There are legal remedies if other parent living abroad refuses to return your child to Scotland - Marisa Cullen

There are a number of international conventions that deal with international parental child abduction, the most utilised being the 1980 Hague Convention. If the convention operates between the UK and the country your child is being retained, you can ask the courts of the country to return them to Scotland.

In order for a parent to seek a return under the 1980 Convention, they must prove that the removal or retention (i.e. the scenario I describe above where a child is retained after summer holiday contact) of the child was wrongful because it breached their rights of custody under the law of the state in which the child was habitually resident immediately before the removal or retention (article 3).

It is very important in wrongful retention cases in particular to raise the court action for return as soon as it is clear the child is not being returned. This is because a defending parent will often, in wrongful retention cases, try and argue that the convention does not apply as the child's habitual residence has changed to the country they are now living in with the defender.

Supreme Court caselaw which is binding on Scottish courts since 2013 (Re A (Children) (AP) 2013 UKSC 60) has made it clear that joint parental retention to change a child's habitual residence is only a factor in deciding where a child is habitually resident. The test of habitual residence now focuses on where a child has been integrated into a social and family environment: the residence in the country does not have to be permanent, but does require a level of stability (AR v RN 2015 (UKSC) 35 and Re R (Children) 2016 AC 76).

In recent years, the Scottish courts have routinely found in wrongful retention cases that the child's habitual residence has changed following the Supreme Court guidance (JK v SS 2019 CSOH 4 and JP v AAR and EMM 2020 CSOH 80). Even where there is a written agreement between the parties that the child has to be returned, that can be insufficient to prevent a change in habitual residence. It was becoming increasingly difficult for parents to be successful in having their child returned in wrongful retention cases.

However, the Supreme Court caselaw has also made it very clear that habitual residence is case specific. It will depend on the individual circumstances of the case. In 2021 the Scottish courts granted a return order in a wrongful retention case in ML v JH (2021) CSOH 50. Briefly by way of background, the child had resided with the Petitioner who was his primary carer in Canada from his birth to September 2020. At that point the parties entered into a written agreement which stated that the Respondent father would be allowed to take the child to Scotland for a short period and that the child would be returned to Canada no later than 15 December 2020. In December 2020 the Petitioner duly flew from Canada to Scotland in order to uplift the child as per the parties' written agreement, and the Respondent refused to return the child.

The judge hearing the case, Lady Wise, found that the Petitioner mother had successfully proven that the child's habitual residence remained in Quebec in Canada and had not changed to Scotland. She placed great emphasis on the fact that the child was an infant who had been in the care of his mother throughout the first years of his life, and that the written agreement between parties was clear. She concluded that the child should be returned to Canada.

While there are legal remedies to have your child returned to you if they are retained following summer holiday contact, it is important to act quickly and decisively to secure their speedy return.

Marisa Cullen is an Associate in Morton Fraser’s family law team