Relocation in Scottish Family Law – Specific Issue Orders

What happens when  Parents in Scotland seek to move to a new Location with their Children?

Introduction 

When parents separate, it usually brings about decisions regarding child-care arrangements and residence, and where each parent and the child or children will live.   At Livingstone Brown, we routinely deal with many relocation cases where one parent wishes to move with their child to a new location,  either within Scotland or abroad.  These disputes in family law are often some of the most anxious encountered as they are not easy to resolve and frequently result in the court being asked to regulate the child-care arrangements by way of an application for a “specific issue order” under s 11 of the Children (Scotland) Act 1995. When that occurs, the court decides whether relocation should be granted, after looking at all the relevant facts and circumstances from a child-welfare perspective.

Parental Rights and Responsibilities

In Scotland, both parents almost always retain full parental rights and responsibilities following separation and divorce.  The legislation directs that this is the case,  and it is only in a rarely that the court will remove a parent’s parental rights if application to do so is made. Generally, the courts recognise the benefit to the child of both parents retaining parental rights and responsibilities post-separation.  The holding of “parental rights and responsibilities”  effectively regulates the rights and duties of parents towards their children, which includes the responsibility to safeguard and promote the child’s welfare and retain full involvement in the child’s upbringing by participating in all important decisions concerning their ongoing education, health, welfare and development.

Relocation “Specific Issue Orders” 

Deciding where a child should live is an important aspect of exercising parental rights, so when one parent wishes to relocate with their child, it is imperative that they obtain consent from all those with parental rights and responsibilities, or if they are unable to o so, that they apply for a “specific issue” order and seek permission to relocate from the court.

When making a decision about relocation, the court will weigh up a large range of factors, including giving consideration to all relevant aspects of the child’s living and care arrangements post-relocation, including proposed schooling, quality of accommodation and extra-curricular activities. The more detailed the evidence provided about these matters, the better. The court will conduct a comparative exercise and will look at the child’s current situation, and the impact relocation would have impact on their significant relationships and bond, and how these will be affected by the move.   The court will weigh up all the facts presented to it and carry out a balancing exercise, and in so doing,  its primary consideration will be the child’s welfare and best interests, which are paramount.  As part of this, the court will also consider the reasons for the proposed move,  and the practicalities and logistics of maintaining contact between the child and the non-relocating parent.

Welfare Test/ “Best Interest” of the Child

When making decisions affecting parental rights,  including  in relocation cases, the welfare of the child is of paramount importance, and the question for the court to answer is “what is in the best interest of the child?”  Each case very much turns on its own facts, and the court will focus on what is best for the child’s overall well-being. The child has a right to express a view on the issue of relocation in so far as they wish to do so and it is practicable for them to do so, and their views will carry weight commensurate with age and stage of maturity and the strength of the views held.   In the case of a young child, the court will be aware that envisaging life in a new location is difficult and whilst the court must allow the child the chance to express a view of they wish to do so, and the court will be considered in the context of the other evidence, and whilst they will be taken account of, they will not be determinative.

Mediation

Before raising relocation proceedings, we do always seek to ascertain whether there is scope for parties to engage in mediation to try to reach a mutually acceptable agreement.  However, where there is strong opposition to relocation, due to the nature of the dispute,  mediation will often not be effective in providing a cooperative way to resolve the matter,  and in such circumstances, getting expert legal advice from a family lawyer at an early stage is imperative. Court applications for relocation by way of “specific issue” can be very challenging and legally complex. They can also be difficult emotionally.  It is essential for parents to seek legal advice from a family law solicitor who is an expert in relocation cases,  who has regularly conducted relocation proofs at the Sheriff Court or in the Court of Session, and is able to offer strategic advice about the best way to present and argue your case in court.  Our family law solicitors are experienced litigators who will expertly represent your interests in court, as well as exploring all the available pre-court options, to try to achieve a satisfactory resolution.

In Summary

In Scotland, parental relocation cases present significant legal challenges for parents following separation or divorce. In making a decision, the welfare of the child is the primary consideration for the court.  We are happy to represent you if you are seeking to relocate with a child or if you are opposing a relocation. We can assist you in fully understanding the legal position and explaining your rights and responsibilities under Scottish family law.  To ensure that your child’s best interests are safeguarded, please contact our family law solicitors at Livingstone Brown at the earliest stage.  Doing so will help to ensure that you are in a position to raise or defend any proceedings for a “s 11 specific issue order” to relocate as soon as possible,  and that you avoid any delays that might impact on the relocation time-table and your ability to have a court decision issued quickly to achieve finality and closure.

Seek Early Advice

If you need advice about any aspect of relocation, then please contact our team of expert Family Law solicitors at Livingstone Brown on 0141 429 8166 or email us at  This email address is being protected from spambots. You need JavaScript enabled to view it., and we would be very happy to assist you. As well as giving clear legal advice, you will find our team of family lawyers to be empathetic, personable and friendly.