US court orders children to be returned to Scotland after mother took them to USA against Scottish court order

This is an update of story first published on 14th November 2023

A judge in the Western District Court of Washington State ordered the return to Scotland of two children who had been taken by their mother to the USA in breach of a court order in Scotland for shared parenting and in defiance of the court’s refusal of her application to relocate with them.

The father petitioned the court under the Hague Convention on the Civil Aspects of Child Abduction and the International Child Abduction Remedies Act. The Court held an evidentiary hearing on the merits of the petition on January 26, 2024. Having considered the arguments advanced by the parties, examined the evidence, and reviewed the record, Judge Jamal N Whitehead, ordered the return of the children to Scotland.

Judge Whitehead heard arguments by the mother, who represented herself, that referred to her unhappiness in Scotland and the dangers to her own health of remaining in Scotland. He also heard reference to an allegation of abuse by the father that had been heard and established after investigation as entirely unfounded in the course of the original contact/residence case in Scotland. Judge Whitehead found her testimony attempting to raise the issue in Washington that had already been dealt with in Scotland “less than credible”.

Judge Whitehead set out the basis in law of his decision that it is the Hague Convention’s core premise that the interests of children in matters relating to their custody are best served when custody decisions are made in the child’s country of habitual residence and with a few narrow exceptions, the court must return the abducted child to [their] country of habitual residence so that the courts of that country can determine custody.”

He found that the legal arguments advanced by the mother and her own testimony fell far short of meeting the test required for the court to intervene.

The children are now back in Scotland with their father.

Mother denied permission to move children to USA [published 14th November 2023]

The court judgment in the case of G against H decided that a mother should not be allowed to take daughters, aged 6 and 4, with her to live in Seattle.

Although the mother’s mental health and employment could benefit from this move, the court decided the potentially devastating consequences for the children’s relationship with their father were not in their best interests.

In rejecting her application the Sheriff took into account evidence about the mother’s previous record of obstructing contact and not involving the father in key decisions.

The judgment states: “[The children] currently have frequent contact with him across the 14-day contact cycle. The defender is a loving and committed father who has consistently taken a keen interest in his children’s lives. At this stage of their lives the children’s most important relationships are those which they share with their parents.”

It goes on to state: “The children have a right to maintain and develop their relationship with the defender as they are growing up. If the application were to be granted then at best the children would see far less of him. He would cease to have involvement in their daily care. This, in itself, is a potent argument against the relocation application.”

While every case is decided on its own circumstances, this judgment reasserts the principle that the interests of children, including their relationship with both parents, is more important than factors affecting one of their parents.

The Sheriff also decided that in Scotland: “… the girls would live with each parent for half of the time, with fewer moves between the parties’ homes across the fortnight. This arrangement would eliminate the chopping and changing to which the children are currently being subjected; and would provide them with the consistency and stability that both parties recognise is necessary.”

A residence order was made to specify this shared care arrangement and to impress upon the parents that the children have two homes and reside with both parents.

Shared Parenting Scotland welcomes the publication of this judgment. It gives a clear message that moving children far away from one of their parents cannot be justified simply because the move might suit the other parent.

The fact that an equal care decision was also made despite serious disagreements between parents shows that Scottish Courts will adopt this approach when it benefits the children.