Picture the scene. You have met the love of your life. Exciting possibilities emerge. Perhaps the object of your affections lives down south or he or she is based on sunnier climes. You start to plan your future together and suddenly living in Marbella looks like a more exciting prospect than staying in Scotland, picturesque as it is.
Everything seems to be falling into place. Your children adore your new partner and you are sure they would be excited about the possibility of being in a new place, meeting new friends and doing new things.
There is however a pretty significant barrier. Your former partner is unlikely to share your excitement. He or she will miss the children. How do you manage this?
Suppose you are a parent living in Scotland and keen to stay there. Your idea of an idyllic existence involves continuing to enjoy a close relationship with your children, relieved that you have managed to salvage this from the wreckage of an earlier separation. Suddenly your estranged partner gets in touch to say that they want to move to the other side of the country or worse, abroad. Where do you turn?
As a family lawyer in Glasgow I have noticed a sharp rise in the number of cases involving the relocation of children in recent years. This seems to be due to social and economic factors. People are more geographically mobile than they used to be. Sometimes they have to be in order to find work. It is easier to meet people who are further afield now, too. There can be many reasons why a parent would want to move, and there can be many reasons why a parent would want to oppose a proposed move. So how does the law approach these cases?
The starting point is that a parent who wants to relocate requires either the consent of the other parent, or a court order known as a “specific issue order” to be able to legally move. A parent who moves away without the other parent’s consent, or without an order, runs the risk of child abduction proceeding. If a child is moved from Scotland to England, it is possible for the parent who is left behind to ask the court to decide that the child should be brought back to Scotland so that the arrangements for the children can be considered by the court.
In Scottish family law, the overriding consideration for the court in deciding whether or not to make an order allowing a parent to relocate is the child’s best interests. The court has recognised in other cases that the fact that a refusal to allow a parent to relocate would cause upset to that parent is not enough. The court is interested only in the welfare of the children involved.
There are some practical considerations to think about in the preparing to request permission to move. These considerations apply just as much to an initial approach to the other parent for consent as they do to preparing for a request to the court.
- Carefully think through all the plans for the move
- Consider what your children are like
- How will the child’s relationship with the left-behind parent be maintained?
It is important to carefully think through all of the plans for the move. Where will the children go to school? If they have any additional needs, is the new school likely to be as supportive as the children’s existing school? Where will you live? Are there activities for the children to do?
Consider what your children are like – are they sociable children who are likely to adjust easily to a move? Are they very attached to their friends? Will they be able to easily keep in touch with their friends?
Most importantly, how will the relationship with the left-behind parent be maintained? While your children may be excited about the idea of moving, the most important relationship in their live is the relationship they have with their parents. The left-behind parent is going to want to know how the relationship will change, and what can be done to avoid that. If they cannot contemplate a move, and the court is asked to decide, then the court will consider the issue of ongoing contact very carefully.
For the left-behind parent, the possibility of children moving away can be terrifying. If there is a good relationship with the other parent it can be helpful to sit down and talk through what the proposed plans are. If that does not give reassurance, then a solicitor can help guide the court process. Input may be needed from a reporter or a child psychologist to give guidance about the possible affect of the move on contact, and, importantly, how the children actually feel about it.
The views of children are taken into account by the courts, depending on the children’s age and maturity, and it is very important that neither parent in a relocation case try to influence their child, or make them aware that there is an issue between their parents if that is possible.
Relocation cases are perhaps the most challenging type of case for a family lawyer to face. In many cases there can be no middle ground. In others, finding that middle ground takes careful and sensitive consideration.
Whatever circumstances you find yourself in, having an experienced family lawyer can be invaluable in guiding you through the process.
Moving on as a separated family can be challenging, but it need not create distance that cannot be bridged.
Amanda Masson is a Partner in Harper Macleod’s Family Law team. She is accredited by the Law Society of Scotland as a specialist in Child Law, Family Law and Family Mediation and regularly advises clients on child-related matters including child relocation, adoption, residence and contact.
Harper Macleod's team of family solicitors understands that divorce and separation can have a huge impact on your life, and can guide you through the best course of action with sensitivity and objectivity. Getting the best advice is crucial to resolving your situation, and there are many options available to you, from litigation and arbitration to negotiation, mediation and collaboration. We have also designed a number of packaged fees which, in certain circumstances, will let you know from the outset what the costs will be.
To talk to Amanda or one of our team call 0141 227 9545.