Ask a solicitor: I don't want to sell the farm and move to Scotland so what will happen to my children?

Unmarried and worried your partner will move your children to another country? Understand your automatic guardianship rights and how to protect your kids' future.

My life is in Ireland, and on the farm. My partner has suggested that when the transfer has been done, I could sell the farm, and we could move to Scotland. I don’t want to do this.

Dear Angela 

Can you please help me with some advice about my children? My partner and I have been together for about 12 years and have two daughters aged eight and six. We have lived together since my partner was about five months pregnant with our eldest girl, but we have never married. The girls have both of our surnames, and my name is on their birth certificates. My partner is from Scotland originally, but came to Ireland years ago to study and has stayed here since. She goes back to Edinburgh often to see her family and takes the girls with her. I have no issues with this, as they have lots of cousins there that they love spending time with.

Recently, my partner has been mentioning missing her family. I think this is because her parents are getting older. She has said a few times that she would like us all to move to Scotland. I have told her that we cannot move as I work on my parents' farm, and my parents are speaking to their solicitor about transferring the farm to me in the near future. 

My life is in Ireland, and on the farm. My partner has suggested that when the transfer has been done, I could sell the farm, and we could move to Scotland. I don’t want to do this as the farm has been in my family for generations, and my parents would be devastated. Even if I could sell the farm, I have only ever farmed and have no other qualifications, and so even if it were possible to move, I’m not qualified to do anything else and would struggle to get a job.

I’m worried that my partner will eventually decide to leave and take the girls with her to Scotland. What are my rights?

Dear Reader 

Firstly, you need to determine whether you have guardianship for the children.

Guardianship of children is governed by Section 6 of the Guardianship of Infants Act 1964. Guardianship means that you have a duty to maintain and properly care for the child, and you have a right to make decisions about the child's religious and secular education, health requirements and general welfare.

A child’s mother has automatic Guardianship for the child, whether she is married or not.

Up until relatively recently, only married fathers would have automatic Guardianship for their child, and if an unmarried father wanted Guardianship, he would need to enter into a Guardianship agreement with the mother, or if she refused to enter into such an agreement, he would need to make an application to the District Court.

However, the Child and Family Relationships Act 2015 brought in some changes to Guardianship, and now unmarried fathers have automatic Guardianship for their child if they have lived with the child’s mother for one year, including three months after the child was born. Therefore, you automatically have Guardianship for your daughters and, as such, have a right to have a say in decisions in relation to them, which includes where they live.

As you are a Guardian to the children, if your partner wished to relocate to Scotland and to bring the children with her, then she would need your consent to this.

If you did not agree and she still wished to move, she would need to make an application to the court for permission to relocate the children.

The court, when making a decision as to relocation, will have the children's best interests as its main consideration. The court will take the following factors into consideration when making a decision as to whether to permit relocation:

· the stability of the children's lives here, and if they were to move to Scotland, 

· the extended family of the children here and in Scotland 

· suggested access arrangements for the non-resident parent and the ability to enforce this in the future if necessary, 

· proposals for accommodation and schooling, etc.

The court may direct that an expert prepare a report to assist the court in its decision as to whether to permit the relocation of the children. Ultimately, the court will make a decision as to what it feels is in the children's best interests. The older the children are, the more weight that will be attached to their views as to where they should live.

If your partner takes the children to live in Scotland without your consent and without the permission of the court, then she may be guilty of child abduction.

Angela O'Connor, is a solicitor practicing in Walsh & Partners, Solicitors and Commissioners for Oaths, 17, South Mall, Cork.

- Email: [e-mail] - Web: www.walshandpartners.ie 

While every care is taken to ensure accuracy of information contained in this article, solicitor Stephen Coppinger does not accept responsibility for errors or omissions howsoever arising, and you should seek legal advice in relation to your particular circumstances at the earliest possible time.