Case Study - Relocation of Child

In a contentious specific issue order action our client, who is a USA citizen, sought relocation of her four year old son back to live with her in the USA. The child’s father was Scottish, and the child had been born and lived all his life in the UK. Our client was isolated after the separation, and sought to reside closer to family and friends in the USA. Despite offering generous contact including sharing the travel burden, her request to relocate the child was strongly contested, which led to her raising an application to the Sheriff for a specific issue order for relocation. Like many such family cases, the dispute was very stressful for the parties, and given the need for certainty about where the child’s future lay,  we were able to ensure that  the case was given priority and fast tracked by the Sheriff.

The father argued that his own bond with the child would be diminished by the move and he invited the Sheriff to refuse the mother permission to relocate and to dismiss her action. In presenting our client’s case we provided he court with detailed and vouched information covering all aspects of the child’s potential new life in the USA. The aim of this was to highlight beyond doubt that all the implications of the move,  including health, education, medical, housing and social had been considered. By doing this we were able to demonstrate to the court the ways in which the advantages for the child of a permanent move to the USA, outweighed any disadvantages, and that all the necessary practical care and living arrangements for the child there would be in place.

In the leading case on specific issue orders / relocation,  the Court of Session as Court of appeal in Scotland determined that there is no onus of proof in specific issue order relocation action, and no presumption in favour of the residential parent (unlike the position in England); and that each case depends on the court’s assessment of the “complex mosaic of facts” presented to it. In this particular case, among other factors,  being away from her own extended family and feeling isolated in the UK, was impacting our client’s own emotional wellbeing, which also had a consequential impact on the child. The court was ultimately persuaded by the nature and quality of evidence presented by our client, and she was successful in proving that the order she sought was in the child’s best interests so the child was allowed to relocate to live permanently with her in the USA.