Family and Divorce Solicitors serving Inverness and the Highlands, Scotland
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Many parents wrongly assume they can move away — with the child or children in their care — without the other parent’s consent.
If both parents have parental rights to a child, one parent intending to move outside the UK, requires the consent of the other parent.
If the move is within the UK, the parent moving does not require the specific consent of the other parent. However, the parent not moving could apply to the Court for an order preventing the move.
Best Interests of the Child, Scotland
Moving a child a considerable distance from his or her other parent is a matter that directly affects the child’s welfare. It should be discussed fully and openly between the parents in the hope that agreement can be reached.
If no agreement can be reached, the parent looking to relocate outside of the UK will require a Court Order to do so.
Recently, the Courts have started to treat relocation within the UK in the same way as international cases.
Court Order, Scotland
If Court proceedings are necessary, the parent seeking to move would apply for a “Specific Issue Order”, along with a Residence Order.
The parent seeking to prevent the move would apply for an Interdict and Contact.
The parent seeking to move must cross three hurdles to persuade the Court to grant the order:
- The move is in the best interests of the child.
- It is better for the child that the Court makes the order than not.
- How the child feels about the move.
If expressed, the Court then has to determine how much weight should be attached to the child’s view.
Recent cases have established a number of further important factors, which the Court also considers:
- the reasonableness of the proposed move.
- the motive of the parent wishing to move.
- contact arrangements between the child and the parent remaining behind.
- the extent to which contact can be maintained after a move.
- the importance of the child’s relationship with siblings, grandparents and other extended family members — both remaining and in the new location.
- the effect, generally, of the move on the child (e.g. in terms of schooling, housing and social implications etc.)
- the effect of the refusal to grant permission to move on the parent with care.
- the effect of the refusal to grant permission to relocate on the welfare of the child.
The Court has a duty to strike a balance between:
- the risk of unsettlement and disruption to the child and damaging an otherwise close relationship with the parent remaining, and
- the desire of the parent with care to move.
The older the child, the harder it is for a Court to ignore his or her view. Children of 12 years of age are presumed in law to be mature enough to express a view.
Innes & Mackay believes an application to the Court should always be a last resort. It is much better if agreement can be reached between the parents about a move and how contact arrangements after the move are to be managed.
The following organisations can assist parents caught up in the dilemma of relocation:
- Family Mediation, see www.relationships-scotland.org.uk
- Collaborative Family Law, see www.consensus-scotland.com
- Family Law Arbitration, see www.flagsarb.com
- Family Mediation, see www.calmscotland.co.uk
Specialist Divorce & Family Law Solicitors Inverness, Highlands, Scotland
Innes & Mackay have been providing expert legal advice for many years on all aspects of family law. We’re experienced in litigation and all methods of alternative dispute resolution.
We have a solicitor who is trained in collaborative family law and is also a mediator.
We pride ourselves on offering legal advice that reflects our client’s needs and take an objective approach to delivering a professional and friendly service.