Relocating with Children after Separation: What do the Courts Consider?

Where one parent wishes to relocate with children after separation and the other parent does not consent, the Court must determine the issue by considering whether to grant a specific issue order under section 11 of the Children (Scotland) Act 1995.

The approach in Scotland is clear. As with all Section 11 orders, when considering the issue of relocation, the following principles apply:

The child’s welfare is paramount
The court will only make an order if it is better for the child than no order
The child’s views must be considered where appropriate

There are no additional considerations when a party is seeking a specific issue order to allow them to relocate. A presumption-free approach must be taken, and the Court must decide with the welfare of the child as the paramount consideration. Importantly, there is no presumption in favour of the relocating parent, even if they are the child’s primary carer.

Each case is decided on its own merits and circumstances. With no two cases (or families) being the same, outcomes can be difficult to predict. Sheriffs have wide discretion to decide based on their own assessment of the evidence and their view of what is best for the children. It is therefore very important that any proposal for relocation is well thought through, and the Court is furnished with sufficient evidence to allow them to conclude that the proposed relocation will have advantages to the children which will outweigh any benefits brought about by their current circumstances. It is also important to have a realistic proposal for promoting the relationship with the other parent or family members who will be left behind (if applicable).

A few key takeaways from recent cases include:

No automatic priority is given to the primary carer.
Courts are placing increasing weight on the child’s relationship with both parents and their wider family.
Relocation proposals must be detailed and well-evidenced (housing, schooling, employment, how contact with the other parent and extended family will operate).
Stability and continuity often carry significant weight.
Welfare concerns (e.g. risk or instability) can justify relocation despite reduced contact with the other parent.
While the child’s views do require to be considered by the Court, they are not always followed.

Success depends on showing the Court how the proposed move will practically enhance the child’s welfare, rather than focussing on the interests of either parent, and this must be demonstrated clearly and with evidence.

If you are considering relocation with your child or responding to such a proposal, early legal advice is crucial to protect your position and your child’s welfare. Please contact one of our experienced family solicitors who will be happy to assist.