Child Relocation/Removal - Family Law Solicitors, Glasgow
Growth in global companies and improvements in travel means Scotland has a more mobile population than ever before – but in a family breakdown that can lead to complex issues.
Often one partner will want to return to the area that they have moved from, while the other will want the children of the relationship to remain where they have already began their schooling and built up friendships.
Even within Scotland, the distances between where the parents end up living can make it extremely difficult for one parent to continue to have regular, one-to-one contact.
Is Agreement Possible?
In a situation where parents have been able to remain on civil enough terms, advice should be taken on whether the logistics can be worked out with the help of legal advisers, and this could then be reflected in a Minute of Agreement.
This would specify the ‘when and where’ or contract visits, and deal with issues like responsibly for collection and delivery, and what should happen during school holidays, and at Christmas. It should give some reassurance that it could be relied upon later if not adhered to.
Where no such agreement has been possible, or it breaks down, it will be down to the courts to adjudicate. The relocating parent makes an application for a specific order application seeking authority to remove the child from the jurisdiction.
Financial motivations are a strong argument in favour of relocation but they are not the most important one – the legal test is what is in the best interests of the child. While the finances of the separating parent are part of that, they may be regarded as less significant than factors like the child being able to continue in the same school, or to be able to see the other parent.
Scotland’s separate legal system means that the consent of both parents is required before children are taken even across the Border into England. Travel further afield is something which requires interpretation of international treaties that the UK has entered into – and a lot will depend on whether the destination country has signed up to these treaties, or not.
Given Scotland’s climate, it’s not hard to make an argument that relocation would be better for the child’s health and opportunity for physical activity, but the court would look long and hard at whether the educational opportunities are going to be better abroad. School inspection reports, and other objective information about academic attainment in the area, as well as data about things such as health, income and crime would all be up for debate.
But these points would be seen a less important than matters which are more subjective like the quality of relationships within the family, and the court could only assess these by hearing from the parents themselves, and other family members and friends about what they have observed.
The court would also have to consider whether the child should be asked to express a view – this is usually done when the child is aged 12 or above, below that age is it is a question of whether the child is mature enough to do so. The parents would have a say on this and the Sheriff can appoint someone (a trained family lawyer) to take the child’s views, or do so him or herself.
The onus will be is on the parent who wishes to relocate to show that, in terms of the child’s best interests, it is better that an order for the proposed relocation is made, than no order made, and the “status quo” be allowed to remain.
Fleeing The Country
If there is some suspicion that the child may be removed without waiting for the Sheriff to reach a verdict, the court has powers to make orders requiring the surrender of passports and interdict (an order preventing removal). A “port stop” order can be made, alerting all airports and seaports as to the potential unlawful removal of the child.
Even without such a court order in place, removal outside the UK without consent would be a criminal offence.
But remember that not all countries agree to the Hague Convention on Child Abduction Convention – currently 98, just over half the countries in the world. In the others, a legal process in that country would be needed, with no certainty regarding the time, cost or outcome.
Contact our Family Law Solicitors Glasgow & Edinburgh, Scotland
Beltrami & Company are conveniently based near Glasgow city centre but operate throughout Scotland. Any calls to our offices out with normal business hours can be dealt with by an experienced solicitor.