When a family splits arrangements can and should be put in place to ensure that the children of the family have a continuing relationship with both parents. In the great majority of cases this causes no very serious problem. Where there is disagreement the courts have long experience of trying to find solutions in the best interests of the children. But what if that solution becomes unworkable because the parent with the primary care of the child moves far away? Any existing contact arrangement becomes unworkable and, in extreme cases no regular direct contact is possible, simply for practical geographical reasons.
The Scot law on this difficult matter is misleadingly clear - section 2(3) of the Children (Scotland) Act 1995 provides that removal or retention outwith the UK is unlawful unless the person wishing to move the child ('the movant') has the consent of everyone who has Parental Responsibilities and Rights (PRR) or else the consent of the court.
The test which the court will apply, where a party seeks a specific issue order permitting removal of a child outwith the UK, is a familiar multipartite one of Section 11(7) of the 1995 Act.
When the court is considering whether or not to make an order and what order to make, the court shall regard the welfare of the child concerned as its paramount consideration and shall not make any order unless it
considers that it would be better for the child that the order be made
than that none should be made at all and,
take account of the child's age and maturity so far as practicable,
- give the child an opportunity to indicate whether he wishes to express his views and if he does so wish, give him an opportunity to express them and have such views as he may express.
There are new considerations tacked on to Section 11(7) A to E but, in practice, these really do not add much to what the court was doing before they were enacted.
The paramount criterion is the best interest of the child and, on one level, this blog could stop right there. However, the particular circumstances of a relocation case do throw up interesting factors which have a bearing on that paramount criterion.
There have been authorities from the Sheriff Court and from the Court of Session, but the most useful initial guidance comes from the Sheriff Court case of M v M 2008 Fam LR 90 in which Sheriff Morrison set out eleven factors which the court should consider. The list is not exhaustive. Not all the factors will crop up in every case and there are areas of possible overlap, but the Morrison XI is probably our best starting place in most relocation cases. The 11 factors are:-
The reasonableness of the proposed move abroad.
The motive of the parent wishing to take the child abroad.
The importance of the contact with the other or absent parent in the child's life.
The importance of the child's relationship with siblings, grandparents or other extended family to be left behind.
The extent to which contact can be maintained with the left behind parent.
The extent to which the child may gain from a relationship with family members as a result of the proposed move.
The child's views where he is of an age to express them.
The effect of the move directly on the child.
The effect of refusal of the specific issue order on the applicant.
The effect of refusal on the welfare of the child.
Whether it is better for the child to make an order rather than no order at all.
The earlier English policy, expressed in Payne v Payne of giving great weight to the wishes of the primary parent has an echo in these Scottish factors, but the important point is that, insofar as that criterion is relevant, it is relevant only to the extent that it impacts on the paramountcy of the child's welfare.
There were two strong decisions which looked at the issue of relocation - S v S 2012 Fam LR 32 and M v M 2012 SLT 428 (no relation to Morrison's case).
In S v S, the mother had given up her job in Scotland to take a promoted post in Texas. She wanted to take the six year old child of the former marriage with her and the father objected. He does seem to have been a thoroughly involved parent, having contact for five nights out of every fourteen. Nevertheless, the Sheriff allowed the mother's specific issue and the father appealed. He was unsuccessful, partly because of the high threshold which he had to cross to disturb the judgement of the Judge at first instance and partly, the court said, because there was a burden on a party who wished to disturb the status quo. The Inner House did say that the relocation question had to be addressed "without any pre-conceived leaning or presumption in favour of the rights and interests of either parent".
The Inner House went out of its way to take the opportunity to quash the English Payne v Payne approach once and for all - or so we thought.
In M v M in 2012, the mother wanted to take the two young children to live with her in England. The Sheriff granted her Motion but seems to have given too much weight to the mother's wishes and the likely effect upon her of a refusal. Their Lordships lost no time in saying that was the wrong approach and the Sheriff had given too little consideration of the disruption to the children's education and to the practical problems of contact with the father and the father's wider family. This case was an intra-UK move from Scotland to England, but Lord Emslie said that the same considerations applied as in an international relocation case.
There is a stark warning for advisers in the Sheriff Court case of DH v GH 2015 WL 348005. This was a case in which the mother wanted to take her two daughters to live in Florida. The parties had been married in New York and both children had been born there. The children had lived in New York until they were three and then the parents relocated themselves and the children to Edinburgh for about a year. There was no doubt that the children were habitually resident in Scotland.
It is also clear that the marriage had been in difficulties, even before the parties moved from New York to Edinburgh, and this move did not save the marriage. They continued to live in the same property but live completely separate lives, at least up until the date of the Proof, swapping child care responsibilities each midnight. The Pursuer/mother was American by birth. The father/Defender was not. The mother wanted to 'go back home to the States' with the children.
There were several factors which appeared to strengthen the mother/Pursuer's case. She had a good job in the UK and hoped to be employed in an equivalent job in the same global organisation after the move to Florida. Her mother and sister and niece lived together in Florida in a three bedroomed property. The Pursuer's family was able to maintain her and had, by the date of the appeal, already funded the expensive proceedings. They were prepared to continue to support the Pursuer and the children in the event of their move to Florida. Neither party was from Edinburgh nor had any family there. The Pursuer was American and the Defender's family were in the South of England. The children had, as the court said, a close and loving relationship with the Pursuer's parents.
On the other hand the Pursuer had not arranged any contact proposals for the Defender in the event of a relocation, and
She had not arranged any school place for the children in Florida, and
The mother had never lived in Florida and so, although she was "going home to the USA", it was not in any sense a return to her roots, andShe was seeking to move to an entirely new location to an apartment which she had reserved but had not seen, and
In her own evidence, she did not seem to know whether or not she was required to sign the proposed Lease in Florida.
At best she hoped for the possibility for continued employment but even that, including the rates of pay, were entirely speculative.
The Sheriff took the Pursuer's desire to move to be primarily financially motivated and her Financial Schedule was found by the Sheriff to be unreliable.
While, of course, every case must turn on its own facts, it is clear that a party in the Pursuer's position in DH v GH has got to provide the court with a very full and vouched plan of what is to happen after the proposed relocation takes place.
The most recent case I want to look at is L v L 2017 CSOH 60 in which Lady Wise gave her Judgment only in April 2017. The mother wanted to move from Edinburgh to Bromsgrove which is where she was from and where her family lived. As with all cases this one was fact specific but Lady Wise did make some comments of more general application.
First she said "It is neither instructive nor appropriate to try to formulate any list of applicable factors to be applied in considering a case of this sort."
She stressed the fact specific element which was not in itself surprising, but was she actually saying that we can forget the Morrison's XI? I don't think so. Sheriff Morrison's list is a useful aide memoire of factors to consider - not a hierarchy of criteria. It is not a check list and Sheriff Morrison never suggested that it was.
In the circumstances of the particular case it is clear that the Court was not at all impressed by the mother's evidence but the point to make is that the pursuer relied on the good things available to the child if the move were to go ahead. The schooling arrangements would be fine. The accommodation would be more than adequate and there would be several potential male role models there for the young child. But then, the accommodation in Edinburgh was fine as was the future education. The problem was the future contact with the father and - this is the point - there was no compelling need for the move. This could be misunderstood as imposing a burden of proof and I don't think it is that. But it is necessary for a party wishes to disrupt the status quo to
"produce evidence illustrating that the proposal is in the interest of the child…"
This should not come as a surprise since it merely reflects the terms of part of s11(7) of the Children (Scotland) Act 1995, but it's a point worth stressing in the circumstances of a proposed relocation.
When advising a person who wishes to relocate with a child, it would be wise to ensure that there is a letter addressed to the restant parent or to his solicitor intimating an intention to move to a given address on a given date, including details of employment for the movant, education for the child and proposals for future contact, effectively leaving it to the other parent to seek interdict. If that parent chooses not to do anything about the matter in the court, then that surely strengthens the hand of the parent who intends to move.
Of course, if the restant parent has made it clear, especially through a solicitor, that the move is objected to then it would be wise for the prospective movant to seek the consent of the court under the 1995 Act, by way of a specific issue order.
Relocation is not a separate area of Family Law. At least in Scotland the applicable criteria are the same as in any other child case.
What you can do about it will vary between intra-national and international cases -- specific issue or interdict or Hague Convention -- but the paramount criterion, once the matters of jurisdiction have been sorted out is the best interests of the child. Ideally, of course, that should be fully considered before anybody seriously proposes relocating a child in the first place. But unfortunately the opportunity to consider that matter has usually long passed before the lawyers get involved.