In recently published research, the English law firm Pennington Manches LLP, in connection with Thomson Reuters, has ranked Scotland 19th out of 22 jurisdictions for allowing a separated parent to relocate internationally with a child, suggesting that it may be difficult to persuade the courts in Scotland to agree to a relocation.
Under Scots law, relocating a child to anywhere outside Scotland, whether within the United Kingdom or abroad, requires the consent of anyone with parental rights and responsibilities (PRRs). With the extension of PRRs to all unmarried fathers whose name appears on a UK birth certificate, this means that in the majority of cases, both parents will have to consent to any proposed move. If one parent does not consent, the only alternative is to apply to the courts for permission.
It is of course the case that, especially in disputes about the possible relocation of children abroad, there is little room for compromise. Usually, one parent wants to relocate with the children, and the other is wholly opposed to the suggestion. The courts in Scotland have been alive to this, with two decisions of the Inner House citing Lord Fraser’s comments in the 1985 case of G v G: “The jurisdiction in such cases is one of great difficulty, as every judge who has to exercise it must be aware. The main reason is that in most of these cases there is no right answer. All practicable answers are to some extent unsatisfactory and therefore to some extent wrong, and the best that can be done is to find an answer that is reasonably satisfactory.”
In searching for the reasonably satisfactory answer, the courts in Scotland have been clear that they are bound to have the welfare of the child or children as their paramount consideration. This means that any parent looking to persuade the court to allow them to relocate with their children must convince the court that such a move would be beneficial from the point of view of the child.
The courts have not been prepared to find that the best interests of the children are the same as those of the parent with whom they spend the majority of their time, and indeed have been prepared to rule against a parent’s strong desire to relocate, if they considered that to relocate would not be in the best interest of the child or children. In one judgment, the sheriff stated that “It seems to me that sometimes it is necessary to set aside or postpone one’s dreams for the sake of one’s child.”
So what is a parent to do? To stand the best chance of persuading the court, the parent proposing to relocate should seek to set out, in very great detail, the proposed arrangements and think about how the relocation would benefit the child or children. Schooling options should be investigated and set out, as well as details on how a transition between schools could be managed. The parent should be able to show what sort of housing is available, and where the children might live. Importantly, the court will look into the current contact the child has with the parent and family who will be left-behind in Scotland, and how those relationships can be maintained. Any parent seeking to relocate is well advised to come up with proposals for contact, and suggestions for how any long-distance travel might be financed. Not all of these aspects will be relevant in every case, but a coherent and well thought out proposal will always receive careful consideration from the court. Where such proposals have been presented in the past, both mothers and fathers have been granted permission by the court to relocate abroad with their children and, it is hoped, start a new and successful life there.