PETITION OF ML V JH [2021] ScotCS CSOH_50 (07 May 2021)

PETITION OF ML V JH [2021] ScotCS CSOH_50 (07 May 2021)

The child, Fraser, lost habitual residence in Ontario and acquired habitual residence in Quebec by 11 September 2020. He did not lose habitual residence in Quebec or acquire habitual residence in Scotland by 15 December 2020. The respondent's retention of Fraser in Scotland after that date was wrongful under Article 3 of the Hague Convention. The respondent failed to establish an Article 13(b) defence as there was insufficient evidence of a grave risk of harm or intolerable situation if the child were returned to Canada.

Citation
[2021] ScotCS CSOH_50
Parties
Petitioner: ML; Respondent: JH
Jurisdiction
Scotland
Judgment Date
07 May 2021
Procedural Posture
Petition for Return of Child Under Hague Convention / Final Hearing and Judgment
Outcome
Petition granted; order for return of child to Canada (Quebec) subject to arrangements for respondent to accompany child.
Legal Topics
International Child Abduction, Hague Convention, Habitual Residence, Wrongful Retention, Article 13(b) Defence
Family Law International Law International Child Abduction Hague Convention Habitual Residence Wrongful Retention Article 13(b) Defence

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Parties

ML

Petitioner

JH

Respondent

Procedural Posture

Petition for Return of Child Under Hague Convention / Final Hearing and Judgment

Legal Issues

  1. 1 Where was the child's habitual residence as at 15 December 2020?
  2. 2 Was the child wrongfully retained in Scotland under Article 3 of the Hague Convention?
  3. 3 Has the respondent established an Article 13(b) defence (grave risk of harm/intolerable situation)?

Ratio Decidendi

The child, Fraser, lost habitual residence in Ontario and acquired habitual residence in Quebec by 11 September 2020. He did not lose habitual residence in Quebec or acquire habitual residence in Scotland by 15 December 2020. The respondent's retention of Fraser in Scotland after that date was wrongful under Article 3 of the Hague Convention. The respondent failed to establish an Article 13(b) defence as there was insufficient evidence of a grave risk of harm or intolerable situation if the child were returned to Canada.

Court Disposition

Petition granted; order for return of child to Canada (Quebec) subject to arrangements for respondent to accompany child.

Orders

  • Order for return of Fraser to Quebec, Canada.
  • Arrangements for respondent to accompany Fraser to Canada to be determined at subsequent hearing.