Relocation cases can be tough, but the welfare of the child is paramount

Lauren McDonach - Scotsman article image July 2024

Lauren McDonach wrote for The Scotsman.

An extremely difficult situation for parents to navigate following relationship breakdown is one party’s wish to relocate with their child outside of the United Kingdom, or elsewhere in the country. These situations, referred to as ‘relocation cases’ can often cause tricky and emotive issues.

The Children’s (Scotland) Act 1995 sets the legal position on relocation. It states, no person is entitled to remove a child as a habitual resident in Scotland or retain any such child outside the United Kingdom without consent. Consent is required from anyone who has the right to exercise contact with the child or to regulate the child’s residence. This means that if one parent is planning to move with the child abroad, then the consent of the other parent who has parental rights and responsibilities is required. It is also accepted that Scots law does not allow for the removal of a child from one part of the UK to another without gaining consent from the other parent.

A parent planning to relocate usually has a genuine reason for wanting to move. They may wish to return to their home country following separation, to move closer to family for childcare support or to relocate for an employment opportunity. The other parent, who is left behind, will naturally object to the move often because of the emotional and practical impact it will have when trying to maintain personal contact with their child.

Dealing with these competing desires between separated parents makes it often impossible to reach a compromised position, resulting in the moving parent applying to Court for permission to relocate.

The granting of a relocation order is entirely the discretionary decision of the Court. The paramount consideration for them is of course the welfare of the child, which is judged without any pre-conceived learning in favour of the rights and interests of either parent. The onus is on the relocating parent to demonstrate why the move is in the child’s best interests. Each case will turn on its own facts and circumstances and the Court does not adopt any checklist approach. Moving a child any considerable distance from their other parent is a matter that directly affects the child’s welfare and the Court will listen to the child’s view about the move if they are a sufficient age and maturity to provide this.

Case law in Scotland demonstrates the need for solid planning from the parent wanting to relocate. It is important that detailed evidence is provided to the Court regarding the relocation plan including: support network there, proposed accommodation, employment prospects, schooling arrangements, social activities and finances. Perhaps the most important evidence for the Court to consider is a detailed plan from the relocating parent explaining how contact between the child and the remaining parent will be maintained. Indeed, the Court places significant weight on the relationship between the child and the remaining parent and is often reluctant to grant a relocation order if the relationship would be detrimentally affected by the move. Therefore, the parent seeking to relocate should have a clear and realistic plan about how they are going to maintain that bond post-relocation. If they are perceived by the Court as being negative or obstructive about contact, then their relocation application will undoubtedly fail.

Clearly, decisions to relocate cannot be made by a parent on a whim and preparation is key. The relocation of a child should be carefully thought out and discussed fully and openly between parents so a reasonable plan and an effective agreement can be reached.