Every month, lawyers from Harper Macleod - the biggest Scottish law firm with an office in Shetland - share their insights on issues which can affect local businesses and individuals.
Jenni Gear, a Family Law solicitor based in Harper Macleod's Lerwick office, looks at the process involved when a separated parent wishes to move away with a child.
These days the world is a small place and people move around far more frequently than in the past. Shetland is no different, with people moving regularly to and from the island for a variety of reasons.
If you are a separated parent with a child, one of the first things you should do when planning a move with your children to be closer to a new partner, family or job is ask your former partner to agree to the move, whether this may be outwith or within the UK.
This is particularly relevant in Shetland, given that any move away from here will likely have a significant impact on your former partner's ability to have contact with the children. If your former partner agrees to the move, it would be advisable to have this set out in a document known as a Minute of Agreement, which would specify details of the relocation and how contact would operate. Putting everything in writing can help avoid any further issues down the line.
If your former partner is not agreeable to the proposed move, you may have to go to court to seek a 'specific issue order', which is effectively permission to move to the new area or country. If court proceedings are started, opposition from the other parent is almost inevitable, and therefore each parent would have to go to court, along with their witnesses, and give evidence.
The child's best interests
The court's paramount consideration is what is in the child's best interests. The court will not make an order unless it is absolutely necessary. Children 12 years old and over are presumed to have sufficient age and maturity to give their views, although children nearing 12 years may be asked as well. However the child's view is not a determining factor and parents must take care not to influence the child or children involved as this would likely be viewed negatively.
In putting a case to court in support of a move, that parent should consider in particular how contact between the child and the other parent would operate should the move take place, their motive for wishing to move and the effect the move may have on the child e.g; in terms of schooling or housing.
If a parent decides to move without seeking consent or the court's permission, the other parent can force the child to be brought back. The procedure for this depends where the child has been taken, however courts do not look favourably on parents who move their children without consulting the other parent.
Sadly, cases of this type are extremely difficult to predict and often emotions run high making it hard to reach a compromise. In Scotland the onus is very much on the parent who wants to move to persuade the court it is in the child's best interests. In Shetland itself, these types of cases are not uncommon, given the distance from the mainland and the subsequent difficulty in facilitating regular contact with the parent who remains here. Expert legal advice at an early stage is highly recommended.
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This article originally appeared in the Shetland Times