A relocation case in which the court refused the father’s application, describing the outcome it reached as the “least bad solution” where neither option served the children well.
Procedural status: First instance. Followed by a by order hearing reported at JU against NU and another [2025] CSOH 117 (12 December 2025), which implemented this decision. Later history checked 3 August 2026; no appellate decision found.
Background
The parties married at Ripley, North Yorkshire on 9 June 2012 and separated in June 2024. They have three sons: L, born 10 June 2018; R, born 29 May 2020; and S, born 16 January 2022. The children have resided in Scotland since 2022. The pursuer sought to relocate them.
The decision
Lord Braid described the case as anxious. The evidence, particularly that of the expert Dr MacKinlay, was overwhelmingly to the effect that the children’s welfare, the paramount consideration, required both parents to be actively involved in their upbringing.
Neither outcome was ideal. Both involved one parent becoming the primary carer, in the defender’s case reluctantly, with a significant reduction in the time the children spent with the other parent, to the likely detriment of that relationship and of the children through the loss of that parent’s parenting style. That was neither in the boys’ interests nor what they wanted.
Because neither parent was willing or able to move, the court was in the unsatisfactory position of being unable to make the order that would best serve the children.
On balance, the least bad solution was that the boys remain in Scotland with the defender. The determining advantage was the greater degree of stability. It would be marginally less harmful, particularly for S, to be parted from the pursuer than from the defender. There is risk inherent in any change, and given the number of unknowns involved in a move, it was better that the children were not exposed to yet another move in their short lives, and that they remained at their current schools with their existing friends and support networks. The court also found it likely that the pursuer’s employment would not last for the remainder of the children’s childhoods, raising the prospect of a further move, and considered that he would be better able to adapt to disappointment.
The two older children would, the court acknowledged, be disappointed and in L’s case angered by the outcome.
The subsequent by order hearing
Following this opinion, a by order hearing was held on 12 December 2025 (JU against NU and another [2025] CSOH 117) to address the precise arrangements for the children’s care in light of the decision that they should not relocate, the anonymisation of the opinion, and how the decision should best be communicated to the children. Lord Braid sustained the pursuer’s first plea-in-law to the extent of awarding contact rather than residence.
Why this decision matters
Where both available options carry real harm, the court does not search for a good outcome. It identifies the least damaging one and explains why.
Stability carries substantial weight: existing schools, friendships and support networks, and the avoidance of a further move, were decisive here.
The durability of a proposed new arrangement matters. A relocation founded on employment the court considers unlikely to endure invites the prospect of yet another move.
Legal review: Brian Rooney, Managing Partner and Law Society of Scotland Accredited Specialist in Family Law.