Father who abducted son fails in judicial review challenge against council’s decisions over children’s care

The basis of the petition was an allegation that the respondents had failed to perform their statutory duty to safeguard and promote the welfare of the boys, who had been living with their mother following proceedings in England, and that this was “incompatible” with the article 3 ECHR rights of the children and their father.

Lord McEwan heard that the reason behind the proceedings was where the boys, aged 14 and 13 at the time of the hearing, should reside in their “best interests”.

He said: “The circumstances disclose a long, complicated and bitter history which includes inter alia the father having abducted one of the boys in 2012, facing trial for that, being convicted and sent to prison in July 2014.”

The court heard that the petitioner “SB” - who was sentenced to two years imprisonment after being found guilty following a trial at Edinburgh Sheriff Court of forcibly removing one of his sons from outside their mother’s flat in Edinburgh, driving him to Coventry and detaining him against his will - sought declarator of an unlawful assessment of the children’s needs on the facts, assessments and guidelines and declarator against any finding that he represented a risk to his sons.

The father, who had limited parental rights, sought reduction of a decision by the council not to convene a review committee, claiming that the children, who had been living with their mother “MB” in Edinburgh since 2007, were now “isolated with a dysfunctional parent” and not being protected from her “cruelty”.

He further argued that the judge in the proceedings at the High Court in Coventry had been “very critical” of the mother, but counsel for the respondent pointed out that whatever the judge in England had decided he left the children with their mother and that had not changed when the matter was revisited by several sheriffs in Edinburgh.

The judge observed that the proceedings in England had concluded that “neither home was perfect” and the children would come to “less harm” remaining with the mother.

“The respondents here have maintained this ‘least worse option now for many years and subsequent and recent events have in my opinion confirmed that this was the sensible and correct policy,” Lord McEwan said.

Refusing the petition, he also noted that two “comprehensive” reports by the council made it clear that “every aspect of the boys’ welfare has been looked into” and that their welfare was then, as now, the “primary consideration”.

In a written opinion, Lord McEwan said: “It is clear…that the petitioner in 2012 wanted the boys removed from their mother and that would mean them going into care before, presumably, being returned to him. I believe that that is still his wish today in spite of all that has happened.

“How that could be in the boys’ best interests is beyond understanding. I would regard any such outcome itself as bordering on a breach of article 3. It is wanton and utterly unrealistic.”

Article 3 ECHR provides that “no one shall be subjected to torture or to inhuman or degrading treatment or punishment,” but the judge found “no evidence” that the article was engaged at all so far as the boys were concerned.

He added: “The only inhuman thing which has occurred is the abduction of one of them by the petitioner for which he has been imprisoned. None of the cases cited to me is in point.

“The father claims to be a victim of a breach of article 3. This could only be as an indirect victim… The problem is that there is no evidence at all to justify him being an indirect victim and his own behaviour and conviction militates against it.”