Journal Online

Article

18 August 08

Relocation, relocation

by Karen Wylie

A recent decision explores the matters to consider when one parent wants to relocate abroad along with their child

“What if my ‘ex’ decides to move abroad and takes my children with them?”

For a number of separated parents, this can be an understandable concern. Such cases are difficult for all the parties involved and there is, unfortunately, no straightforward answer. There can often be equally compelling reasons for and against such a move, although in some cases the parent seeking to move may be doing so simply to restrict contact between the children and the other parent. Courts, when called upon to do so, are naturally reluctant to interfere with a person’s right to decide where he or she resides.

Until recently there has been little Scottish case law setting out the applicable law and outlining the factors to be considered. Anecdotal evidence suggests that, as might be expected, when such cases reach court the factors considered relevant by a sheriff when exercising his or her discretion can differ widely.

However the recent case of AM v IM, Edinburgh Sheriff Court, 28 June 2008, provides further guidance in this area. This appears to be one of the first Scottish cases, in which a written judgment has been issued, to set out the law and to consider the factors to be taken into account when dealing with such emigration type cases.

The case involved the unmarried parents of an 11 year old child, who had separated when the child was just a few months old. The father held parental responsibilities and rights and had exercised regular contact over many years.

The mother wished to take the child to Spain to live with her and her partner, which prompted the father to seek interdict against the mother removing the child from Scotland. She defended, seeking a specific issue order to allow the child’s removal to live in Spain.

Relevant factors

Sheriff Morrison in his judgment confirmed that the test in Scotland, as one would expect, is what is in the best interests of the child. That being the case, there can be no presumption in favour of or against a specific issue order. The sheriff recited s 11(7) of the Children (Scotland) 1995, which stipulates three factors which the court must consider, but these were not the only factors. Having considered the authorities before him, including the English case of Payne [2001] Fam 473, the sheriff opined that the following should be considered when deciding whether to make an order in such a case:

• The reasonableness of the proposed move
• The motive of the parent wishing to take the child abroad
• The importance of the contact with the other or absent parent in the child’s life
• The importance of the child’s relationships with siblings and members of the child’s extended family who are left behind
• The extent to which contact (if appropriate) is able to be maintained
• The extent to which the child may gain from a relationship with family members as a result of the proposed move
• The child’s views, where he or she is of an age to express them
• The effect of the move on the child
• The effect of refusal of the specific issue order on the applicant, particularly where that parent already has a residence order
• The effect of refusal on the welfare of the child
• Whether it is better for the child to make the order than that no order should be made.
• These factors must, of course, be considered in light of the overarching principle that “the welfare of the child is paramount”.

Do your homework

Looking at each factor in turn, the sheriff did not consider it to be in the child’s best interests to move to Spain. Criticism was made of the mother’s preparation for the move. It was noted that there was no requirement for the mother and her partner to move to Spain; the couple appeared to be pursuing a “dream”. It was matter of concern that the substantial contact between the child and his father, and indeed paternal and maternal family members with whom he had close relationships, would be materially affected. Additionally, the child expressed the view that he did not want to move to Spain and this, though not based on weighing all relevant factors, had to be given some weight. The child also had educational needs which had not been properly considered, and these were further compounded by his inability to speak Spanish, which would result in him being kept back a year at school. It is clear that if a parent wishes to relocate abroad, they should do their homework regarding the move, as the plans will be subject to close scrutiny.

AM v IM is worthwhile reading at length, and may cause practitioners to pause and consider their client’s intentions in more detail.

Karen S Wylie, Solicitor, The Morton Fraser Family Law Team