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Relocation: where are we now?

19 August 13

A survey of recent cases where the principal carer of a child has sought to relocate, and differences in approach between the Scottish and English courts

by Rachel Shewan

As the number of relationships between couples of different nationalities increases, the courts are seeing an increasing number of child-related cases where the principal carer seeks to relocate, with the child, outside Scotland. 

A number of years ago, the received wisdom was that where the principal carer had a good reason for the move and concrete plans were in place for education, housing, and employment, the move should normally be allowed.

That has changed. S v S 2012 FLR 32, the Inner House authority consistently referred to in relocation cases, demonstrates that each case requires to be looked at on its own circumstances. The court must have regard to all factors affecting the child’s welfare. There is no legal onus, but there is an evidential onus on a party to justify the order sought.

In S, the father’s appeal against the sheriff’s decision to allow relocation of the mother and child to Houston was unsuccessful. Although the loss of benefit of regular contact with the father was identified, other factors outweighed it. Ultimately, most relocation cases come down to a balancing exercise.

M v M 2012 SLT 428 clarified the difference in approach between Scotland and England. The court made clear that the English position in Payne v Payne [2001] 2 WLR 1826, whereby the most crucial factor is likely to be the effect of refusal of an order on the principal carer’s future psychological and emotional stability, has no part in Scots law. The effect on either party of any order ought only to be taken into account insofar as it affects the welfare of the child, which in Scotland is the paramount consideration at all times.

The M v M check

M v M 2008 FLR 90 should also be mentioned. Sheriff Morrison at Edinburgh set out 11 factors which, it seemed to him, would be included in considering an order permitting relocation:

  1. The reasonableness of the proposed move abroad.
  2. The motive of the parent wishing to take the child abroad.
  3. The importance of contact with the other or absent parent in the child’s life.
  4. The importance of the child’s relationship with siblings, grandparents or extended family left behind.
  5. The extent to which contact is able to be maintained.
  6. The extent to which the child may gain from a relationship with family members as a result of the proposed move.
  7. The child’s views, where he or she is of an age to express them.
  8. The effect of the move on the child.
  9. The effect of refusal of the specific issue order on the applicant, particularly where that parent already had a residence order.
  10. The effect of refusal on the welfare of the child.
  11. Whether it is better for the child to make the order than that no order should be made.

Use of this checklist appears to be widespread in sheriff courts and is seen as very helpful when conducting the balancing exercise required in every relocation case.

Significant factors

It is clear that the child’s views may be close to decisive, where the child is sufficiently mature and expresses a wish against relocation, as in SP v BM [2012] WL 2923064 (17 July 2012). Similarly, where the parent with care has unilaterally relocated without permission, as in GD v LK [2011] WL 2039813 (4 May 2011) and L v L, Sheriff Morrison at Edinburgh, 4 April 2013), a later attempt to obtain court permission will likely be refused. In neither case was the unauthorised removal noted as a key factor, but it clearly impacted on the sheriff’s decision.

It is also interesting to consider how Sheriff Morrison’s ninth factor ties in with the more recent Inner House guidance in the other M v M, disapproving the Payne line of authority. For instance, in JS v EM, Kirkcaldy Sheriff Court, 27 May 2013, the adverse consequences for the (primary carer) mother of refusing the proposed move to her native New Zealand were not seen as persuasive, although she could access better family support there and improve her multiple sclerosis symptoms.

Unpredictable

It is the writer’s view that while undoubtedly the court must focus on the best interests of the child, and there will be many factors in the balancing exercise, it should not be forgotten that the health, wellbeing and security of the principal carer will have a fundamental impact on the child. The Inner House in M v M, while disapproving Payne and holding that the welfare of the child must at all times be the paramount consideration, held that the wishes and interests of either parent must receive no greater weight that they truly deserve in the circumstances. This may therefore in some circumstances be a factor to be considered.

Given that each relocation case turns very much on its own facts, the outcome of any case is difficult for the solicitor instructed to foresee. Nevertheless, as these cases are generally incapable of compromise, and international relationships are on the rise, we are likely to see more and more clients instructing us in these matters, and indeed taking the case all the way to proof. 

Rachel Shewan, senior asscociate, Morton Fraser LLP

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