Father-of-two secures children’s return to Germany after mother ‘wrongfully retained’ them in Scotland

A Scottish mother-of-two living in Germany who left her German husband after having an affair with a Syrian refugee she met at her German language classes before returning to her home country to stay with her sister has been ordered to return to Germany with the estranged couple’s children.

 

A judge in the Court of Session ruled that the children were “habitually resident” in Germany and that they were “wrongfully retained” in Scotland after the their father lodged a petition seeking an order for their return under the Child Abduction and Custody Act 1985.

 

Lady Wise heard that the petitioner “Dr NN” and respondent “HN” were both dentists who married in February 2011 and had two children together, a seven-year old son “PRN” and a three-year-old daughter “MFN”.

 

The children were born in Scotland and the parties lived in family in Aberdeen until the middle of 2017 when they went to live in Germany, with the intention of moving to Austria in the longer term.

 

But in February 2018 the respondent confessed to having an extra-marital affair and despite efforts to save the marriage, on 11 March 2018 during a short weekend trip to Scotland, the respondent decided that her marriage to the petitioner was definitely at an end and she retained the two children of the marriage in Scotland.

 

The petitioner lodged an application for an order for the children’s return, arguing that their retention was “wrongful” because they were habitually resident in Germany.

 

But the respondent claimed that the children never lost their habitual residence in Scotland, alternatively, on the basis that they lost their Scottish habitual residence at some point following the move to Germany in summer 2017 and acquired habitual residence there, they lost that habitual residence when the parties went to stay in Austria in February 2018.

 

 

However, the judge said she had “no hesitation” in concluding that the children had acquired habitual residence in Germany.

 

In a written opinion, Lady Wise said: “On the undisputed evidence, the move to Germany was pre-planned and with the intention of a permanent relocation of the family away from Scotland. The parties’ dental practices were sold as part of the planning for that move. They were living together in family and chose to set up a new home in Germany for all the reasons explored in evidence. 

 

“The family’s economic interest and physical location were transferred away from Scotland. Their personal property including furniture was taken to Germany. Although the property they owned in Scotland was not sold or let out this was not connected with any intention to return to Scotland. Of course the parties’ intentions are only a factor and not a central part of the test and an intention to be in Germany permanently is not required for a change of habitual residence. 

 

“On any view of the evidence the parties intended to be in Germany for at least a year. The family integrated into Germany by living there, by the respondent attending German classes so that she could work and by the children attending school and nursery on a full year contract basis. There was no dispute that every aspect of the children’s lives between July 2017 and late February 2018 took place in Germany. 

 

“On the test of looking to see whether the place in question (Germany) reflects some degree of integration by the children in a social and family environment, I am in no doubt that these children became habitually resident in Germany shortly after they moved there.”

 

 

The judge also rejected the respondent’s argument that the children subsequently lost that habitual residence because of the time spent by the family in Austria.

 

She said: “Just as the acquisition of habitual residence in Germany depended on the acquisition of a home and social environment there, so to the loss of habitual residence in Germany requires the actual severing of those physical and social ties. The children of this marriage had settled in a home in Germany. 

 

“The parties had agreed to give Austria a try but that agreement was never implemented in a way meaningful to the children in terms of their home and social environment because of the respondent’s decision to retain the children following the weekend trip to Scotland.

 

“This is not a case in which the children have returned to live in a home in which they were settled prior to their move to Germany. They are staying at the home of the respondent’s sister in a different part of Scotland to that in which they previously lived. 

 

“Accordingly, there is no family home in Scotland and none in Austria. In those circumstances I conclude that the children’s established habitual residence in Germany was not lost by the time they were retained in Scotland on 11 March.

 

Lady Wise added: “This case involves a classic abduction of the type that the Hague Convention is directed to resolve by the swift return of children. The courts in Germany, where the family made their home from the summer of 2017, will, if the parties cannot resolve matters themselves, be able to determine what the arrangements for the care and upbringing of those children should be going forward. 

 

“As I have concluded that the children were habitually resident in Germany at the time of their retention and as there are no other defences to a return put forward by the respondent, I intend to make an order for their return to Germany as sought by the petitioner. However, I consider it appropriate to give the parties a short period during which to discuss the arrangements for that return.”