In the recent Outer House decision in PSC and Others v NS [2026] CSOH 47, Lord Braid varied a shared residence order made only months earlier, permitting three children to relocate with their father to the United States. The case is significant as regards the views and welfare of children, and the court's willingness to revisit care arrangements that prove unworkable in practice.

Background to case

The pursuer and defender married and previously lived in the United States with their three children: F (now 13), O (now 11) and I (now 8). In 2024, the family relocated to Scotland. Days after the move was complete, the defender informed the pursuer she had decided to separate.

The two boys F and O became estranged from their mother and wished to return to America with their father. The matter proceeded to proof before Lady Tait, who in September 2025 ([2025] CSOH 90) awarded shared residence and refused a relocation order. Lady Tait found that the pursuer had been verbally abusive towards the defender and had physically assaulted O and concluded that the children should not return to America without the defender's protective involvement. She acknowledged the boys were unlikely to participate in shared care without therapy.

No therapy was arranged. The shared care order proved entirely unworkable for F and O, who continued to live exclusively with the pursuer and saw the defender only fleetingly. Both boys subsequently sisted themselves as parties to the action and sought variation of the order to permit relocation. A curator ad litem was appointed for I, who supported relocation if the boys were permitted to go.

The applicable law

This was not an appeal. The September findings-in-fact were not open to challenge. The question was whether there was justification to reconsider the care arrangements and, if so, whether the children's welfare now demanded a different outcome.

Under section 11 of the Children (Scotland) Act 1995, welfare is the paramount consideration. The court must have regard to children's views, and the need to protect from abuse must be considered.

Lord Braid noted that no decision about parental rights is truly final (Sanderson v McManus 1997 SC(HL) 55) and held that reconsideration was warranted where an order had proved unworkable and the children's mental health had deteriorated severely.

Decision

The expert evidence in this case was decisive. Dr MacKinlay, Clinical Psychologist, reported that O had disclosed suicidal ideation and had considered specific methods, highly atypical and dangerous for an 11-year-old. F presented with significant depressive symptoms. Both boys' views were independently formed, well-articulated and not the product of parental influence. Dr Woodhouse, instructed for I, concluded that I's sibling relationships were central to her identity and that remaining in Scotland without her brothers would not work in the longer term.

Lord Braid acknowledged that past abuse remains a relevant risk factor but noted that no professional had detected any sign of trauma in the children. The risk of abuse was not sufficient to refuse sole residence or relocation where other welfare considerations pointed the other way.

Lord Braid varied the September order and ordered that all three children reside with the pursuer and permitted their relocation to the United States. For I (where the welfare balance was closer) the sibling bond was the decisive factor. The court concluded that it was less harmful to interfere with one significant relationship (i.e. her relationship with the defender) than three (her relationship with the pursuer and her brothers).

The court also granted an order requiring a minimum of six weeks' residential contact per year between the defender and I. The court was not invited to make a contact order in respect of F and O. The court noted that it remains a matter of regret that F and O are still estranged from the defender, to whom they were very close until December 2024 and who clearly loves them very much. Lord Braid expressed his hope that following their return to America, with support and encouragement from the pursuer, F and O will in time see their way to restoring their relationship with their mother.

In a notable postscript, Lord Braid was at pains to stress that the opinion should not be taken as in indication that the earlier decision was wrong or that future applications by a child who is unhappy with the decision reached by the court are to be encouraged or likely to succeed. He explained that as is apparent, the circumstances of the case are highly exceptional. He explained that although there has been a different outcome with his decision, that is because the children's welfare requires a different solution in the circumstances as they now exist.

Commentary

The case confirms that the court is willing, in exceptional circumstances, to review care arrangements that cannot be implemented in practice. Lord Braid's observation that "the procedural cart should not drive the welfare horse" affirms that courts should not be too prescriptive about the material change threshold where children's welfare is at stake.

Nevertheless, the court was careful to close the door on any suggestion that unhappy litigants (whether children or adults) can routinely revisit recent decisions. This was not a case of a child simply disagreeing with the court's decision. It was a case in which circumstances had rendered the original order unworkable, the children's mental health had deteriorated to crisis point, and the evidence overwhelmingly supported a different outcome.

Contributor

Garry Sturrock

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