It is easy to understand why a fresh start in a new country may be appealing following the turmoil of a relationship breakdown.

A sunnier climate where your relationship history is unknown and the chances of bumping into your ex and possibly their new partner are eliminated could persuade many to consider emigration. However, where children are involved, the decision to relocate is not always straightforward.

Parental Responsibilities and Rights

Where both parents hold parental responsibilities and rights, the removal of a child who has been ordinarily resident in Scotland outwith the UK is unlawful unless the other parent has consented to the move. If the other parent withholds their consent then an order would be required from the court allowing removal of the child from the UK. With statistics showing that emigration is generally growing in popularity, it is no surprise that relocation cases are becoming increasingly common between separated parents.

A Recent Case Study

The recent decision in the case of MCB v NMF [2018 CSO H 28] sets out very clearly the approach in such cases and reminds us the evidential burden of proof lies firmly with the parent seeking to relocate with the child. They must persuade the court that relocation would be in the best interests of the child and that from the child’s perspective, it would be better to allow relocation than to make no order at all.

The case involved a couple, who although never married, had been in a relationship for several years and had lived together for around a year following the birth of their daughter, “Holly”. The mother, wished to remove Holly (who was five-years-old) from Scotland where she had lived since birth to move to Northern Cyprus where the child’s maternal grandmother lived. The judge noted it is not appropriate to formulate a list of applicable factors to consider in every relocation case, as the factors to consider are case sensitive, ‘scrutiny of the particular circumstances of the dispute and the child is what matters.’

Disputed Issues

In this case, there were ultimately seven disputed issues to resolve and consider in respect of both jurisdictions. These were: the defenders employment prospects; accommodation; education; childcare; financial situation; family relationships (particularly Holly maintaining contact with her father and grandparents); and environmental factors. After balancing these factors for and against relocation, the judge ruled in favour of the child’s father and made no order in respect of the relocation. She found the child enjoyed a settled life in Scotland and benefitted greatly from close family relationships on both sides. The child attended an excellent local school in Scotland, whereas she would require to travel 50 minutes each way to an English speaking school in Northern Cyprus. The cost of the English speaking school was disproportionately high in comparison to the mother’s likely earnings. This was of particularly concern as the mother had not proved the existence of a specific job offer.

However, the “single biggest factor” against granting permission for the relocation was the impact the move would have upon the strong bond that Holly had with her father.

It was suggested that Holly could maintain contact with her father for extended periods during school holidays and through skype and similar means of communication, however, the court found “there is no pressing need for Holly’s relationship with her father to be limited to that”.

Legal Position in Scotland

The case reinforces the established legal position in Scotland that the welfare and best interests of the child or children concerned are paramount. Those interests must be considered without any bias in favour of the plans or needs of one or other parent. The position in Scotland is quite different to England where the reasonable plan of a parent with sole primary care of a child, including the effect of the refusal of an application has been held to be a material factor. Our system prioritises the child’s welfare over the consequences for either parent. This may come as a surprise to many parents with sole primary care who wish to take up opportunities abroad.

If you would like to discuss any issue arising from this blog further please contact the Family Law Team today.

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