As the weather worsens it is tempting to think of sunnier climes and the possibility of living in a country where it is still light past 4pm. Or perhaps you long to take up that once-in-a-lifetime career opportunity abroad, or to pursue a relationship which at the moment is long distance but which holds promise of becoming something more concrete.
For separated parents there is more to consider than the obvious aspects such as visa applications or finding a suitable job or accommodation.
According to the Children (Scotland) Act 1995, to remove a child from the country on a permanent basis requires either the consent of the other parent, or a court order known as a "specific issue order". Cases like these are known as "relocation cases".
The number of applications made to the courts has increased dramatically over the past few years. Economic conditions have meant that, for some people, financial security is located elsewhere. For others, internet dating has introduced a new partner who may live outside Scotland.
Best interests of the child?
While there can be many and varied reasons for seeking to relocate with a child or children, the overarching principle is the same as it is for any Sheriff making a decision involving children, namely, is the proposal in the child's best interests?
While the motive behind the proposed move is important, it is not the only factor which a court will consider in deciding whether or not to grant a specific issue order.
Some separated parents will be able to find a mutually acceptable basis for reaching agreement about a move, and the parent who is not relocating will consent to the move. Our specialist family team have considerable experience of helping parents who wish to move away, those who wish to prevent a move, and of assisting clients who have been able to agree about a move but who wish to make arrangements legally binding by entering in to a contract to regulate aspects such as ongoing contact, costs of travel, and holiday arrangements. Some people need to have a formal court order to enable them to gain a visa from the country they wish to live in, even though the other parent is in agreement with the proposed move.
Our guide to 10 "dos and don’ts"
Drawing on our experience has enabled us to compile a brief list of "do's and don'ts" based upon the questions and issues which crop up most often. (The factors below are not in order of importance, are not exhaustive, and are intended to be guidelines only.)
- Communication is key. If you are considering a move, talk to your former partner about your intentions, giving them an opportunity to have an open dialogue about the issue.
- Forward planning is essential. Consider the intended move in detail - what do you need to do to obtain a visa? Where will you live? What about work? Are there good schools in that area and will a place be available? What about extra-curricular activities?
- How will contact be maintained between the child(ren) and the other parent? Consider whether arrangements can be made which are as close to existing arrangements as possible. Who will pay for travel for visits to and from the home of the other parent? How will school holidays tie in with the commitments of the other parent?
- Is your child(ren) likely to cope well with the changes involved in a relocation? Think about any steps that may make the move easier to cope with, such as arranging to visit new schools before the move takes place, or asking the existing school to arrange to speak with your children's classmates about keeping in touch.
- Try not to present plans as a fait accompli. Gaining permission to relocate can be difficult. It is important that you bear in mind the need to show that the move would be in your child(ren's best interests.
- Consider whether and how much to tell your child(ren) about your intentions and plans, being mindful of their age and developmental stage. Uncertainty about arrangements can be a source of stress for many children, who will often feel a sense of loyalty to both parents. Some parents find it helpful to take advice from a professional such as a teacher, GP, family therapist or child psychologist about how, what and when to tell children about plans to move away, or about opposition to a proposed move if you are the parent staying behind.
- Whether you are the parent who will remain in Scotland or the parent who wishes to move, try to look at the situation from the other parent's point of view. Otherwise strong co-parenting relationships can suffer from the strain of a difficult debate about moving. Decisions made about how to present your case to the court can have lasting effects upon the relationship you have with the other parent, regardless of the outcome of the case.
- If you are the parent who wishes things to stay as they are, consider whether there is anything that could be done to reassure you about the proposed move. Some parents find that having an open discussion, whether directly or with the assistance of their solicitor, can open up possibilities which make a proposed move seem less daunting. It is sometimes possible to regulate arrangements for spending time with your child(ren) in a formal contract called a minute of agreement, providing some clarity about what each parent is obligated to do.
- If agreement is not possible, seek specialist legal advice sooner rather than later to ensure that your case is explored from every possible angle. Relocation is an emotive issue. It can be easy to overlook key factors.
- Choose your solicitor with care. Some solicitors are more experienced in this area of child law than others. By working with a solicitor familiar with relocation cases, you give yourself the best opportunity of achieving your aims by drawing on that solicitor's specialised skills, experience and legal knowledge.
Get in touch
For more detailed information or to arrange an appointment to discuss your own specific circumstances in detail, please feel free to contact me or another member of the Harper MacLeod family team