MK (Assisted person) V TDD [2019] SCLER 66 (Sheriff Court, 18 June 2019)

Regarding the evidential burden on pursuers in relocation cases. 

The mother of a child with selective mutism sought, inter alia, a specific issue order in terms of the Children (Scotland) Act 1995 permitting the child’s relocation to Germany. The mother wished to relocate to Germany primarily on the basis that there would be specialist treatment for the child’s condition. The father, opposed the action on the basis that he did not think a relocation would be in the child’s best interests.  

In deciding against relocation, Sheriff Cruickshank noted that—while there were no particular factors presumed to carry greater weight in relocation cases—in certain situations the relocation plan may be viewed as the dominant factor in coming to a decision. In such situations, the Sheriff noted that the parent suggesting relocation is under an evidential burden to demonstrate both that relocation is in the child’s best interests and that it is better for the order to be made than none at all. This would likely entail furnishing the decision maker with materials in respect to proposed accommodation, schooling arrangements, finances and contact arrangements if relocation was to be granted. 

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