The case in question, AF v FF 2016 SC FORT 16, was a divorce action involving both financial claims and order relating to the parties' two children, aged 4 and 6. The children lived principally with their mother and had contact with their father. The mother sought a specific issue order allowing her to relocate to Australia (her native country) with the children. The father opposed the proposed relocation and also sought a residence order in respect of the children.
All child and family law practitioners with experience of relocation cases will be aware how challenging and anxious these cases can be. There is no 'middle ground' and invariably such cases involve a very difficult balancing exercise for the Court. There may well be a number of benefits for children if they remain where they are, and a similar number of benefits if they relocate. In other words, in many cases, their welfare is likely to be served whether they stay or whether they go. The question is will it be better for the children to be allowed to relocate with the applicant parent? The status quo is a known quantity but the proposed relocation is hypothetical. Evidence might be led about educational benefits, extended family support, job opportunities for the relocating parent and various other factors, but how a particular child will actually get on and cope with the absence of the other parent, is inevitably unknown. Sheriff Davidson is quite right when he observes that the decision to made by the Court is life changing. Frankly, one does not envy a Sheriff presented with a relocation dispute.
In AF v FF, a important factor for the Sheriff in considering the proposed relocation to Australia was the future welfare of the older child in particular. He exhibited very concerning behaviours at school, to the extent that other parents had threatened to remove their own children from the school. A serious incident involving a female child gave rise to child protection concerns. The head teacher, however, failed to immediately report the incident to the social work department or police, and instead called the mothers of both children into the school for a meeting. Sheriff Davidson's judgement serves as a stark reminder to schools of the importance of following child protection procedures. The Sheriff is critical too of the social work department and questions why no referral was made to the Children's Reporter. As far as Sheriff Davidson was concerned, only the child's GP dealt with matters appropriately.
In carrying out the balancing exercise required in any relocation case, the Sheriff placed significant weight on his concern that this little boy become 'notorious' in the local area due to his behaviour and that this would disadvantage him in the future. Sheriff Davidson observes that it could not be argued that the child should remain in the local authority area so that his behavioural issues could be addressed effectively by professionals as they were not in fact being effectively addressed.
Neither parent in the case is painted in a particularly good light but it was acknowledged by the children's mother that the 'negative aspect' (and in her view the only negative aspect) to the relocation would be the inevitable reduction in contact between the children and their father.
Those representing the parents in this case did not go without criticism from Sheriff Davidson either. There was confusion about what orders were actually being sought by the father, who had raised the action. It seems that the Proof (final hearing) proceeded on the basis that both parents were seeking residence orders in respect of the children. At the conclusion of the case, however, Counsel representing the father advised the Court that her client was not in fact insisting upon his request for residence. Rather, his position was that the status quo should be maintained i.e that the children should remain living principally with their mother in Scotland and have regular contact with him. It is not unusual for parties' positions to alter during the course of what might a lengthy litigation but it is essential that by the time a case comes before the Sheriff for a final hearing that both sides positions are clear and accurately reflected in both their written pleadings and affidavits (sworn witness statements).
Sheriff Davidson was satisfied that the children's best interests would be served by relocating with their mother to Australia. He granted the specific issue order sought. The Sheriff did not consider it necessary to make 'general orders for residence and contact' (because both parents had full parental responsibilities and parental rights) and instead pronounced an order 'regulating' the residence and contact arrangements for the children. Interestingly, he also decided to extinguish the father's parental right to have the children living with him or otherwise to regulate their residence. It is not clear why the Sheriff considered it necessary to go as far as removing that parental right from the father, when the position is regulated by the specific issue order allowing the relocation. One also wonders how an order regulating residence and contact is different in practice to the 'general' orders referred to by the Sheriff. It perhaps reflects the terminology now used in England in terms of 'child arrangements orders', instead of 'residence' and 'contact' orders.
If you are considering relocation with your child, or if you are concerned that the mother or father of your child might be planning to be move, it is essential to take early and expert advice. We have considerable experience of child relocation disputes and would be happy to assist. Please contact Louise Laing, Associate, if this affects you on 0131 247 3172 or firstname.lastname@example.org