Some who live in Scotland but are originally from elsewhere may have been hoping to move back to their home country for some time but have been unable to do so until now.
The decision to relocate can be emotional and complicated. When children are involved, another layer of complexity is added, especially when the parents are separated and have differing opinions on the relocation.
When this is the case, it can be near enough impossible for the other parent to relocate to their selected country – presenting a legal issue which should be handled as soon as possible when planning a significant move.
Taking a child out of the country without having the other parent’s consent, can be considered wrongful removal or abduction. Getting the child back from this situation is also dependent on where the child has been moved to.
If a child has been moved permanently to a country that is part of The Hague Convention on the Civil Aspects of International Child Abduction, procedures are in place to ensure the safe return of the child to the UK. If the country isn’t part of the convention, a different approach must be taken, involving consular and diplomatic services, including the Foreign and Commonwealth Office.
In Scotland, it is not a criminal offence to take your own child abroad without the permission of the other parent unless there are certain court orders in place. The legislation differs in England and Wales where a single parent is prevented from taking children abroad without another parent or carer’s permission.
The Children (Scotland) Act 1995 does not require a signature from the other parent as proof of consent to the child being moved away. However, it is generally wise to obtain this anyway.
It is important to keep in mind that other countries may have different regulations, and these should be thoroughly researched before travel.
Some countries will require signed affidavits from the other parent as proof of consent to travel, where others will want to see the child’s birth certificate, or even an extract decree of divorce if that is the current state of the relationship.
Border controls are very thorough when an adult is travelling with a child, and most family lawyers can assist with organising all the relevant documents and paperwork.
If one partner does not want their child to move to another country, they may raise a court action, which would prevent the other parent from taking the child out of the UK. They may even go one step further and ask the court to have the child’s passport surrendered and their whereabouts declared.
The most important factor to consider before moving abroad is what is best for the child. Of course, there are lots of factors to weigh up.
Arrangements must be made to ensure parents can remain in regular contact with their child, and know about their schooling situation and living circumstances when they relocate.
Courts are also likely to take the child’s feelings into account but will balance this with the proposal of the parent who wishes to relocate and determine if they have a genuine motivation to move and that they do not wish to sever any contact between the other parent and the child(ren) in question.
Tom Quail is a family law solicitor, Wright, Johnston & Mackenzie LLP