International relocation in a mid and post-Covid-19 world – where do we stand?
Whilst these issues are becoming more common, they are also often the most fraught. This is because the outcomes can be life altering for all concerned. This is particularly so for the child of the family who may be moved to live many miles away from one of their parents and their current home.
This blog will consider a scenario in which one parent wishes to relocate from England or Wales to Scotland. This is an increasingly common scenario and is often motivated by one parent wanting to move back to their home town and family north of the border following a separation.
If one parent wishes to relocate with their child from England to Scotland there is no legal issue if the parents agree. The parents should discuss this with each other well in advance of the move and reach an agreement as to the practicalities such as maintaining contact with the other parent and agreeing the new school that the child will attend. To reduce the risk of any disagreements further down the line this agreement should ideally be recorded in writing so that both parents are on the same page moving forward.
It is when parents are unable to reach agreement on a proposed relocation that things can become more complicated. If one parent wishes to relocate to Scotland and the other parent does not agree then the ‘relocating parent’ should apply to the court for a Specific Issue Order permitting them to relocate with the child. If, on the other hand, a parent is concerned that the other parent might be intending to relocate to Scotland with the child imminently without their consent or an order of the court, then that parent can make an application to the court for a Prohibited Steps Order preventing them from leaving.
When the court is considering whether to permit or prevent relocation to Scotland, its paramount consideration will be the welfare of the child. The court will carry out the same welfare analysis as it would when an international relocation is being contemplated and so it is important to understand that there is not a different set of considerations for internal (i.e. within the United Kingdom) and external (i.e. international) relocation cases. In each case the court will undertake a global holistic welfare evaluation to determine where the child’s best interests lie. This involves analysing each and every individual welfare option before the court and weighing its positives and negatives. Each option will then be compared against the competing option or options. Importantly, each case will be decided on its own facts and the court should not categorise cases on the basis of time spent by the child with either parent.
Despite the fact that all relocation cases will be treated in the same way by the courts, it is in practice often easier for a relocating parent to secure a short distance internal relocation simply due to the practicalities of the move. If the relocating parent is proposing to move from, say, Carlisle to Dumfries then, all else being equal, the court would be more likely to allow that relocation than if the parent were proposing to relocate from London to Inverness. This is because the shorter distance of travel would allow the other parent to remain more fully involved in the child’s life mid-week, and the child would not have long distances to travel at weekends in order to maintain contact. A court will also be hesitant to prevent a parent from choosing where they live within the United Kingdom and so will only prevent this where the child’s welfare requires it.
A further point to consider is that if one parent moves from England or Wales to Scotland with the child, whether with consent or as a result of obtaining permission from the court, they will be entering a new jurisdiction for the purpose of any future court proceedings relating to the child. This means that if there is a future dispute about the child arrangements, and this dispute takes place once the child has relocated and become habitually resident in Scotland, then any application should be made to the Scottish courts.
Whilst the law in Scotland as it relates to the arrangements for children has many similarities to the law in England and Wales, the legal framework is different. If a dispute arises then advice from a Scottish solicitor should be sought at the earliest opportunity.
If the parent relocating to Scotland has secured an order from the English court permitting their relocation with the child, then this order has the same effect in Scotland as it would had it been ordered by the Scottish court. However, for the order to be enforceable in Scotland it must be registered there. The procedure for doing so is straightforward and steps should be taken in order to arrange this before the relocation takes place. As soon as the order is registered it can be enforced by the Scottish courts in the usual way.
If a child is removed to Scotland by one of their parents without the other parent’s consent or permission from the court, then the left-behind parent may wish to take steps in order to secure their return. If a child is unlawfully removed to another country, such as from England to France, then an application can be made under the 1980 Hague Convention to secure the return of the child quickly.
Scotland and England are not, however, independent signatories to the Hague Convention (the United Kingdom as a whole is) and therefore the Hague Convention cannot be utilised in order to secure a return from Scotland to England. Therefore, if a child is removed to Scotland an application should be made to the High Court under its inherent jurisdiction in order to ask for an order that the child should be returned. If that order is granted by the court, it can be registered in Scotland and enforcement proceedings to return the child can take place.
If you have any questions about the issues raised in this or other blogs in this series, please contact a member of our family and divorce team who will be able to assist you further.
Rachel Cooper is an Associate in the Family Team. She is qualified to practise law in England and Wales and in Scotland and has experience in dealing with all aspects of private family law work in these jurisdictions.
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