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• GD v EK & Richard Mill, Curator ad litem to M, Sheriff William Holligan, Edinburgh Sheriff Court, 4 May 2011
  The pursuer and defender were respectively the father and mother of the child M (born 17 September 2006). Both parties had parental rights and responsibilities in respect of the child. The pursuer sought a residence order, failing which he sought a contact order in his favour. The defender, who had previously abducted M and taken her to New Zealand for some 6 months in 2009, sought a residence order in her favour and a specific issue order to allow her to move to New Zealand. Following M’s abduction, the pursuer had commenced proceedings in New Zealand pursuant to the Hague Convention. A reserved judgment was issued by the New Zealand family court ordering the defender’s return to the UK with M. Since their return, M continued to reside with the defender and interim interdict and contact orders were in place.
  
  It was submitted for the defender that the English Court of Appeal decision in Payne v Payne [2001] Fam 473 was good law in Scotland. In particular, reference was made to the court’s discussion of ‘reasonable proposals’ of a relocating parent and certain factors set out by the Court of Appeal to be considered in relocation cases.
  
  For the pursuer, it was submitted that Payne was not the law of Scotland and whereas the factors may have some value, they could not detract from the welfare test. Further , it was submitted that the court should be very cautious as to trusting the defender to go to New Zealand given the history of the case.
  
  The curator did not support the defender's crave for a specific issue order. He was in favour of a residence order in the defender’s favour and a contact in the pursuer’s favour. He did not consider that contact should be materially increased nor that, as the pursuer wished, M should have an equal amount of time with both parents.
  
  Having heard evidence and submissions, the Sheriff noted that the key tests to be applied were those set out in section 11(7) of the Children (Scotland) Act 1995. These were firstly, the welfare test, secondly, the no order principle and thirdly, that the views of the child were to be considered. As M was too young to express a view, a curator had been appointed. The Sheriff also noted that most of the authorities on relocation referred to by the parties were not binding upon him. He was not inclined to decide the case by reference to Payne, nor to afford a special status to the relocating parent’s wishes.
  
  The Sheriff concluded that the pursuer’s motion for a residence order should be refused. He also refused the specific issue order sought by the defender, but made a residence order in her favour, considering it better that such an order be made in order to provide stability. In respect of contact with the pursuer, parties appeared willing to adjust contact terms and this would be preferable to a court order. On the question of the defender and M travelling to New Zealand, the pursuer’s anxieties as to whether the defender would return were not without foundation, although a permanent ban on travel to New Zealand would also be unreasonable. The Sheriff did not deal with the issue at the present time and continued the interdict in that regard.
  
  The Sheriff reserved all questions of expenses and assigned a hearing to deal with them as well as any requirement to vary existing orders for contact.