International relocation of children in the UK (Scotland): overview
A Q&A guide to international relocation of children in Scotland.
This Q&A gives a high level overview of matters relating to rights and responsibilities of parents, right to remove, procedure for relocation, dispute resolution in relocation matters, right to appeal, as well as child abduction.
This Q&A is part of the global guide to international child relocation law. For a full list of jurisdictional Q&As visit www.practicallaw.com/relocation-guide. To compare answers across multiple jurisdictions, visit the International Relocation country Q&A tool.
For an introduction to the guide, see the foreword to the International Relocation of Children Global Guide by Mr Justice Stephen Cobb.
Rights and responsibilities of parents
Legal responsibility for upbringing
Responsibility for a child's upbringing usually, but not always, rests with the child's parents. The state also has responsibilities, which are beyond the scope of this chapter.
It is important to identify:
What responsibilities (and rights) exist in relation to a child.
Who has the ability to exercise those responsibilities and rights.
The responsibilities and rights that exist are "parental responsibilities and parental rights" (PRRs), irrespective of whether or not the holder is a parent.
"Parental responsibilities" are defined as the responsibility to (section 1(1), Children (Scotland) Act 1995):
Safeguard and promote the child's health, development and welfare.
Provide, in a manner appropriate to the stage of development of the child, direction and guidance.
Maintain personal relations and direct contact with the child on a regular basis (if the child is not living with the parent).
Act as the child's legal representative, but only to the extent that compliance with the section is practicable and in the interests of the child.
A "child" is defined as being a person under the age of 16 years old for all responsibilities in section 1(1), except for the responsibility to provide guidance, where a child is a person under the age of 18 years old.
Holder of PRRs have the right to (section 2(1), Children (Scotland) Act):
Have the child living with them or otherwise to regulate the child's residence.
Control, direct or guide the child's upbringing, in a manner appropriate to the stage of development of the child.
Maintain personal relations and direct contact with the child on a regular basis (if the child is not living with the parent).
Act as the child's legal representative.
Who has parental responsibility and parental rights (PRRs)
The following parties have PRRs under the Children (Scotland) Act:
The woman who gives birth to a child automatically has PRRs for her child, whether or not she is, or has been, married to the child's father (section 3(1)(a)).
The child's father, if he is married to the woman giving birth to the child at the time of conception or subsequently, will also automatically have PRRs for that child (section 3(1)(b)(i)).
The child's father, who was not married to the mother at the date of conception or subsequently, if the baby was born after 4 May 2006 and the father jointly registers the child's birth in the UK (section 3(1)(b)(ii)).
The child's father, who was not married to the mother at the date of conception or subsequently, if he enters into a registered agreement in a prescribed form with the mother who has not been deprived of her PRRs (section 4(1)).
Any person in whom the court vests PRRs in respect of a child (section 11).
A woman who is married or in a civil partnership with the woman who gives birth to a child or a woman where there has been agreement that she is to be parent of the child (if the woman giving birth is unmarried/not in a relationship and where no man is to be treated as father of the child). These provisions require that there has been assisted reproduction treatment at a licensed clinic and that insemination took place after 6 April 2009 (sections 42-44, Human Fertilisation and Embryology Act 2008; sections 3(1)(c) and (d)).
A man who is married to the woman who gives birth to a child born as a result of assisted reproduction treatment at a licensed clinic (utilising donor sperm), unless he does not consent to the treatment, where the insemination took place after 6 April 2009 (section 35, Human Fertilisation and Embryology Act 2008).
A man who is not married to the woman giving birth to the child (who herself is unmarried/ not in a relationship), but whom it is agreed will be the child's father where the child is born as a result of assisted reproduction treatment at a licensed clinic (utilising donor sperm), where the insemination took place after 6 April 2009 (sections 36 and 37, Human Fertilisation and Embryology Act 2008).
The couple who obtain a parental order (an order providing that a child born as a result of a surrogacy arrangement is to be treated as the child of the couple who commissioned the surrogate mother to carry the child) (section 54, Human Fertilisation and Embryology Act 2008).
The person or persons who adopt a child. On the making of an adoption order the birth parents' PRRs are extinguished and the adopter(s) become the child's parents for all purposes (section 28(1), Adoption and Children (Scotland) Act 2007).
A person(s) who agrees to acquire PRRs in respect of a child following the death of a person with PRRs, where the deceased individual with PRRs has nominated that a person be their child's guardian in the event of their death (section 7(1)) and where the appointment is accepted by the person so nominated. The appointment of guardian is usually made by will or testamentary writing. Note that a person with PRRs can make such a nomination without reference to any other person(s) with PRRs.
Practicalities of exercising PRRs
If there is more than one person with PRRs each of those people can take day-to-day decisions in relation to a child without the consent of the other parent being necessary (section 2(2), Children (Scotland) Act). A person with PRRs cannot abdicate those responsibilities. However, a person with PRRs can arrange for some or all of those rights to be exercised on their behalf (section 3(5), Children (Scotland) Act).
Consent of both parents with PRRs is required in one situation. If one parent seeks to remove a child who is habitually resident in Scotland from the United Kingdom, even if only for a short time, the parent must obtain the consent of any other person with PRRs (sections 2(3) and 2(6), Children (Scotland) Act).
Rights and responsibilities post-separation
Care arrangements for the children can vary widely on a case-by-case basis. Generally, the most common scenario is for children to have their primary residence with their birth mother with the other parent exercising residential contact on an alternate weekend basis, and perhaps once during the week.
However, over the past decade shared care arrangements between both parents have become much more common and are not unusual.
Custody and access
The Children (Scotland) Act provides that the child and the child's welfare are the most important priorities. It removed the old terms of "custody" and "access", along with the provisions that gave one parent, usually the mother, greater rights than the other. Instead, the terms "residence" and "contact" are used. The making of a residence or contact order does not give greater parental rights and responsibilities (PRRs) or remove PRRs, unlike the old legal framework. These orders simply regulate the child's living arrangements.
A person with PRRs has the right to have the child living with him or otherwise to regulate the child's residence (section 2(1)(a), Children (Scotland) Act). There is no presumption in favour of any one person, if more than one has PRRs. If both have PRRs, both have an equal right to determine the child's residence. The court will only intervene if that is necessary and the individuals with PRRs cannot reach agreement, in which case the court can make a "residence order" to regulate where the child lives.
A parent is not required to have the child living with him or her in order to exercise their PRRs (that is, if the child lives with someone else another person's PRRs are not restricted).
If the child lives between two homes (whether on an equal time basis or not) such an arrangement is usually referred to as shared care, or joint residence. A "joint residence" order does not exist at a technical level. Instead, the court will simply grant a residence order providing that a child is to live alternately or periodically with different people if there is a shared care arrangement.
Individuals with PRRs must have contact with their child. A parent has a responsibility to do so and if they do not live under the same roof, a parent is required to keep in touch with his or her child, on a regular basis.
Where parents separate, and the child has their primary residence with one parent, the law does not prescribe an appropriate amount of contact that must take place with the other parent.
Each case is different. However, the law places a responsibility on individuals with PRRs to maintain personal relationships with their children. In the vast majority of cases, it is likely that direct, regular contact is appropriate, including overnight residential contact. This can involve a pattern where the child has their main base with one parent during the week and then spends the weekend, or alternating weekends, with the other parent. Midweek residential contact is common for one, and increasingly, two nights.
Regulation of care arrangements for children by the court
Where there is a dispute between parents about the care arrangements for a child, the court can make orders that it considers necessary and in the best interests of the child. Common issues of dispute can include:
Where the child must live and with whom.
Whether the child must be vaccinated/receive medical treatment.
Which school the child will attend.
If the child will be relocated from the jurisdiction.
Section 11 of the Children (Scotland) Act sets out a comprehensive, but non-exhaustive, list of possible orders that can be sought in relation to a child. In all cases, the court retains discretion and it can make any order relating to PRRs as it sees fit.
Where parents have separated and cannot agree on the care arrangements for the children, either parent can seek orders to regulate arrangements. The most common orders sought are:
Residence order. This is an order regulating the arrangements regarding with whom a child under the age of 16 should live (section 11(2)(c), Children (Scotland) Act). The order can specify the person with whom the child is to reside and during what periods. It can provide that the child is to live with different persons alternately or periodically.
Contact order. This is an order regulating the arrangements for maintaining personal relations and direct contact between a child under the age of 16 and a person with whom the child is not, or will not be, living (section 11(2)(d), Children (Scotland) Act).
Specific issue orders. These orders regulate any specific issue that has arisen (for example, whether a child must be vaccinated, taken out of the jurisdiction on holiday (or permanently) or where they should be educated).
When an order under section 11 is sought, the court will apply the legal tests provided for in section 11(7) (see Question 7).
Relocation/right to remove
Relocation has become a greater issue in Scotland over the past two decades. This is because of increasingly mobile families and, in many circumstances, families being able to or required to live and work abroad.
Relocation is not purely an international issue. Given the geographical breadth of the UK, it is easy to envisage a scenario where internal relocation prevents a child enjoying direct contact with a non-resident parent, even restricted to Scotland alone.
The most common anecdotal reason for parents seeking to relocate is a desire of one parent (usually the mother) to return to the parent's home country following separation. Increasingly, economic motivations are given as a reason for relocation (for example, better employment and prospects).
The application must prioritise what is best for the child and the reasons given must show what the child will gain from the proposed move. Common reasons in applications include:
That the proposed relocation allows the parent with care to better provide for the child.
That the move would deliver better education provision (in both the short and longer term).
An enhanced climate which will allow the child to be more physically active and deliver health benefits.
The child would get to know the culture of the home country of their parent (if relevant) and/or gain relationships with family members living there.
It is also often argued that the child's quality of life will be improved if the relocating parent's own quality of life improves. Examples cited in case law include better healthcare provision, enhanced job prospects, and improved economic conditions in the destination country.
General principles and guidance
Scots law expressly provides that where both parents have parental rights and responsibilities (PRRs) one parent cannot remove a child habitually resident in Scotland from the UK without the consent of the other parent (sections 2(3) and 2(6), Children (Scotland) Act). One parent also cannot retain any such child outside the UK (sections 2(3) and 2(6), Children (Scotland) Act).
If one parent wishes to relocate to another country with the child, and the other parent provides no consent, the relocating parent must make an application for removal to the court.
If a child habitually resident in Scotland is removed from or retained outside the UK without consent then this would be "wrongful" in terms of the HCCH Convention on the Civil Aspects of International Child Abduction 1980 (Hague Child Abduction Convention) (incorporated into Scots law by the Child Abduction and Custody Act 1985). It is also a criminal offence to abduct a child from Scotland.
The law provides that when parents make life-changing decisions involving a child they must:
Involve the other parent in the decision making process.
Give the child an opportunity to express a view.
Make decisions in which the child's welfare is the main consideration.
The court only intervenes if it is better for the child to have the matter regulated (that is, the court is not routinely involved in parenting issues).
Where the consent of one parent to the removal of a child from the UK is not given, the parent who wishes to relocate must ask the court for the authority to remove the child from the jurisdiction for the purposes of relocation. The applicant must ask the court to grant a specific issue order (section 11(2)(e), Children (Scotland) Act).
If a section 11 order is sought, the applicable legal test is that the court must (sections 11(7)(a) and 11(7A), Children (Scotland) Act):
Regard the welfare of that child as its paramount consideration.
Not make any order unless it considers that it would be better for that child to make the order than that none is made at all.
The court must give the child an opportunity to indicate whether he or she wishes to express a view, taking account of the child's age and maturity. If the child wishes to express a view, the court must give him or her the opportunity so to do and take into account the views expressed (section 11(7)(b), Children (Scotland) Act). There is a presumption that a child aged 12 years old or older is of a sufficient age and maturity to form a view.
Unlike international relocation, there is no statutory prohibition preventing internal relocations, whether within, or between, the constituent parts of the UK. There is no need for the relocating parent to request the consent of the other parent or a specific issue order from the court. However, the relocating parent may wish to seek permission from the court to allow relocation in order for the position to be beyond doubt. Usually an application is made if the proposed move is likely to affect existing arrangements for the children. The same legal principles will apply as for a section 11 order (see above, International relocation).
There are several cases that provide guidance on relocation applications. There is no mandatory test or set of factors to consider (that is, the applications are considered on a case-by-case basis). The following approaches have been taken:
M v M(2012 SLT 428). The court provided that the English authorities culminating in the English Court of Appeal case of Payne v Payne ( 2 WLR 1826) are not part of Scots law. The court must consider the impact of the proposed relocation on the child and the effect on the child's welfare. The wishes and interests of the parents will not be given undue weight in particular, it is not the case that a pre-eminent consideration for the judge will be the effect of the refusal of the application on the primary carer's future psychological and emotional stability. The court will not give undue weight to the wishes and interests of the parents. In particular, the judge must not have the effect of the refusal of the application on the primary carer's future psychological and emotional stability as a pre-eminent consideration.
S v S (2012 Fam. L.R. 32). The court emphasised that although there is no strict legal onus of proof in relocation cases, it is for the parent who wishes to relocate with the child to demonstrate that it is better for the order to be made.
M v M (2008 Fam. L. R. 90). A Sheriff Court decision, which has been cited with approval in numerous subsequent cases, explored the following factors that must be considered when determining a relocation dispute:
the reasonableness of the proposed move abroad;
the motive of the parent wishing to take the child abroad;
the importance of the contact with the other or absent parent in the child's life;
the importance of the child's relationship with siblings, grandparents or other members of the extended family who are left behind;
the extent to which contact (if appropriate) can be maintained;
the extent to which the child may gain from a relationship with family members as a result of the proposed move;
the child's views, where he or she is of any age to express them;
the effect of the move on the child;
the effect of refusal of the specific issue order on the applicant particularly where that parent already has a residence order;
the effect of refusal on the welfare of the child; and
whether it is better for the child to make the order than that no order should be made.
The current view amongst practitioners is that, as each case is different and while it is therefore difficult to say that there is a norm, the relocating party must meet a high standard to persuade the court to grant the specific issue order. For the last five years, it has been easier to persuade a Scottish court to refuse an application to relocate than to grant it. As shared care has become more common it has become more difficult for parents wishing to relocate to demonstrate to the court that the benefits to the child in the destination state will outweigh the potential prejudice to the child in terms of losing the shared care relationship with the other parent.
It is not enough for the relocating parent to assume that it will be obvious that the proposed plans are in the child's best interests. There must be clear evidence of the reason for relocation and the applicant must provide evidence about what the reality of post-relocation life will be (for example, in terms of contact with the other parent and his family, education, access to healthcare, housing, among other factors).
Procedure for relocation
Where one parent seeks to remove a child from the UK, and the other parent does not consent, the parent who wishes to relocate must apply to either their local Sheriff Court or the Court of Session for a specific issue order (section 11(2)(e), Children (Scotland) Act).
If the action is raised in the Sheriff Court (most relocation disputes are), the initial writ (application) is served on the non-consenting parent. This will often be served by post. Within 21 days of service, the applicant must lodge a form (notice of intention to defend) with the court. A court timetable is fixed. Parties have about three months to finalise their written cases. There is then a hearing that both parties must attend (options hearing). If it is clear at the hearing that the matter is not capable of resolution by agreement, the court will fix an evidential hearing (a proof). A proof is a hearing usually extending over two or three days, where evidence is taken. The decision will likely be issued in writing thereafter. The judgment can take a number of months to be issued.
Duration of procedure
Generally, the courts will take the view that applications for relocation must be given priority and will be dealt with as expeditiously as possible, but it would be uncommon for the process to take less than six months and often takes nearer a year. During this time, the court can be asked to make interim orders (for example, to allow a child to go to the destination country on holiday or to explore schooling).
The court has a wide range of powers to make orders preventing a child's removal. These powers include specific issue orders (for example, requiring the surrender of passports) and interdict (an order preventing someone from doing something, for example, taking a child out of the jurisdiction) (section 11(2)(f), Children (Scotland) Act).
If the court grants an interdict, a port stop order can be made, which alerts all airports and seaports as to the potential unlawful removal of the child from the UK.
Where there is a concern that there will be unlawful removal of a child from the UK, the non-consenting parent can ask the court to order the surrender of passports.
There are a number of criminal offences that can also be committed or in contemplation regarding relocation, in which case the police can be involved. There are criminal offences in terms of the Child Abduction Act 1984 Part II and the common law offence of plagium (that is, theft of a child).
Alternative dispute resolution (ADR)
It is generally accepted that asking the court to grant orders is considered the last resort. The courts encourage parties to try and find a resolution themselves. The following ADR models are available:
Negotiation. Most commonly, parents instruct separate lawyers to negotiate the care arrangements in respect of children between them either in correspondence or at round-table meetings.
Mediation. With the help of an impartial third party (often a family law specialist), parents can use mediation to explore various and creative options to resolve the relocation dispute. The court rules expressly confer power to refer parties to mediation. The content of the family mediation is generally not admissible as evidence in any subsequent court proceedings (Civil Evidence (Family Mediation) (Scotland) Act 1995). However, the recent case of In the Petition of FJM  CSOH 130 suggests that confidentiality cannot be guaranteed in child abduction disputes.
Arbitration. Parties can appoint an arbitrator to make decisions about any issues referred. The parties will be bound by the arbitrator's decision. Arbitration is less formal and more flexible than a court action. One key advantage of arbitration is that there is greater scope for ensuring confidentiality of the details of the proceedings, including the decision reached. The Family Law Arbitration Group Scotland (FLAGS) provide a bespoke arbitration scheme for family disputes under Scots law.
Collaborative family law. A form of family ADR where specially trained lawyers acting for each party resolve disputes through a series of four-way meetings attended by the parties and their respective collaboratively trained lawyers.
The majority of relocation disputes that are resolved outside the court process use solicitor-led negotiation. If ADR is unsuccessful, the parties can proceed to litigation.
Factors in relocation cases
Children, irrespective of their age, must have an opportunity to express a view in matters that are material to their welfare, if they wish. The court must consider any views expressed, having regard to the child's age and degree of maturity. The issue of providing children with the opportunity to express their views has been particularly relevant to relocation cases. In S v S (2002 SC 246), a relocation case, the Inner House of the Court of Session held that the failure to give a child the opportunity to express a view at the time the order was made contributed to the relocation application being refused.
When an application is made, the court must consider how to give the child an opportunity to express their views. If the child is over the age of nine, a form is usually intimated to the child telling them, in child-centred language, what application is made to the court and that they can tell the judge or sheriff what they think. There is a free telephone helpline for children and young people to allow them to get legal advice. The court can also take the child's views through a third party (for example, a court appointed reporter or psychologist) or the judge or sheriff can meet with the child.
However, a child's views are not determinative, as the welfare of the child is the main consideration.
Offers of security
Where a relocating parent wishes to remove a child from Scotland great care needs to be taken by the other parent if he or she is willing to agree to such a removal.
If it has been agreed that the parent left behind will be entitled to periods of direct contact (the child taking holidays in Scotland) or indirect contact (Facetime and Skype) with the child, consideration must be given as to how to ensure that contact actually takes place and the possibility of mirror orders in the destination state considered.
There is no concept of "offers of security" in the context of Scottish relocation disputes. In theory, caution or security can be sought but this is uncommon.
If the parent and child relocate from Scotland to another part of the UK then the Scottish contact order can be enforceable, as though it were a domestic order of the English courts, via the Family Law Act 1986 (although the practicalities of recognition and enforcement are often troublesome).
Where the parent and child relocate to an EU member state, the reference must be made to Article 41 of Regulation (EC) 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (Brussels II Regulation). If the procedural requirements are followed, the Scottish contact order is directly enforceable in the destination member state.
Outside the EU, even greater care must be taken. Unless the destination country is a signatory to the HCCH Convention on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the protection of children 1996 (Child Protection Convention), it will be difficult to enforce the Scottish contact order post-relocation. Instead, the parent remaining in Scotland will need to consider taking steps in the destination country.
If the relocation is only to be temporary, then the parent left behind must proceed very carefully. They must focus on trying to enforce any agreed contact during the temporary relocation. It is vital that the parent left behind is aware that the relocating parent may try to convert the temporary relocation into a permanent relocation by stealth.
If the child is not returned at the end of the temporary relocation from the destination country and the country is a signatory to the Hague Child Abduction Convention, the parent must make an urgent application for return to the Scottish Central Authority, on the basis that there has been a wrongful retention.
If the destination country is a not a signatory country to the Hague Child Abduction Convention, urgent specialist advice will be required in both Scotland and the destination country to see what steps are required to ensure the immediate return of the child.
Rights of appeal
An order from the Sheriff Court relating to parental rights and responsibilities (PRRs) can be appealed to the Sheriff Appeal Court.
The decision of a Lord Ordinary in the Outer House of the Court of Session can be reclaimed to the Inner House of the Court of Session.
Decisions of the Sheriff Appeal Court can be appealed to the Inner House of the Court of Session. There is a right of appeal, with leave, from the Inner House to the UK Supreme Court (leave is required for decisions after 22 September 2015).
The judge at first instance is in effect the fact-finder. This means that it is rare for the appeal court to interfere with the findings of fact made by the court at first instance. As a result, most appeals focus on whether the judge at first instance has made an error of law.
Overview/domestic and international law
If a child habitually resident in Scotland is removed from, or retained outside, the UK without consent, or without having obtained permission from the court, then this is "wrongful" under the HCCH Convention on the Civil Aspects of International Child Abduction 1980 (Hague Child Abduction Convention) (incorporated into Scots law by the Child Abduction and Custody Act 1985).
The remedy for a parent whose child was removed from one part of the UK to another is to apply for an order for enforcement or delivery under the Family Law Act 1986.
Scotland, by virtue of being a territorial unit of the UK, is a signatory to the following regulations and treaties:
HCCH Convention on the Civil Aspects of International Child Abduction 1980 (Hague Child Abduction Convention). The Hague Convention provides a remedy for the immediate return of a child wrongfully removed from, or wrongfully retained in, a country other than the country of the child's habitual residence. The remedy is open to those who have been exercising "custody rights" at the time of removal or retention from the country in which the child is habitually resident.
The UK Supreme Court recently considered the question of habitual residence regarding a Scottish child abduction case. To determine whether a child is habitually resident in a country, the focus must be on the child and where he or she is integrated in terms of their family and social environment (AR (Appellant) v RN (Respondent)  UKSC 35).
A parent who believes that his or her child has been wrongfully removed from Scotland to another contracting state must either make:
An application through the Justice Department of the Scottish Government (Scottish Central Authority). The Scottish Central Authority will then liaise with the Central Authority of the country in which it is believed the child has been abducted.
A direct application to the state where the child is believed to be (Article 8). The Central Authority of the state in which the child is held is then obliged to ensure that appropriate proceedings are raised for return of the child to the state in which he or she was habitually resident prior to the removal/retention.
The Hague Child Abduction Convention provides that the process the return of the child must be progressed as quickly as possible.
If a child is wrongfully removed to or retained in Scotland, the Scottish Central Authority will issue a certificate that automatically entitles the applicant to receive free legal aid to raise a Scottish court action for return. This right does not extend to the abducting parent.
Regulation (EC) 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (Brussels II Regulation). Disputes about child abduction between EU member states, with the exception of Denmark, are now also governed by the rules set out in the Brussels II Regulation.
Article 11 provides the most noteworthy provisions in the Brussels II Regulation relating to child abduction. If a court issues a non-return order under Article 13(b) of the Hague Child Abduction Convention, the court of origin can examine the question of custody of the child regardless of the refusal of an application for return (Article 11(7), Brussels II Regulation). Where an application is made under Article 11(7), the presiding judge in the court of origin must allow all parties the opportunity to be heard, including the child.
The judge must also take into account the reasons for and evidence underlying the decision on non-return when making the order. The determination of the court of origin on the matter of the return of the child is final. Therefore, the member state courts of the child's habitual residence retain an absolute right to determine disputes relating to the child's welfare.
The grounds on which a non-return order can be issued are provided by Articles 12 and 13 of the HCCH Convention on the Civil Aspects of International Child Abduction 1980 (Hague Child Abduction Convention). The aim of the Hague Convention is to secure the return of any child wrongfully removed or retained in a country which is not the country of their habitual residence. In other words, even where a defence has been established, judges retain a large degree of discretion and can still order return of the child.
There are four defences available to an abducting parent:
The child has settled in a new environment (Article 12). Where more than one year has passed since the child was wrongfully removed or retained, it can be argued that an order for return must not be made on the basis that the child is now settled in his or her new environment. It must be shown that the child has settled to such an extent that it overrides the duty to return the child. The defence is only available after a year has passed since the removal of the child.
Consent or acquiescence (Article 13(1)(a)). The court is not bound to issue a return order where it is established that the parent seeking the return of the child was not exercising custody rights at the time that the child was removed, or that the parent had consented to or subsequently acquiesced to the removal. The first part of this defence relates to the exercise of custody rights. These must have either been granted directly to the parent or conferred upon them by the domestic law of the child's habitual residence. If the parent was not exercising custody rights when the removal or retention took place, then it is not wrongful. The second part of the defence relates to a situation where the parent seeking return has previously consented or subsequently acquiesced to the removal and retention of the child. The onus is on the abducting parent to prove that there was clear, unambiguous consent. Acquiescence can be determined by an act or omission, and, wholly inconsistent with a request for the summary return of the child. The test is applied strictly and will only be successful in exceptional circumstances.
Grave risk harm resulting in intolerable position (Article 13 (1)(b)). These defences are rarely successful. This defence is not a means to allow through the back-door the welfare principles, applied in connection with section 11 of the Children (Scotland) Act, to be applied in abduction cases. The court must be satisfied that the risk to the child is severe, and that the child is not adequately protected by the domestic law of the court where the child was habitually resident prior to abduction.
The views of the child (Article 13(2)). The court can issue a non-return order where the child objects to being returned and is of an age and maturity where it is appropriate to take his or her views into account. In Scotland, a child aged 12 years old or older is presumed to be capable of forming and expressing a view. The test for applying this defence is threefold:
does the child object to being returned to the country (rather than the other parent)?
is the child of an age and maturity where it is appropriate to take account of their views?
is the court prepared to exercise its discretion to issue a non-return order?
In Hague Child Abduction Convention cases where the Brussels II Regulation also applies, there is a greater emphasis on obtaining the views of the child. The child must have an opportunity to be heard in the proceedings, unless this appears inappropriate in reference to his or her age or maturity (Article 11(2), Brussels II Regulation).
After considering these matters, the court must also consider the reasons behind the child's objections to being returned, for example, if the child has been unduly influenced by the abducting parent. The court will then apply its discretion in making a final order, the reasoning of which will vary widely on a case-by-case basis.
As in relocation cases, the court has discretion to determine how best to establish if a child wishes to express a view and then how to take those views. The way in which the child's views are taken will typically be in one of four ways:
The instruction of a child psychologist. The advantage of instructing a child psychologist to obtain a child's views is that a psychologist should also be able to offer an informed view as to the child's maturity and ability to express a view.
The appointment of curator ad litem (litigation friend). A curator ad litem's function is to represent and protect the child's interests, part of which involves ensuring that the child's views are communicated to the court. The curator can become a party to the case and represent the interests of the child within the action if deemed appropriate. The curator may not share the views of the child, in which case the child can be separately represented.
The appointment of a child welfare reporter who will prepare a report in which he will advise the court of the child' s views. This person is usually a solicitor or advocate.
The child can advise the court directly, or through a solicitor or counsel. The child can also write directly to the judge or sheriff. Older children and young people also sometimes instruct their own solicitor, who communicates with the court and can, in some cases, enter the process as a party.
The Official Home of UK Legislation
Description. The National Archives on behalf of HM Government publishes the original (as enacted) and revised versions of UK legislation by and under the authority of the Controller of HMSO (in her capacity as The Queen's Printer of Acts of Parliament, and Government Printer of Northern Ireland) and the Queen's Printer for Scotland. Please note some legislation is not maintained and only includes the original published (as enacted) version.
Scottish Court and Tribunals
Description. Many (not all) cases decided by the Scottish Courts are published here.
Rachael Kelsey, Director
SKO Family Law Specialists
Professional qualifications. Scotland, Solicitor, 1996
Areas of practice. Family law.
Secretary, International Academy Matrimonial Lawyers (IAML).
Chair of the Board of Trustees and Director, Family Mediation Scotland.
Treasurer, CALM (organisation of accredited family mediators in Scotland).
Trainer and committee member Family Law Arbitration Group Scotland (FLAGS).