When we set out to live “happily ever after” we are certainly not considering that “ever after” might end sooner than expected and that “happily” is only a word and not necessarily an enduring experience. But as life would have it “ever after” does sometimes end in divorce and difficult child contact issues, with one or both parents suffering from a no win choice- stay together for the sake of whatever can be justified as a good reason to stay together, or head towards divorce and suffer the effects of what divorce may impose not only on the psyche of the child but also the parents.
When a relationship breaks down, wanting to start a new life is an understandable goal for those involved. The question of contact with children can be problematic but if one parent decides they want to start afresh in a new county, country or even on a new continent aiming to take the children with them, then the effect on contact with the children for the non-resident parent can be huge.
So when a couple split up what rights do they have if they wish to relocate or indeed if they want to prevent their children being removed abroad?
In theory ,any parent with parental rights and responsibilities under the Children (Scotland) Act 1995 can under Scots law move a child anywhere within the UK without the consent of the other parent but if the matter is disputed a court decision is required. Any parent wishing to remove their child from the UK must obtain the consent of the other parent before doing so, if that parent also has parental rights and responsibilities. This is the case whether travelling internationally for a holiday, to visit family or to relocate permanently.
If the consent of the ‘left behind’ parent is refused then an application must be made to court seeking permission to relocate with the child out with the UK.
A court’s decision to allow a relocation involves a delicate balancing exercise in which the welfare of the child is always the paramount consideration. It supercedes that of the resident parent being in closer proximity to a support system or a job with increased pay.
The facts and circumstances of each case will be taken into account.
- A reasonably and carefully framed child relocation plan is essential and it must be one which is realistic.
- The threat of relocation on contact with the non resident parent is of considerable importance. The application for leave to remove must be genuine and not a ploy to exclude the other parent from the child’s life.
- The effect of relocation on the child’s contact with extended family in Scotland or the benefits of having a relationship with family in another country will also be taken into account
- The child’s wishes, depending upon the age of the child and their level of maturity will also be taken into account but are unlikely to be determinative. Children over 12 years are presumed mature enough to give their views but there is some case law to suggest that children younger than that might still be able to have their thoughts taken into account.
If a parent were to relocate without a specific order or consent of the other parent there would still be a remedy for the ‘left behind’ parent. Such relocation of the children would be a wrongful removal of the children under the Hague Convention on the International Aspects of Child Abduction. A removal is wrongful when it breaches rights of contact in the place where the child is habitually resident.
If you are planning to relocate or if you fear that your former partner is making plans to leave the country with your child, advice at the earliest stage should be sought. Our Family Law Department can help – http://www.mitchells-roberton.co.uk