Often, when families have separated or are living apart, people’s circumstances and plans for the future can change. People can decide that there is a better standard of living to be had in another part of Scotland or the UK. On occasion, people may decide that they wish to move outwith the UK altogether.
Where there are children involved, such decisions may be disruptive and emotional. Relocating with children may mean that contact with another parent may have to be substantially reduced or stopped altogether. Where such circumstances arise, it is important to get expert legal advice.
If you are a parent who wishes to relocate with your children, what you can and cannot do legally will depend on the circumstances of your case. It will depend on whether you personally have parental rights and responsibilities for the child and whether any other parent or individual also has parental rights and responsibilities. It will also depend on whether there are any formal arrangements for contact between the child and another parent or individual. It will further depend on whether such contact arrangements are informal, formal or set out in Court orders.
If you have parental rights and responsibilities for your child, you can exercise these without the consent of the other parent, who may also have parental rights and responsibilities. You can make important decisions about the child, including things such as what school the child attends, what religious upbringing, if any, the child has and what medical treatment the child receives. However, where both parents have parental rights and responsibilities, the exception to this rule is that neither parent can remove the child from the UK without the consent of the other.
If you wish to relocate with your child, it is important that you seek expert legal advice at the earliest opportunity. Depending on the circumstances, you may have to obtain the express consent of the other parent. If this consent is not given, you will have to obtain a specific issue order from the Court allowing you to relocate. The Children (Scotland) Act 1995 provides that when considering such orders, the paramount concern for the Court is the welfare of the child.
The case of M –v- M, heard by the Court Session in 2008, focused on the issues to be considered by the Court when one parent wishes to relocate with children and the other withholds consent. The Court set out a detailed list of factors that will be taken into account in such cases. These factors include considerations such as the nature of the child’s relationship with the parent who will be left behind, the proposals for contact after the move is made and the motivations of the parent who wishes to relocate. These are just some examples of the factors listed by the Court. What is clear is that if you wish to relocate with children and the other parent does not consent, you are well advised to get expert legal advice from the outset. The sooner you take advice the better, as such cases can often take some time to resolve.
On the other hand, if you discover that your child’s other parent has intentions to relocate with the child, it is extremely important that you seek legal advice as a matter of urgency. If the proposed relocation is within the UK, the other parent does not need your express consent to relocate. It is therefore very important that you instruct a Solicitor and take urgent advice. We will be able to apply to the Court very quickly to seek orders to prevent the other parent from relocating until the case has been fully investigated.
If you find yourself in the unfortunate position of discovering that the other parent has relocated with your child to a location outside the UK, we can still help. It may be possible to make an application under the Hague Convention for your child to be returned, failing which, for you to have contact with the child.
Whatever your circumstances, our experienced Family Law Solicitors can help you. We appreciate that the issue of relocating with children is a particularly emotional and sensitive one. We therefore ensure that our legal advice is delivered in a friendly, professional manner, tailored to your individual needs. In many cases, we can act on legal aid funding. Contact us as soon as possible for the expert legal advice that you need.
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