Updated: May 23
It is often a common misconception among parents that have residence of a child where there is a parent with contact (or even shared residence) that they can simply move abroad with the child should the opportunity arise. In the last year, I had a client who did just that. She was indeed right about all the opportunities and benefits to the child and would likely have succeeded had the pandemic not happened. That being said, when the client moved to foreign lands for better opportunities for them and her child, the client did so without the permission of the other parent (which is required). Nor did they seek a court order (specific issue order) which is required in the absence of consent. So, despite having an excellent case the client was left with a contempt action hanging over their head and facing more of an uphill battle than they would have had they gone through the regular procedure. This is therefore a basic guide to the procedure and tests that should be applied.
The starting point is a case called M v M. It found as follows: that the parent seeking to move jurisdiction/country must show "(i) that relocation would actually be in the best interests of the children, and (ii) that, again from the children's perspective, it would be better for a specific issue order to be made by the court than for no order to be made at all."
Further case law has shown that the following aspects of the case must be taken into account by the court when balancing the often competing welfare considerations:
The reasonableness of the proposed move.
The motive of the parent wishing to move.
Contact arrangements between the child and the parent remaining behind.
The importance of the child’s relationship with siblings, grandparents and other extended family members.
The extent to which contact can be maintained after a move.
The extent to which the child might gain from a relationship with extended family members as a result of the proposed move.
The views of the child, if of an appropriate age to express them.
The effect, generally, of the move on the child (e.g. in terms of schooling, housing and social implications etc.)
The effect of the refusal to grant permission to move on the parent with care.
The effect of the refusal to grant permission to relocate on the welfare of the child.
The approach is not point scoring of considerations but rather each case turns on its own facts and an overall view of the welfare of the child having looked at all these considerations is factored in.
An example of the move being granted is where there has been overwhelming evidence that the move was to the benefit of the child despite the fact that contact would have become effectively nil. However, most cases fail due to the lack of contact with the parent who remains. Thus, when making the order, the Sheriff must see an overwhelming reason as to why the move is in the best interests of the child since the effect is often to reduce contact or sever it completely.
These are complex cases which, without consent, invariably require a proof. The one bit of free advice here is DO NOT simply make the move. The Hague Convention on International Child Abduction can be invoked and contempt proceedings raised against you. No matter how good the reasons for the move, you have given yourself an uphill battle from there.
If you need to move abroad with a child or are the non-resident parent seeking to stop such a move, then contact us for a FREE initial appointment now.