NSA v MA [2006] ScotCS CSOH_194 (15 December 2006)

NSA v MA [2006] ScotCS CSOH_194 (15 December 2006)

The child M was habitually resident in Scotland at the time of removal and remains so. The defender’s retention of M in Pakistan without the pursuer’s consent is wrongful under section 2(3) of the Children (Scotland) Act 1995. The Scottish court has jurisdiction and, applying the paramountcy of the child’s welfare, it is in M’s best interests for a residence order to be made as sought by the pursuer. There is no basis to sist the Scottish proceedings in favour of the Pakistani proceedings.

Citation
[2006] ScotCS CSOH_194
Parties
Pursuer: N S A; Defender: M A or N
Jurisdiction
Scotland
Judgment Date
15 December 2006
Procedural Posture
Parental Responsibility and Child Residence Order / Final Judgment After Undefended Hearing
Outcome
Pursuer's motion granted; defender's motion to sist refused.
Legal Topics
Habitual Residence, Child Custody, International Child Abduction, Jurisdiction, Welfare of the Child
Family Law Child Abduction Habitual Residence Child Custody International Child Abduction Jurisdiction Welfare of the Child

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Parties

N S A

Pursuer

M A or N

Defender

Procedural Posture

Parental Responsibility and Child Residence Order / Final Judgment After Undefended Hearing

Legal Issues

  1. 1 Whether the defender's retention of the child in Pakistan is wrongful under section 2(3) of the Children (Scotland) Act 1995
  2. 2 Whether the child is habitually resident in Scotland
  3. 3 Whether the Scottish court should sist proceedings in favour of proceedings in Pakistan

Ratio Decidendi

The child M was habitually resident in Scotland at the time of removal and remains so. The defender’s retention of M in Pakistan without the pursuer’s consent is wrongful under section 2(3) of the Children (Scotland) Act 1995. The Scottish court has jurisdiction and, applying the paramountcy of the child’s welfare, it is in M’s best interests for a residence order to be made as sought by the pursuer. There is no basis to sist the Scottish proceedings in favour of the Pakistani proceedings.

Court Disposition

Pursuer's motion granted; defender's motion to sist refused.

Orders

  • Final residence order made for shared residence as proposed by the pursuer, contingent on the defender’s return to Scotland.
  • Order for the return of the child M to Scotland remains in force.