As an expatriate living and working in Scotland, it is important to know and understand the legal implications of bringing your children to Scotland and moving your children from Scotland. This is to avoid breaching domestic laws and international child abduction regulations.
In order to move a child outwith Scotland when they are habitually resident in Scotland, a parent must have the consent of the other parent of the child to carry out this act. However, if the other parent does not consent to the move, then it is possible to seek a specific issue order from the Scottish court allowing the child to be relocated to another country.
When making their decision, the court will regard the welfare of the child as the paramount consideration and will not make the order if it is better for their welfare for none to be made at all.
The court can also take into account the views of the child when making their decision. When determining what is best for the welfare of the child, the court will take various factors into account, such as the reasonableness of the proposed move abroad, the importance of the contact with the other parent and the motive of the parent wishing to move the child.
The court may also determine whether the child was habitually resident in Scotland. Habitual residence is a legal concept that is used to indicate a persons’ connection to a country’s legal system.
A habitual residence is a place that someone has a genuine connection with on a fixed basis. In order to establish the habitual residence of a child, the court will look at whether the child is settled in the country and to what the degree the child has integrated into life within that country.
If the aforementioned procedures are not followed, a parent runs the risk of committing a criminal offence in Scotland. Furthermore, taking a child out of Scotland without following these procedures would constitute a ‘wrongful removal’ under international child abduction laws.
A wrongful removal occurs where a child is moved from their habitual residence to another country in breach of the custody rights of the other parent, and if it is found that a wrongful removal has occurred then it can be ordered that the child be returned to their habitual residence.
It is also important to ensure that when moving with children a parent does not carry out a ‘wrongful retention’ of a child under international child abduction law.
This concept is slightly different from wrongful removal. Wrongful retention would arise where there had first been a lawful removal but then the parent and the child stayed in the new country past the date they were supposed to return and in violation of the custody rights of the other parent.
For example, wrongful retention would occur where a parent and child visited Scotland from Australia with the consent of the other parent, but then decided to remain in Scotland for a longer period of time and the other parent in Australia did not consent to this decision. If this is the case, the Australian authorities can request that the Scottish courts order the return of the child to Australia.
As someone who has a lot of experience in guiding people through child law and expatriate divorce processes, I am able to provide you with professional legal assistance. To find out more about the cost of child law in Edinburgh or to take the first step towards beginning the legal process, get in touch. Contact Cath Karlin Family Law on 0131 357 1515 or via the online contact form.
