Scottish Sheriff Court Decisions

F400/07

JUDGMENT OF SHERIFF NIGEL MURRAY PATON MORRISON, QC

in the cause

A M

Pursuer

against

I M

Defender

For the Pursuer: Mr Smith, of Simpson & Marwick, Solicitors, Edinburgh

For the Defender: Mr Aitken, of Thorley Stephenson, Solicitors, Edinburgh

EDINBURGH, 27 June 2008

The sheriff, having resumed consideration of the cause, finds the following facts admitted or proved:-

1. The pursuer, aged 31, and defender, aged 30, are the father and mother, respectively, of GM who was born on 15 June 1997.

2. The pursuer and defender separated in about December 1997, having been together since they were about 17 years old.

3. By agreement with the defender on 17^th July 2007, the pursuer obtained full parental responsibilities and parental rights in relation to GM.

4. The pursuer has been in a relationship with NR (aged 27) since April 2005 and they have been living together for about three years. The defender is in a relationship with PC (aged 45).

5. The defender has bought a flat in Algorfa in the Costa Blanca in Spain. She wants to live there with PC and GM.

6. The defender, PC and GM do not speak Spanish and have not yet started to learn it.

7. The defender and PC have no connections with Spain (other than the defender's flat in Algorfa), have no family, employment or work there.

9. GM's father, and all GM's grandparents, live in the Glasgow area. GM has substantial contact with them which he enjoys.

10. That contact will be materially affected if GM moves to Spain.

11. GM is dyslexic and needs certain educational support including the use of a computer. It is not known if these will be available in the school in Algorfa to which GM will go.

12. GM will be taught in Spanish in the school in Algorfa and will be put back a year in school in order for him to learn Spanish.

13. GM does not want to live in Spain. He wants to live with the defender and her partner PC. He wants to stay in Edinburgh.

Finds in fact and law that it is not in the best interests of the child, GM, that the defender be allowed to remove him from the United Kingdom to live permanently in Spain.

Therefore refuses to grant the defender's first crave for a specific issue order allowing the defender to move said child GM from the United Kingdom to live permanently in Spain; refuses the pursuer's first crave for interdict as no longer being necessary, refuses the pursuer's second crave and the defender's first crave, for residence, of consent; refuses the pursuer's third crave for contact as being unnecessary; sustains the pursuer's first and fifth pleas-in-law; repels the pursuer's third and fourth pleas; repels the defender's first, second third and fourth pleas-in-law; reserves the question of expenses and appoints                                        for a hearing on expenses.

NOTE

The issue

[1] The issue in this case is whether the defender should be able to take the parties' son, GM, now aged 11 to live in Spain on the Costa Blanca. The pursuer opposed it. The issue was raised by way of a crave by the defender for a specific issue order under section 11(2)(e) of the Children (Scotland) Act 1995. There was no dispute as to residence (GM is to live with his mother) or contact. Parties were agreed that no order was required in relation to residence, or in relation to contact if the defender did not move to Spain with GM. If the defender was allowed to move to Spain with GM there was a joint minute (no 27 of process) which dealt with the agreed contact arrangements.

[2] The defender had been ordained to lead at the proof. I heard evidence from the defender; Mrs Elizabeth Gordon, the head teacher of Primary School where GM is a pupil, and his class teacher, Mrs Rosemary McPhee; and PC, the defender's partner. On behalf of the pursuer, I heard evidence from Isabel Murdoch, a child educational psychologist whose remit includes GM's school; the pursuer; his mother, Mrs HM; his sister, Am.M; his partner, NR; the defender's father, JM; and the pursuer's own father, An.M.

The law

[3] I was referred by the solicitor for the defender principally to McShane -v- Duryea, 2006 Fam LR 15 where Sheriff Principal Lockhart, while not setting out the law, referred to certain dicta in the English Court of Appeal decision in Payne -v- Payne, [2001] Fam 473. Other cases cited to me, for the pursuer, were Fourman -v- Fourman, 1998 Fam LR 98 (a case of my own) and M -v- M, 2000 Fam LR 84. There appears to be no Scottish authority setting out the law and the factors to be considered in what are sometimes referred to as emigration cases. I was told that there were no cases of a parent seeking to take a child to a non-English speaking country; but I drew attention to one unreported case in this court, Pinkerton -v- Pinkerton, 15 May 2006 (a case of a move to Israel).

[4] The test in this country is what is in the best interests of the child. The solicitors for both parties were agreed on that. Section 11(7) of the 1995 Act stipulates three factors that the court must consider, namely, that the welfare of the child concerned is the paramount consideration, that the court must not make an order unless it would be better for the child that the order be made than that none should be made, and that the court, taking account of the child's age and maturity, must have regard to the views of the child. These are not the only factors. Furthermore, since the best interests of the child is the test, there can be no presumption in favour of or against a specific issue order to allow a child to live abroad.

[5] In deciding whether it is in the best interests of a child to be moved out of the jurisdiction of the court one has to consider what the factors are that have to be weighed in the balance. Having considered the authorities cited, it seems to me that the following factors would be included in considering whether to make such an order.

(1) The reasonableness of the proposed move abroad. In many cases the reason for moving will be for a parent to be with a new partner or because of the parent's or partner's career. In considering reasonableness, the court will give considerable weight to the wish to move of an applicant parent with a residence order iNRespect of the child. This is because as has been said in many cases, including Fourman, above, a child requires security and stability. That is best achieved if the life of the parent with the residence order is also secure and stable. The court will be reluctant to interfere with the right of a person to live where he or she wishes. There is, however, no presumption in favour of that parent or any other person; and the weight to be attached to that parent's wish is still subject to the best interests test.

(2) The motive of the parent wishing to take the child abroad. To some extent this factor overlaps the reasonableness factor, as a poor or wronGMotive would also be unreasonable and a move to be with a new partner or because of a career, for example, may be reasonable.

(3) The importance of the contact with the other or absent parent in the child's life.

(4) The importance of the child's relationship with siblings, grandparents or other members of the child's extended family who are left behind.

(5) The extent to which contact (if appropriate) is able to be maintained. It is almost inevitable that contact will be affected by a move abroad. It does not follow that because it would be affected to some extent that the move should be refused.

(6) The extent to which the child may gain from a relationship with family members as a result of the proposed move.

(7) The child's views, where he or she is of an age to express them. One must bear in mind that a child may not be able to balance all the factors which an adult would have to consider. Furthermore, one should not be surprised if a child would prefer the current arrangements to continue. One can assume that a child would not wish to lose friends or have contact that he or she enjoys reduced.

(8) The effect of the move on the child.

(9) The effect of refusal of the specific issue order on the applicant particularly where that parent already has a residence order.

(10) The effect of refusal on the welfare of the child.

(11) Whether it is better for the child to make the order than that no order should be made. It does not seem to me that, in opposed emigration cases, this no-order factor adds anything to all the other factors whicHMight be considered. It is difficult to envisage circumstances in which it would be appropriate for a child to be taken out of the jurisdiction but that no order should be made. If parties were agreed, there would be no application to the court. Different considerations may apply iNRelation to matters such as residence and contact. In White -v- White, 2001 SC 689, 699, para. [21], Lord President Rodger, as he then was, regarded this factor as the second limb of the welfare factor, and mentioned that it was designed to give effect to Parliament's view that matters should be regulated by parties wherever possible. I list it lest this statutory consideration be overlooked.

[6] I will consider these factors iNRelation to this case. First I will set out some background information.

Background

[7] The pursuer and defender, both originally from Glasgow, started their relationship when they were about 17 at High School. They separated about six months after their son, GM, was born on 15 June 1997. They drifted apart because they had a child when they were too young, which brought hardship and problems. There has never been any difficulty about contact between the parties and their respective families. Both parents speak highly of each other about the way they look after GM.

[8] The defender, now 30 years old, met her current partner, PC, now 45 years of age, in about 2001 and they started dating in November 2004. They have been together since, although they do not live permanently together because PC lives and works in Cheshire and the defender lives and works in Edinburgh. She works in the Accounts Department for Menzies Distribution. He works part-time for Connections and the North West Development Agency promoting bicycles for young people to get to work and as a personal advisor. He also runs his father's antique business which is now mostly done on the internet. The pursuer, aged 31 and a multi-media designer, met his current partner, NR aged 27 and a team leader for a firm of loss adjusters, in April 2005. They have been living together for about two years. They do not have immediate plans for marriage. They live in Glasgow. The pursuer obtained parental responsibilities and rights in relation to GM by agreement with the defender which was entered into on 17 July 2007.

[9] The defender and her partner want to live together. Edinburgh house prices are too high. They thought of moving to the north west of England, and had looked at St Ann's and Merseyside. Lancaster and Carlisle they regarded as unsuitable. The defender has always had a dream of living abroad. She wants a new place to live and a new start. There is no possibility of advancement in her current job. Her partner had the same dream, but it was more her dream than his. If the defender was not allowed to take GM to Spain, she and her partner would probably look for a home in the north west of England. Scotland was not out of the question, but the defender would, in any event, move away from Edinburgh.

[10] The defender started looking for a home abroad in the summer of 2006. She sold her flat in Edinburgh and is currently renting. She had concerns about GM growing up in certain areas. GM was not streetwise and did not react well to anti-social behaviour. He never saw the worst in anybody and was too trusting of adults. Spain was tried and tested by ex-patriots. Family was a big thing in Spain. She had researched Spain on the internet and had read three books about buying, living and working there. The advantages which outweighed the disadvantages were that the climate was warmer, there was a more outdoor lifestyle, the cost of living was lower, there was good shopping, leisure and communications with the UK and there was a friendly culture. The disadvantages were that it was an overdeveloped area and overcrowded in the summer.

[11] The defender went to three property conferences in September 2006. She settled on one company and, in October 2006, went on her first ever visit to Spain on a four day inspection trip to the Costa Blanca in south east Spain. She visited a number of places, eventually settling on Algorfa, a village 35 minutes from the airport at Alicante and 25 minutes from the airport at Murcia. The village has a population of about 3,000. It has a primary school for six to 12 year olds, a nursery school, tapas bars, a pharmacy, opticians, baker, butcher, an English bar and restaurant, church, doctor, dentist, and a sports centre with swimming pool. There are two hospitals about 12 miles away. There is a high school in Almoradi nearby. Fifty five per cent of the population is non-Spanish (mostly British) and 43% of the primary school children are English speakers. The airports are under three hours from Edinburgh or Glasgow airports with flights by Globespan, Jet 2 and Ryanair, though not all carriers fly all the year round.

[12] On the last day of her trip the defender paid a 2,000 Euros holding fee, using a bank draft she had taken with her, on a two-bedroomed first floor flat in a recently built complex. The purchase loan was arranged with a Spanish bank in January 2007. In that month the defender phoned the pursuer to tell him that she was planning to move with GM to Spain. He phoned her back after the initial call. According to the defender, since the second call, the pursuer has been against the idea and has refused to discuss it with her. When she told him what her reasons were the pursuer said that they were not good enough. According to the pursuer he was not against the move at first, he wanted to know more about it. He suggested she went out there first and got a job there; but she did not want to leave GM behind. The letter from his solicitor to the defender's solicitor of 23 February 2007 (no. 5/3/1/9 of process) stated that the pursuer had misgivings about whether the move to Spain was in GM's best interests. There was a joint meeting at his solicitor's office at which the pursuer suggested that the defender go with GM in the summer for a month and he would visit. He indicated that GM had said to him, when he told GM, "so you're giving up on me daddy". (Both the pursuer and the defender knew that GM did not want to go.) The pursuer then became more opposed to the move, not simply because GM did not want to go, but because of his concerns about GM's educational difficulties and the language problem.

[13] Two days before the defender was due to fly to Spain with GM to live there on 27 March 2007, the pursuer learned from GM that this was to happen. This was on a contact weekend when GM told the pursuer that he had said goodbye to his friends and that his mother had got rid of the television.

[14] The pursuer and his mother went to look at Algorfa for themselves in January/February 2008. They stayed in a flat similar to that of the defender in the same complex and the defender gave them keys to her flat so that they could look at it. The pursuer and his mother both described the complex as being virtually deserted. The swimming pool was closed. They were not able to see or speak to anyone at the school because it was closed for a holiday.

The submissions

[15] The solicitor for the defender argued, on the basis of what was said in the case of Payne, above, for great weight to be placed on the importance of the way of life selected by the defender as the primary carer and that the court should not interfere with the reasonable decision of the parent with the residence order. While there were gaps in knowledge of the defender about moving to Spain, she was able to answer all critical questions. There were indications that employment was available, there was good schooling, she had a home there, there was good communication with Scotland and opportunities for contact were significant. GM's views had not been ignored; the defender had taken account of his best interests. Although GM told everyone that he did not want to go, he did not have the same need, in expressing his views, to please his mother as he did his father and his family. If GM does not go to Spain, he will not be staying in Edinburgh as he wishes.

[16] For the pursuer it was argued that the defender's reasons for moving to Spain were inadequate and not reasonable. The decision was not well planned. Contact with GM would be substantially reduced from 26 to eight times a year and a network of family support here would be lost. It could not be said that GM would be better off educationally in Spain and he had support needs that had not been established would be available. GM did not want to go and some weight had to be given to that.

[17] I now turn to consider the relevant factors.

Reasonableness

[18] The defender does not speak Spanish. Her partner does not speak Spanish. GM does not speak Spanish. None of them has started to learn Spanish in anticipation of moving to Spain. The defender thought that she would learn Spanish better in Spain. The defender's reasons for not enrolling GM for Spanish lessons were that he had a lot of other activities and she did not know how long they would be here. PC had not started to learn Spanish because they did not know when they were going. It seems to me that GM has probably a better chance of learning Spanish than either the defender or her partner as he will go to a school where he will be taught in Spanish. Because he will have to learn Spanish before he can really learn anything else, the defender was told by the head, or director, of the primary school in Algorfa that GM will be put back a year in primary school.

[19] The defender has not ascertained that the school in Algorfa will have the support mechanisms that GM has available to him here for his educational needs (to which I shall refer in detail later). It may be unlikely that the school does not have the means to help a dyslexic child, but it is not actually known by the defender.

[20] The defender does not have a job or business in Spain. Her partner does not have a job or business in Spain. Neither of them is required to move to Spain either for their work, their health or GM's health. The defender and her partner intend to look for work or a business to run if they move there. Until they do, it is clear that PC is able to provide a capital cushion. They have spoken to one or two people they have met there about the availability of work. The defender noticed that the internet café was for sale. She also thought about opening up a sandwich bar. I appreciate that they cannot make a specific commitment until they know if and when they can go. I am surprised, however, that they think that they will readily obtain work or a business without speaking Spanish and have not a clear idea of what is actually available at present whether or not they are in the position to take it up. The pursuer said that when he spoke to a man who ran a mini-mart about employment the man responded that there were jobs but that one needed to speak Spanish.

[21] The defender does not have any family in Spain. All other members of GM's family on his father's and mother's side will remain in the west of Scotland.

[22] The defender accepted that her decision to move to Spain on 27 March 2007, without telling the defender when she was going, was a massive error of judgement. Although she told GM about their moving to Spain in January 2007 she did not discuss it with him before making the decision because she knew what his views would be, namely, that he would not want to go. She considered that the decision was hers to make, taking account of what was best for him but did not take his views into account.

[23] No school place has been arranged in advance. The defender said that the director of the school had indicated that there would be no problem. The defender had intended to leave after the end of the school term (in March) rather than at the end of an academic year.

[24] The defender accepted that a car would be essential in Algorfa. She does not drive. She will have to learn. She had been thinking of taking a crash course before going to Spain.

[25] It seems to me that the proposed move by the defender has been ill-thought out or at least not properly thought through or well planned.

[26] I do not think that the defender's proposed move can be described as reasonable.

Motive

[27] There is no suggestion that the defender wants to move to Spain to thwart the pursuer's contact with GM.

[28] The basis for going without telling the pursuer appeared to be that it was up to him to ask. Having bought the property there, the defender wanted to get there are quickly as possible and get GM settled in. No consideration was given to when and how GM would next see his father.

[29] The defender has a dream. She has rationalised it on the ground that life will be better in Spain than in the United Kingdom and that GM will grow up in a better environment than she could afford in the United Kingdom. It seems to me that sometimes it is necessary to set aside or postpone one's dreams for the sake of one's child.

The importance of contact with the pursuer

[30] The defender confirmed that GM had a close and loving relationship with his father. GM has asked to see his father more often.

[31] The curator ad litem noted in her report (no 13 of process) that GM was relaxed and happy in his father's company and was affectionate to him and to his partner, seeking physical contact. The relationship between father and son was close and loving.

[32] The pursuer described the various activities he and GM engaged in during contact. While the pursuer has been involved in GM's education and GM does not take homework on contact weekends, GM clearly has plenty of fun with his father. His partner, Miss Rooney, does some educational work with GM on Saturday mornings during contact.

[33] I agree with the curator's conclusion that the close relationship that GM has with the pursuer would be adversely affected if GM moves to Spain.

Importance of child's relationship with family members

[34] GM's maternal and paternal grandparents live in the west of Scotland; so does his paternal aunt. When the pursuer went to Australia for nine months in August 1999, his parents maintained regular contact with GM. After the pursuer came home, he lived with his parents and at that time he was seeing GM three weekends out of four. Under the current arrangement made about two years ago, for fortnightly residential contact, the pursuer's father collects GM from Edinburgh on Friday and takes him to his and his wife's home in Kirkintilloch. They take GM to meet the pursuer after work. They live about 25 minutes away from the pursuer.

[35] HM, the pursuer's mother, said she would like to visit Spain to see GM about twice a year. If GM came to Scotland for the summer they would see a lot of him. Her husband did not like travelling, but she and he said that he would probably go twice a year. Both of them are retired.

[36] GM sees the defender's father every week and she takes GM to Glasgow at weekends to see him. He said he would go to Spain to see GM. The defender thought he would come for a few weeks every few months because he was retired.

[37] GM sees the pursuer's sister Am.M. She has a daughter aged 5 and her partner has a son aged 9. She sees the pursuer about once a fortnight. She said she would go to Spain but it might be difficult with a full-time job and a five year old to look after.

[38] The defender explained that her father and the pursuer's parents have always helped look after GM. They have come through to Edinburgh at short notice wheNRequired, for example, when he has been ill.

[39] I am in no doubt that there is a strong bond between GM and his paternal and maternal relatives. He sees them regularly, and in particular he sees An.M and HM every other weekend. If GM moves to Spain the regularity of his contact with them will be considerably reduced. How much of the holidays he will spend in the United Kingdom with or seeing his relatives is unclear. It is apparent that the summer school holidays in Spain are about three months long. The defender seemed to think that GM could spend quite a lot of that time with his father in Glasgow. If GM comes to the United Kingdom, and the defender has only 25 days holiday a year, his parents are likely to see quite a lot of GM. The totality of agreed contact will, however, be less than currently.

[40] It seems to me that the amount and regularity of contact GM has with family members would indicate that it is an important part of his life. According to the pursuer, GM loves his parents very much and often asks to go to see them. GM also spoke positively to the curator ad litem about his family. The curator said he was clearly attached to his maternal grandfather and paternal grandparents.

[41] I think that there is a very close bond between GM and family members on both sides of his family which will be materially affected if he moves to Spain.

The extent to which contact between father and child can be maintained

[42] The joint minute provides for residential contact in Spain for a weekend every six weeks, and one week at Christmas and four weeks in the summer to be exercised in the UK or elsewhere by the pursuer. That represents about 51 days a year. The defender has offered to let the pursuer stay in her flat in Spain and she and her partner will move out if he does. She has also offered to pay for some of the flights to Spain. She indicated that the pursuer could see GM more often.

[43] The current contact arrangements are for residential contact every other weekend, two or three weeks in the summer, a week a Christmas (five days last Christmas) and a week at Easter. That represents about 72 days a year. Clearly contact will be reduced. The pursuer says he will go to Spain every six weeks, but it will not be easy or always cheap to maintain that commitment.

Extent to which the child may gain from family relationships as a result of the move

[44] Neither the pursuer, nor the defender, has family in Spain. Accordingly, any contact with family members will depend on them visiting GM in Spain, or GM coming to Scotland. It would be difficult for GM to come to Scotland during term time.

[45] In moving to Spain, GM will gain a closer relationship with PC because the defender and PC will live together. It is clear that there is a good relationship between GM and the defender's partner. The pursuer acknowledged that GM wanted to live with his mother and PC. It seems to me that it is not essential that this has to be in Spain.

[46] There does not appear to be any gain for GM in contact with his family as a result of the move.

The child's views

[47] GM has been only once to Spain and that was for six days to stay in his mother's flat in Algorfa in August 2007 for a holiday. He enjoyed it, he said, as a holiday. He told both his parents that Algorfa was good for a holiday. He did not see inside the school because it was closed for the summer holidays.

[48] GM has always been against moving to Spain. The defender was very frank about this. He was very upset when he was told by his mother that he was going. He did not want to leave his friends and his school. He is very attached to his peer group and had been witHMany of them since he was three. The defender indicated that GM was a child who did not like change. He was not keen to leave Edinburgh; and his ideal solution, according to his mother, was to stay in Edinburgh. The defender accepted that she had not taken GM's views into account in making her decision. He would not understand the ramifications of a decision to move. She accepted that GM's views had not changed since his visit in August last year.

[49] The pursuer said that, when he discovered that GM was moving to Spain, GM was upset, said he did not want to go and said that he would miss his father, family and friends. GM had maintained this opinion. GM did speak of the good things about Spain, namely, the swimming pool, ice creams and living with PC which he wanted to do very much. GM was mature in some ways, for example, he brought up and decided himself that he wanted to be christened. He understood aspects of living in a new country, such as a change of environment, a new school, new language and being far from his family. The pursuer accepted that GM would make friends easily.

[50] It was never suggested that GM was being influenced to be opposed to the move. It was suggested, however, that GM was trying to please his father and everyone else, and would be influenced by the way things were presented to him.

[51] The pursuer accepted that GM would have seen how upset his father and family were when they discovered that he was moving to Spain and that GM's views would be influenced by seeing their reaction. The pursuer said that GM's views had never altered, however. The pursuer pointed out that GM loved his mother very much and that showed how much he did not want to move. GM's paternal grandparents and aunt supported the position that GM did not want to go.

[52] A curator ad litem was appointed to GM. Instead of acting as such, the curator acted as a court reporter, interviewed members of the parties' families, ascertained GM's views (that he did not want to go) but recommended that the defender be allowed to take him to Spain. She did not enter the process as a minuter to represent GM. Leaving aside the duties of a curator ad litem, GM confirmed to her that he did not want to go. His main reason was that he would be away from his extended family who, apart from his mother, lived in Scotland.

[53] There was some discussion in the evidence about GM's ability to express his views and make decisions. The educational psychologist, Isobel Murdoch, said that a 10 year old could be persuaded by arguments, that the way something was presented could colour a 10 year old's views and that she did not know if GM was more susceptible than the average 10 year old. It would be a very difficult task, in her view, for a 10 year old to weigh up all the factors. His head teacher, Elizabeth Gordon, thought that his decisions would be based on pleasing whoever is asking him to weigh things up. His class teacher, Rosemary McPhee, did not think it was as simple as that, but thought that weighing up the pros and cons would be tricky for him.

[54] It is perhaps obvious that a 10 year old would not be able to balance all the factors in making a decision. It is also clear that a child would not want to change the status quo. Nonetheless, GM did not and does not want to go and one of his reasons is factually correct, that he will not see his extended family as regularly as before. Since also all are agreed that GM has never changed his mind, I think that this must be his own opinion. Some weight must be given to it, recognising that it cannot be based on having weighed up all the relevant factors.

The effect of the move on the child

[55] GM will be removed from his friends, his father and extended family. The only family he will have in Spain will be his mother. He will, however, be living with his mother and PC with whom he wants to live. The pursuer readily accepted that GM wanted to live in family with the defender and PC and that this was right for GM. GM is a sociable child. His head teacher and class teacher described him as a friendly, warm, open child with a fantastic creative mind, and keen to please. He got on well with other children and adults. His openness, trust and friendliness towards adults could be a worry as he was naive and not streetwise. He is very affectionate, full of enthusiasm and articulate. His parents gave similar descriptions of GM.

[56] Being a sociable friendly child, GM would have little difficulty making friends with children in a new school.

[57] In speaking to the primary school head teacher (the director) in Algorfa through an interpreter, the defender ascertained that GM would be put back a year because he did not speak Spanish. Before he can learn in Spanish it is clear that he will have to be able to speak it. By "Spanish" is meant Castilian. There is a language school where GM would go for extra tuition in Spanish. In the book lodged in process, Costa Blanca Lifeline (no 5/5/1 of process) at p.177, it is stated that in the education system in the Costa Blanca children are required to study Valencian as a first language as well as Spanish. The defender said that this had not been brought to her knowledge when she spoke to the director. On page 176 it is stated that one will need to have good Spanish to communicate with the teachers. The defender said that some of the teachers spoke English she was told, and one such teacher translated for her when she spoke to the director who did not speak English. She did not know who GM's teacher would be if he went to this school. She recognised that a difficulty would be helping GM with his homework while she did not speak Spanish. She would look into employing a tutor. She does not know if English will be part of the curriculum. The defender spoke to some people in the village, mainly English, who were full of praised for the school. The pursuer said that he tried to contact the school by telephone in English without success, and by e-mail with Spanish translation but got no response.

[58] GM is dyslexic, although not severely. This was the evidence of the educational psychologist, Isobel Murdoch. His continuing difficulties in spite of support indicated that this was the case. Although the defender knew about GM's educational problems and the pursuer was aware of them but not the extent, neither knew of this diagnosis. The defender knew that GM had had a dyslexia screening at school which indicated that he was not dyslexic. Mrs Murdoch explained that that computer test was a different test from the one done by educational psychologists. The latter tested cognitive ability, processing (visual and auditory) and skills, there being two tests in each category.

[59] GM's current difficulties are with handwriting, reading and number skills. His reading and mathematics have improved (level C where he should be); though he is in the bottom half of his class. For basic reading he is on the sixth percentile. Mrs Murdoch indicated that GM was underachieving in literacy and numeracy. He was 18 months behind. She did agree that the school assessment, which was rather better, could still be accurate as she had used tests that GM would not have been used to. GM's writing and spelling is level A, whereas orally he is up at level D. A child should have achieved level A by the end of primary 3. GM is in primary 6.

[60] At school GM has received support from the occupational therapist and from a physiotherapist. He is working through Toe by Toe at school and at home with his mother. He has two 10 minute sessions a week with a learning support teacher or classroom assistant (for the Toe by Toe work); and a learning assistant in class who is there for other children as well as GM. He has the use of a computer in class which helps him overcome the difficulties with writing and spelling. He is doing German at present at school and is finding it very difficult. He found doing Italian at school quite difficult.

[61] There was much discussion about GM's ability to cope with school in Spain. His teachers were agreed that he would make friends easily. Mrs Gordon, the head teacher, thought that he would need continuing learning support with his writing; his class teacher thought that it would only be detrimental to GM if he did not have a computer to use. Mrs Gordon thought support would be important for GM learning Spanish. His class teacher thought that he would cope in a Spanish school. Mrs Murdoch thought he might find dealing with a foreign language challenging as many children did. Emersion in the language, as would be the case for GM, was a better way to learn. She thought that much would depend on what supports were available.

[62] The defender and her partner indicated that if GM did not get on at the primary school in Algorfa they would consider moving him to the international school in San Miguel de Salinas. Fees were 530 Euros per month. GM would be taught in English. Nobody that the defender had spoken to had a child there and neither she nor PC had visited the school. If GM did not get on with his schooling in Spain they would return to the United Kingdom.

[63] It is clear that GM has educational difficulties and needs. It may well be that similar supports that GM has at primary school will be available in Algorfa, but the defender does not know. I think it is clear that it is going to be more difficult for GM in a foreign language at least until he is fluent in it. If he does not have the supports he has available to him here he will not be able to cope.

The effect of refusal on the defender and the child

[64] Since the defender and her partner have no family or employment in Spain, refusal is only postponing the defender's dream. Neither of them has lived there. Both of them have said that if GM did not do well in Spain they would return to the United Kingdom. GM has never lived in Spain. What he has not experienced he will not miss.

[65] The defender says that the life and environment would be better for GM than where he is at present. Although, whatever happens, the defender is going to move from Edinburgh, if not to Spain then it will be elsewhere in Scotland or probably in north west England. It may be very nice to live in a village in a warm climate in a friendly environment. With the exception of a warm climate, these goals are not unachievable in the United Kingdom. I do not think that refusal to make the order will have any serious affect on the defender or GM except for disappointment for the defender. I do not think that it will affect the defender's stability and security or GM's if she does not go to Spain.

Best interests

[66] I do not see how it can be in GM's best interests to make an order to enable the defender to take GM to live in Spain. The defender's proposal does not seem to me to be reasonable. There is no requirement for the defender or her partner to move to Spain. The substantial contact that GM has with his father and members of his paternal and maternal family indicate a close bond which will be materially affected if GM moves to Spain. GM does not want to go. He will be put back a year in his education. He has educational difficulties the support for which in the Spanish school has not been confirmed. It is not better to make the order than not. Accordingly, I refuse to make the specific issue order for the defender to take GM to Spain.

[67] I recognise that if GM does not go to Spain, he will probably leave Edinburgh, may well have Scotland and move to the north west of England. It was appreciated by the pursuer that this would affect contact though not, anyone thought, to the same extent.

Expenses

[68] I was asked to reserve the question of expenses, which I do. A hearing will be fixed to deal with that matter.