SM v CM [2011] ScotCS CSIH_65 (12 October 2011)

SM v CM [2011] ScotCS CSIH_65 (12 October 2011)

The Sheriff and Sheriff Principal erred in law by failing to properly apply the statutory welfare test, giving undue weight to the defender's desire to relocate, and making inadequate findings regarding contact and school transition. The specific issue order permitting relocation was not shown to be better for the children than no order, and speculative possibilities and uncertainties were an insufficient foundation for the order.

Citation
[2011] ScotCS CSIH_65
Parties
Pursuer and Appellant: SM; Defender and Respondent: CM
Jurisdiction
Scotland
Judgment Date
12 October 2011
Procedural Posture
Appeal From Sheriff Court (family Law Relocation/child Residence) / Appeal to Inner House, Court of Session
Outcome
Appeal allowed; specific issue order permitting relocation recalled.
Legal Topics
Child Residence Orders, Relocation of Children, Parental Rights, Contact Arrangements, Best Interests of the Child
Family Law Child Welfare Child Residence Orders Relocation of Children Parental Rights Contact Arrangements Best Interests of the Child

Case Brief

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Parties

SM

Pursuer and Appellant

CM

Defender and Respondent

Procedural Posture

Appeal From Sheriff Court (family Law Relocation/child Residence) / Appeal to Inner House, Court of Session

Legal Issues

  1. 1 Whether the Sheriff and Sheriff Principal erred in law in granting a specific issue order permitting relocation of children with the defender to England
  2. 2 Whether the statutory welfare test under section 11(7)(a) of the Children (Scotland) Act 1995 was properly applied
  3. 3 Whether adequate findings were made regarding contact and transition arrangements for the children

Ratio Decidendi

The Sheriff and Sheriff Principal erred in law by failing to properly apply the statutory welfare test, giving undue weight to the defender's desire to relocate, and making inadequate findings regarding contact and school transition. The specific issue order permitting relocation was not shown to be better for the children than no order, and speculative possibilities and uncertainties were an insufficient foundation for the order.

Court Disposition

Appeal allowed; specific issue order permitting relocation recalled.

Orders

  • The specific issue order permitting the defender to relocate with the children to England is recalled.
  • No further order regarding residence; urgent remit to Sheriff on unresolved question of future contact if required.