The pursuer raised divorce proceedings in Aberdeen Sheriff Court in 2003, which were later remitted to the Court of Session in 2009. The pursuer concluded for divorce on the grounds that the marriage had broken down irretrievably because of the defender’s desertion for a continuous period of more than two years. The defender had concluded for a residence order in relation to the child of the marriage.
When the case called before the court for proof on 9 November 2010, the pursuer abandoned his action. However, the Outer House noted that Rule of Court 49.32 provides that notwithstanding abandonment of an action by a pursuer, the court may allow the defender in a family action to pursue an order or claim sought in his or her defences. The court accordingly heard proof with regard to the defender’s claim for a residence order.
The pursuer and the defender were married in Abu Dhabi on 11 November 1996. There was a child of the marriage, R, who was born on 5 August 1997. In 2000 the defender left the matrimonial home in Aberdeen (without the knowledge or consent of the pursuer) and took R with her to live in the London area. They continue to reside there. Unfortunately, R suffers from Down's Syndrome to a severely disabling degree.
The court heard evidence from the defender, her brother and a consultant psychologist. Evidence was led to show that R was in good health and there were no concerns of any kind in relation to her well-being, despite the severity of her condition. R was being brought up in a stable and loving environment, which was well suited to meet all of her needs, so that she was a secure, confident, happy and settled child.
Having regard to the welfare of R as the paramount consideration, the court made a residence order under section 11(2)(c) of the Children (Scotland) Act 1995 that R was to live with the defender. The court concluded that R was in a stable and loving environment, all aspects of her care and education were well provided for, and that any disruption to the current residence arrangements would not be in her best interests.
Scotland 
