MCB v NMF [2018] CSIH 25: Relocation, Relationships, and Jurisdiction Risk
Introduction
The 2018 Scottish Inner House of the Court of Session case, MCB v NMF [2018] CSIH 25, stands as a significant reminder of the firm approach taken by UK courts, including the English Family Court, to international child relocation applications. The case illustrates how the court balances competing parental interests with the overriding principle of the child’s welfare. It also highlights the critical risk assessment undertaken when a proposed move is to a non-Hague Convention country, reinforcing the paramount importance of maintaining the child’s established relationship with the non-relocating parent.
Background to the Case
In MCB v NMF [2018] CSIH 25, the parents were engaged in private law proceedings concerning their child. Following their separation in Scotland, they had established significant, regular shared care arrangements; the child lived primarily with the mother but spent substantial periods of time with the father, who was heavily involved in daily life, including school and activities.
The mother, seeking permission to relocate, applied to the court for a specific issue order to take the child permanently to North Cyprus. The application was driven by the mother’s desire for economic advantage and the strong family support network available there.
The father vehemently opposed the relocation, arguing that the geographical distance would effectively destroy the close, beneficial relationship he shared with his child, replacing spontaneous, regular contact with infrequent, high-stress visits.
Crucially, North Cyprus is not a signatory to the 1980 Hague Convention on International Child Abduction. The father argued that if the child were removed there, it would be extremely difficult to secure their return through established international legal mechanisms. The case proceeded to the Inner House of the Court of Session (Scotland’s supreme civil court) to determine whether relocation would be permitted and to assess the impact of the proposed move on the child’s welfare.
The Court’s Decision
The Inner House of the Court of Session overturned the Sheriff Principal’s initial decision and refused the mother’s application to relocate.
The Court held that the paramount consideration was the child’s welfare, as required by the Children (Scotland) Act 1995 (reflecting Section 1 of the Children Act 1989).
The judge found that:
- Harm to the Existing Relationship: The proposed relocation was not in the child’s best interests because it would cause an “irreversible” and “significant deterioration” in the child’s close, regular relationship with the father. This emotional and developmental harm was considered severe.
- Inadequacy of Economic Benefit: The proposed financial and quality-of-life benefits for the mother, while genuine, did not outweigh the direct and demonstrable harm that severing the strong parental bond would cause the child.
- Failure to Mitigate: The mother had failed to demonstrate that the proposed alternative contact arrangements (holiday visits and video calls) would effectively mitigate the loss of daily parental involvement.
Given that the relocation was to a non-Hague Convention jurisdiction, the court implicitly noted that the risk of non-return significantly elevated the concerns about safeguarding the child’s long-term welfare and maintaining meaningful contact with both parents.
The decision confirmed that the Sheriff Principal had erred in giving too much weight to the mother’s personal circumstances and too little weight to the child’s need to maintain a positive relationship with the father. The child was ordered to remain resident in Scotland.
Why MCB v NMF Matters
This case underscores several vital principles for family law practitioners and separated parents across the UK:
- The Child’s Welfare is Paramount: The decision reinforces that relocation applications are not determined by parental preference or convenience but by a rigorous welfare analysis under section 1 of the relevant legislation.
- Relationship Preservation is Key: The judgment confirms that a child’s existing and positive relationship with a non-relocating parent is a weighty factor that will not be easily discounted, especially where the move is international and the relationship is close.
- Jurisdictional Risk is a Key Factor: The case highlights the serious implications of relocation to a non-Hague Convention country. In such circumstances, courts will exercise particular caution and are likely to refuse permission unless exceptional safeguards are in place, due to the high risk of effective abduction or non-return.
- Credibility and Rigour: The relocating parent must present a highly credible plan demonstrating how all aspects of the child’s welfare—emotional, educational, and relational—will be enhanced or preserved, not just for the parent, but for the child.
Practical Implications for Clients
- Be Transparent and Child-Focused: Parents seeking to relocate lawfully must provide clear evidence of accommodation, schooling, and, most crucially, detailed and realistic arrangements for maintaining the child’s relationship with the other parent.
- Always Obtain Consent or Court Approval: A parent must never relocate a child abroad without permission, as doing so constitutes child abduction and leads to severe consequences.
- Consider the Destination Country’s Status: If the proposed country is not a signatory to the Hague Convention, the burden of proof to secure permission is significantly higher.
Conclusion
MCB v NMF [2018] CSIH 25 is a timely reminder that international relocation disputes must be approached with diligence and a clear focus on the child’s welfare. The case highlights the dangers of relocation to jurisdictions outside the reach of international enforcement treaties and decisively reaffirms that economic advantage will not trump the emotional need to preserve a strong, beneficial relationship with both parents. For parents and practitioners alike, the message is clear: consent or a court order is always required before taking a child abroad, and the courts will intervene decisively to prevent any removal that threatens a child’s fundamental stability and safety.