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Entries in Hague Convention (4)

Monday
Mar062017

Appeal judgment confirms that child was wrongly retained in Scotland

In a Hague Convention case a three judge bench of the Court of Session last month upheld an earlier decision that a 15 month old child had been wrongly retained in Scotland by his mother and should return to Australia and the jurisdiction of the Australian courts to determine issues of residence and contact.

The judgment, delivered  by Lady Paton, confirmed judge of first instance findings that the  father had not agreed that the mother should relocate to Scotland. He had been led to believe by the mother that her trip in May 2016 was by way of a 3 month holiday to spend time with her family in Midlothian. She had purchased a return ticket and had told their friends and family in Australia that she would be back in August.

The court also rejected the mother's argument that the child had now become 'habitually resident' in Scotland and that therefore the Scottish courts should have jurisdiction.

FNF Scotland National Manager, Ian Maxwell, commented, '' This is a useful judgment. Many fathers and mothers who ask us about 'habitual residence' think it is a matter of simple arithmetic – that there's a tipping point of a certain number of months that moves jurisdiction from one country to another. This judgment sets out the arguments from Scotland and elsewhere, including the UK Supreme Court, about the factors that must be taken into account. It can be shorter or longer depending on the age and circumstances of the child in each location.  The Hague Convention sets out a legal framework that must be applied in cases of international abduction and we hope the facts and circumstances that are required to be explored should also be addressed in the more frequent cases we see of abrupt relocations within Scotland and within the UK.

In this case the mother had presented a list of actions she had taken such as applying for child tax credit and child benefit, registering with a dentist and a GP and enrolling at a swimming class and a library. But the court found these were mostly matters of changing the status of the mother and the child's welfare:

'… these steps seem to us equally attributable to steps which might be taken for the care and wellbeing of a child away from home on a long holiday, and in our opinion did not bring about such an integration in Scottish life that the first instance judge could not reasonably have concluded that the child had not lost his habitual residence in Australia.'

The decision to stay in Scotland had not been done in consultation with the father, denying him his parental right to be involved in such important decisions about their child."

Thursday
May092013

Child Abduction: progress in Pakistan and Japan

Ahmer Bilal SoofiIn future it may become easier to retrieve abducted children from Pakistan and Japan.

Pakistan's interim law minister Mr Ahmer Bilal Soofi has indicated that his government will ratify the 1980 Hague Convention on the Civil Aspects of Child Abduction.

In a speech concluding a day-long consultation, he said: "My ministry will examine it. We genuinely believe that this convention should be adopted."

The meeting heard that the number of child abduction cases has risen primarily due to the mass exodus of Pakistanis to foreign countries over the last few decades. It was said that 40 such cases had arisen in 2012 in the UK.

Japan has announced an abduction pilot scheme, in which an English-speaking lawyer will advise on the Japanese legal system.

It will help those involved in parental child abduction cases who reside outside of Japan.

The scheme will not provide advice on specific cases, but will advise on how to navigate through the Japanese legal system.

Friday
Jul012011

Supreme Court orders mother to return

A mother who removed two children to the UK without consent from their father has been ordered to return with them to Norway, the children's country of birth and habitual residence.

The case was heard in the Supreme Court because of arguments concerning aspects of the Hague Convention, which requires a child to be returned forthwith if wrongly removed by one parent.

An English court had already decided that it was overwhelmingly in the children's best interests to return to Norway for their futures to be decided there.

The Supreme Court confirmed this decision, despite arguments that the father's behaviour put the mother and her children at risk of harm, which were denied by the father.  These allegations will be investigated in the Norwegian court, and the father has given undertakings that he will vacate the family home, pay child support and not remove the children from the mother's care.

The judgement states that the best interests of the children have two aspects: to be reunited with their parents as soon as possible so that one parent does not gain an unfair advantage over the other through passage of time; and to be brought up in a "sound environment" in which they are not at risk of harm.

It reasserts the Hague principle that abducted children should be returned as soon as possible, saying that where there are disputed allegations which can nether be tried or objectively be verified in the UK and sufficient protective measures are available in Norway, the exceptions to this obligation to return do not apply.

Wednesday
Jun292011

Rise in Parental Child Abductions 

Famlies Need Fathers has issued a call for reform of the current approach to abduction and relocation cases, following news of a 21% rise in international parental adduction cases this year.

The Foreigh Office is launching a new campaign to raise awareness of what people can do to prevent abduction, working with Reunite International.

FNF chief executive Ken Sanderson expressed concern at this news, and commented that the legal system's approach to abduction and relocation is in drastic need of an overhaul.

Although international aspects of abduction are handled at UK level, FNF Scotland has already asked the Scottish Justice Minister Roseanna Cunningham about difficulties in deciding whether English or Scottish courts deal with cases where one parent has abducted the children from Scotland to England.

If you are worried your child might be at risk, or if your child has been abducted you can call the Child Abduction Section at the Foreign Office on 0207 008 0878 or www.fco.gov.uk or reunite on 0116 2556 234.