Leave to remove decision overturned on appeal

A recent Court of Session judgement overturned permission for a mother to take her children to the south of England from the Lothians (leave to remove) against the wishes of the children’s father. 

This judgement rejects the approach taken in the original Sheriff Court judgement and by the Sheriff Principal in an appeal.

It emphasises that guidance from English cases such as Payne v Payne forms no part of the law of Scotland and stresses that the most important consideration in such cases is the interests of the child or children, not that of the parent who is seeking to move. 

The original Sheriff’s judgement is criticised by Lord Emslie because: “It contains no evaluation, from the children’s perspective, of the importance of current contact arrangements, nor of the likely effect on the children if, in due course, they were to see much less, or even nothing at all, of their father, aunt, grandmother and friends in Scotland.”

Leave to remove decisions will always depend upon individual circumstances rather than any overall consideration, but this appeal judgement will be useful for any non-resident parent who is seeking to oppose a move that will make future contact difficult, even when the parent seeking to move uses arguments relating to support from family or a new partner at the chosen destination.

It re-asserts the need to concentrate on the welfare and interests of the children, rather than placing any special significance on the wishes or well being of the children’s primary carer.

For anyone in this position the Custody Minefield web site is an invaluable source of information.  Families Need Fathers Scotland is now collecting Scottish case studies and judgements to supplement its largely English coverage, and we would like to hear from anyone currently involved in such a case.

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