With international travel back on the cards after two years of significant restrictions, it stands to reason that we’re going to experience an increase in the number of people relocating to new countries.

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 as a result of travel restrictions.

For those who are parents, this also means facing the challenge of relocating children. This can be a lengthy process at the best of times, but for separated parents, it can be incredibly complex from a legal standpoint.

The decision to relocate can be incredibly emotional and complicated and 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.

This presents a legal issue and one that 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, then there are procedures in place to ensure the safe return of the child to the UK.

If, however, the country is not part of this convention, a different approach must be taken. This involves getting consular and diplomatic services involved 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 a wise course of action 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 that may be required.
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 at this point.

The most important factor to consider before moving abroad is what is best for the child. Of course, there are lots of factors to consider and weigh up.

Arrangements must be made to ensure parents will be able to remain in regular contact with their child, as well as what their schooling situation will be when they relocate, amongst other factors such as living circumstances.

Courts are also likely to take the child’s feelings on the situation 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.

It is always advisable to seek legal advice, whether you are the parent hoping to move abroad or the other parent in the scenario before the relocation process is too far along.

A solicitor will be able to talk you through each step and advise on the process to ensure the child’s best interests are taken into consideration at every turn.

This article first appeared in The Scotsman 

What changes will the Children (Scotland) Act 2020 make for children and young people? 

The Children (Scotland) Act 2020 was passed by the Scottish Parliament in August 2020. The changes have not yet been brought into force to give the Government, Local Authority Courts and Children’s Hearings time to prepare for the changes before they have to start delivering them. 

The new Act covers lots of different things. It:

  • brings the law into line with children’s rights under the United Nations Convention on the Rights of the Child (UNCRC) to ensure that children’s views are heard in family court cases and that the best interests of the children are at the centre of these cases; and 
  • gives more protection to victims of domestic abuse and their children. 

The main changes for children and young people are:

Children and young people will have more opportunity to give their views to court

The courts will have to take the starting point that all children are capable of giving their views no matter how old they are. All children who want to give their views must be given the chance to do so and in a way that they prefer, whether that is speaking to the Judge or other means of setting out their views. 

At the moment, there is a presumption that a child aged 12 and over is mature enough to give an opinion, however, by changing the law there is a clear signal that children of all ages have a right to be heard. Once they have been heard then the person making the decision has to take account of those views and also their age and maturity. 

Courts will explain their decisions to children

When a Judge or a Sheriff makes a decision as to where a child is to live (residence) or time that they have to spend with the other parent (contact), that decision has to be explained to the child in a way that they can understand. 

Every decision doesn’t have to be explained to the child, only major decisions like ones on living and contact arrangements 

Children will have support advocacy workers in family court actions

Advocacy workers will support and represent children when courts are deciding for example where they should live and what contact they should have with the other parent. This will take time to put in place that the Scottish Government now must start setting up these services for children who are giving their views to the court. 

Measures to keep children safe in contact centres

Child Contact Centres are places where children, parents and other people in children’s lives can meet. Contact Centres will have to follow rules which will be put in place. 

Other Matters 

  • Local authorities will have a legal duty to support, care experienced brothers and sisters relationship when they aren’t able to live together; 
  • A register of Child Welfare Reporters (who give a report to the court about a family situation) and Curator ad litems (who can be appointed by the court to represent a child’s interest) is to be set up and rules on how Child Welfare Reporters and Curator ad litems should carry out their duties;
  • Courts will also have to investigate the reason that contact arrangements are not working and give the child an opportunity of giving their views; 
  • Other changes include rules to avoid legal proceedings taking too long where this would affect a child’s welfare and new measures to assist vulnerable witnesses and parties in court actions. 

More information

WJM Partner Tom Quail is here to help with any of your queries about the Children (Scotland) Act 2020, or other family law matters. Get in touch on 0141 248 3434 or email tlq@wjm.co.uk

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