Weightmans recently acted for a mother in the reported Court of Session case, DBH for orders under the Child Abduction and Custody Act 1985 [2025] CSOH 67), which involved a Hague Convention petition.
The children’s father lodged a petition seeking the return of the parties’ two children to the United States. The father's petition was refused and the children were not ordered to return to the United States.
The mother had moved from the United Stated with her two children to Scotland in 2023. Her position was that the children were now settled in Scotland and that they would be at grave risk, or placed in an intolerable situation, if they were ordered to return to the United States.
As the case progressed, it became apparent that the children also objected to being returned to the United States. The children’s’ views were taken by a court appointed Child Welfare reporter.
The court decided that the children were settled here; that they objected to being returned and that to separate the children from their mother and their life in Scotland would place them in an intolerable situation.
Law
The applicable law for a court when determining a Hague Convention petition is the Child Abduction and Custody Act 1985. Section 1 of the 1985 Act gives the Hague Convention the force of law within the UK.
In respect of Article 3 of the Convention, for a child to be wrongly removed from the country within which the child was habitually resident immediately before the removal or retention the following must apply:
- The removal was in breach of the petitioner’s rights under the law of their country.
- At the time of the removal the petitioner was exercising rights of custody.
- The child was habitually resident in the country seeking the return prior to their removal.
Article 5 defines rights of custody.
In most Hague convention cases, if a child is living in another country (other than the country in which they were habitually resident) prior to their removal and the other parent did not consent to the child being removed or retained, the child will have been wrongfully removed or retained.
Defences
The question therefore arises as to the basis the parent who has wrongfully removed or retained the child/ children defend such a petition?
A petition can be defended on the basis that:
- A child objects to being returned and whether it is appropriate for the court to have regard to those views).
- There is a grave risk to the child that return to the country that they previously resided in would expose them to physical or psychological harm or otherwise place them in an intolerable situation.
It is important to note that if any of the defences are established, the court still must decide whether to exercise its’ discretion as to whether to refuse the petition seeking the child return to the country in question.
Settled
An important factor in DBH was that the children were settled given how long they had been living in Scotland – eighteen months. The leading case on the settlement defence is C v N. The case focused on a ‘child centred approach’ and decided that ‘the question of settlement should be considered from the perspective of the child, and using his or her sense of time’.
Objection
A Child Welfare Reporter is often appointed in these types of actions to obtain a child’s or children’s views. In terms of the Children (Scotland) Act 1995, a child aged twelve or above is deemed mature enough to express a view and have weight attached to their views by the court. Depending on the child’s age, younger children can also have their views taken and the weight to be attached to those views depends upon their age and level of maturity.
Grave risk/ intolerable situation
Article 13b of the Convention contains two defences - firstly the child will be exposed to a grave risk of physical or psychological harm if returned and secondly, return will place a child in an intolerable situation. The onus is on a respondent to the petition to establish these defences. The defences focus on the future and the situation in the country the child may be returned to.
Summary
Hague Convention cases are fast moving, require detailed preparation and are typically heard by the court within a six week period. There is no oral evidence heard by the court. A decision is made based on Affidavits (sworn statements) and submissions by both parties.
It is important to consult with a lawyer experienced in Hague Convention cases as soon as a petition is received or anticipated. If you anticipate that a Hague case may be lodged the sooner that advice is taken and preparatory work started the better. For more information about Hague Convention or relocation matters, please contact Dawn.
Dawn Finlayson has experience in Hague petition and relocation cases both intra - United Kingdom and abroad.
