C, PETITION OF AGAINST N [2018] ScotCS CSIH_34 (02 May 2018)

C, PETITION OF AGAINST N [2018] ScotCS CSIH_34 (02 May 2018)

The Lord Ordinary misdirected himself in law by requiring a higher threshold for settlement than Article 12(2) provides and by focusing on the children's inability to articulate reasons for wishing to remain in Scotland. On a proper assessment of the evidence, the children were settled in their new environment. The court, exercising its discretion, refused to order their return to Italy, taking into account the length of time in Scotland, their integration, the adverse impact of removal, and the inability to achieve the Convention's primary objective of swift return.

Citation
[2018] ScotCS CSIH_34
Parties
Petitioner: C; Respondent: N
Jurisdiction
Scotland
Judgment Date
02 May 2018
Procedural Posture
Petition Under the Child Abduction and Custody Act 1985 / Appeal (reclaiming Motion) Against Order for Return of Children
Outcome
Appeal allowed; order for return of children to Italy refused.
Legal Topics
Child Abduction, Hague Convention, Custody, Wrongful Removal or Retention, Settlement of Child, Discretion to Return, Habitual Residence
Family Law International Law Child Abduction Hague Convention Custody Wrongful Removal or Retention Settlement of Child Discretion to Return +1 more

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Parties

C

Petitioner

N

Respondent

Procedural Posture

Petition Under the Child Abduction and Custody Act 1985 / Appeal (reclaiming Motion) Against Order for Return of Children

Legal Issues

  1. 1 Whether the children are 'settled in their new environment' under Article 12(2) of the Hague Convention as incorporated by the Child Abduction and Custody Act 1985
  2. 2 Whether the Lord Ordinary misdirected himself in law regarding the test for settlement
  3. 3 Whether the court should exercise its discretion to refuse or order the return of the children to Italy

Ratio Decidendi

The Lord Ordinary misdirected himself in law by requiring a higher threshold for settlement than Article 12(2) provides and by focusing on the children's inability to articulate reasons for wishing to remain in Scotland. On a proper assessment of the evidence, the children were settled in their new environment. The court, exercising its discretion, refused to order their return to Italy, taking into account the length of time in Scotland, their integration, the adverse impact of removal, and the inability to achieve the Convention's primary objective of swift return.

Court Disposition

Appeal allowed; order for return of children to Italy refused.

Orders

  • The reclaiming motion is allowed.
  • The order requiring the respondent to return the children to Italy is set aside.