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In the last 20 years, the combination of easy international travel, the removal of international border restrictions within the EU and the advent of a globalised world has meant an increase in the number of families started by people from different countries.

Breakdown of relationships

While a breakup involving kids is stressful enough, a breakup involving an international dimension, particularly where one partner returns to their country of origin (sometimes taking the children) is altogether more difficult. Often, the result is a protracted, expensive and stressful battle with a former partner involving court process in two different jurisdictions. There are more than 1000 applications made to courts around the UK for leave to remove each year.

These types of dispute are not limited to cases involving parents of two different nationalities. Sometimes, a partner wishes to emigrate after the relationship has ended. In such cases, the partner moving must seek "leave to remove" from the court (i.e. permission to remove the children from the country.)

Removing a child from the UK

In Scotland, following the case of M v. M (2008) the court will look at:

  1. The reasonableness of the proposed move abroad.
  2. The motive of the parent wishing to take the child abroad.
  3. The importance of contact with the other parent in the child's life.
  4. The importance of the child's relationship with siblings, grandparents or extended family left behind.
  5. The extent to which contact is able to be maintained.
  6. The extent to which the child may gain from a relationship with family members as a result of the proposed move.
  7. The child's views, where he or she is of an age to express them.
  8. The effect of the move on the child.
  9. The effect of refusal on the applicant parent, particularly where the parent already had a residence order.
  10. The effect of refusal on the welfare of the child.

Strictly speaking, of course, the case is not about the parents and, as such, there is no presumption in favour of the applicant parent, nor in favour of the opposing parent. If a parent has a residence order in place, then their proposals carry weight. In order to succeed with an application for an order to remove the parent must be able to demonstrate that relocation is in the child's best interests. The court will look at the extent to which ongoing contact relations with parents and close family will be maintained and the impact of seeing less of those closest to them. Other factors such as consistency of schooling will be taken into account.

In one case, (AM v IM), application of these criteria resulted in refusal of an application for leave to remove. Application was refused because:

  • The applicant parent did not have a job or business in the new country
  • They did not speak the native language
  • Travelling in the destination country was impossible without a car and the applicant did not drive
  • The applicant parent had given no consideration to how the child would see the parent left behind
  • The child had a strong bond with the family being left behind in Scotland

The court will want to see that thought has been given to how the non-resident parent will continue to have contact with the child and this will be an important consideration in the court's decision.

In these type of cases, there is an acute need for timely expert legal advice. If the parent applying for leave to remove is successful, the parent left behind faces the devastating prospect of far less contact with their child and an uphill legal battle involving foreign legal systems.

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Fiona Rasmusen
Partner, Head of Family Law
Do you need help? I specialise in family law, divorce, separation, child contact and residence, prenuptial agreements and separation agreements.
fiona.rasmusen@gibsonkerr.co.uk
Edinburgh: 0131 208 2260
Glasgow: 0141 628 0656
or Request a callback