In cases where parents are separated or divorced and living separately, determining the primary residence of the children often becomes a critical issue. Both parents have rights, and their perspectives on what’s best for the children may differ significantly. The issue is magnified where two parents live in separate corners of the globe. All too often, it is the children who end up caught in the middle of such disputes. However, in a recent case before the Court of Session in Edinburgh, a 13-year-old schoolboy managed to fight successfully to be allowed to live in Scotland with his mother and younger brother.
In this particular case, the children and their parents were originally from Poland, although the children had spent much of their childhood living with their parents in the UK, before the family returned to Poland in 2021. After their parents separated, the children continued to live in Poland. The children travelled to Scotland with their mother earlier this year for what was understood to be a short holiday; however, they did not return to Poland. The children’s father raised court proceedings seeking an order for the children to be returned to Poland. This was opposed, not only by the children’s mother, but also by the children themselves, with the eldest of the children having instructed his own solicitor to make a case on his behalf.
In Scotland, children who are considered mature enough to understand the proceedings and express their wishes, have the right to instruct their own legal representation in court actions. We have previously acted on behalf older children in court proceedings. Although it is somewhat uncommon for a child to be represented in court proceedings, it certainly proved to be significant in this case, by ensuring that the child’s views were clearly presented to the Court.
Navigating the legal complexities of international custody disputes involves a deep understanding of both domestic and international family law. Ultimately, the central focus should always be on the best interests and well-being of the children. In certain scenarios, court proceedings will require to be raised urgently in circumstances where, for example, one parent has already taken the children out of the country or has threatened to take the children out of the country, without the consent of the other parent. Under Scottish law, a parent is not permitted to take a child outwith the UK (even for a holiday) without the consent of the other parent, and there are legal remedies available to prevent this from happening in urgent cases.
If a parent is intending to relocate with a child, it is almost always advisable to enter into discussions with the other parent in advance of making any final decisions, rather than taking drastic measures. Legal battles can be emotionally taxing and financially draining for both parents. Mediation or other forms of alternative dispute resolution are often encouraged to help parents reach an agreement outside the courtroom.
Whether you’re considering relocating with your child or you are concerned about your child’s potential move, it’s crucial to have legal guidance by your side. Our experienced family law team are here to provide the clarity and support you need.