Few situations in family law are as frightening as discovering that your child has been taken to another country without your agreement, or retained abroad after what was supposed to be a holiday. International families are now commonplace, and so, unfortunately, are cross-border disputes about where children should live. This article explains the legal framework that applies in Scotland, and the urgent steps a parent should take on either side of such a dispute.
The 1980 Hague Convention
The cornerstone of the law in this area is the 1980 Hague Convention on the Civil Aspects of International Child Abduction, which has effect in Scotland through the Child Abduction and Custody Act 1985. The Convention operates between a large number of countries, and its purpose is deliberately narrow: where a child has been wrongfully removed from, or wrongfully retained away from, the country of their habitual residence, the courts of the country where the child now is should ordinarily order the child’s prompt return. A removal or retention is wrongful where it breaches rights of custody held by the other parent under the law of the child’s home country, and those rights were being exercised.
Two points about this are commonly misunderstood. First, a return order is not a decision about where or with whom the child should ultimately live. It decides only which country’s courts should determine the child’s future, on the principle that the courts of the child’s home country are best placed to make welfare decisions about them. Second, the Convention moves quickly and its exceptions are narrow. A parent who resists return usually must establish one of a small number of defences, such as consent or acquiescence by the other parent, or that return would expose the child to a grave risk of physical or psychological harm. The grave risk defence is applied strictly, and recent Scottish authority shows that it will rarely succeed where the courts of the home country have put protective measures in place.
How these cases are dealt with in Scotland
Applications for the return of a child brought to Scotland are heard in the Court of Session in Edinburgh, and they are given priority precisely because delay itself harms children. The Scottish Government acts as the Central Authority for Scotland under the Convention, transmitting applications to and from other Convention countries. Where a child has been taken from Scotland to another Convention country, the process works in reverse: an application is transmitted to the authorities of that country for a return order from its courts. Where the destination country is not a Convention country, the position is more difficult and depends on the law of the country concerned, which makes early specialist advice all the more important.
Taking a child abroad lawfully
Prevention is far better than cure. Under the Children (Scotland) Act 1995, a child who is habitually resident in Scotland may not be removed from the United Kingdom without the consent of everyone who holds the relevant parental responsibilities and rights in respect of the child, or the permission of the court. This applies to relocation and, in general, to any removal, which is why written consent for foreign holidays is sensible practice in separated families. It is also a criminal offence in Scotland, under the Child Abduction Act 1984, for a person connected with a child to take the child out of the United Kingdom in breach of a court order. A parent who wishes to relocate abroad with a child, and cannot obtain the other parent’s agreement, must apply to the court, which will decide the question with the child’s welfare as the paramount consideration.
If you fear an abduction, or one has happened
Speed matters more in this area than almost anywhere else in family law. If you have reason to fear that your child may be removed, the court can grant an interdict prohibiting removal, and other protective steps can be taken at short notice. If your child has already been taken or kept abroad, contact a solicitor immediately so that a Convention application can be set in motion without delay. Waiting, negotiating informally, or hoping the situation resolves itself can prejudice both the child and your legal position: the Convention contains provisions that can make return less likely once a child has been in the new country for over a year and has become settled there.
How we can help
We advise parents on both sides of international child disputes: those seeking the return of a child, those facing a return application, and those who wish to relocate lawfully with their children. We act quickly, we work with trusted lawyers in other jurisdictions where needed, and we give honest advice about the strength of your position from the outset. If your family situation crosses borders, contact us for an urgent initial discussion.
For what we do in these cases, the court procedure, and our fees, see our child abduction lawyers page.