Removing a child permanently from the UK – Scottish and English law comparison 13 September 2013

Removing a child permanently from the UK – Scottish and English law comparison 13 September 2013

Removing a child permanently from the UK – Scottish and English law comparison

 13 September 2013

 

With globalisation, there are more and more mixed nationality children。Upon a marriage breakdown, it is often the case that one parent considers removing the child back to China. It is not only mixed nationality children but even for mothers and fathers who are both Chinese, one parent may wish to remove the child back to China permanently.

It is important to note that if one parent removes the child from the UK without the authority of the other parent, then this could be a criminal offence. An example is a recent case which concerns a girl called Tamer Salam who was residing in Leeds. The parents and Tamer went to Egypt for a holiday in December 2011, but the father removed Tamer from the mother’s care and the mother has not seen her child for more than 18 months. The father still refuses to tell the mother where the child is and has been sentenced to one year in prison. The Judge described the father as ‘cruel beyond imagination’.

To prevent acting illegally, how do you remove a child lawfully from the UK? If the court has given a parent a residence order 抚养权, then that parent can take the child out of the UK for a period of up to 28 days without a prior application to the court or the consent of the other parent. However, if there is no residence order, if each parent has ‘parental responsibility’, the other parent’s consent is required. A mother automatically has parental responsibility upon giving birth. If the parents were married when the child was born then the father also has parental responsibility. If they are not married, but both parents are listed on the birth certificate, then the father also has parental responsibility.

Factors the UK court considers for permanent removal from UK – English and Scottish law comparison

A checklist was provided in M v M [2008] where a ‘Sheriff Court’ in Edinburgh set out 10 main factors which would be included in considering an order permitting relocation:

  1. The reasonableness of the proposed move abroad.
  2. The motive of the parent wishing to take the child abroad.
  3. The importance of contact with the other parent in the child’s life.
  4. The importance of the child’s relationship with siblings, grandparents or extended family left behind.
  5. The extent to which contact is able to be maintained.
  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.
  8. The effect of the move on the child.
  9. The effect of refusal on the applicant parent, particularly where the parent already had a residence order.
  10. The effect of refusal on the welfare of the child.

It is the 9th factor that the English and Scottish courts have a different opinion on.

Payne v Payne [2001] – English case

The leading case in England is Payne v Payne [2001]. The father was British, 33 years old from Newmarket in England and worked as an engineer. The mother was from New Zealand, 28 years old and works in an insurance company. Their daughter was 4 years old. The mother and the girl resided in Plumstead, London. The mother said that she had an intense dislike of life in London. She feels isolated and depressed. She does not like the area in which she lives. Her car was stolen and crimes (including a rape) have been committed just outside her house. Her friends live a considerable distance away from Plumstead. Because of her working arrangements, and social difficulties (she does not have much chance to meet other young mothers), she is unable to facilitate her daughter’s needs to meet other children to play with or do outside activities much.

The father had good contact with the daughter engaging in a wide range of day-to-day and leisure activities. They would meet on alternate weekends, from Thursday evening to Sunday afternoon. Total number of contact days would be about 150 days per year. The contact was so good that the daughter was reluctant to leave her father’s car when he drove her back to her mother. However, the judge allowed the mother to permanently remove her daughter to New Zealand on the basis that if she had to continue staying in London, this would exacerbate her depression which would then be damaging to the child. The judge said that the loving father would still be able to visit her 2 or 3 times a year which mitigated the loss to the child.

My opinion is that if this case was decided in the Scottish courts, then the result would have been the opposite – the mother’s permission to remove the daughter to New Zealand would have been refused. If we look at the next 2 Scottish cases, my opinion is a Scottish court would not have placed much weight on the mother’s unhappiness of living in London and would have emphasised the good contact the daughter had with her father.

AM v IM [2008] – Scottish case

The mother was aged 30 and the father was 31. Their child was 11 years old. The mother lives and works in Edinburgh in an accounts department. The father lives and works in Glasgow as a multi-media designer. Both of them have new partners. The mother wanted to remove the child to Spain permanently.

The mother thought that house prices in Edinburgh was too high and had a dream of living abroad. There was no possibility of advancement in her current job. She wanted to move to Spain and had even bought a two-bedroomed flat there.  Even though the ‘curator’ (similar to England’s ‘CAFCASS’) recommended the mother be allowed to remove the child to Spain, the Judge refused her permission. The judge mentioned the following reasons:

  • The mother and her partner do not have a job or business in Spain.
  • Both the mother and her partner do not speak Spanish which will make it more difficult for them to get a job.
  • The mother needs a car to travel around in Spain but cannot drive.
  • No consideration was given as to how the child will see his father.
  • The child has a strong bond with his paternal and maternal relatives who all live in Scotland.

The judge was quite harsh with his words in this case and said that the refusal is only postponing the mother’s dream.

SP v BM [2012] – Scottish case

The father was aged 32 and worked as an engineer. The mother, aged 34, works as a customer services advisor with a bank. Both of them reside in Glasgow with their 3 children, aged 10, 6 and 3. The mother had a new partner from Northern Ireland and wished to remove her children there. The children reside with the mother and the father has contact twice a week plus contact on alternate weekends. The judge refused the mother’s application for the following reasons:

  • All 3 children are doing well at their school based on the current arrangement. It would be unsafe to try and change that.
  • The distance from Glasow to Northern Ireland is about 5 hours and the judge was concerned that the relationship would be affected if the children cannot physically see their father as often. The judge was not satisfied that telephone and electronic communication was sufficient.
  • Although the children aged 6 and 3 were too young to make a decision, the child aged 10 was old enough and she did not want to live in Northern Ireland.

The judge acknowledged that relocating to Northern Ireland would improve the quality of the mother’s life which would reduce her stress and which would be better for the children. He also acknowledged that there was good accommodation there and better financial prospects, but decided the children’s welfare was fine as it was and did not want to risk changing that.

Tips

Wherever you reside in the UK, to present a good application to remove your child permanently from the UK requires a lot of investigation. For example: the type of schooling available in the new country, medical care, whether a job has been obtained and how contact can be maintained with the other parent and other relatives. If the child is old enough, then the child’s wishes will also be considered. On the other hand, to defend an application to remove the child from the UK, it is good to show that the child’s current arrangements are good and to question whether the proposed move will risk the child’s welfare.