Senior Associate Morven Douglas looks at a recent case that allowed the appeal of a mother who had wrongfully removed her daughter from Poland to Scotland, and what this means for future child abduction decisions.
Last month, in the case of W v A and “X”  CSIH 55, the Inner House of the Court of Session allowed the appeal of a mother who had wrongfully removed her 10-year-old daughter from Poland to Scotland.
The mother had originally been ordered to return her daughter to Poland, the child’s country of origin. Return orders are what we have come to expect in Child Abduction cases as the overriding principle of the Child Abduction Hague Convention is that, after a wrongful removal or retention, children should return quickly to their country of origin as this is the country where they are settled and where their home, schooling (if applicable) and support network will generally be. Accordingly, it is the court there which is best placed to make decisions about where the child should live if that is in dispute.
The child’s views
However one of the defences to a return order is where the child objects, as happened in the present case of W v A and “X”. The Inner House accepted the evidence that the child’s views were authentic and independent of the mother. She expressed that she was happy in Scotland, had a happy home life and enjoyed school and had friends there. She had her own bedroom whereas she recalled that in Poland her living conditions had been very crowded. She had been in Scotland for over a year and the Inner House saw no benefit in disrupting the child’s settled existence by ordering a return to Poland whilst a decision from the Polish court on where the child should live was awaited.
There will be many commentators who view this decision as an erosion of the principle behind the whole Convention which I referred to above. However, it has to be remembered that usually Hague cases are raised within days or weeks of a child being wrongfully removed or retained in a country.
A year for a child is a long time
In those cases, an abducting parent will nearly always be ordered to return a child to the country of origin as that is where the child’s settled existence can be found. However, if you have been in a country for over a year, that country has likely become your settled existence and, as here, your ties may well be much stronger and happier than to the country of origin. As the Inner House specifically alluded to, a year for a child is a long time.
I am of the view that this decision is to be applauded as it is reached in a totally child-centric manner. However, it saddens me that the child had to become involved in the litigation at all and there is, of course, the concern that the premise of this case will be used by future abducting parents who may seek to manipulate their children’s views to suit their own agenda.
So how do we avoid putting children in this situation? To begin with, this is quite straightforward. Accordingly, if you want to move abroad with your child, you need to seek consent of any other party with parental rights and responsibilities to that child.
If you know that is going to be difficult you might want to think about using a mediator to try to facilitate that discussion. However, if this is not successful and you don’t have that consent, then you need an order from the court, permitting you to take your child out of the UK.
Best interests of the child
If the case does end up in court, depending on the age of your child, it may well be that their views will be taken, with the court according weight to those views in line with the child’s maturity and understanding. Accordingly, it may be that your child will, to some extent, become involved in the proceedings. Therefore any parent considering a move abroad should be absolutely sure that they consider that the move would be in the best interests of their child, before they embark on a court action seeking to relocate.
Parents should also be aware that the Sottish courts will often refuse relocation orders even where the motive of the parent who wishes to move is genuine. Where children are thriving in their current circumstances and have a good relationship with the other parent a relocation order be will be difficult, if not impossible, to justify.
This reflects the principle enshrined in the Children (Scotland) Act 1995 that when the court is being asked to determine matters relative to a child, that child’s welfare is always paramount.
This is exactly as it should be but can come as a nasty surprise to a parent looking to relocate with children after a separation.
Read more blogs by Morven Douglas
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