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Mothers Denied Child Residence Orders

When a couple split up, it is very common for one of them to wish to move away, often to the area where they grew up or have family. This can create significant issues as far as the children are concerned and disputes in such cases are common.

In a recent example, a Scottish court has refused the request of an English woman to move to England with her infant son after opposition from her husband.

The couple are separated but live in the same house, which is owned by the husband. They accept that their marriage broke down irretrievably in 2016. The wife applied to the Scottish Court of Session for an order that would enable her to return to the Midlands, taking their two-year-old son with her.

Her husband opposed the application, arguing that it would be better for their son to remain in Scotland and to continue to be looked after by both parents, albeit separately.

The wife claimed that she was the full-time carer for their son and that her husband's job often kept him away from home until quite late in the evening. However, her claims were denied by the husband and the judgment contains many pages of accusation and counter-accusation between the two about their respective behaviour.

Scottish law requires that the decision in such cases is made based on consideration of the child's welfare and, where applicable, his or her wishes. As the child is two, the latter requirement was not in point.

Hearing that the two were planning to sell the family home and buy separate properties, the judge ruled that the child should remain in Scotland with residence shared between the parents. Refusing to make a formal order for residence in favour of one or the other, he commented that the boy 'is not a prize to be won or lost in this contest. He is a little boy with two parents whose ongoing involvement in his life he has come to expect insofar as a two-year-old child has any expectations.'

In a similar case in England, a judge was persuaded by the arguments put forward by a child's father and refused the mother's application for a residence order which would have enabled her to move with their child from London to her home town in the South West, where she had been offered a job.

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