This article originally appeared in the Scotsman on 22nd May 2017.
“Relocation cases” concern the situation where a parent wishes to remove a child from the jurisdiction of that child’s habitual residence to settle elsewhere. They are often highly contentious, emotive and deeply distressing for both parents but particularly for the parent who wishes the child to remain. There is frequently no right or wrong answer and the judge requires to exercise his or her discretion relying upon a variety of factors.
In general terms it is unlawful for a parent, without a court order permitting them to do so, to remove a child habitually resident in Scotland from the United Kingdom without the other parent’s knowledge and consent. The relevant statutory provision does not specify that removal of a child to another part of the United Kingdom is unlawful, but it is accepted that our legislation does not condone such an action without consent and that this too will require the court’s permission.
It is recognised that Scotland is a jurisdiction particularly reluctant to allow one parent to take a child out of the country permanently without the agreement of the other parent. Scots law differs to the approach adopted in these cases in England where emphasis is placed upon the plans of a parent with sole or primary care of a child and a material factor in any decision is the impact of the refusal of an application to relocate upon that parent.
The importance to a child, in the case of a separation, of continuing to have the security of a close and loving bond with both parents is widely recognised in Scotland. While one parent may have more practical input on a day-to-day basis in a child’s care, that does not detract from the significance of the other parent’s role. Married couples, and unmarried fathers named as a child’s father on its birth certificate have parental rights and responsibilities in relation to a child equal to each other. It is not for one parent to dictate to the other or to make unilateral decisions in respect of significant matters in a child’s life including their education, health and religion. Parents have a duty to consult with each other.
In Scotland, when the Courts are asked to make any such Order the paramount consideration is the welfare and best interests of the child or children which fall to be judged without any pre-conceived leaning in favour of the rights and interests of others. The Judge is not required to regard any particular factors as having greater weight than any other albeit, it is recognised that in certain cases there may be features which are of particular importance when considering the welfare of the individual child in question.
Recent guidance can be found in a decision from April 2017. The case concerned a married couple who had separated. The mother wished to relocate with the parties’ two year old son to England where she had friends and family. The mother was a stay at home mum and the father worked full-time. The mother’s application was ultimately refused.
The mother and her family in this case left the Judge with the impression that had the mother been permitted to remove the child from the jurisdiction of the court, she would not have encouraged or facilitated that child’s relationship with the father. While Scotland would have retained jurisdiction for a while, relatively quickly English law would have applied and the father would have had to seek recourse through the courts in England to ensure he maintained contact with his son.
The judge commented that a father has a particularly unique role to play in a child’s life. Any arrangement that jeopardises that relationship between father and child without compelling reason would be difficult to justify.
The Judge found nothing in evidence to suggest that anything about the child’s life in Edinburgh was negative nor that he would not benefit in a positive sense from being taken to live in England. On the contrary, there was a compelling reason for him to continue to live in Edinburgh, namely that that would be the means by which he had to continue to maintain and develop a meaningful relationship with both of his parents.
Each case will be judged on its own merits with the interests of the child being paramount.