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 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.
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 93 different countries who are known as Member States.
Our team of Family Law solicitors have experience in assisting families seeking to have their child returned home. It is important to note that the foreign court 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 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 foreign court must order the return of the child.
There are very limited exceptions to this rule however. The foreign court may refuse to make a decision to return the child to his/her habitual residence if it can be demonstrated that the child has now settled in their 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 if it can be established that to return the child to his/her habitual residence would place him/her in danger or in an intolerable situation.
We also have experience on the other side of such disputes. Our solicitors have also represented parties who have come to Scotland with their child from abroad and the other party is seeking their return. We have defended the action for return on their behalf based on the grounds outlined above.
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 as you become aware that the child has been removed. Time is of the essence in seeking to have the child returned.
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