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Relocation revisited

12 December 11

The Inner House decision in the SM v CM child relocation case marks out a distinct position for Scots as opposed to English law

by Amanda Masson

Until the Inner House’s decision in the case of SM v CM [2011] CSIH 65, solicitors advising clients on child relocation cases followed a journey through the classic English decision of Poel v Poel [1970] 1 WLR 1469, arriving at the list of factors to be considered as elucidated in M v M 2008 Fam LR 90, and calling in on the English case of Payne v Payne [2001] 2 WLR 1826 along the way.

Conventional wisdom suggested that the resident parent’s wishes and wellbeing held significant weight, and that if he or she could paint a convincing picture detailing what the child’s life would look like post-relocation, then the prospects of success were positive. The landscape has now shifted.

The background to SM v CM was not terribly unusual. Mr M sought to prevent Mrs M from moving to Berkshire, the desire to relocate being motivated by the fact that she had a new partner whose family and business were based there. However, she had not cast herself in a good light from the outset, having already attempted to remove the children without Mr M’s consent or a court order. Moreover, the sheriff acknowledged that Mrs M’s objective might well be to frustrate contact.

Although, strictly speaking, a specific issue order is not required for an intra-UK move, it is good practice to seek such an order (S v S, Glasgow Sheriff Court, 2010, unreported). Following proof, the sheriff granted the specific issue order in favour of Mrs M. Mr M’s appeal was refused by the sheriff principal. The Inner House held that the sheriff and sheriff principal had erred by applying the general guidance affirmed by the Court of Appeal in Payne and recalled the specific issue order, remitting the case back to the sheriff court.

Children before parents

This is a significant case in that it clearly distinguishes Scots law from the jurisprudence behind the English case law on relocation, emphasising that the court has an obligation to treat the welfare of the child as the paramount consideration. The court was not persuaded that the children’s best interests were necessarily served by Mrs M taking steps which might enhance her emotional or psychological wellbeing. It is now clear that even genuine and reasonable proposals supporting a crave for a specific issue order to enable relocation could be refused, regardless of a negative effect on the happiness and state of mind of a parent, where the making of the order would have an adverse effect on the children’s relationship with the non-resident parent.

This was underlined too in the case of KM v MG 2010 GWD 17-339, in which the pursuer did make out a convincing case, yet the specific issue order sought was refused, primarily because of the high level of involvement which the defender had in his daughters’ lives.

The judgment underlines that Scots law contains no presumption, rule or principle in favour of the rights and interests of either parent being allowed to distort or override the court’s judgment as to where the welfare and best interests of the children lie.

Formalising arrangements

The Inner House stated that there was a “dual burden” upon Mrs M (i) to demonstrate that relocation would actually be in the best interests of the children, and (ii) to show that, from the children’s perspective, it would be better for a specific issue order to be made than for no order to be made at all. Determining what would best serve the interests of the children necessarily involved a “balancing act” of the competing factors for and against the proposed relocation. Key factors in this particular case were the likelihood of the children’s contact with their father being maintained, and consistency of schooling, one of the children having additional needs which were well served at his current school.

In the present case, there was a significant complication occasioned by the lack of certainty as to whether, to what extent and in what form, realistic contact arrangements could be drawn up in substitution for the regular and frequent contact in place in Scotland. One wonders whether the outcome of the appeal would have been the same had the court at first instance exercised its right to make a contact order which could have regulated how contact was to operate in the event of the relocation being allowed. The court’s ability to do this should be borne in mind on advising a client on either side of a relocation case.

It remains true to say that each case turns on its own facts and circumstances. Following this decision, however, practitioners now know that in advising on the legal principles that should be referred to and applied to those facts and circumstances, one need look no further than the legislation and authority which has emerged from within Scotland.

Amanda Masson, Partner, Mowat Hall Dick, Glasgow

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Bruno D'Itri

Saturday June 16, 2012, 13:18

The Court of Appeal case, MK v CK (2011), incorporated a review of English relocation law with a significant shift away from the Poel/Payne principles. This was despite the President of the Family Division, Sir Nicholas Wall, stating, just two months earlier, that Payne could only be reviewed by the Supreme Court. The Court of Appeal review of Payne law came in the immediate wake of significant campaigning pressure:

Bruno D'Itri

Saturday June 23, 2012, 22:30

Our elected Government plans to bolster the legal right of a child to have a meaningful and on-going relationship with both its parents, post separation/divorce. It recognises that family law, as it currently stands, all too often fails to serve a child’s best interests in this extremely important respect.

The Children Act (1989) rightly instructed the judiciary to serve the child’s paramount interests. However, the judiciary has singularly failed to understand or accept that a child’s paramount interests are, in the vast majority of cases, actually best served by facilitating and enforcing its meaningful relationship with both its parents. Instead, the judiciary has remained wedded to the archaic ‘single parent’, ‘primary carer’ model; an approach which has, sadly, led to a generation of fatherless children. RELOCATION LAW is a prime example: it rides rough-shod over any notion of shared parenting by placing thousands of miles between children and one of their parents. The judiciary’s approach is out of date and simply does not reflect the modern-day realities of 21st century shared parenting.

The aim of our Government’s proposed legislative changes is to make it very explicit to the judiciary that, for most children in litigated cases, ‘best interests’ equates to ‘shared parenting’.

Let us hope that any amendment to the Children Act (1989) will be robust enough to safeguard a child’s right to be parented by both its parents. Let us also remember that this issue is not about parents’ rights: it is entirely about children's rights.

Furthermore, let us be absolutely clear that shared parenting does NOT, as many critics would have us believe, necessitate a precise 50/50 split of parenting time. This would be highly impractical in most cases. Rather, it is expected to range upwards from 20/80. Another objection from the critics is that it will endanger children. Very plainly, shared parenting will only be granted to parents who are not a proven risk to their children. Unsubstantiated allegations made by bitter and disgruntled ex-partners – intent on using ‘their children as weapons’, to coin Sir Nicholas Wall’s expression – ought not to be enough!

It is a very great pity that the judiciary has failed to be proactive on shared parenting. For example, in the RELOCATION case of Re D (Children) [2010] EWCA Civ 50, Sir Nicholas Wall, the President of the Family Division, was presented with no less than 15 contemporary scientific psychological and sociological research reports which demonstrated, beyond all reasonable doubt, the verifiable benefits for children of maintaining close and meaningful relationships with both parents. This irrefragable scientific evidence went ignored or relegated by him. In contrast, our Government, to whom the scientific evidence was also sent, is taking full heed. This is precisely why our elected Government needs to legislate. Child welfare is far too important to leave in the hands of a few unelected High Court judges, who often seem to be out of touch with modern society and family life, and who appear to have little understanding of the importance of scientific evidence.

Best regards

Bruno D’Itri

Bruno D'Itri

Sunday July 22, 2012, 10:07

Apologies. This is the link (see above)

Amanda Morrison

Saturday September 1, 2012, 14:36

It is a shame in this day and age, that all parties involved in these relocation cases are not held in the same regard, with the same weight of consideration.

It has been implied through the outcome of my own relocation case, that as a mother and the primary carer, I no longer am worthy of consideration as a human being. As a result of bearing children to a Scottish father, and that as a Canadian mother, I am fit enough to make all daily decisions regarding the upbringing of my children but am not worthy of consideration when making hard decisions about what is best in the long term for my children. I did not leave the family, I did not break up the family, but now I am forced to live in a country with my children with absolutely no family or support to help raise my children.

I absolutely agree children's rights must be upheld, access to all parties must be maintained. However in my case the ruling has resulted in what I feel as a complete breach of my human rights, to return to my family and home with my children when clearly they will have a better lifestyle, where I can afford to raise them properly. Each case should be held on its own merit, and not blanketed by a case that has no relation to their own.

Bruno D'Itri

Tuesday January 8, 2013, 21:10

When parents separate or divorce, the court automatically seeks to anoint one parent (usually the mother) with the legal status of "primary carer/resident parent". It then bestows upon that parent a grossly disproportionate degree of power and control over the children vis-à-vis the "secondary carer/non-resident parent" (dad).

In many acrimonious cases an embittered resident parent uses this power to exclude the second parent from the lives of the children. The courts are reluctant to punish this abhorrent behaviour, their rationale being that to punish the primary carer is tantamount to punishing the children. With no deterrence, this behaviour is set to continue.

Quite naturally, an unjustly excluded parent will employ the very costly (£200 plus per hour) services of solicitors and barristers in a desperate effort to regain contact with his children. Truly obscene sums of money begin to flow from broken families into the coffers of the law firms. The Family Justice industry feeds upon the love an excluded parent has for his children.

A presumption of shared parenting would permit a loving parent to be fully involved in the parenting of his children, post separation or divorce, without the need for costly and lengthy litigation. In Australia, for example, litigation reduced by circa 30% following the introduction of shared parenting legislation. Of course, in those relatively few cases where there is a serious and proven risk of harm, contact can and should be restricted.

Plainly, a similar reduction of circa 30% in British family court litigation would prove extremely damaging to the Family Justice industry. It is little wonder, then, that the Law Society is vehemently against a presumption of shared parenting. Family lawyers are not saints; we should not naively assume that their leaders would place genuine justice for parents and children ahead of their desire to maintain their income stream.

The judiciary is no better. Sir Nicholas Wall – the former President of the Family Division – sought to blame parents for “using their children as weapons”, without accepting in the least that it is the system itself which facilitates, encourages and fails to deter such abhorrent behaviour.

The real scandal is that the Law Society and the judiciary appear to have succeeded in persuading our Government to significantly dilute its original shared parenting proposals. There is now a very serious risk that the unsatisfactory status quo is set to continue.

Shame on the Law Society.

Shame on the judiciary.

Shame on the Government.

Bruno D’Itri

Bruno D'Itri

Sunday January 20, 2013, 17:11

The comments section of the following link sheds light on recent changes in English relocation law:

Bruno D'Itri

Bruno D'Itri

Saturday January 26, 2013, 23:57

An excellent article which exposes Sir Nicholas Wall's seemingly confused and contradictory stance on Payne v Payne:

A frank and comprehensive explanation from Wall would have been of great assistance to the legal fraternity. It's never too late, Nicholas!


Bruno D'Itri