International relocation with children / parental child abduction

Everything you need to know about relocating overseas with your children after divorce or separation.

Sorting out the care arrangements for children after a separation can be a painful, difficult task for many families. Where there is often extra difficulty is where one parent wishes to return to their country of origin following separation and the other parent wishes to remain in Scotland. There are often compelling reasons on both sides and the stakes can be very high for those involved.

Court orders for relocation

Where children are habitually resident in Scotland, if a parent wishes to relocate with them to another country, that parent must either obtain the agreement of the other parent or seek the consent of the court to the move. Applications to the court in this situation are for a ‘Specific Issue Order’. When considering whether to grant the order, the court must have regard to three so called ‘overarching principles’:

1. The court must regard the welfare of the child as its paramount consideration

2. The court is prevented from making an order unless it would be better for the child that the order be made than that none should be made at all (the “minimum intervention” principle)

3. The court must, so far as is practicable, give the child an opportunity to indicate whether he or she wishes to express views and if so to give an opportunity to express them

Where the issue of relocation comes before a court, a full assessment of the proposed move will be undertaken, with the welfare of the child always ultimately the paramount consideration.

What if a parent leaves without consent of the other parent / the court?

If consent is not obtained, then the 1980 Hague Convention on Civil Aspects of International Child Abduction may offer a remedy. This is an international treaty which aims to bring about the return of children to their country of habitual residence. Thus, where a child is taken from their country of habitual residence to a signatory state, an application can be made for their return. Applications under the Hague Convention ought to be dealt with quickly, without the full assessment as to welfare that we see with relocation applications, mentioned above.

There are limited defences to an application for a child’s return to its country of habitual residence where it is established that a wrongful removal or retention as taken place. Even in the event that a defence can be established, the decision to return a child remains within the discretion of the court.

Preventative Steps where the removal of a child is anticipated

If you suspect that a child may be removed from Scotland without consent, it is vital to act quickly. The court can be asked to grant an interdict preventing the removal of a child from the jurisdiction or indeed from the UK. Steps can also be taken to put in place a Port Alert where there is a real and imminent threat of abduction. The court can also be asked to make an order for the surrender of passports or to assist in the disclosure of the whereabouts of children where this is unknown.

Our Karen Gibbons is a partner in the family law team and is a Law Society of Scotland accredited specialist in family law. If you have queries relating to the issues raised above or indeed in relation to other family law matters please be in touch on [email protected].