Scottish courts reach exceptional decision in 'child abduction' case

Generally, where a child has been removed from one country or retained in another country wrongfully, then it would be the practice of the court to grant a return order following the terms set out in the Child Abduction Hague Convention.

The view is usually taken that a child should be returned to their country of origin as quickly as possible as that is where they are settled and have support. It is then for the court in that country to decide where the child should reside if that is disputed.

Background of the case – child relocation

The Inner House of the Court of Session determined the case of W –v- A and X last month, August 2020. This involved a situation where a mother had removed her 10-year-old daughter from Poland to Scotland and kept her there without agreement.

The Court of First Instance had ordered the mother to return the child to Poland. However, the Inner House of the Court of Session held that the child was happy in Scotland, enjoyed school and had friends here. It can be suggested, on occasions, that views expressed by children are not genuinely held views but the court accepted that these views were authentic. The court did not believe that the child’s views had been influenced by the child’s mother.

By the time the Inner House determined the matter the child had resided in Scotland for over one year and the court saw no benefit in disrupting what it viewed to be her settled existence by that time by ordering a return to Poland.

Court taking child’s view into account

This is a decision which has divided the legal profession. On the one hand, the purpose of the Hague Convention is to require children who have been wrongfully removed from or wrongfully retained in a country to be returned as quickly as possible. It is almost always the case that a parent in such a situation will be ordered to return a child to the country of origin as that is where his or her settled existence can be found. However, in the above case the child had lived in Scotland for over a year. The Inner House specifically stated that a year for a child was a long time and accepted that the child was happy and settled in Scotland.

While some will be concerned that the views of a child can be influenced by a parent over a period of time, it is encouraging to note that the court considered this and was satisfied that the views held were genuine and authentic. Clearly it is important, in such cases in the future, that the court carries out proper enquiry to establish whether views expressed by a child are genuine and without inappropriate influence or manipulation.

Decision doesn’t change the law on child relocation

For the avoidance of doubt, a parent should not seek to rely on this decision in the event that they seek to relocate to another country with their child or children. A parent should seek to obtain the consent of any other party who has parental responsibilities and rights in relation to the child.

If such consent is not forthcoming, then an application should be made to the relevant court seeking an order allowing relocation to take place. A child should not be removed from the UK without such consent or without an order of the court. The court will take into account the views of the child – if the child is old enough to express a view – and makes the decision based on what it believes is in the best interests of the child.

If the court believes that the motive of the parent who wishes to relocate is not genuine then it will often refuse to grant a relocation order. Indeed, even where the motive is a genuine one, such as for work related purposes, the court still requires to be satisfied that it is in the child’s best interests for relocation to be ordered, particularly if that would result in his or her relationship with another parent or other family members being affected adversely.

Get in touch

If you need support to pursue residence of or contact with your child, you should contact us immediately. We have a number of family law and child law specialists who can assist you and advise you further.

The family team at Harper Macleod are well versed in all aspects of family law, including divorce, separation, financial provision, child contact and residence, child relocation, protective orders and domestic abuse, adoption, surrogacy, and fertility law. Many of our team are trained in various methods of dispute resolution, including mediation and collaborative practice, and are Accredited by the Law Society of Scotland as specialists in their field. Head of Family Law Amanda Masson holds the COSCA qualification in Counselling Skills.