Relocation: locking the stable door

The case of T v McG, Glasgow Sheriff Court, November 2013, unreported, raises two points of note in relation to appeals in relocation cases.

The circumstances were relatively complex. The pursuer wished to relocate to Ireland where she and her three children would live with her second husband, who had obtained work there following lengthy unemployment. The child who was the subject of the action was 10 years old at time of proof. Her birth father opposed the proposed relocation. The child had two step-siblings, one of whom was only months old.

Evidence was led in relation to the child’s relative attachments to various family members. The sheriff also heard evidence from a jointly instructed child psychologist, whose report concluded that the proposed relocation was in the child’s best interests and refusing the order sought would have a detrimental effect on her emotional and psychological wellbeing.

The factual matrix was complicated by the fact that, in the months prior to proof but following the psychologist’s report, the proposed location changed. The psychologist’s supplementary opinion was sought on behalf of the pursuer (alone) as to whether this change altered his conclusions. It did not, his position being that his recommendations were not “location specific”. The supplementary report, which recorded the child’s views, was produced by the psychologist for the court’s assistance and intimated to the defender’s agent immediately prior to proof. Objection was taken to the late lodging of this production. The pursuer’s agent suggested that it be not lodged, the expert being in a position to give direct oral evidence. The sheriff indicated that as she was obliged to consider the child’s views, it would be helpful for the supplementary report to be lodged in process, which it duly was.

The sheriff heard three days of evidence in February 2013, at the conclusion of which she pronounced a specific issue order to enable the pursuer to relocate to Ireland with the children. Her judgment highlighted the evidence concerning the stress which the child was under as a result of the proceedings, the expert having warned that “If the tension concerning the move continues, the stress will become distress and affect all of the members of the families and will place [the child] in a very stressful situation for a child of her age.”

Purpose of appeal

On appeal, the defender sought to challenge both the decision to grant the specific issue order and the award of expenses. Importantly, the defender did not seek to suspend the interlocutor allowing the relocation. By the date of the appeal hearing, the child had been in Ireland for over six months.

At the outset of the hearing, the preliminary submission was made for the respondent that, even if the sheriff principal were to be persuaded of the merits of the appeal and the interlocutor recalled, it was not clear how the case should then proceed. Crucially, the appellant did not seek a residence order in respect of the child. Even if he had, or an order for delivery, the sheriff principal could hardly substitute any alternative order because of the passage of time, a difficulty which the Inner House had recognised in the case of M v M 2012 SLT 428.

It was further submitted that it would be unconscionable for the sheriff principal to remit the case back to the sheriff, which would presumably only result in a further proof with all that would entail in terms of stress on the child. Reference was made to the expert’s report relating to the stressful effect of ongoing proceedings.

The sheriff principal adjourned to consider these preliminary submissions, and having done so refused the appeal without hearing submissions in relation to the merits. He remarked that there seemed to be no practical point to the appeal, which appeared to have been marked simply because the appellant was not happy with the outcome of the proof. The hearing proceeded only in relation to the appeal against the award of expenses.

Practice points

Two practice points arise. First, a party seeking to appeal the granting of a specific issue order in a relocation case must take steps to suspend the relevant interlocutor pending the appeal.

Secondly, it is possible to short circuit an appeal in circumstances where practical considerations relating to the best interests of the child arguably outweigh the perceived right of a litigant to pursue an appeal. The sheriff principal’s decision to accept the respondent’s preliminary submissions represents a triumph of common sense and practical case management over academic legal debate, in keeping with the jurisprudence underpinning the ratio of the cases of M v M, and B v G 2012 SC (UKSC) 293.

The appellant in T v McG was legally aided. An application for an award of expenses in favour of the respondent, payable from the legal aid fund in terms of s 19 of the Legal Aid (Scotland) Act 1986, is pending.