AR, Re An Order Under The Child Abduction and Custody Act 1985: SCS 14 Nov 2014

(Extra Division, Inner House – Opinion of Lord Malcolm) – appeal in application for order of return of two children to their father in France. The partis disputed whether Scotland had become habitually resident in Scotland, and also whether the father had consented to their removal to Scotland.
Held: The Lord ordinary granted the appeal against the order in favour of the father. The Lord Ordinary had erred in law in treating a shared parental intention to move permanently to Scotland as an essential element in any alteration of the children’s habitual residence from France to Scotland. This error had deflected him from a proper consideration of the factors relied upon by the mother. Considering the matter afresh, in the light of the guidance provided by the Supreme Court, the Division now concluded that the children were habitually resident in Scotland at the material time: ‘If the salient facts of the present case are approached in accordance with the guidance summarised earlier, the key finding of the Lord Ordinary is that the children came to live in Scotland. The real issue is whether there was a need for a longer period in Scotland before it could be held that there had been a change in their habitual residence. For our part, in the whole circumstances we would view four months as sufficient.’

Lady Paton, Lord Drummond Young, Lord Malcolm
[2014] ScotCS CSIH – 95, 2015 SCLR 215, 2015 SC 310, 2014 SLT 1080, 2014 GWD 37-686, [2014] Fam LR 131
Child Abduction and Custody Act 1985
Appeal fromIn Re AR (An Order Under The Child Abduction And Custody Act 1985) SCS 17-Jun-2014
The two girls were with their mother in Scotland. The father, living in France, sought their return to France:
Held: The court granted the father’s application. The Lord Ordinary: ‘After considering all the relevant evidence I am satisfied . .

Cited by:
Appeal fromAR v RN (Scotland) SC 22-May-2015
The court was asked whether it should order the return to France of two little girls who have been living with their mother in Scotland since July 2013. The issue arose under article 3 of the 1980 Hague Convention on the Civil Aspects of . .

Lists of cited by and citing cases may be incomplete.

Scotland, Children

Updated: 23 December 2021; Ref: scu.539141