Procedural status: First instance, following proof. Later history checked 3 August 2026; no later decision found.
Residence granted to the mother, interdict granted against removal of the children from the jurisdiction, and contact refused where the court found a history of verbal, physical and sexual abuse.
Background
The parties married in Colorado in 2014. There are two children of the marriage, born in 2016 and 2018. The pursuer is Scottish; the defender is an American national and appeared as a party litigant.
The proof concerned the pursuer’s conclusions for residence and for interdict against removal of the children, and the defender’s conclusion for contact. In his pleadings the defender had conceded that it was in the children’s best interests to reside with the pursuer.
What the court decided
Lady Tait had regard to section 11(7B) of the Children (Scotland) Act 1995, including the need to protect the children from abuse or the risk of abuse, the effect such abuse might have on them, and the effect any abuse or risk of abuse might have on the pursuer. Under section 11(7D) she also had to consider whether it would be appropriate to make an order where the parties would require to co-operate.
As a matter of fact, the court found that the defender had been verbally, physically and sexually abusive towards the pursuer, on occasions in the children’s presence. The pursuer remained fearful of his actions and of his erratic and unpredictable temperament, and feared that no sufficient protective measures could protect the children if contact were ordered, because the defender could not regulate his behaviour. That fear was underlined by his having continued to send abusive messages and a naked photograph of himself during the proceedings.
The court made an order for the children to reside with the pursuer, granted interdict against the defender removing them from the jurisdiction, and refused to make a contact order in his favour. All questions of expenses were reserved.
Why this decision matters
Section 11(7B) requires the court to consider the effect of abuse on the resident parent as well as on the children. A parent’s well-founded fear is a relevant factor in its own right, not merely background.
Section 11(7D) asks whether an order requiring co-operation is workable at all. Where one party cannot regulate their behaviour, the court may conclude that no safe contact arrangement can be constructed.
Conduct during the proceedings themselves can be decisive. Abusive communications sent while a contact application is live will be weighed by the court.
Legal review: Brian Rooney, Managing Partner and Law Society of Scotland Accredited Specialist in Family Law.