HM Insights

Relocation in family law cases – on what do the courts place most importance?

Relocation cases in family law are always difficult. Emotions run high between parents and there is little prospect of reaching a compromised position. Generally speaking, one parent wants to move away from the area/country where both parents live, often because of a new partner, or job prospects, and the remaining parent opposes this due to the impact it will have on their relationship with the child or children.

A recent interesting decision from the Court of Session dealt with these issues, and made clear that there is one factor which overrides others in such cases - the parent's relationship with the child and the impact on that should the relocation be allowed.

Shared Parenting Family Law Scotland Child Custody Divorce Separation

A Scottish case in point

This case (MCB v. NMF) concerned the parties' child who was five-and-a-half years old when the case came to court.

Both parties were Scottish and had been in a relationship for around four years, separating just after their child's first birthday. The Defender (the child's mother), sought a residence order and also a specific issue order to take the child from Scotland to live in North Cyprus. This was opposed by the child's father, the Pursuer, who also sought an order to regulate his own contact. Until that point, he generally had contact every second weekend from Friday to Sunday.

The Defender stated various reasons in support of her case. She specified that she was currently unemployed, having obtained a qualification in medical administration. She was living on state benefits in rented accommodation. She could not obtain low paid/minimum wage employment as she would have to pay for childcare which would take up most of her wage. Ultimately she considered she had little employment prospects in Scotland.

In support of the move to North Cyprus, she stated she had a job offer from a doctor at a private hospital in North Cyprus which would give her a wage of around £20,000 per annum. Her mother had a property in North Cyprus and this would be where the Defender and the children would live. There would therefore be no accommodation costs. The children would go to a private English school which would eventually give them an International Baccalaureate qualification. The cost of the private education was £5000 per child per annum. The school was around an hour's drive from where the Defender intended to live, but only around 10 minutes' drive from where she intended to work.

The Pursuer opposed the relocation primarily due to the impact it would have on his relationship with the child. He considered it would be detrimental to his relationship with his daughter if he didn’t have the same frequency of direct contact with her. He also stated Skype would be an insufficient way of maintaining direct relations with him and with members of his external family. Although the Defender had offered six weeks of contact during the school holidays, the Pursuer stated he would be unable to take this amount of time off work.

One of the obvious concerns in this case was the fact that North Cyprus is not recognised as a country in its own right, aside from by Turkey, which recognises it as the Turkish Republic of Northern Cyprus. It is also not a signatory to the Hague Convention on Civil Aspects of International Child Abduction. Therefore if a child is abducted from Scotland to North Cyprus, there is no legal way to have them returned. . Additionally, any contact order made by a Scottish court would be not be recognisable nor enforceable in Northern Cyprus. Likewise neither would a Minute of Agreement entered into between the parties be enforceable.

What did the court do?

Interestingly, though, whilst the status of North Cyprus was referred to in the judgment, it was not the paramount reason for refusal of relocation, and many other factors were considered.

Much was made by the Defender of the fact that if she remained in Scotland, she would have to stay on benefits and it was accepted this may be the case. However it was considered the Defender had not done enough to explore all options open to her in Scotland. Lady Wise was not satisfied the Defender had a formal job offer in Northern Cyprus; what she had was a letter from a doctor in a hospital offering some employment. The letter was brief and in general terms.

Lady Wise also had concerns regarding the Defender's attitude to contact in the past, which had been lacking. Both parties stated the child had a close and living relationship with the Pursuer, and the Defender agreed that it was vital this continue.

The Court considered that the child's best interests would be best served by her remaining in Scotland, and the Defender's application for authority to remove the child to North Cyprus was refused.

Comment

This is an interesting case. In her written decision, Lady Wise states that "the likely diminution of the strong bond that has developed between the child and her father is the single biggest factor militating against granting permission to the defender to relocate".

From this it can be taken that it is clear that one factor which overrides others is the parent's relationship with the child and the impact on that should the relocation be allowed.

This is clear guidance for future relocation cases. If a parent seeks to relocate, it is clear they have to fully explore the options to alleviate the impact on the relationship between the child and the parent remaining behind.