GB or L v JL [2017] CSOH 60 (Outer House, Court of Session, 6 April 2017)

Background: The parties are married with one child, OJL, born in February 2015. Due to the irretrievable breakdown of the marriage, GB decided to return to England and sought both a residence order providing that the child reside with her and a specific issue order entitling her to remove OJL from Scotland for the purpose of him residing in England. JL opposed both orders, arguing that it would not be better for OJL for those orders to be made than for no orders to be made at all, and that the child’s welfare would be better served by him staying in the Edinburgh area and being looked after by both parties.

Held: The court decided that the welfare of the child required refusal of the order sought by GB to remove OJL to England. Additionally, a residence order was considered inappropriate due to the lack of a genuine disagreement about with whom the child should live.

In coming to the decision on relocation, the court emphasised that these cases are fact sensitive and that what matters is scrutiny of the particular circumstances of the dispute and the child. In addition, the welfare of the child is paramount, and the rights and interests of either party are not determinative.

The court found that GB’s evidence about family life since the birth of OJL was not wholly credible and reliable. Ultimately, it was decided that her evidence on matters where her account differed from that of JL could not be accepted, and that JL’s account was far more accurate. The court concluded that there was nothing in JL’s character to give cause for concern about his ongoing relationship with his son, and that contrary to GB’s evidence, he had been significantly involved in the life of his child before the relationship breakdown and that the levels of his parental involvement since had not been inconsistent or erratic. In addition, the court did not consider there to be anything negative about daily life in Edinburgh for OJL to suggest that a move to England would be beneficial. Instead, the one significant result of the move would be the detrimental impact on his relationship with his father, raising a compelling reason for OJL to remain in Edinburgh.