A recent Inner House decision on child relocation provides useful lessons both on procedure and on the factors considered relevant

We live in a world which is becoming increasingly smaller and where individuals can move much more freely than in days gone by. It is inevitable, therefore, that we will see an increase in relocation cases when sadly the unions of those who originate from different parts of the globe break down. The most recent Scottish decision was issued by the Inner House on 28 October 2014 in the case of Donaldson v Donaldson [2014] CSIH 88.

The child at the centre of the action was LD, who was five. Her parents had separated when she was only 11 months old. Her mother, the respondent, had always been her main carer. Her father had regular contact with her until July 2014 when she and her mother moved to San Francisco in accordance with a specific issue order from Glasgow Sheriff Court dated 20 December 2013. Mrs Donaldson was a US citizen and both her parents and LD’s maternal grandparents lived in San Francisco. Mrs Donaldson had no family in Scotland.

Before the sheriff

Mr Donaldson opposed the original action to relocate, and although he did not crave contact in that action, a curatrix was appointed. She supported the respondent’s application and asked that Mr Donaldson have contact before and after the move by varying means.

The sheriff found that:

  • LD had a strong bond with both parents.
  • Mr Donaldson had no ties to Glasgow beyond completion of his PhD.
  • Mr Donaldson’s father lived in Boston, Massachusetts.
  • Mr Donaldson would be prepared to relocate to the USA if he was offered employment there.
  • Mr Donaldson would wish to relocate to wherever LD was living.
  • Mrs Donaldson had offered to apply for a spousal green card to assist the appellant in seeking employment in the US.
  • Mrs Donaldson lacked personal support in Scotland and was finding this very stressful.
  • Mrs Donaldson and LD would be able to stay with Mrs Donaldson’s mother until they found their own accommodation.
  • LD could attend the same school Mrs Donaldson had attended as a child.
  • Mrs Donaldson intended to pursue a career in nursing.
  • LD was due to start formal education in August 2014.
  • Refusal of the order would be liable to have a significant detrimental effect on Mrs Donaldson’s emotional and mental health, which would adversely affect her capacity to parent LD.

Mr Donaldson did not appeal the order within the necessary time frame, and although he initially intimated that he would be moving to appeal late, this was eventually dropped.

There was then a hearing on 10 June 2014 for parties to advise the court if orders were required to deal with post-relocation contact. No motion was made, but Mr Donaldson’s solicitor did advise the court that both parties’ employment hopes had been dashed since the hearing in December 2013. The solicitor sought to suspend the December 2013 order. However, this was refused as incompetent. Mr Donaldson sought leave to appeal and this was also refused. He then appealed to the Inner House of the Court of Session.

Inner House approach

The basis of Mr Donaldson’s appeal was that the sheriff should not have granted the order of 20 December 2013 without ensuring that contact between Mr Donaldson and LD was affordable. He therefore wanted the whole issue of relocation looked at of new before a different sheriff so that he could demonstrate his financial position.

At no time did Mr Donaldson lodge a minute to vary the order of 20 December 2013 on the basis of a material change in circumstances, which would have been the correct vehicle to deal with matters if his financial position (or indeed Mrs Donaldson’s) had changed dramatically since the order was made. The Inner House was concerned that the effect of success by Mr Donaldson in any fresh relocation action would be to render LD’s home uncertain, as further litigation would potentially be required to determine whether LD was then being wrongfully retained in the US or whether she had by that stage acquired habitual residence there. Her home was fundamental to her stability and clearly to put that in doubt was highly undesirable.

The present appeal related to the interlocutor of 10 June 2014, but Mr Donaldson argued that in appealing that order he opened up the order of 20 December 2013 to review. The court did not agree, on the basis that the two interlocutors did not require to be read together to produce the final interlocutor and nothing in Mr Donaldson’s grounds of appeal sought to criticise the order of 10 June. The court further stated that Mr Donaldson did not have title and interest to challenge that interlocutor as he did not ask the court to make any orders on 10 June. Although a motion had been made to suspend the relocation order, nothing in Mr Donaldson’s grounds of appeal indicated that he thought the sheriff had erred in refusing that motion, which was clearly incompetent. The court took the view that even if he had title and interest, there would still be no basis to set aside the interlocutor of 10 June, and what Mr Donaldson was really trying to do was to open up the interlocutor of 20 December 2013 by the back door.

Mr Donaldson seemed to take the view that the sheriff should have satisfied himself not only that post-relocation contact would be achievable in general terms, but also as to how the arrangements would work and be paid for. This was in spite of the fact that neither Mr Donaldson nor his solicitor said that there would be any financial bar to contact. The Inner House therefore did not accept that the sheriff had erred in any way. He had considered all the facts relevant to the case and recognised that post-relocation contact was an anxious issue. However, in the face of no submissions being made by Mr Donaldson in relation to the non-affordability of post-relocation contact, and given that the sheriff was satisfied that, unlike in some cases, Mrs Donaldson would promote such contact, this could not be a bar to the relocation order being granted.


It is clear that Mr Donaldson should either have appealed the order of 20 December 2013 timeously or, if his financial circumstances changed thereafter, he should have lodged a minute to vary the order. Would the outcome have been any different? No one can answer this question, of course, and much would have depended on when he enrolled the motion and the kind of evidence he could adduce. It would also depend on Mrs Donaldson’s position. It is clear from the judgment that she was extremely encouraging of contact, and it is likely, as often occurs in these cases, that she would have offered to bring the child to where Mr Donaldson was resident so that the relationship could continue. She might also have agreed to forego child maintenance, to allow Mr Donaldson to use what funds he had to travel to the US to visit his daughter. Finally, it would also have depended on whether the child had actually moved to the US by the time of the proof and how settled she was there, which would have had a huge bearing on matters.

At the end of the judgment the Inner House reminds us of how Scots law deals with relocation cases, namely that there is a “presumption free” approach and that quite simply the welfare of the particular child is paramount. Certain aspects of the welfare of the child can be particularly important, such as the availability of particular medical treatment or educational provision in the country to which the relocation is planned, but every case will turn on its own circumstances. Accordingly we are now far from the thinking that provided the relocating parent has a genuine reason for moving and a well thought out plan, the order will be granted. The Scottish courts are now entirely child focused, which accords with the principles enshrined in the Children (Scotland) Act 1995 and which is an approach of which we should be extremely proud.

The Author
Morven Douglas is an associate in the Glasgow office of Morisons solicitors
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