The importance of parental co-operation — Reviewing CO v TL [2025] SAC (Civ) 20.

Gibson Kerr has successfully defended an appeal on behalf of its client in the Sheriff Appeal Court in the case of CO v TL [2025] SAC (Civ) 20. 

A bench of three appeal sheriffs refused the appeal, upholding the decision of the sheriff at first instance. The original decision overturned the status quo, granting the defender and respondent a residence order and a specific issue order allowing the child involved to relocate from Scotland to Denmark. 

In their judgment, the bench emphasised the need for parental co-operation where parties reside in different countries. 

The facts

The case concerned a dispute between the pursuer and appellant, CO, and the defender and respondent, TL, about whether their child, O, should return to live in Denmark. The child was born and raised in Denmark until November 2022, when the parties made a temporary move to Scotland with the intention of returning to Denmark by August 2023 to allow O to commence school in Denmark. 

In July 2023, CO informed TL that she did not wish to return to Denmark. TL initiated proceedings in Denmark under the Hague Convention on the Civil Aspects of International Child Abduction. TL shortly thereafter withdrew the Hague Convention proceedings. 

CO subsequently initiated proceedings in the Edinburgh Sheriff Court and obtained an interim interdict preventing TL from removing O from CO’s care, and outwith the UK. 

At first instance, the sheriff was asked to determine whether a residence order should be granted in TL’s favour, together with a specific issue order to allow the child to relocate to Denmark. The sheriff granted both orders. 

CO appealed to the Sheriff Appeal Court on various grounds, including:

• The sheriff erred in law in conflating the principles governing applications under the Hague Convention with the principles governing applications under Section 11 of the Children (Scotland) Act 1995 (the 1995 Act) when determining whether the residence and specific issue orders should be granted.
• The sheriff failed to justify both her decision to invert the status quo regarding residence and her decision that O’s best interests were served by return to Denmark.
• The appellant and the child’s rights under Article 8 of the European Convention on Human Rights (ECHR) were not properly recognised and evaluated by the sheriff when considering the impact that altering the status quo would have on them. The sheriff’s decision was not a proportionate interference with the family life O had with the appellant, and O’s welfare did not require a complete inversion of the status quo. The sheriff erred in fact and law.
• The sheriff erred in fact and law in attributing significant weight to O’s views. The child’s views were uncertain, and he had formed certain expectations in the event that he were to relocate to Denmark, including that the appellant would move there with him.
• There was uncertainty surrounding the living arrangements should the specific issue order be granted. The property that TL asserted would be available for him and O to reside in was subject to foreclosure, and this informed what school O would likely attend. The appellant argued that the sheriff failed to appreciate that O would possibly be returning to a property he was not familiar with if an order for relocation was made. 

The court’s decision

The Sheriff Appeal Court refused the appeal. The court did not find merit in the appellant’s grounds of appeal and considered the appeal amounted to an attempt to relitigate by the appellant. This was on the basis that the appellant criticised the sheriff’s findings in fact without seeking to delete or amend any of those findings, nor to make any new findings in fact. 

In dismissing the appeal, the bench addressed each argument put forth in turn and made noteworthy comments in respect of the application of Section 11 (7D) of the 1995 Act. The bench also assessed the merits of the appellant’s argument under Article 8 of the ECHR.

Section 11 (7D) of the 1995 Act

A key takeaway from the Sheriff Appeal Court’s decision is the importance placed on parties’ ability to co-operate with one another regarding matters affecting the child, when a court is considering whether to make a s11 order.  

The bench stated that “the ability to co-operate is all the more crucial where, as in this case, parties are bound to implement orders across international borders”. The court was bound to consider the parties’ ability to co-operate in terms of Section 11 (7D) of the 1995 Act. 

Ultimately, the court concluded that the sheriff at first instance regarded the parents’ co-operation as “key” to her decision and she reached the conclusion that awarding residence to the defender and respondent would mean that both parties would be aware of significant events in the child’s life. 

Article 8 of the ECHR

The court regarded that the assessment made by the sheriff at first instance was “a holistic assessment of the circumstances of O and his parents” and that she had specific regard to the opportunity for the child to express his views, and the requirements of Section 11 of the 1995 Act. 

Significance

This case serves as guidance for the judiciary to consider the implications of parents’ ability to co-operate with one another when caring for a child. It highlights the heightened importance of this where parents are separated by international borders. 

While the court did not remark on a standard that is to be applied where parties reside in different countries compared to residing within the same country, the court’s assessment that co-operation is “all the more crucial where … parties are bound to implement orders across international borders”, indicates that the court will scrutinise the relationship between parties to a higher degree and attach considerable weight to a party’s willingness and ability to co-operate when considering whether to grant a s11 order. 

Thus, for parents residing internationally who are involved in a dispute as to which country a child is to reside in, it is important to place extra care and attention on what steps are being taken to ensure the non-resident parent remains integrated and involved in the child’s life. 

Written by Makaela Fehlhaber and Katie Fulton, from Gibson Kerr’s family law team.