M AGAINST C [2020] ScotCS CSIH_63 (06 October 2020)

M AGAINST C [2020] ScotCS CSIH_63 (06 October 2020)

The court held that the Lord Ordinary was entitled to uphold the Article 13(b) defence based on the psychologist’s expert evidence and the specific facts regarding B’s anxiety and dependence on his brother and mother. There was no error of law or fact, and the decision was within the range of reasonable outcomes. Separation from his brother and mother would create a grave risk of psychological harm or intolerable situation for B.

Citation
[2020] ScotCS CSIH_63
Parties
Petitioner and Reclaimer: M; Respondent: C
Jurisdiction
Scotland
Judgment Date
06 October 2020
Procedural Posture
Petition Under the Child Abduction and Custody Act 1985 (1980 Hague Convention) / Appeal (reclaiming Motion) Against Non Return Order
Outcome
Reclaiming motion refused; non-return order for B upheld.
Legal Topics
International Child Abduction, Hague Convention, Child Custody, Grave Risk Exception, Sibling Separation
Family Law International Law International Child Abduction Hague Convention Child Custody Grave Risk Exception Sibling Separation

Case Brief

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Parties

M

Petitioner and Reclaimer

C

Respondent

Procedural Posture

Petition Under the Child Abduction and Custody Act 1985 (1980 Hague Convention) / Appeal (reclaiming Motion) Against Non Return Order

Legal Issues

  1. 1 Whether the non-return order for child B under Article 13(b) of the 1980 Hague Convention was justified
  2. 2 Whether the Lord Ordinary erred in law or fact in refusing the return order

Ratio Decidendi

The court held that the Lord Ordinary was entitled to uphold the Article 13(b) defence based on the psychologist’s expert evidence and the specific facts regarding B’s anxiety and dependence on his brother and mother. There was no error of law or fact, and the decision was within the range of reasonable outcomes. Separation from his brother and mother would create a grave risk of psychological harm or intolerable situation for B.

Court Disposition

Reclaiming motion refused; non-return order for B upheld.

Orders

  • The appeal is refused; B is not to be returned to Australia under the Hague Convention.