PSC v NS 2025 CSOH 90 – Children’s views and their interaction with the welfare principle
The recently published decision, of PSC v NS 2025 CSOH 90 will be of interest to family law practitioners exploring as it does the interface between the weight to be attached to the vehemently expressed views of children and the need to protect children from abuse or the risk of abuse.
The case concerns the pursuer’s ( the father’s ) application to relocate to the US ( the home country of the family ) with the parties’ three children and the defender’s opposition to that application and her conviction that the children should spend time with each of their parents in Scotland.
Facts and circumstances
The children, who were the subject of the action, are child F (aged 12), child O (aged 10), and a female child I (aged 7). The pursuer is the children’s father, and the defender is their mother. The parties separated in 2024. The pursuer had dual US and UK nationality, and the defender was of German nationality. The defender also held an US ‘green card’. The children were born in the US and resided there until 2024. At the point of judgement, both parties were living separately in a small Scottish town. Two of the children lived with the pursuer and one of the children lived between both parties’ houses (child I).
All three children expressed a strong desire to relocate to the US with the pursuer. Two of the children had refused to have residential contact with the defender in the UK. The children were angry with and rejecting of the defender, refusing all contact with her and exhibiting emotional distress and suicidal ideation. The parties’ other child was maintaining a positive relationship with both parents.
The defender alleged that the pursuer had been abusive towards her and towards one of their children during their marriage. The court accepted the defender’s account of a serious physical assault of one of the children in May 2024 and found that the pursuer had been physically and verbally abusive towards her. The court agreed with the defender that there was a risk of further abuse taking place.
The pursuer’s ability to return to live in the US was uncertain. Expert evidence was led by the defender, claiming that her Green Card status may be challenged if she attempted to re-enter the US. Likewise, visa options may not have been suitable for any meaningful contact to take place. As such, she opposed the children’s proposed relocation to the US.
Legal issues in the case
The court heard evidence over an eleven-day diet of proof. The pursuer sought a residence order and an order for relocation per 11(2)(c) and (e) of the Children (Scotland) Act 1995 (“The 1995 Act”). The defender sought residence of the children via s11(2)c of the 1995 Act.
The court recognised the statutory duty in terms of s11(7) of the 1995 Act to consider the views of the children. The court was also required to consider the factors set out at s11(7)B-(7)E of the 1995 Act, which include: the need to protect the child from abuse and/or the risk of abuse, the effect of said abuse or risk of abuse on the child, the ability of the person who has or may carry out abuse to care for or meet the needs of the child and the effect of the abuse or risk of abuse might have on the carrying out of responsibilities in respect of the child.
The Lord Ordinary confirmed in her written decision that the welfare and best interests of the children are the paramount consideration in these disputes, per Donaldson v Donaldson 2014 Fam LR 126. Likewise, she emphasised that there is to be no presumption or leaning towards a particular factor in the dispute as having more significance than another. The Lord Ordinary cited GL v JL 2017 Fam LR 54 as authority for the proposition that each case will turn on its own facts, circumstances and merits. No checklist shall be applied. The court also relied on J v J 2004 Fam LR 20, where it was held at paragraph 13 that advantages and disadvantages of any dispute, together with the long-term implications of any decision must be considered. Importantly, a decision may be granted even if it causes some short term upset to the children involved, if it will benefit said children in the long term. In this case, the Lord Ordinary also emphasised the importance of the views of the child, now that the United Nations Convention on the Rights of the Child has been incorporated into domestic law.
Children’s views
Evidence was led from a child psychologist, Dr Katherine Edward, who assessed the children’s views and confirmed hat the children’s views were genuinely held. However, another psychologist considered the matter of influence and the impact of abuse of the children upon their stated views ( if that abuse had occurred ). Dr Willemsen’s opinion was that the matter of influence and emotional adaptation due to family conflict had not been adequately considered. In cross-examination, Dr Edward conceded that abuse perpetrated by the pursuer against the defender and at least one of the children ( if it had occurred) could have influenced their alignment with the pursuer.
Importantly, it was observed that: “”Children caught between warring parents are not infrequently faced with a dreadful dilemma: whether to be honest or to be loyal when questioned” (Weir, 2011). When focusing on the children’s expressed views only, there is a risk, when there are allegations of domestic abuse, such as are made in this case, that the children’s adaptive behaviour, and the consequences of that behaviour, is not acknowledged.”
Both experts acknowledged that repairing the relationship between parent and child was important, particularly when said relationship had been strong prior to the parties’ separation.
Decision
Contrary to the expressed views of the children, the Lord Ordinary refused the pursuer’s motion for relocation of the children to the United States, and a residence order was made confirming that the children were to spend equal amounts of time with both parents. The court emphasised the need for therapeutic care in respect of two of the children, so that over time, they would be able to repair their relationship with the defender. The Lord Ordinary concluded that the children’s safety and access to both parents were paramount considerations in this case. The defender’s presence in Scotland was a protective factor against any further abuse taking place and it was in the best interests of the children to remain in Scotland and for there to be a shared care arrangement.
Commentary
The Lord Ordinary observed “I regret that I cannot do what the children want me to do. I do not dismiss their wishes. I have had to balance their wishes with keeping them safe and allowing them to access the care of both parents.”
This decision confirms the paramountcy of the child’s welfare and that in family law disputes, a child’s views however vehemently they may be expressed may not be determinative of the outcome if it is established that their views do not align with their best interests. It is also a useful exploration of the importance of interrogating carefully the matter of influence upon children, the careful framing of a psychologist’s remit where influence may be at play and the impact of abusive conduct the ability of children to express their views. The decision reiterates that the court has a duty to protect children from harm and to consider their long-term wellbeing rather than their short-term satisfaction.
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