Family lawyers in Scotland will be familiar with the “bible” known as Greens Family Law, but how environmentally friendly (or unfriendly) is family law?

At COP26, the globe was focused on what could be done to motivate rapid climate action because climate change is a hot topic (pardon the pun). We’re all familiar with the term “carbon footprint,” but how much should it affect a parent’s decision about their child’s residency or contact information?

The principle of the “best interest of the child”

The CRC’s Article 3(1), which states that “in all actions concerning children, whether undertaken by public or private social welfare institutions, a court of law, administrative authorities, or legislative bodies, the best interests of the child shall be a primary consideration,” implements the concept of “the best interest of the child.”

Origin of the principle:

The principle is described as “the paramount” (Principle 2 of the 1959 Declaration of the Rights of the Child), “the primordial” (Article 5(b) of the 1979 Convention on the Elimination of All Forms of Discrimination against Women), and other terms like “the fundamental” (2006 Convention on the Rights of Persons with Disabilities) in earlier human and children’s rights documents.

How do we decide what principle is in the best interest of the child?

Financial, social, and environmental difficulties might arise after a family splits up. While the emotional toll on both parents and kids cannot be understated, the environmental toll of a divorce should also be taken into account.

Unless they decide to “birdnest,” separated parents frequently discover they must manage the well-being of two households in addition to their own. It might be necessary to buy a new vehicle. For example, there might be a need for extra school uniforms for the kids to keep at each parental home.

The Children (Scotland) Acts of 1995 and 2020 say that the best interest of the child and the welfare of the child should always come first when making any decision involving them.

Will parents, lawyers, and sheriffs need to take the environment into account now that the globe is being urged to cut emissions in half and protect and restore nature? Our children will grow up and live in a world that must be habitable, above sea level, and free of landfills, but at what cost? Determining the best interests and child rights here becomes increasingly challenging.

Moving with children

One parent with child custody may choose to move for work reasons after the divorce or move in with a new spouse. The Sheriff must take into account a number of considerations before deciding whether or not to approve a relocation, including but not limited to:

• Who was the main caregiver before the breakup;

• The kind of stay available both in Scotland and overseas;

•  Linguistic obstacles;

• The educational systems of the two nations and if they are in the best interests of children;

• The respective parents’ capacity to provide for the child financially in each place;

• The network of resources each parent has access to

• The child’s personal support system;

• The method used to facilitate contact with the other parent.

Relocation is likely to have an impact on the one of the parent’s interactions with the child or children and may necessitate some travel. Whether moving farther away or closer to home, a vehicle, train, plane, or even even boat will be needed. The extra trip will have a financial cost as well as an environmental cost, but it is vital to ensure what the views of the child are and that they maintain consistent and meaningful relationships with the remaining parent.

Carbon footprint and child contact

How much would a parent’s carbon footprint grow if a court required them to visit their child every month in London or take the train from Edinburgh to Inverness every other weekend? The carbon emissions from a parent’s thrice-yearly travel from Glasgow to the Middle East will a sheriff encourage them to plant X amount of trees? Will a parent have to demonstrate their commitment to recycling before getting the go-ahead to move to Europe with their three kids?

The child’s best interests are always the most important thing, but aren’t those of the planet and the child inextricably intertwined and relevant when the child lives there? Is there any obligation for the parents to think about human rights and relate to the larger picture? In the end, one needs to respect the wishes of the other parent as well.

It remains to be seen how much priority, if any, the courts will give to the environmental impact and policy of court-ordered relocations or contact arrangements, but it is an issue worth considering going forward.