An unusual case in which two children entered the process in their own right and successfully sought variation of a decision refusing relocation to America, made after proof only months earlier.
Background
The family are American citizens who have held dual UK citizenship since 2019. The defender has indefinite leave to remain and works in Scotland as a specialist medical consultant. In 2024 the family moved to Scotland on a staged basis, the pursuer and two of the children travelling on 17 July 2024 and the defender and the youngest child joining them on 9 September 2024.
The case first proceeded to proof before Lady Tait, who issued her opinion on 30 September 2025 ([2025] CSOH 90) refusing the relocation sought. Two of the children then entered the process and lodged minutes of variation, seeking to achieve the return to America that the September decision had refused.
The decision
The court identified two questions: in what circumstances may the court revisit care arrangements for children following a decision after proof; and, if entitled to do so, whether the September decision ought now to be varied. The correctness of the earlier decision at the time it was made, and the findings in fact underlying it, were not open to challenge. The minuters had to show first that there was justification for the court reconsidering the arrangements, and only then would the question of the children’s welfare be revisited.
Lord Braid concluded that the welfare of the two older children, the paramount consideration, was best served not only by their residing with the pursuer but by being allowed to do so in America. As there was no prospect of the parents agreeing that outcome, it was better to make the orders than not to do so.
As to the youngest child, the defender had in a sense answered the question for the court by accepting that the children should not be split up.
Why this decision matters
The postscript is as important as the outcome. Lord Braid stated that nothing in the opinion should be taken as an indication that the September decision was wrong, or that future applications by a child unhappy with a decision reached by the court are to be encouraged or likely to succeed. The circumstances of the case were highly exceptional.
The decision confirms that a child of sufficient age and understanding may enter proceedings in their own right and lodge a minute of variation, but that the threshold question of whether the court should reconsider at all comes first.
Practitioners should be cautious about treating the case as opening a route to relitigating recent relocation decisions. It does not.
Legal review: Brian Rooney, Managing Partner and Law Society of Scotland Accredited Specialist in Family Law.