Relocation revisited

Until the Inner House’s decision in the case of SM v CM [2011] CSIH 65, solicitors advising clients on child relocation cases followed a journey through the classic English decision of Poel v Poel [1970] 1 WLR 1469, arriving at the list of factors to be considered as elucidated in M v M 2008 Fam LR 90, and calling in on the English case of Payne v Payne [2001] 2 WLR 1826 along the way.

Conventional wisdom suggested that the resident parent’s wishes and wellbeing held significant weight, and that if he or she could paint a convincing picture detailing what the child’s life would look like post-relocation, then the prospects of success were positive. The landscape has now shifted.

The background to SM v CM was not terribly unusual. Mr M sought to prevent Mrs M from moving to Berkshire, the desire to relocate being motivated by the fact that she had a new partner whose family and business were based there. However, she had not cast herself in a good light from the outset, having already attempted to remove the children without Mr M’s consent or a court order. Moreover, the sheriff acknowledged that Mrs M’s objective might well be to frustrate contact.

Although, strictly speaking, a specific issue order is not required for an intra-UK move, it is good practice to seek such an order (S v S, Glasgow Sheriff Court, 2010, unreported). Following proof, the sheriff granted the specific issue order in favour of Mrs M. Mr M’s appeal was refused by the sheriff principal. The Inner House held that the sheriff and sheriff principal had erred by applying the general guidance affirmed by the Court of Appeal in Payne and recalled the specific issue order, remitting the case back to the sheriff court.

Children before parents

This is a significant case in that it clearly distinguishes Scots law from the jurisprudence behind the English case law on relocation, emphasising that the court has an obligation to treat the welfare of the child as the paramount consideration. The court was not persuaded that the children’s best interests were necessarily served by Mrs M taking steps which might enhance her emotional or psychological wellbeing. It is now clear that even genuine and reasonable proposals supporting a crave for a specific issue order to enable relocation could be refused, regardless of a negative effect on the happiness and state of mind of a parent, where the making of the order would have an adverse effect on the children’s relationship with the non-resident parent.

This was underlined too in the case of KM v MG 2010 GWD 17-339, in which the pursuer did make out a convincing case, yet the specific issue order sought was refused, primarily because of the high level of involvement which the defender had in his daughters’ lives.

The judgment underlines that Scots law contains no presumption, rule or principle in favour of the rights and interests of either parent being allowed to distort or override the court’s judgment as to where the welfare and best interests of the children lie.

Formalising arrangements

The Inner House stated that there was a “dual burden” upon Mrs M (i) to demonstrate that relocation would actually be in the best interests of the children, and (ii) to show that, from the children’s perspective, it would be better for a specific issue order to be made than for no order to be made at all. Determining what would best serve the interests of the children necessarily involved a “balancing act” of the competing factors for and against the proposed relocation. Key factors in this particular case were the likelihood of the children’s contact with their father being maintained, and consistency of schooling, one of the children having additional needs which were well served at his current school.

In the present case, there was a significant complication occasioned by the lack of certainty as to whether, to what extent and in what form, realistic contact arrangements could be drawn up in substitution for the regular and frequent contact in place in Scotland. One wonders whether the outcome of the appeal would have been the same had the court at first instance exercised its right to make a contact order which could have regulated how contact was to operate in the event of the relocation being allowed. The court’s ability to do this should be borne in mind on advising a client on either side of a relocation case.

It remains true to say that each case turns on its own facts and circumstances. Following this decision, however, practitioners now know that in advising on the legal principles that should be referred to and applied to those facts and circumstances, one need look no further than the legislation and authority which has emerged from within Scotland.