Given the ever-increasing movement of people across the globe, it is becoming unfortunately more common to have one parent moving a significant distance with a child without the other parent’s permission.
If the move happens within the same country, such as intra UK relocations, then internal procedures can be invoked to address this matter. It the move is to a different country however then matters can become more complex as there may be competing legal principles and procedures to consider. If you need guidance, please contact our family lawyers on 0141 429 8166 or by completing our online contact form.
The Hague Convention on the Civil Aspects of International Child Abduction 1980 is the main legislation in this area designed to address the issue where a child has been moved from his home country without the permission of both parents.
The 1980 Hague Convention assumes that where a child has been wrongfully removed or retained in a country which is not the country of the child’s habitual residence (i.e. where they usually live), then the child should be returned to the country of habitual residence so that decisions are made there. The Hague Convention has been signed by over 90 different countries who are known as Member States.
Our team of family law solicitors have experience in assisting families both seeking to have their child returned home to the UK and acting for clients in opposing such applications from a parent resident abroad. Such proceedings in Scotland take place in the Court of Session in Edinburgh.
It is important to note that the court in Scotland, when determining whether to return a child abroad, will only be considering the issue of whether the child was wrongfully removed. They will not consider any issues as to where the child should live or with which parent. This would be a decision for the Court in the country of habitual residence provided the child is eventually returned.
The non-resident parent seeking the child’s return to a foreign country would have to show that they were actually exercising their rights of custody, i.e. by having contact with the child, at the time of removal or that they would have been but for the removal. If this can be established, then the court must order the return of the child to the original country.
There are very limited exceptions to this rule, however. The Scottish Court may refuse to make a decision to return the child to the country of his/her habitual residence if it can be demonstrated that the child has now settled in this country or if it can be established that the non-resident parent agreed to the removal or subsequently acquiesced in the decision. There is a further defence to removal back to the original country if it can be established that to return the child to his/her country of habitual residence would place him/her in danger or in an intolerable situation.
We have considerable experience acting for parents on the both sides of such disputes. Our experienced team of family solicitors have been able to successfully defend actions for return of children on our clients’ behalf, based on the grounds outlined above as well as assisting in securing the return of children from abroad by liaising with the Scottish Government to ensure appropriate representation for clients in the foreign proceedings.
At Livingstone Brown we understand that parents will be under extreme stress in situations such as these. Please use our knowledge and expertise in this area to take some of the pressure from you. Our Family Law solicitors will work tirelessly for the desired result drawing on our knowledge and expertise gained from previous experience in this area. It is extremely important in such cases that you seek legal advice as soon you are served with proceedings or made aware of the removal.
Navigating any legal system that involves the wellbeing of a child can be complex, and often stressful. To ensure you get the best outcome possible, it is essential that you obtain specialist legal advice. Get in touch with our team today on 0141 429 8166 or by completing our online contact form.
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Livingstone Brown is a leading firm of Scottish solicitors. Based in Glasgow, but dealing with cases around the country, the firm has been at the forefront of legal service provision for over thirty years.
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