Many parents believe that they can move away with a child in their care, without the other parent’s consent.
When a parent has parental rights to a child (mothers of children, fathers married to the mother and fathers of children born after 6th May 2006 and named on the child’s Birth Certificate) the parent intending to move outwith the UK, requires the consent of the other parent.
The Children (Scotland) Act 1995 provides that a move within the UK does not require the specific consent of the other parent. However, the parent remaining could apply to the Court for an order preventing the move.
Moving a child a considerable distance from his or her other parent is a matter directly affecting the child’s welfare and 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 outwith the UK will require to obtain a Court Order so as not to breach the provisions of the 1995 Act.
Recently, the Courts have treated relocation within the UK in the same way as international cases.
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 important hurdles to persuade the Court to grant the order, namely:-
- That it is in the best interests of the child to move.
- It is better for the child that the Court makes the order than not.
- How the child feels about the move.
The Court then has to determine how much weight should be attached to the child’s view, if expressed.
Recent cases have established a number of further important factors, which the Court requires to consider, including the following:-
- 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 importance of the child’s relationship with siblings, grandparents and other extended family members.
- The extent to which contact can be maintained after a move.
- The extent to which the child might gain from a relationship with extended family members as a result of the proposed move.
- The views of the child, if of an appropriate age to express them.
- 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, against the desire of the parent with care to move.
Examples of where the Courts have allowed a move include an enhanced lifestyle for the family and the parent’s motivation being genuine to give the child the best possible life, where the child’s most important relationship is with his or her mother making their interests inevitably interlinked and where the parent opposing the move has not been specifically involved in the day to day care arrangements for the child or has only had limited contact.
Permission to move has been refused when there would be a deterioration of the child’s relationship with the parent remaining, where the mother’s motives are self-regarding, where there has been no planning or consultation on such matters as employment, income, accommodation and schooling and also if a shared care arrangement has operated.
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. In one case, an 11 year old girl did not want to relocate. The Sheriff attached some weight to her views in refusing the mother’s application. .
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. There are a number of organisations which can assist parents caught up in the dilemma of relocation and details of these areas undernoted.
Specialist Family Law Solicitors Inverness & Highlands, Scotland
Innes & Mackay have been providing expert legal advice on all aspects of family law for many years. Our lawyers pride themselves in offering legal advice that reflects our client’s needs, taking an objective approach to delivering a professional and friendly service. Our team of solicitors who specialise in family law are vastly experienced in both litigation and all methods of alternative dispute resolution. All four family law solicitors are trained in Collaborative Family Law, two of the team are mediators and one is also an arbitrator.
If you need advice on any aspect of family law, contact our team on 01463 232 273 or [email protected].