course, no doubt that at various points in his judgment (notably at pp. 28, 33-4, 40, 42, 44 and 46-7) the Sheriff refers to the children's welfare as his paramount consideration, pursuant to section 11(7)(a) of the statute. The children's best interests are again said to underlie the important findings which appear at p.8. Not all of these references, however, concern the specific issue of relocation; on the contrary, many relate to the broader question of residence on which the parties were then also in dispute. More importantly, as already discussed in part IV of this opinion, especially at paras. [23] to [25] inclusive, we are struck by the repeated indications in the Sheriff's note that, on the relocation issue, he felt constrained to promote, rather than hinder, the desire of the defender, as the residential parent, to move south with the children. Our clear impression from the judgment is that the very greatest emphasis was placed on that factor by comparison with others. The major conclusions on relocation at pp.33, 40 and 46-7 are all expressed in terms of the defender's interests and the impact, from her perspective, of any restraint on her freedom of movement. And in all the circumstances we find ourselves unable to resist the conclusion that, in approaching the matter of relocation in this way, the Sheriff saw himself as applying the general guidance affirmed by the Court of Appeal in Payne and other decisions south of the border.

[52] In this critical respect we are persuaded that the Sheriff erred in law to a degree sufficient to invalidate his decision. The problem is not that he bore to apply the guidance in question to long-distance relocation within the UK rather than (as in most, if not all, of the cases) emigration to a foreign country. Subject to differences of degree, it seems to us that broadly similar considerations are likely to apply to any long-distance relocation, whether international or domestic. The real difficulty, in our view, lies in the purported application of any general rule or guideline tending to deflect the court's focus away from the welfare and best interests of children, as required by statute, and towards the wishes and interests of either parent. As counsel for both parties agreed, the guidance embodied in Payne and other English decisions forms no part of the law of Scotland, and would appear to be at variance with the approach affirmed by the House of Lords, for Scottish purposes, in the case of Sanderson. Even in England, a common criticism of the Payne doctrine is, in the words of Wilson LJ in Re H, at para.[23], that it

"... inappropriately 'relegates' (the harm done [to] children by a permanent breach of the relationship which children have with the left-behind parent) to a level below that of the harm likely to be sustained by a child through the negative impact upon the applicant of refusal of the application".

[53] We acknowledge, of course, that there might be cases in which significant - even dominant - weight would incidentally attach to the reasonable relocation plans of a residential parent. By way of illustration, a remarried mother in a stable and settled household might have little option but to consider a move abroad, or to a different part of the UK, for legitimate family or employment reasons. The proposed move might offer children demonstrable advantages. They might be of an age and maturity to support it for themselves. Continuing contact arrangements might not be a major issue. In such circumstances the court might well be inclined to support the mother's freedom to take the course proposed; standing in the way of such a move might evidently risk significant adverse consequences for the mother and for others in the household; and a conclusion along these lines might even more easily be reached if, for instance, children were not thriving at their present school or were at an age when a change of school was in any event inevitable. In other cases, however, the position might be quite different, with a proposed move having much less to commend it and there being strong countervailing factors. Here, the question is whether the defender, while still married to the pursuer, should have free rein to develop a new relationship which may or may not ultimately lead on to the settled family life for which she and MM both hope. On the evidence potentially significant risks arise for the children, and especially D, from what is in contemplation, and we think that senior counsel for the pursuer was well-founded in submitting that, but for the defender's wish to set up home with MM, there would be no question of removing either child from familiar, settled and happy surroundings. What matters, in this as in any other case, is that the welfare of the children must at all times be the paramount consideration, and that the wishes and interests of either parent must receive no greater weight than they truly deserve in the circumstances.

[54] Had it not been for the foregoing excessive emphasis on the defender's proposals as the residential parent, we do not believe that the Sheriff would have treated other major areas of the case in the way he did. Future contact was obviously of critical importance, yet the Sheriff was prepared to grant an unconditional specific issue order without first satisfying himself that a satisfactory and sufficient level of continuing contact would realistically be achievable. In part this may have been because the parties asked him to defer any operative ruling on future contact until a later date, but in our view the decision to go ahead with a specific issue order in such circumstances was in part also attributable to the mindset inherent in the Payne doctrine. The more important it was not to restrain the defender's freedom to move wherever she liked in the UK, the less important it would be to control the conditions in which that freedom would be exercised. The judgment thus contains no findings or firm conclusions on the location, frequency, duration, funding or even worthwhile achievability of such contact. It contains no evaluation, from the children's perspective, of the importance of current contact arrangements, nor of the likely effect on the children if, in due course, they were to see much less, or even nothing at all, of their father, aunt, grandmother and friends in Scotland. Funding was the subject of highly speculative observations at p.41; the defender's co-operation was assumed without apparent reference to section 11(7D) of the 1995 Act, and notwithstanding the severe criticisms levelled against her conduct and attitude; and even the acknowledgement (at p.42) that her objective might well be to do "... all she could to frustrate contact and to try to remove the Pursuer from the children's lives" failed to ring alarm bells as to the appropriateness of granting her an unconditional specific issue order at the conclusion of the proof. In taking this course, we are persuaded that the Sheriff went plainly wrong, and that this is a further reason why his decision cannot be allowed to stand.

[55] On essentially the same basis, we take the view that the Sheriff's treatment of the school transition issue was also unsatisfactory to a degree which cannot be supported. Again, in our view, a major reason for this was the excessive weight which he gave to the notion that the reasonable proposals of a residential parent should not prima facie be restrained. But for that, we do not believe that the Sheriff would have left the delicate and difficult issue of school transition (especially for D) in such a state of uncertainty. On all the professional evidence, so far as reflected in the judgment, it was only a gradual and carefully managed transition which might enable the real risk of adverse effects for D to be overcome. Yet at p.5, the Sheriff apparently felt content to make a finding in fact (no. 21) in these terms:

"(D) needs a recognised and familiar routine to his life and any change should be carefully organised for him so that it can be introduced over a period if possible" (emphasis added).

As it seems to us, the qualification "... if possible" tends to relegate D's best interests to second place behind those of the defender herself, and once more reflects an inappropriate approach: the more important it was not to restrain the defender's freedom to move wherever she liked in the UK, the less important it would be to control the conditions in which that freedom would be exercised. Significantly, there are no formal findings as to how, when or through whose efforts the necessary management of a gradual transition would actually occur, nor any observations in the note which might be thought to fill the gap. The acknowledgement at p.43 that "... although change is undesirable for (D) it can be managed with sufficient care and the involvement of the receiving professionals" seems to us to reflect only theoretical possibility where, in D's interests, something approaching practical certainty should have been the focus of the Sheriff's attention. The same applies to the suggestion at p.44 that the risks for D if he moved school were "... acceptable provided they are properly managed", and also to the comment at p.37 that "... a managed transition would probably not have significant adverse effects for (D)" (emphasis added in each case). To our mind such indications leave matters in the air to a degree inconsistent with the required focus on D's welfare as the court's paramount consideration. Once again, therefore, the appropriateness of an unconditional specific issue order in the defender's favour is in our view open to serious question.

[56] In the result, to quote the Sheriff's own words at p.33, the defender's "scheme" has been "allowed to succeed" on the basis that it would be "... an unreasonable restraint to insist that she stays in (XX)". With that imperative in mind, the Sheriff has in our view failed to give sufficient attention to obvious problems critically affecting the children's welfare, notably in the fields of future contact and school transition arrangements. By the same token, we consider that he has been too easily satisfied on areas of difficulty relating to the defender herself, such as (i) her trustworthiness quoad future contact, (ii) the true nature and extent of any adverse impact on her, or on the children, in the event of the status quo being maintained for the time being, and (iii) the uncertainties surrounding the long-term future of her relationship with MM, bearing in mind that it has (of necessity) developed at long range and while she still remains married to the pursuer.

VIII Decision

[57] For all of the foregoing reasons we are persuaded that the Sheriff, and in his turn the Sheriff Principal, fell into error in their approach to this case, and that as a result the interlocutors of 1 June 2010 and 13 January 2011, insofar as relating to the specific issue order pronounced in the defender's favour, must now be recalled. Beyond that, with great regret, we feel unable to take any further step which might enable the parties' long-standing dispute to be resolved, one way or the other, at the present time. The only course open to us, in view of the rapidly changing needs and interests of children as young as D and A, is to remit the cause back to the Sheriff Court so that any renewed application by either party for an appropriate order can be considered on the basis of updated evidence in supplement of such evidence as has already been led. Should the defender's present application be renewed, then in our view she must undertake the dual burden, imposed by section 11(7)(a) of the 1995 Act, of showing (i) that relocation would actually be in the best interests of the children, and (ii) that, again from the children's perspective, it would be better for a specific issue order to be made by the court than for no order to be made at all.