CM v ER (AP) [2017] ScotCS CSIH_18 (24 February 2017)

CM v ER (AP) [2017] ScotCS CSIH_18 (24 February 2017)

The child AM did not lose habitual residence in Australia nor acquire habitual residence in Scotland; the respondent’s unilateral retention breached the petitioner’s custodial rights; the petitioner did not consent to an indefinite stay; the Hague Convention was engaged, requiring return of the child to Australia.

Citation
[2017] ScotCS CSIH_18
Parties
Petitioner and Respondent (father): CM; Respondent and Reclaimer (mother): ER (AP)
Jurisdiction
Scotland
Judgment Date
24 February 2017
Procedural Posture
Reclaiming Motion (appeal) Under Hague Convention, Child Abduction and Custody Act 1985 / Appeal From Lord Ordinary's Order for Return of Child
Outcome
Reclaiming motion refused; Lord Ordinary’s interlocutor adhered to.
Legal Topics
International Child Abduction, Habitual Residence, Wrongful Retention, Consent Under Hague Convention
Family Law International Law International Child Abduction Habitual Residence Wrongful Retention Consent Under Hague Convention

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Parties

CM

Petitioner and Respondent (father)

ER (AP)

Respondent and Reclaimer (mother)

Procedural Posture

Reclaiming Motion (appeal) Under Hague Convention, Child Abduction and Custody Act 1985 / Appeal From Lord Ordinary's Order for Return of Child

Legal Issues

  1. 1 Whether the child AM lost habitual residence in Australia and acquired habitual residence in Scotland
  2. 2 Whether the child was wrongfully retained in Scotland under the Hague Convention
  3. 3 Whether the petitioner consented to the child’s indefinite stay in Scotland

Ratio Decidendi

The child AM did not lose habitual residence in Australia nor acquire habitual residence in Scotland; the respondent’s unilateral retention breached the petitioner’s custodial rights; the petitioner did not consent to an indefinite stay; the Hague Convention was engaged, requiring return of the child to Australia.

Court Disposition

Reclaiming motion refused; Lord Ordinary’s interlocutor adhered to.

Orders

  • Return of child AM to Australia within six weeks of 24 November 2016
  • Remit to Lord Ordinary for By Order hearing on practicalities of return