M, Re a Petition for an Order [2004] ScotCS 246 (11 November 2004)

M, Re a Petition for an Order [2004] ScotCS 246 (11 November 2004)

The court found that S was habitually resident in Ireland immediately prior to being retained in Scotland, as the family had established a regular life there and the move was voluntary and for settled purposes. However, the court exercised its discretion under Article 13 of the Hague Convention to refuse the order for S's return to Ireland, as S objected to return for reasons of substance, his objection was independent, and he was of sufficient age and maturity for his views to be taken into account.

Citation
[2004] ScotCS 246
Parties
Petitioner: M; First Respondent: First Respondent; Second Respondent: Second Respondent
Jurisdiction
Scotland
Judgment Date
11 November 2004
Procedural Posture
Petition Under the Child Abduction and Custody Act 1985 / Judgment After Hearing Evidence and Submissions
Outcome
Petition refused
Legal Topics
Child Abduction, Habitual Residence, Hague Convention, Child Custody, Children's Objections
Family Law International Law Child Abduction Habitual Residence Hague Convention Child Custody Children's Objections

Case Brief

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Parties

M

Petitioner

First Respondent

First Respondent

Second Respondent

Second Respondent

Procedural Posture

Petition Under the Child Abduction and Custody Act 1985 / Judgment After Hearing Evidence and Submissions

Legal Issues

  1. 1 Whether the child S was habitually resident in Ireland immediately prior to being retained in Scotland
  2. 2 Whether S objects to being returned to Ireland and, if so, whether an order for his return should be pronounced under Article 13 of the Hague Convention

Ratio Decidendi

The court found that S was habitually resident in Ireland immediately prior to being retained in Scotland, as the family had established a regular life there and the move was voluntary and for settled purposes. However, the court exercised its discretion under Article 13 of the Hague Convention to refuse the order for S's return to Ireland, as S objected to return for reasons of substance, his objection was independent, and he was of sufficient age and maturity for his views to be taken into account.

Court Disposition

Petition refused

Orders

  • Order for return of S to Ireland refused under Article 13 of the Hague Convention