Despite 2014 being a year of intense referendum campaigning with over 1.6 million votes in favour of Scottish independence, Scotland and England are being brought closer together by sharing traditions. Burns night is gaining popularity south of the border; it has become a UK event to celebrate the life and works of a Great British poet rather than that of a Scot. However, the differences between England and Scotland remain pronounced and perhaps that is most notable in the legal system. Many of these differences have little practical impact on our day to day lives but can be significant for families who wish to move between the two jurisdictions. For separated families this can be a huge issue. It is often precipitated by a mother or father getting a new job or perhaps wanting to return to be closer to their wider family after a divorce. Sometimes it is simply motivated by a desire to have a better quality of life; to live in the countryside or on the coast.
Anna Worwood and Lucy Cummin of Penningtons Manches and Fiona Sasan and Sarah Caroline Boyle of Morton Fraser explore the complex difficulties of relocating and the differing approaches of England and Scotland.
In England and Wales, if a parent wishes to relocate with their child anywhere within the United Kingdom, there is no legal issue if the two parents agree. That is frequently the case when a proposed move is from, say London to Buckinghamshire. It is more problematic when such a move results in a lengthy journey making it impossible to see a child midweek and makes for a tiring or impossible journey at the weekend. For a parent who has been used to spending time with their child two or three times per week, that can be incredibly difficult. When a move is between Scotland and England it will often involve many hours of travelling. In many cases, it will take more time and be a more difficult journey to travel between Scotland and England than London and France. In England the test is the same whether a move is within England or within the United Kingdom. It is the welfare of the child which is paramount in any judge’s decision making process in a proposed relocation of a child.
If the parents cannot agree on whether a child should move from England to Scotland then an application is made to the courts, by the parent who wishes to relocate for a Specific Issue Order or the parent hoping to prevent the relocation would make an application for a Prohibited Steps Order.
In relocations within the United Kingdom the “test of exceptionality” has been the subject of hot debate in recent years. This test was established in 1997 and it decided that relocations within the UK should only be refused if there are exceptional circumstances. This imposes a lower threshold of success for a relocation within the United Kingdom than overseas. More recently, the test has been criticised and carries reduced importance; the Court of Appeal heard the case of a mother based in the North-East of England wishing to relocate to the Orkney Islands. This is a striking example of how logistically difficult a relocation within the United Kingdom can be. The journey for the children to see their father would be between 12 and 19 hours.
A new trend which is beginning to emerge in the English and Welsh courts is for the court to give consideration as to whether the parent who will be left behind can also relocate to enable more frequent contact to take place with the children. The courts cannot order that an adult lives in a particular place but it is something that will be factored into the judgment.
The situation becomes further complicated if a child is taken by one of their parents across the border without the other’s consent. In normal circumstances, when a child is taken to another country without the other parent’s consent, an application can be made under the Hague Convention, to secure the return of the child. Scotland and England are not independent signatories to the Hague Convention; the United Kingdom is a member as a whole and the convention cannot be relied upon to return a child home within the same contracting state. Remarkably, the procedure is far simpler to return a child who has been wrongfully removed to France than Scotland. If a child is taken to Scotland, an application needs to be made to the High Court under its inherent jurisdiction and the exact whereabouts of the child needs to be ascertained. Only then can an application be made to register the order in Scotland and enforcement proceedings to return the child can begin. Alternatively, proceedings would need to be issued in Scotland to return the child.
The position in Scotland is discreetly different from that in England and Wales. At a technical level the jurisdictions do not look hugely different but the way in which Scottish case law has developed can make the outcome of a dispute quite different.
The starting point in Scotland, as is the case in England and Wales, is that where parents can reach agreement directly between them there is no legal issue. A child who is habitually resident in Scotland may not be removed from the United Kingdom by one parent without the consent of the other parent or failing which the authority of a court order. That provision though does not apply intra UK and, if a parent relocated with a child within the UK they are perfectly entitled to do that.
Matters tend to be moved onto a more formal footing though where, prior to such a move taking place, the matter is discussed and where it becomes clear that no agreement has been reached. In that event a parent would be required to make an application to the court for a Specific Issue Order entitling that parent to relocate or indeed for an Interdict Against Removal from the child's current locale or school for that parent resisting the relocation. This is on all fours with the position south of the border.
In common with England and Wales, the best interests of the child is the court's paramount consideration in deciding whether any order should be made. We do not though, apply "the test of exceptionality". Quite the opposite. In Scotland we would expect our courts to allow an application for relocation only in exceptional circumstances. In the last four years there has been a rash of cases in which the test has been considered and re-visited with what has been widely perceived as a tightening of the court's attitude to facilitating relocation. Where an application is made to the court, Scotland does not attach any special weight to the wishes of the parent seeking to relocate and more than that there is an evidential onus on the parent who seeks to change the status quo in the arrangements for the child to show that what they are proposing for the child is better than that child's current circumstances. It is a very non presumptuous approach and not only would the parent seeking to relocate have to justify that such a relocation was in the child's best interests but they would also have to address the countervailing factors of a relocation such as a reduction in the contact that the child has with the left behind parent.
The overriding considerations which would tend to sway a court to make a decision in favour of a relocation can be said to be; (i) the reason behind the application being made and whether that was for a justifiable consideration such as an economic or social necessity, (ii) the extent to which the grounds for resisting an application can be satisfactorily addressed and (iii) the child's views on the relocation. Although not a comprehensive list of the issues a court will give weight to in considering an application for relocation it is clear that these headlines will inform the outcome.
Where a parent takes a "move now seek agreement later" approach the situation can be problematic indeed. Particularly where there then arises a dispute over where the child is habitually resident and therefore which jurisdiction, Scotland or England and Wales, rightly has jurisdiction to progress proceedings involving a dispute over the arrangements for the child. Although the High Court in England can exercise its inherent jurisdiction, such jurisdiction is temporary and the case should then be remitted to the court with primary jurisdiction which more often than not begins a jurisdictional tussle between Scotland and England and Wales.
“We two have paddled in the stream, from morning sun till dine; But seas between us broad have roared since days of long ago.” At a legislative level the approach between Scotland and England and Wales is not significantly different but how that law has developed in its application differs greatly.