Scottish mother loses appeal in dispute over return of child to Australia

The Inner House of the Court of Session upheld the decision of the Lord Ordinary, who ruled that the Australian-born child was “habitually resident” in Australia.

Lady Paton, Lord Drummond Young and Lord Glennie heard that the father “CM” brought a petition under the Hague Convention on the Civil Aspects of International Child Abduction seeking the return of his son to Australia in order that the courts there may determine questions such as residence and contact.

The 35-year-old Australian national met his now estranged Scottish partner “EM” in 2015 when she moved down under and became an Australian citizen.

The couple lived together in Queensland and the respondent, now aged 30, became pregnant.

When the child “AM” was born, they lived together in family but their relationship became “troubled” and in May 2016, the respondent and the child travelled to Scotland on a return air ticket, with a return flight booked for 8 August.

However, after a month living with her parents’ in Bonnyrigg she contacted the petitioner to say she was not coming back to Australia.

The wholesale car trader sought legal advice and raised proceedings at the Court of Session for the return of the child to Australia.

Lord Brailsford ruled that the child was habitually resident in Australia with his parents in that country at birth and that “the child has not acquired a habitual residence in Scotland and remains habitually resident in the Australian jurisdiction.”

But on appeal, senior counsel for the mother argued that the Lord Ordinary “erred in his application of the law” in that he “failed properly to assess the child’s social and family integration in Scotland”.

It was submitted that the child had “acquired habitual residence in Scotland” immediately prior to 8 August 2016 and had accordingly lost his habitual residence in Australia, meaning the Hague Convention did not apply.

Esto the convention was engaged, the petitioner had given his “unqualified consent” to the child’s indefinite stay in Scotland.

However, the appeal judges refused the reclaiming motion and adhered to the Lord Ordinary’s interlocutor.

The judges were we are “not persuaded” that the judge erred in concluding that the child had not lost his habitual residence in Australia.

The court further held that there was there was “ample evidence” in the affidavits and productions entitling the Lord Ordinary to conclude that the petitioner had not consented to an open-ended or indefinite stay in Scotland.

Delivering the opinion of the court, Lady Paton said: “It will be seen that, in this particular case, we have not been persuaded that the Lord Ordinary failed to identify the facts upon which he relied; or that he failed properly to assess the child’s social and family circumstances (including the circumstances of his parents); or that he gave undue weight to any particular factor; or that he failed adequately to explain the reasons for his decision. In our opinion, the Lord Ordinary’s assessment of the child’s habitual residence and the engagement of the Hague Convention cannot be criticised.”