When one parent wishes to relocate with a child, they require the consent of the other parent. If that parent refuses to give consent, the relocating parent may seek an order from the court authorising the move. Relocation cases can be contentious and worrying for both parents and for children.
Section 11(7) of the Children (Scotland) Act 1995 is the starting point when considering the legal merits of a proposed relocation. It states that when considering whether to make an order, the court:
a) “shall regard the welfare of the child concerned as its paramount consideration and shall not make any such order unless it considers that it would be better for the child that the order be made than that none should be made at all
b) taking account of the child’s age and maturity, shall so far as practicable:
i. give him an opportunity to indicate whether he wishes to express his views
ii. if he does so wish, give him an opportunity to express them
iii. have regard to such views as he may express
Lady Wise advised in the case of L v L (2017 CSOH 60) that it is not appropriate to try to formulate a list of applicable factors in cases concerning relocation, as every case will be different. However, there are a few things that should be considered by parents considering relocating without the other parent:
The child’s welfare comes first
In Scotland, the child’s welfare must always be the paramount consideration. A move that hugely benefits a parent but offers little improvement to a child’s life will not make for a convincing argument in favour of relocation. The approach taken south of the border differs in this respect, as the English courts can consider the effects of refusing a relocation request in relation to the impact on the family involved. This allows the parent’s considerations to carry increased weight in English cases. The court confirmed in the case of M v M (2012 SLT 428) that this principle does not apply in Scot’s law.
What are the benefits?
There must be clear benefits to the child as a result of moving. The fact that the child will be schooled well, live well, and will be in contact with family is neither here nor there if they also have these things in their current life. In many cases moving will benefit the child, but it is important to identify exactly how the child’s life will improve.
Have a plan
In order to ensure a relocating parent’s proposals are taken seriously by a court, it is vital that there is a plan in place in respect of the move. In the case of DH v GH (2015 SCEDIN 43), the Sheriff was unimpressed with the Pursuer’s relocation request, as she had not seen the apartment she was planning to move to, she had not decided when the move would take place and she could not guarantee her child would be enrolled in the school she was looking at. Furthermore, she did not have any concrete employment proposals or family living close by. In order to show that a move is in the child’s best interests, it is important to demonstrate stability by having plans and arrangements in place.
Contact with the non-resident parent
If one parent is seeking to relocate, it is vital that they consider how the child is going to be able to maintain contact with the other parent. If the non-resident parent currently has contact for two nights each week, offering contact once every couple of months is unlikely to satisfy a Judge or Sheriff assessing the case. It is important to consider issues such as the costs of flights or train tickets, and how feasible regular contact is going to be.
In some instances, relocating will be in the child’s best interests. In such cases, the relocation can be made easier for non-resident parents by maintaining contact through video calling. Other cases may be suited to alternative forms of dispute resolution, rather than proceeding through Court. Mediation could help parties to achieve a solution best for the child, while not damaging relations in the process. It is important to stress that every case, family and child is different. As a result, the importance of different factors will vary from case to case depending on the child’s needs.