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Entries in relocation (6)


Appeal judgment confirms that child was wrongly retained in Scotland

In a Hague Convention case a three judge bench of the Court of Session last month upheld an earlier decision that a 15 month old child had been wrongly retained in Scotland by his mother and should return to Australia and the jurisdiction of the Australian courts to determine issues of residence and contact.

The judgment, delivered  by Lady Paton, confirmed judge of first instance findings that the  father had not agreed that the mother should relocate to Scotland. He had been led to believe by the mother that her trip in May 2016 was by way of a 3 month holiday to spend time with her family in Midlothian. She had purchased a return ticket and had told their friends and family in Australia that she would be back in August.

The court also rejected the mother's argument that the child had now become 'habitually resident' in Scotland and that therefore the Scottish courts should have jurisdiction.

FNF Scotland National Manager, Ian Maxwell, commented, '' This is a useful judgment. Many fathers and mothers who ask us about 'habitual residence' think it is a matter of simple arithmetic – that there's a tipping point of a certain number of months that moves jurisdiction from one country to another. This judgment sets out the arguments from Scotland and elsewhere, including the UK Supreme Court, about the factors that must be taken into account. It can be shorter or longer depending on the age and circumstances of the child in each location.  The Hague Convention sets out a legal framework that must be applied in cases of international abduction and we hope the facts and circumstances that are required to be explored should also be addressed in the more frequent cases we see of abrupt relocations within Scotland and within the UK.

In this case the mother had presented a list of actions she had taken such as applying for child tax credit and child benefit, registering with a dentist and a GP and enrolling at a swimming class and a library. But the court found these were mostly matters of changing the status of the mother and the child's welfare:

'… these steps seem to us equally attributable to steps which might be taken for the care and wellbeing of a child away from home on a long holiday, and in our opinion did not bring about such an integration in Scottish life that the first instance judge could not reasonably have concluded that the child had not lost his habitual residence in Australia.'

The decision to stay in Scotland had not been done in consultation with the father, denying him his parental right to be involved in such important decisions about their child."


Aspects of separated family life

Two recent examples of coverage of separated family life:

The Sunday Night Drop is a radio programme taking a look at the lives of children from divorced parents who travel between parental homes.

Every Sunday - in service stations, lay-bys and car parks - children pass from one family to another. Most of Britain is unaware of how far some families have to travel to spend time with each other.

The programme focuses on the living and loving in modern fragmented families - sharing 'quality time', keeping up appearances, being together yet also alone. It's a glimpse at how families today are managing complexity, difficulty and difference in a way that wasn't necessary in the past.

A recent feature in the Daily Mail covered another form of contact - Skype Dads who only see their children on computer screen. 

Both items comment on the problems and inadequacies of these methods of remaining in contact with your children following a long-distance move.  If your ex-partner is planning to move a long way away, you can go to court to try and prevent the move. 

These "relocation" cases should always look mainly at the interests of the children and how they can remain in good-quality contact with both parents, rather than accepting that Skype or regular long-distance journeys are a substitute for children spending adequate time with both parents.  See our legal page for more details of such court cases.

One of the comments at the end of the Mail article says it all: "As a mother I don't even know why you'd entertain the idea of moving a child so far away from their father? Selfish if you ask me."


Research underway on Relocation Disputes within England and Wales

A British Academy Postdoctoral Fellow at the University of Oxford has begun research on relocation disputes within England and Wales. Dr Rob George is looking to "broaden our understanding of the everyday realities of relocation disputes." He will be reviewing relocation cases, at first instance, in England and Wales between 1 January 2012 and 31 December 2012.

Dr Rob George is of the view that "Although these cases are increasingly common, very little is known about their everyday reality in England and Wales because almost all the information presently available is based on a tiny sample of cases which reach the Court of Appeal. This lack of information makes it difficult to engage fully with the global debate over the law's regulation of post-separation families in the migration context."

Families Need Fathers Scotland welcomes this move to ascertain the realties of relocation within England and Wales. Hopefully this research shall encourage debate on Intra-UK relocation issues. FNF Scotland recognises that there is a distinct lack of research on relocation within the UK.

More information on Dr Rob George's research is available on Family Law Week.

For anyone affected by a relocation dispute the Custody Minefield web site is an invaluable source of information.  FNF Scotland is now collecting Scottish case studies and judgements to supplement its largely English coverage, and we would like to hear from anyone currently involved in such a case.


Leave to remove decision overturned on appeal

A recent Court of Session judgement overturned permission for a mother to take her children to the south of England from the Lothians (leave to remove) against the wishes of the children's father. 

This judgement rejects the approach taken in the original Sheriff Court judgement and by the Sheriff Principal in an appeal.

It emphasises that guidance from English cases such as Payne v Payne forms no part of the law of Scotland and stresses that the most important consideration in such cases is the interests of the child or children, not that of the parent who is seeking to move. 

The original Sheriff's judgement is criticised by Lord Emslie because: "It contains no evaluation, from the children's perspective, of the importance of current contact arrangements, nor of the likely effect on the children if, in due course, they were to see much less, or even nothing at all, of their father, aunt, grandmother and friends in Scotland."

Leave to remove decisions will always depend upon individual circumstances rather than any overall consideration, but this appeal judgement will be useful for any non-resident parent who is seeking to oppose a move that will make future contact difficult, even when the parent seeking to move uses arguments relating to support from family or a new partner at the chosen destination.

It re-asserts the need to concentrate on the welfare and interests of the children, rather than placing any special significance on the wishes or well being of the children's primary carer.

For anyone in this position the Custody Minefield web site is an invaluable source of information.  Families Need Fathers Scotland is now collecting Scottish case studies and judgements to supplement its largely English coverage, and we would like to hear from anyone currently involved in such a case.


Cross border cases wanted

Families Need Fathers Scotland is collecting examples of UK cross-border problems in family law cases. 

We already know of various cases in which children have been moved from one country to another without agreement of the separated father, which have then resulted in court action taking place in the new location rather than the country of residence before the move.

If a similar move is made to a foreign country, then the Hague convention on child abduction should apply, and the case would have to be heard quickly in the country of origin.  It seems easier to get children back from the far side of the world than from England - so long as the destination country subscribes to the Hague convention.

We have the impression that the problem is greater if the move is from Scotland to England than vice versa, but that may just be because we hear more examples of that situation.

Anyone with experience of cross-border problems should contact Ian or John in the Edinburgh office - 0131 557 2440 or scotland@fnf.org.uk.