There was an unpleasant turn of events for Billy Mitchell in last week’s plotline of Eastenders. His ex-wife, Honey, has announced plans to relocate to Canada with their two children for a year, because their son, William, has obtained a modelling contract there. Whilst substantially dramatised in the soap opera, the reality is that cases like this are not uncommon; so how would the Scottish legal system respond? What action could a real life, Scottish Billy take against Honey’s relocation plans?
Let’s presume that Billy and his family, instead of living in Albert Square, are habitually resident in Scotland. Billy’s daughter Janet was born in September 2006 and William was born in November 2007. Therefore they are both under 16. Billy and Honey were married at the birth of both children and so they both have parental rights and responsibilities (PRRs) over them under the Children (Scotland) Act 1995. As part of these PRRs, no person can remove a child habitually resident in Scotland from the UK without the consent of all those exercising PRRs over that child. Additionally, they both have the right and responsibility to maintain personal relations and direct contact with the children under the 1995 Act. Therefore, if Honey were to remove them to Canada without Billy’s consent, his rights under both of these provisions would be breached.
Billy should, therefore, seek legal advice as to how to prevent the relocation from happening. Even if he does not consent, Honey might be able to obtain a specific issue order for the relocation anyway. However, such order can only be obtained if the court is satisfied that it is in the best interests of both children. The welfare of the children is the paramount consideration in determining such a case. The court must consider all relevant matters relating to each child. In particular, in the case of Janet, they would have to consider the fact that she has Down’s syndrome and the extra support that this might require. Courts are generally reluctant to split siblings up except in exceptional circumstances. Also, in cases such as D v K 2011, where it is clear that the children are happy and healthy in their environment with relatives and have a bond with the parent residing there, the status quo has been favoured.
In making the decision it should also be noted that the children’s opinions will be highly relevant where it is practicable to obtain them. They could be especially relevant in this case due to the purpose of relocation being William’s modelling contract. Children over 12 years are presumed mature enough to give their views but there is some case law to suggest that Billy’s 6 and 7 year old children might still be able to have their views taken into account.
Whilst such action would be the best way to proceed, if Honey were to go ahead and relocate without a specific issue order or Billy’s consent then Billy would still have a remedy. Such relocation would be a wrongful removal of the children under the Hague Convention on the International Aspects of Child Abduction. A removal is ‘wrongful’ when it breaches rights of custody in the place where the child is habitually resident. Presuming that Billy has regular contact with both children, he would be considered to have custody under the Hague Convention. As a result Billy could raise an action for return of the children.
In a dramatic addition to the events, towards the end of the week the programme saw Billy take the children away himself, before Honey could. Indeed, all of the above applies in relation to Honey’s PRRs too. Billy equally cannot remove the children from the UK without Honey’s consent. Although his emotional motivation for attempting to do this is clear, he will find himself in a great deal of legal difficulty as a result and it is definitely not to be advised. Clearly, therefore, it is not as simple as a parent declaring that they will leave.
If you have any concerns or queries about a child being removed from the UK please contact us. If it is outside office hours and you believe that a child is at imminent risk of removal from the UK you should contact the police.
This blog post is by Kayleigh Blair, a summer student at bto solicitors. Kayleigh has just completed second year of the LLB at the University of Edinburgh and is currently doing a summer placement with us