Under English law you are not permitted to take a child out of the jurisdiction of England and Wales without the permission of everybody who has Parental Responsibility for that child. As a result, the non-resident parent will be required to provide his/her consent to any attempt by the resident parent in moving the children to Scotland.
The question of where a child should live is one of the most difficult for the court to decide.
If the non-resident parent is refusing to provide consent to the proposed move to Scotland, it will be necessary for him/her to make an application to the court for a prohibitive steps order prohibiting such removal. This action, clearly, should be made prior to the resident parent moving to Scotland.
Once an application has been made to the court, there are specific guidelines laid out in law which the Court would have to consider before making a decision on whether permission should be granted to remove the child from the jurisdiction. The following factors are in the forefront of the Judge’s mind when considering the application:
The reason for the planned relocation.
The effect of a refusal to allow the planned relocation.
The circumstances of the proposed move.
The wishes of the child in light of their age and understanding.
The effect on contact with the non-resident parent.
The questions that the Judge is likely to ask are as follows:
Is the resident parent’s reason for wishing to remove the child from the jurisdiction genuine or is it motivated by a desire to exclude the other parent from the child’s life?
Are the reasons for the relocation realistic? The Judge will want to know that the plans are practical, well researched and investigated.
The court will give careful appraisal of the non-resident parent’s objections and again whether they are motivated by a genuine concern for the child’s welfare or some ulterior motive.
What effect would the relocation have upon the non-resident parent’s relationship with the child and the relationships with any extended family?
How would a refusal impact on the relocating parent and their life?
If the resident parent can show that they have links with Scotland, for example, they have close family there, they have a job there, they have investigated appropriate schools for the children and they have suggested a practical amount of contact between the child(ren) and the non-resident parent (to perhaps include longer stays during the school holidays and regular facetime contact) then, unfortunately, any application by the non-resident parent to prohibit the relocation is likely to fail in the long term.
If, however, the non-resident parent can show that the resident parent has no such plans in place, no close family in Scotland, no job and no support network then it is likely that the court would believe that they were moving for the sole purpose of denying the non-resident contact and therefore a relationship with their child(ren). Under these circumstances it is highly likely that the court would prevent the resident parent from making such a move.
The question of where a child should live is one of the most difficult for the court to decide and, as a result, it is always advisable to try to speak to your ex partner in order to ascertain the reasons for their proposed move prior to issuing an application to the court. The two main authorities in respect of removing the child from the jurisdiction are Payne v Payne [2001] EWCA Civ 166; [2001] fam 473 and, more recently, Re F; DF v M B-F [2015] EWCA Civ 882; [2016] 2 F.C.R. 368; [2016] Fam.Law 565.
It must be remembered that every case will turn upon its own facts and it is therefore essential that, prior to making an application to court, if possible, a dialogue is opened between the parties in order to establish the facts and reasons for any potential relocation.
Posted on February 9, 2018
