The Brexit vote has turned the attention of many to the issue of borders and with that, the debate as to whether freedom of movement of persons will continue after the UK leaves the EU.  

In recent years, increased litigation highlights an apparent growth in the number of separated parents who wish to relocate from Scotland for the purposes of employment or relationships.

Opposition comes from the other parent who exercises contact or shares care of the child whom it is sought to relocate.  The terms international relocation and international child abduction are familiar to many, whether working in the law or not.  

The Herald: With the uncertainty of what will happen when Brexit is due to take effect in March 2019, relocation from Scotland to another part of the UK (“cross border”) may become more common.  

At first blush, it may be considered that moving internally within the UK is not as complex as moving internationally but if one parent is opposed to the relocation to another part of the UK, the matter can be just as legally complex.  

The Family Law Act 1986 regulates jurisdiction for courts to hear orders in respect of care arrangements for children, termed ”Part 1 orders” in all parts of the UK. A court in any part of the UK can hear an application for a Part 1 order except if the order being sought is part of a divorce action. Jurisdiction depends on whether a child is habitually resident within the relevant court area.   

The Herald:

Caroline Gillespie, Partner

Habitual residence is a complex concept.  A child’s habitual residence is a question of fact, taking account of all of the child’s circumstances and must reflect some degree of integration in a social and family environment. A v A (Children) 2014, a judgment of the Supreme Court set that test.  

The Children (Scotland) Act 1995 provides that consent is required to remove or retain a child outside of the UK.  The court in whose area that child had been resident before he or she was removed from the UK retains jurisdiction for a period of one year in making decisions about that child’s care and upbringing.  

In the event a child moves lawfully between jurisdictions i.e. with the consent of the other parent, the court of the child’s former habitual residence will retain a limited jurisdiction for three months after the move. Interestingly, where a child is removed from one EU country to the other then that same three month period also applies. Currently, however there is a European Convention which has the legal effect of treating Scotland and England as if they were two separate Member States for the purposes of child relocation because domestically, different laws and different procedures apply in each part of the UK.

Identifying the relevant internal legal system based upon habitual residence is important because this will inform the approach which will be taken to where a child should live and what contact there will be with the other parent.  In Scotland we are concerned with the concepts of residence, contact, specific issue orders and care and control of a child.   

In the event a parent is considering relocation beyond Scotland and there is an existing contact order, that order may stand in the way of an internal relocation. A request to the court which made the contact order in the first place seeking a specific issue order to allow relocation may be required.

 In the event a parent suspects that the other parent will leave where they reside with the child, it is possible to seek an interim interdict preventing such relocation until the care arrangements based upon the welfare of the child are considered in the longer term.  Each separate country within the UK has its own types of orders to regulate the care of children and their own specific procedures but generally the welfare of the child is the common overriding consideration.  

In the event of potentially internal competing jurisdictions, the parent who wishes to relocate needs to make early inquiries to establish which court will be the appropriate one to make orders relative to the child’s future care and upbringing.

There is an increasing awareness of “child abduction”, where specific rules apply when a child is removed from the UK to a country which is a signatory of the Hague Convention without the consent of another parent who has some or all of the parental rights and responsibilities exercisable in respect of that child.  

The child must be returned to the place from which he or she was removed.  This does not happen in internal cross border disputes where the issue of jurisdiction requires to be considered as soon as possible before a child becomes settled and integrated.

Principles from international relocation cases remain of value in cross border litigation. In M-v-M, an internal relocation case where a mother sought to move from Scotland to England which was heard by a Scottish Appeal Court, the factors which had already been developing in considering international relocation cases were presented by both sides.

We are living in uncertain times with concerns regarding the existing application of EU legislation.  It is currently proposed by the UK Government to proceed with a Repeal Bill which is to incorporate all EU legislation into domestic law automatically. This would allow Parliament subsequently to decide which parts of EU legislation to retain, change or remove.  What will the future hold for relocation?

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