Courts will decide what’s right for children if resident parent wants to relocate - Janice Jones

Moving home to a new location is a big step at the best of times. During the current pandemic, it may pose greater challenges, especially if there is a family separation where children are involved. Planning a family relocation carefully is essential, and will likely include deciding whether a move should happen at all.

Janice Jones is a Family Law Partner, Anderson Strathern
Janice Jones is a Family Law Partner, Anderson Strathern

Lockdown and ongoing restrictions have seen a spike in family separations and this has coincided with a ‘mini-boom’ in the Scottish housing market since it reopened.

According to Zoopla, sales on its platform since 29 June have been agreed 76 per cent quicker on average than they have been in the past five years. In terms of new home destinations, we’ve seen an increase in property sales since the market reopened, with a sharp uptick in the popularity of rural family homes.

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While for some, this relocation comes from now being able to work from home and looking for more spacious homes, gardens and outdoors, for others it arises from a decision of parents to separate. In a separation situation with children, there is much to think about and not only the selling and buying of a new home.

What happens when separated parents want to relocate?

For separated or divorced parents, it’s important to consider the potential impact on the children should one or both parents choose to relocate. There are some key areas for separated parents to take into account before making the decision to relocate.

Under Scots law, when parents separate, the mother automatically has parental rights and responsibilities. A father has these rights if he was married to the mother at the time of conception, or subsequently. If the parents were never married, the father has parental rights and responsibilities if his name is on the birth certificate and the child was born on or after 4 May 2006.

A move within the UK – particularly if the move is geographically far away - will be a decision of significance affecting a child and as such requires consultation with the other parent. Unless agreement to the move can be negotiated, this can end up in court with a Specific Issue Order being sought, or interdicts to prevent the removal of the children.

Parents who have children living with them may feel that relocating is a decision they should make alone. Resident parents may assume that their wishes and the impact on them of not making the move will take priority. While in England, the latter point can be a material factor in balancing matters out, this is not the case in Scotland.

A court will make the decision that’s right for the children

The Scottish courts have refused orders for relocation where it was clear that there would be detriment to the child’s relationship and contact with the non-resident parent. Also of importance in the decision making is that often, there are no real differences for the child in terms of education or accommodation and the only change of consequence that had been foreseen was the negative impact on the child’s relationship with their father. This illustrates how crucial it is to consider how the move will affect the child overall – are there more advantages or disadvantages for the child? How can contact with the other parent be maintained?

The key factors for a court to deliberate

If the decision goes to court, they’ll examine the reasons for the proposed move and look for evidence on:

Family relationships and maintenance of contact arrangements

Employment prospects

Accommodation

Education

Childcare

Finances

Environmental factors

After these factors are reviewed, it is still possible the court may not grant an order where no compelling reason to move has been demonstrated and the child is currently enjoying contact with the non-resident parent which would be adversely affected by the move.

While finding your dream home and selling your current home will need the advice of the residential property team, if there is a family separation and a relocation for one part of the family then advice from an experienced family lawyer is needed in order to help avoid the pitfalls which could arise.

Janice Jones is a Family Law Partner, Anderson Strathern

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