Thursday, July 31, 2008


In a recent case, AM v IM, heard at Edinburgh Sheriff Court in June the specific issue was whether the Mother should be able to take an 11 year old child (GM) to live permanently in Spain on the Costa Blanca. After hearing evidence, the Sheriff indicated that there appeared to be no Scottish authority setting out the law and the factors to be considered in "emigration" cases.  He was advised that there were no cases of a parent seeking to take a child to a non English speaking country, although the Sheriff was aware of one unreported case, Pinkerton -v- Pinkerton 15 May 2006.

Having considered authorities cited*, a list was made of the following matters for consideration in making a decision;

(1) The reasonableness of the proposed move abroad. In many cases the reason for moving will be for a parent to be with a new partner or because of the parent's or partner's career. In considering reasonableness, the court will give considerable weight to the wish to move of an applicant parent with a residence order in respect of the child. This is because as has been said in many cases, including Fourman, above, a child requires security and stability. That is best achieved if the life of the parent with the residence order is also secure and stable. The court will be reluctant to interfere with the right of a person to live where he or she wishes. There is, however, no presumption in favour of that parent or any other person; and the weight to be attached to that parent's wish is still subject to the best interests test.
(2) The motive of the parent wishing to take the child abroad. To some extent this factor overlaps the reasonableness factor, as a poor or wrong motive would also be unreasonable and a move to be with a new partner or because of a career, for example, may be reasonable.
(3) The importance of the contact with the other or absent parent in the child's life.
(4) The importance of the child's relationship with siblings, grandparents or other members of the child's extended family who are left behind.
(5) The extent to which contact (if appropriate) is able to be maintained. It is almost inevitable that contact will be affected by a move abroad. It does not follow that because it would be affected to some extent that the move should be refused.
(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. One must bear in mind that a child may not be able to balance all the factors which an adult would have to consider. Furthermore, one should not be surprised if a child would prefer the current arrangements to continue. One can assume that a child would not wish to lose friends or have contact that he or she enjoys reduced.
(8) The effect of the move on the child.
(9) The effect of refusal of the specific issue order on the applicant particularly where that parent already has a residence order.
(10) The effect of refusal on the welfare of the child.
(11) Whether it is better for the child to make the order than that no order should be made. It does not seem to me that, in opposed emigration cases, this no-order factor adds anything to all the other factors which might be considered. It is difficult to envisage circumstances in which it would be appropriate for a child to be taken out of the jurisdiction but that no order should be made. If parties were agreed, there would be no application to the court. Different considerations may apply in relation to matters such as residence and contact. In White -v- White, 2001 SC 689, 699, para. [21], Lord President Rodger, as he then was, regarded this factor as the second limb of the welfare factor, and mentioned that it was designed to give effect to Parliament's view that matters should be regulated by parties wherever possible. I list it lest this statutory consideration be overlooked.

In light of the evidence Sheriff Nigel Murray Paton Morrison, QC concluded it would not be in the child's best interests to make an order to enable the  Mother to take GM to live in Spain.

*Fourman -v- Fourman, 1998 Fam LR 98  
McShane -v- Duryea, 2006 Fam LR 15
Payne -v- Payne, [2001] Fam 473
M -v- M, 2000 Fam LR 84


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