Relocation of children – what test is applied in a dispute?

The decision of where a child lives following separation is a major one. Where both parents have parental rights and responsibilities for the child, they must consult with one another to reach that decision. Where a parent does not consent to relocation, the parent seeking consent to relocate must obtain the permission of the Court by way of a ‘specific issue order’.

There have been two recent decisions, both of which are from the Outer House of the Court of Session, in which Lord Stuart clearly sets out the test to be applied where relocation is in dispute.

The starting point, as in all cases raised under Section 11 of the Children (Scotland) Act 1995, is that the court must have regard to the welfare of the child as its paramount consideration. The court must also not make any order unless it considers that it would be better for the child that the order be made than that no order should be made at all. Finally, the court should also, where appropriate taking account of the child’s age and maturity, give the child the opportunity to express a view.

W v. W [2023] CSOH 72 – 13 October 2023

This case concerned whether it was in the best interests of the child, a three-year-old boy, to relocate with his mother from Scotland to live in France. The child’s father exercised a varied amount of contact but latterly, the parties operated a shared care regime on a two-weekly cycle. The child’s father had previously agreed to the child’s mother relocating to France but subsequently withdrew his consent.

The child’s mother argued that when considering the issues of education, housing, financial stability and living environment, that it was in the best interests of the child to relocate to France. It was accepted that this would mean an overall reduction in the contact the child exercised with his father, but focus was placed on the advantages of the extended contact the child’s father could exercise during holidays.

The child’s father argued that relocation from Scotland to France would have adverse effects on the child. It was argued that the diminution of the child’s relationship with his father and the role his father played in his life was the most significant disadvantage to the child. It was argued that there were considerable uncertainties associated with the mother’s plan to relocate which ought to be weighed against the established routine the child had in Scotland.

The court considered that there were five broad areas that were important when considering whether the child’s mother could show that relocation would be in the best interests of the child and that from the child’s perspective, it would be better to allow relocation than to make no order at all. Those areas were the child’s relationship with the parents and maintenance of contact; wider family relationships and childcare, including family support; employment; accommodation and education.

It was an important consideration for the court that the starting position was that the child had benefited from a shared care arrangement between his parents. Both parents were actively involved with the child’s life and the child was considered to be thriving under the arrangement.

The court held that the single, most significant factor was the very likely adverse effect of relocation on the relationship between the child and his father and thus the welfare of the child. The court was not satisfied from the evidence of the child’s mother that there were significant benefits to the child in other areas before the court, which could conclude that the negative effect on the relationship between the child and his father was sufficiently offset to demonstrate relocation was in the child’s best interests.

Interestingly, the court did not accept that the child’s father initially consenting to the child’s relocation should be taken as an implied indication that relocation would be in the best interests of the child. This was a question for the court. The order sought by the child’s mother was refused.

M v. A [2023] CSOH 80 – 16 November 2023

Lord Stuart again looked at the issue of relocation in the case of M v. A.

This case concerned whether it was in the best interests of the children, aged four and two years old, to relocate from Aberdeen to Glasgow. The children’s father lived in Glasgow. The children lived with their mother in Aberdeen. The children’s father sought an order from the Court requiring the children to relocate to live in Glasgow.

In this case, the children’s father did not challenge that the children should continue to reside with their mother. The children’s father sought relocation to be actively involved in the children’s upbringing, including their education and health. The children’s father argued that the mother could source suitable accommodation in Glasgow and her employment meant that she could work in Glasgow, albeit in a different role.

The children’s mother argued that the children were settled in Aberdeen and to disrupt this established routine would not be in their best interests. The children’s mother, a Latvian national, argued that the children had friends in Aberdeen, both from school and the Latvian community. The children’s mother argued that there was a strong presence of an established Latvian community in Aberdeen which was not present in Glasgow. Both parties agreed that it was in the best interests of the children that they understand and participate in their Latvian heritage.

The court again examined the broad areas which must be considered whether relocation was in the best interests of the children. The areas were similar to those outlined in W v. W and also considered the reasons of the children’s father for seeking relocation and the importance of engagement with the Latvian community.

The court, having examined the evidence, concluded the children were well settled in their current life in Aberdeen. The court recognised that whilst the distance between the children and their father had a negative impact on the children’s ability to have direct contact with their father, they did not see it as a real impediment to him moving closer to the children.

The court concluded that there was little, if any, benefit in requiring the children to relocate. The court, having regard to the welfare of the children as the paramount consideration, was not satisfied that it was in the best interests of the children for the order for relocation to be granted.

Early advice

It is important when considering issues surrounding relocation, whether you wish to relocate or oppose a suggestion to relocate, to seek early legal advice.

The onus is on the parent seeking to relocate to establish why it is in the best interests of the child to do so. It is important to consider, if the court were to approve the relocation, how contact with the other parent and the child can be maintained. There is no preconceived list of factors to be applied in relocation cases as they will be considered based on their individual facts. These cases both establish that the evidential burden of proof on the parent seeking to relocate is a significant one.

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