Relocation of Children: Part 1 – Relocation Intra UK

What happens if the other parent wants a relocation of the children out of Scotland?

In Scotland, no one can relocate with a child who is habitually resident here without the consent of the parent or parents who have parental rights and responsibilities. If consent is refused, then court proceedings are needed to resolve the matter. Parents can agree that holidays abroad will be taken for certain periods. They would have to enter into a legally binding document setting out the details of this agreement.

If one parent wishes to live in another UK country with the children, this is called a Relocation. In any relocation case, the court must regard the welfare of the children as the paramount consideration. As such, courts will not make an order unless that would be better for the children. There is no presumption in favour of one parent over the other. The court will take into account how the parties are likely to cooperate with one another and the children. If they are old and mature enough, the children must be allowed to express their views.

The current case law tells us that there are several other issues that the court will take into account, including:

1. whether or not the proposed move is reasonable,
2. the motive of the parent seeking to relocate,
3. the importance of contact with the left-behind parent and contact with other family members,
4. the practicalities of maintaining contact with the children when they live in another country,
5. whether there would be a benefit to the children of relationships with other family members, and
6. the effect of the move, or conversely, a refusal on the children, and indeed, the parent seeking to relocate.

The court will also consider the effect of refusing the relocation on the parent seeking to move.

There have been a couple of recent cases that have shaped the law on intra-UK relocations:

Jenny Flannagan vs. Aiden Kent 2022 SAC Civ 24: A mother sought to relocate with her 6-year-old child to Ireland, where she originated. The child suffered from chronic health conditions that required hospital care regularly. The mother had lost her employment as a result of prioritising the child’s needs. Consequently, she faced financial difficulties. She may have been required to move home, which could have necessitated the child being removed from his current school. She would have the support and facilities to care for him and would be able to return to employment in Ireland. The court decided that as she was found to have the economic, social, and support burden of care, she was allowed to relocate despite the impact of this on the father’s contact with the child.

KM vs. DM 2022 SC FOR 19: An Irish mother sought to relocate back to Ireland with her 3-year-old child. She would have better accommodations and support there. The child’s interests were found to be directly linked to hers. While the court found her request to be “rational, reasonable, and understandable,” when they considered the child’s best interests, they considered that the father’s extensive and positive contact with the child should not be limited “for no discernible benefit to the child.” The relocation was refused.

These cases illustrate that every case is decided on its own facts. Do you have any concerns that your child is going to be relocated without your consent? You can apply to the court for an order preventing this. Equally, if you wish to relocate with your child, we can advise you on this. Seeking experienced legal advice early is crucial.

Please contact us if you are affected by any of these issues.  Our Family Law Team is here to help.  This article was prepared by Judith Higson, Executive Director and Head of the Family Law Team.

The content of this article is for informational purposes only, is not intended to be construed as legal advice, and should not be treated as a substitute for specific advice. Scullion LAW accepts no responsibility for the content of any third-party website to which this article refers.