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evidence which recognised that it
is important for siblings to stay
together to give mutual support
after their parents’ separation.
However, while acknowledging
this, he accepted that children’s
relationships with their parents
are the primary ones and this
formed an important
counterweight.
Interestingly, there is research
from the family court in
Australia, which was not
presented to the court, that
challenges the accuracy of
predictions of dire consequences
of separating siblings after
divorce. Indeed, the study
suggests that adopting such an
arrangement can sometimes
foster co-operative parenting,
insofar as both parents have a
real motivation to make the
arrangement work.
Within discretion
Central to the decision was that
it was in accordance with the
children’s own wishes. The
decision was subject to an appeal
to the Inner House (unreported
at the time of writing), which
was refused, but one of the
grounds of appeal was that the
Lord Ordinary had attached too
much weight to the views of an
11-year-old.
Given that he was at the cusp
of an age where his view would
have had to be taken into
account, and that he had been
consistent in expressing his
view, it was within the Lord
Ordinary’s discretion to take
that as one of the most
significant factors in reaching a
decision. To do otherwise would
arguably have sent a signal that
the views of an older sibling
may prevail even where not in
accordance with the views
expressed by the younger sibling
and where the age difference is
not significant.
The case was also novel as
being one of the first reported
cases involving repatriation
rather than relocation. Lost
somewhere in much of the
media reporting was the fact that
this was an Australian family. The
husband’s job had seen the
family relocate to Scotland and
that contract had been extended
beyond the time originally
envisaged. Nevertheless, his work
in Scotland had come to an end
and his employers were insisting
www.lawscotjobs.co.uk
he return to Australia. The family
plan had always been to return to
Australia where they had retained
properties, the children were
enrolled to attend a private
school, and the parties’ extended
family all lived. The support
network of the extended family
was one of the factors referred to
in Lord Woolman’s opinion.
Parenting today
Yet it might be that the lasting
impact of the case is as a
redefining of the role of carer.
While it was acknowledged that
up until separation the parties had
operated what might be viewed as
traditional roles – the husband as
breadwinner and wife as carer for
the children – the father had
combined a demanding job with
spending as much time with the
children as possible, in particular
at the weekends but generally as
often as possible trying to be
home in the evenings to put the
children to bed.
Post separation, the children
had typically spent six nights
out of 14 with the father (the
daughter reducing that to four
shortly after the commencement
of proceedings), and the mother
had reverted to full-time work.
Lord Woolman rejected any
suggestion that “one parent has a
significantly different amount of
time to spend with the children”.
Again, this formed an element of
the appeal grounds with the
suggestion being that the Lord
Ordinary had failed to give
weight to the importance of
maintaining the role of the
mother as primary carer.
Given that the post-separation
arrangements in recent times
concerning the 11-year-old boy
had been close to shared
residence, this was a difficult
idea to sustain. But perhaps it is
also recognition that sometimes
caring involves working and
earning a living for the family,
and that the parent, more
typically the father, should not
be penalised in a post-separation
scenario for having taken on
that role if they are then able to
manage their work commitments
in such a way as to allow for
shared care to be a feasible
proposition. (Indeed in Australia
there is a rebuttable presumption
of equal shared care.)
The jurisprudence of Scots
child law remains comparatively
bereft. The test of what is in a
child’s best interests allows for
an exercise of discretion and
with it an element of judicial
weighting which inevitably
allows for societal conventions
and personal prejudices to
shape the law and dictate the
Research from the family court
in Australia challenges the
accuracy of predictions of dire
consequences of separating
siblings after divorce
boundaries beyond which
courts could be expected not to
stray. Perhaps the demographics
of child law litigation occurring
in front of largely male judges
whose own experiences of
parenting were maybe a
generation behind the modern
concept of fatherhood, had the
result that the decisions of the
courts in the past often took a
narrow view of the definition of
caring for children.
As family dynamics change,
with parents working flexible
hours or job sharing and the care
of children as a result often being
in the hands of both parents
(and perhaps grandparents too),
the decision of Lord Woolman is
a welcome recognition that every
case should truly be treated on
its own merits and the old
presumptions about caring for
children no longer apply.
Roger Mackenzie is a solicitor in
the family law unit at Maclay
Murray & Spens who acted for the
father in PH v JK or H.
July 2010 theJournal / 25