20 December 2019
The world is becoming an increasingly smaller place with individuals able to access a wealth of opportunities abroad. When you are single with no ties, this is ideal, but things can get complicated when partners and children are involved...
The world is becoming an increasingly smaller place with individuals able to access a wealth of opportunities abroad. When you are footloose and fancy free this presents no issue – you can suit yourself and grab that exciting opportunity with both hands.
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If you are part of a couple, it becomes a little harder. If you have children it becomes harder still, especially where those children have started to set down roots, independent of their parents. However, these children have no choice where their parents are making the decision as a unit.
As family lawyers, we are increasingly faced with a relocation dispute where one parent wishes to move abroad with the child/ren. Perhaps that parent has been offered a job which offers highly enhanced employment and earnings prospects. They may have more emotional support if that parent is originally from that country and has family there who can assist with childcare. The obvious question that arises is “but what about the left behind parent?”
Where parents cannot agree on the matter of a child’s relocation, the court requires to intervene. In England, the leading relocation case is Payne v Payne [2001] 2 WLR 1826. This case held that the court should not interfere with the reasonable proposals of the resident parent.
In Scotland, in the case of SM v CM 2011 CSIH 65, the Court of Session made clear that the Payne case formed no part of Scots law. The Court held that, like all other orders sought in relation to children, a relocation order had to be in the best interests of the child, it had to be better to make that order than not make it, and there should be no pre-conceived leaning or presumption in favour of either parent. The court, therefore, has to determine solely what is best for that child in that child’s particular circumstances.
All cases turn on their own facts and a “one size fits all” approach is impossible when it comes to how the court determines relocation disputes. However, Sheriff Morrison, in his judgement in the case of M v M 2008 Fam LR 90, set out a (non-exhaustive) list of factors that should be considered, including:
- the reasonableness of the proposed move
- the motive of the parent wishing to move
- the importance of contact with the non-resident parent
- the importance of the child’s relationship with extended family
- the extent to which contact can be maintained
- the extent to which the child may gain from family relationships as a result of the move
- the child’s views where s/he is at an age to express them
- the effect of the move on the child
- the effect of refusal of the order on the child
- the effect of a refusal of the order on the applicant
The Sottish courts will, therefore, often refuse relocation orders even where the motive of the parent who wishes to move is genuine. Where children are thriving in their current circumstances and have a good relationship with the other parent a relocation order be will be difficult, if not impossible, to justify.
This reflects the principle enshrined in the Children (Scotland) Act 1995 that when the court is being asked to determine matters relative to a child, that child’s welfare is always paramount. This is exactly as it should be, but can come as a nasty surprise to a parent looking to relocate with children after a separation.
Contact: Morven Douglas, Senior Associate T: 0141 221 8012 E: mjd@bto.co.uk