AJ v. FJ [2005] ScotCS CSIH_36 (29 April 2005)

AJ v. FJ [2005] ScotCS CSIH_36 (29 April 2005)

The removal of the children by the respondent without the petitioner's consent was wrongful within the meaning of Article 3 of the Hague Convention, as the petitioner held and was exercising rights of custody under Scottish law, and the absence of a prior Article 15 request does not preclude the granting of a declarator under section 8 of the 1985 Act.

Citation
[2005] ScotCS CSIH_36
Parties
Petitioner and Reclaimer: A. J.; Respondent: F. J.
Jurisdiction
Scotland
Judgment Date
29 April 2005
Procedural Posture
Reclaiming Motion (appeal) in Child Abduction/custody Proceedings / Appeal From Refusal of Petition at First Instance
Outcome
Reclaiming motion allowed; interlocutor of the Lord Ordinary recalled; declarator granted that the removal was wrongful.
Legal Topics
Child Abduction, Hague Convention, Rights of Custody, Contact Orders, Habitual Residence
Family Law International Law Child Abduction Hague Convention Rights of Custody Contact Orders Habitual Residence

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 9 Party arguments 2
Sign in to unlock

Parties

A. J.

Petitioner and Reclaimer

F. J.

Respondent

Procedural Posture

Reclaiming Motion (appeal) in Child Abduction/custody Proceedings / Appeal From Refusal of Petition at First Instance

Legal Issues

  1. 1 Whether the removal of the children from Scotland to the USA by the respondent was wrongful within the meaning of Article 3 of the Hague Convention; Whether the petitioner was exercising rights of custody at the time of removal; Whether a declarator can be granted under section 8 of the Child Abduction and Custody Act 1985 without a request under Article 15 of the Convention; Whether contact rights under Scottish law amount to 'rights of custody' for the purposes of the Convention

Ratio Decidendi

The removal of the children by the respondent without the petitioner's consent was wrongful within the meaning of Article 3 of the Hague Convention, as the petitioner held and was exercising rights of custody under Scottish law, and the absence of a prior Article 15 request does not preclude the granting of a declarator under section 8 of the 1985 Act.

Court Disposition

Reclaiming motion allowed; interlocutor of the Lord Ordinary recalled; declarator granted that the removal was wrongful.

Orders

  • Recall the interlocutor of the Lord Ordinary dated 13 August 2004.
  • Grant the prayer of the petition and pronounce a declarator in terms of paragraph 3 of the petition.