The Pursuer and the Defender have a child, GM. When they separated, The Defender obtained full parental responsibilities and rights in relation to GM. The Defender decided that she would move to Spain to live permanently, taking GM with her. The Pursuer raised proceedings for inter alia interdict. The Defender craved a specific issue order under Section 11 (2) (e) of the Children (Scotland) Act 1985 allowing her to move GM from the UK to live permanently in Spain. She was ordained to lead at Proof. Having heard evidence, the Sheriff indicated that there appeared to be no Scottish authority setting out the law and the factors to be considered in "emigration" cases. He was advised that there were no cases of a parent seeking to take a child to a non English speaking country, although the Sheriff was aware of one unreported case. It was agreed that the test was the best interests of the child. Section 11 (7) of the 1995 Act listed three factors that the Court had to consider, although those were not the only factors. The Sheriff listed 11 factors which he considered should be weighed in the balance. He went on to consider each of those factors in light of the evidence which he had heard and came to the conclusion that it would not be in GM’s best interests to make an order to enable the Defender to take him to live in Spain. The Defender did not speak Spanish and nor did her partner or GM. GM would have to go to a Spanish speaking school. He had educational difficulties and needs and he received support at school in Scotland. Neither the Defender nor her partner had a job in Spain. GM’s close relationship with the Pursuer andother relatives would be adversely affected if he moved to Spain. GM had made it clear that he did not want to move to Spain. It appeared to the Sheriff that the proposed move had been ill thought out, or at least not properly thought through or well planned. He did not think that the Defender’s proposed move could be described as reasonable.
Court: Sheriff Court (Scotland)