Cross-Border Issues

If your ex partner wishes to remove your child from Scotland then they will need your consent. Under the Children (Scotland) Act 1995 s2(3) your ex partner cannot remove your child without your consent

'no person shall be entitled to remove a child habitually resident in Scotland from, or to retain any such child outwith, the United Kingdom'. 

Where both parents have parental rights and responsibilities 'the consent required for his removal or retention shall be that of them both.' under s.2(6).

If one party wishes to move and take their child with them and the other party does not agree then they will need to apply to the court for 'leave to remove'.

In Scots law the welfare of the child is paramount. In recent years there have been cases where more weight has been given to the welfare of the mother if the move did not go ahead. These judgements seem to be influenced by the English case of Payne v Payne. The criteria in Payne v Payne should not be applied to Scots law cases.

In Amanda Masson's article in the Journal Online on 12 December 'Relocation revisited' she states that the Inner House decision in the SM v CM child relocation case marks out a distinct position for Scots as opposed to English law.

In SM v CM it was stated at para 52 that:

"the guidance embodied in Payne and other English decisions forms no part of the law of Scotland, and would appear to be at variance with the approach affirmed by the House of Lords, for Scottish purposes, in the case of Sanderson. Even in England, a common criticism of the Payne doctrine is, in the words of Wilson LJ in Re H, at para.[23], that it

"... inappropriately 'relegates' (the harm done [to] children by a permanent breach of the relationship which children have with the left-behind parent) to a level below that of the harm likely to be sustained by a child through the negative impact upon the applicant of refusal of the application". "

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.

Other cases to consider:

MS v SS [2012] CSIH 17 XA134/11

Leave to remove case where appeal was refused and mother was allowed to take child to the United States despite father's opposition

AM v IM,  28 June 2008

Leave to remove case where it was decided that it was not in the child's best interests to move to Spain with their mother and her new partner.

Please note that each case is different and although your case may seem similar to one of judgements mentioned each case will be decided on its own merits.

Last updated on June 28, 2012 by FNF Scotland