What should you do if your child is abducted to Scotland?
3rd March 2017
Two recent judgments from the Court of Session concerning child abduction underline, once again, that if you are considering a move abroad with your child then obtaining clear and unequivocal consent from the other parent is absolutely critical.
In the Petition of KS v MG [2017] CSOH 26, Lord Pentland refused to order the return of a child from Scotland to Poland, from where his father had alleged the child had been wrongfully removed in August 2015. This case was somewhat unusual in that, whilst proceedings were raised in May 2016, the judgment was only issued last month. Ordinarily, applications for return as between Member States of the European Union should be dealt with within six weeks. It is also quite rare for applications for return to fail, due to the limited defences open to the parent who has wrongfully removed or retained the child. The father in this case was unsuccessful because there was an existing court order from Poland, which was sufficient to show that the removal of the child was not wrongful. The child, who was 10 years old, was also against returning to Poland, which would have been taken into account by the judge had the court order from Poland not been determinative.
The law surrounding child abduction is fairly settled and so it is quite unusual that Scotland’s supreme civil court, the Inner House of the Court of Session, was asked to consider an appeal about whether a child should be returned to Australia. In CM v ER [2017] CSIH 18, the Inner House upheld the decision of the judge at first instance and confirmed that the order for return should stay in place. The mother, who had removed the child from Australia in May 2016, unsuccessfully argued that the child had become sufficiently integrated in Scotland to the extent that they had acquired a new habitual residence here. Rather, in line with the guidance issued in by the Supreme Court of the United Kingdom in the case of AR (Appellant) v RN (Respondent) [2015] UKSC 35 (a case in which we acted for the International Academy of Family Lawyers), the Court of Session found that the child remained habitually resident in Australia and so an order for return should be made.
Please contact Stephanie Smith for more information if you are planning to relocate abroad.
