In Scotland, most parents have automatic parental rights and responsibilities (PRRs) in respect of their child.

This means they have an equal right to make or have a say in major decisions that affect their child’s life – such as where they live, how they are to be brought up, what school they go to etc. 

As international relationships and connections become more common, disagreements around where a child should live geographically are also starting to increase. We are often asked to provide guidance to a parent seeking to relocate with their child or children, whether that be as a result of the breakdown of their relationship, to return to their country of nationality, or to move where they have better job prospects. Visa and entry requirements for a particular country can also have a bearing on where someone can stay.

What should I do if I want to relocate with my child?

If a parent is considering moving away from Scotland and relocating with their child, the first thing they need to determine is whether anyone else who has PRRs in respect of the child consents to the move. Consent is required to remove a child from the UK. If the other parent does consent to the move, it is necessary for the consent to be in writing in case it is called into question in the future. In our experience, written consent may need to be shown at the airport when travelling with the child or when enrolling a child at a new school. 

What if my ex-partner doesn’t consent?

Where the other parent doesn’t consent to the relocation, the parent seeking to relocate will need to make an application to the court for a “specific issue order” to determine whether the relocation should happen or not. The application can either be raised in the Sheriff Court local to where the child lives, or in the Court of Session which covers the whole of Scotland.

Can my ex-partner stop me from relocating?

The parent opposing the relocation may try to stop the relocation by applying to the court for an order called an interdict. These are court orders which temporarily stop the relocating parent from removing the child from the United Kingdom before the court has determined if it is best for the child to go. These types of orders can be granted on an urgent basis by the courts to preserve the status quo for the child.

The child’s best interests

Where the court is asked to consider whether to permit the relocation of a child, the court will have the child’s best interests and welfare as its paramount consideration. The court must be satisfied that the move would be in the best interests of the child. The court must also be satisfied that it would be better for the child that the order be granted than not.

The onus is on the relocating parent to provide the court with sufficient evidence to persuade the court that the move is in the child’s best interests.

There are a number of factors which must be addressed before the court when determining whether the move is in the child’s best interests. These include:

• Relationship with the other parent – how does the relocating parent suggest that relationship will be preserved?
• Employment – does the parent seeking the move have employment plans in place?
• Schooling – is there availability of schools where they are wanting to relocate to?
• Support network – will the child and parent have a suitable support network available?
• Lifestyle – will there be a change in the child’s lifestyle?
• Childcare – how will the child be cared for?

Views of the child

In court actions involving children, the court has a duty to allow a child who is capable of forming a view the right to express those views. It is then for the court to consider the weight to be given to the child’s views, in accordance with their age and maturity. 

Determining where a child should live will have a profound impact on that child’s future. Any proposal to move a child to another country should be considered carefully and with the child’s interests, welfare and (where appropriate) views in mind.  

If you are thinking about locating abroad, we can provide practical advice on what you should consider as part of any planned moved. Our experts in immigration are also able to advise on any questions around visa or entry requirements to another country.

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