In this week's blog, we explore the tricky issue of parental rights following a separation.
The dilemma:
My partner of 12 years (we weren’t married) and I split about 18 months ago. We have two sons, aged six and nine, and until now we’ve all been living in Glasgow - my former partner in the former family home and me in a separate flat which is convenient for work and the kids. My new partner, whom I met six months ago, lives there with me too. My job involves long hours and we’ve shared childcare since the split, but it’s not been easy. My former partner has been offered a permanent job in New Zealand and is determined to take it - upping sticks lock stock and barrel. She’s already got family there and she’s made no bones about the fact that she expects to take the boys too. They’ll be at the other side of the world - I’m at my wits end. Can I do anything to stop her?
Divorce Doctor Noel Ferry says:
Yes, you can take steps to stop her from leaving with the children. If you both have parental rights, then in terms of the law neither of you can take your child outwith the UK without the other’s permission. To do so could constitute a criminal offence. New Zealand and the United Kingdom are signed up to the Hague Convention. In terms of this convention, the police and authorities in each country should co-operate to ensure that any children removed unlawfully are returned. At this stage if you are concerned they are going to be removed, I would suggest that you instruct a solicitor to assert your position and if necessary to raise proceedings for an interdict to prevent any removal of your children.
You would also be entitled to apply for a residence order for the children to remain in Scotland. Your ex-partner might apply for an order to relocate the children but the court will determine the issue based on the best interests of the children and the individual circumstances of the case itself. Certainly, it is not a given that just because your ex-partner is the mother of the children she would be entitled to take them outwith the UK especially if the move was going to uproot them from their existing home, school, friends and family environment. If the move was likely to have a detrimental effect on the children’s relationship with you that would also be an important factor.
If you are unsure whether you have parental rights in respect of your sons you should be aware of an important change in the law which happened in 2006. Before then, unmarried fathers did not have any automatic parental rights in respect of their children unless they had obtained them from the court or the mother had signed a parental rights and responsibilities agreement. After that date, however, provided the unmarried father is named on the birth certificate they have the same parental rights. This now puts unmarried fathers in the same position as the mother or married couples who have such parental rights automatically when a child is born.
Even if your eldest son was born before 2006 and you were unmarried at the time you can still ask a court to grant you such parental rights if it is in the best interests of the child.
Noel Ferry is a divorce and family law expert at Turcan Connell.
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