In a Hague Convention case a three judge bench of the Court of Session last month upheld an earlier decision that a 15 month old child had been wrongly retained in Scotland by his mother and should return to Australia and the jurisdiction of the Australian courts to determine issues of residence and contact.
The judgment, delivered by Lady Paton, confirmed judge of first instance findings that the father had not agreed that the mother should relocate to Scotland. He had been led to believe by the mother that her trip in May 2016 was by way of a 3 month holiday to spend time with her family in Midlothian. She had purchased a return ticket and had told their friends and family in Australia that she would be back in August.
The court also rejected the mother’s argument that the child had now become ‘habitually resident’ in Scotland and that therefore the Scottish courts should have jurisdiction.
FNF Scotland National Manager, Ian Maxwell, commented, ” This is a useful judgment. Many fathers and mothers who ask us about ‘habitual residence’ think it is a matter of simple arithmetic – that there’s a tipping point of a certain number of months that moves jurisdiction from one country to another. This judgment sets out the arguments from Scotland and elsewhere, including the UK Supreme Court, about the factors that must be taken into account. It can be shorter or longer depending on the age and circumstances of the child in each location. The Hague Convention sets out a legal framework that must be applied in cases of international abduction and we hope the facts and circumstances that are required to be explored should also be addressed in the more frequent cases we see of abrupt relocations within Scotland and within the UK.
In this case the mother had presented a list of actions she had taken such as applying for child tax credit and child benefit, registering with a dentist and a GP and enrolling at a swimming class and a library. But the court found these were mostly matters of changing the status of the mother and the child’s welfare:
‘… these steps seem to us equally attributable to steps which might be taken for the care and wellbeing of a child away from home on a long holiday, and in our opinion did not bring about such an integration in Scottish life that the first instance judge could not reasonably have concluded that the child had not lost his habitual residence in Australia.’
The decision to stay in Scotland had not been done in consultation with the father, denying him his parental right to be involved in such important decisions about their child.”
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