The Case Files: Parental rights and habitual residence - insights from a complex case

00:00:05 David Lee, Host

Hello and welcome to Podcasts by Brodies. My name is David Lee and this episode is part of The Case Files series, which looks back at significant cases from legal history. In each episode, we talk to Brodies modern day lawyers to discover how their predecessors helped shape how the law is applied today.

Today we're focusing on child abduction and specifically, the habitual residence of a child.

In a child abduction case, the child will typically be returned to the place they're habitually resident, so identifying that definition is crucial, and there are often questions arising about whether a child's habitual residence has changed or not.

I'm joined today to discuss these issues by two Brodies experts. Susie Mountain is a partner, solicitor advocate and an accredited specialist in family law, with expertise in cross-border and international family law cases and Debbie Reekie is a senior associate and solicitor advocate, a mediator and also an accredited specialist in family law. Welcome to you both.

So, if I can start with you, Debbie, when parents separate, can you just tell us what are the main principles relating to access or contact with children?

00:01:24 Debbie Reekie, Senior Associate & Solicitor Advocate

Of course, when parents separate arrangements need to be made for the care of the children.

Often parents can come to an agreement between themselves, feeling which the court can be asked to make orders regulating a child's care. The court can make a residence order, and that's where the child should live, and the court can make a contact order. And that is an order that a child spends time in, which can include time overnight with a parent.

The court has to consider what is in the best interest of the child. Crucially, it's the child's best interests that are important here and not the parents.

The welfare of the child is a paramount consideration for the court. The court operates on sorry, the court operates on a non intervention principle. What that means is the court should only make an order if it's better that an order is made but no order is made at all.

Very generally, the starting point is it's based for children to have a relationship with both of their parents. How much time they will spend with both will very much depends on the individual child and the individual family. There are lots of separated parents who successfully marriage a shared care arrangement, but that doesn't work for all families.

Another case is the child or children will live with one parent and then spend time with the other parent.

00:02:35 David Lee, Host

OK. Thanks very much, Debbie. And and Susie, does any of that change when the parents move abroad and if so, what does change?

00:02:43 Susie Mountain, Partner

OK. Thanks, David. So under Scott's law, usually parents have equal parental rights and responsibilities in respect of a child. And as Debbie has said, decisions will be determined with reference to what's in their best interests. And parents also have an obligation to consult with one another in making decisions about their child.

Now, it may be that if parties and their children or one of the parties and the child moves abroad and the child acquires a bitual residence, which we're going to explain a wee bitmore about later in that new country than any matters relating to the child will be dealt with under the law of that new country.

So it can make quite a big difference, but if one party wishes to move abroad with the child, then in the absence of consent from the other, then a court order may be required.

And without consent, the child may be regarded as having been abducted. Should they be removed from Scotland and retained in another country, and what we're going to speak about today is the 1980 Convention on the Civil Aspects of International Child Abduction.

Which is an international legal instrument which governs how countries who are signatories to the Convention will deal with that scenario where a child has been unlawfully removed or retained.

And the ethos of that is that when a child has been wrongfully removed or retained from their country of origin, then the child should be returned to that country except in very limited circumstances in order that any decisions about their future care arrangements can be taken.

00:04:15 David Lee, Host

OK. Thank you, Susie and Debbie. We've, we've heard habitual residents mentioned a couple of times there by Susie. Can you just give us a kind of clear definition of what we mean by habitual residence and why is it so important in the context that we're going to discuss today?

00:04:31 Debbie Reekie, Senior Associate & Solicitor Advocate

Yeah, absolutely. To be habitually resident somewhere, you have to show that the centre of your interests are there. That's usually determined by where you primarily live, what links you have to a country, perhaps, where you work, where your children go to school.

And such like, there's no defining feature of habitual residence, but to most it's the country where you spend most of your time, and you've put your roots down.

The importance of habitual residence in in cases where a child has been abducted, abducted in either unlawfully removed from 1 country to another or, in the event they were lawfully removed, for example in a holiday unlawfully routine, then the law says that the child must be returned to the country where they are habitually resident. There are various instances where the court is not bound to order the return of a child. For example, if a parent has agreed to the removal or retention, or if there's a grievous risk that the return would expose the child to physical or psychological harm, or otherwise put the child in an what they call an intolerable situation. In the case that we're going to talk about today. The issue of where the child was habitually resident was important and because it had a crucial bearing on whether the Scottish courts should order that the child should be returned. In this case, it was to Switzerland or not.

00:05:48 David Lee, Host

OK. Thanks very much, Debbie. So Susie, a little bit of a teaser there about the case we're going to talk about. Can you tell us about the case and and the parties involved and how Brodie's got involved in the case as well?

00:06:02 Susie Mountain, Partner

Yeah, of course. So, yeah, a nice teaser there from Debbie. But today the case we're going to talk about is D against D so this is a child abduction case. And now Brodie's became involved as Edinburgh agents instructed by a Dundee firm who were acting on behalf of the respondent mother. So this is something that Brodie's that we quite regularly do will sometimes be instructed by other firms.

Due to our expertise in dealing with Court of session cases, so we were brought in essentially as a local agent. So it's a very interesting case and quite a peculiar set of circumstances. But in this case, the father of the child petitioned the Scottish Court for the return of his five year old son.

Who'd been removed to Scotland from Switzerland by his mother? So by way of background, the child was born in Scotland on the 19th of December 1995. And when the child was 4, the family moved together. They were still together at that time. They moved to.

To Germany.

They then moved from Germany to Switzerland, but it was a really geographically a really small move, so they remained within the same locality. They essentially just moved to a town a very short distance away. But because of because of the geography, that actually meant that they had moved from Germany to Switzerland.

And so they did that on the 1st of September 2000, but did not register the child with a doctor, dentist or kindergarten. And the respondent did not obtain a resident residence permit for.

So move this short distance, but in fact had completely changed country. Now the marriage was in some difficulties and on the 22nd of September the petitioner moved in with his girlfriend in Germany and then just returned to Switzerland, occasionally to visit.

The child S.

A month after arrival in Switzerland, the petitioner discovered that the respondent had actually removed S to Scotland.

And on the 19th of December, the petitioner contacted the British Embassy embassy expressing concern for SS welfare because he had some concerns about the respondents mental state and requested that SB located and that a welfare cheque was carried out.

So some four months after the removal was first discovered, the Swiss authorities applied to Scotland for the return of S.

00:08:21 David Lee, Host

OK. Thanks very much. Yeah, quite quite an interesting complex case. As you've said there. So, so, Debbie, when the Swiss authorities then applied for the return of the child on behalf of the father? Who considered? You know where was the case considered and why? And then what decision was reached?

00:08:40 Debbie Reekie, Senior Associate & Solicitor Advocate

Keith as Suzy has mentioned it is brought under a convention called the Heat Convention on the Civil Aspects of International Child Abduction, which is is usually called The Hague Convention. He case is always raised in the court session in Scotland in the Court of Session is the highest civil court in Scotland.

The case was heard by 1 judge called a Lord Ordinary. The case was then reclaimed. Basically. That means it was appealed and the case was then heard by three judges, including a judge called the Lord President and the Lord President is the most senior judge in Scotland, and he basically presides over the Court of Session.

At first instance, the judge in this case found that the child was habitually resident in Switzerland and ordered his return there. When parents separate a child's habitualities habitual residence cannot be changed by one parent.

Place the other consents to the change.

The judge in this case placed weight on the fact that the parties moved for the petitioner's work. The work was not temporary in nature. It was a permanent contract and he was at a medical register. The judge took into account the fact that the parties moved forward. Various tax and administrative reasons.

Again, that was relating to the the petitioner's employment and also because the accommodation was bigger and better, more comfortable.

It was in his view, a substitute residence in the sense that they didn't leave the general idea in which they lived, although they did cross an international border. The judge place wait on the fact that because they were only moving a few kilometres, the family were already quite settled and they settled into their new home, really within just a few days of moving.

The period of their residence, although only very short, was therefore enough, in his view, for them to be classed as habitually resident there.

The judge didn't really consider that the petitioner moving back to Germany to be with his girlfriend, had much of an impact. He considered that was a terminate, a temporary arrangement only and that accommodation in Switzerland had actually been chosen to be there, settled in family home. So he ordered the child return on that basis.

00:10:44 David Lee, Host

Thanks very much, Debbie. You've explained that very, very clearly. And again remembering that although we refer to the participants here by letters or on their full names, there are people very much at the heart of this story.

And Susie, how did the respondent, the mother in this case, react to that first decision in the Court of Session? And Debbie had mentioned there that there was then a reclaim petition. If you can just explain what happened. Next in this.

00:11:13 Susie Mountain, Partner

Case yes, of course. So mum, of course, was obviously not very happy with that decision. So she reclaimed or appealed that decision, and it was, as Debbie said, heard by three judges, including the Lord President.

Now the reclaiming motion was allowed because the court said that it could not be shown that the parties the parents had any settled shared intention in regards to residence and in particular, as to the residents of their child. So the court said that the period that had been spent in Switzerland was too short.

And the conditions and circumstances of the parties living there were too unsettled and uncertain to justify an inference that anyone, in particular the child, had acquired a habitual residence there.

So in the absence of a finding of there being habitual residence in Switzerland, there was no basis for the petitioners claim and the reclaiming motion should therefore be allowed and the prerogative petition, as they say, refused. So the circumstances that led to the court finding that the child was not habitually resident in Switzerland without his parents did not agree nor

have a shared intention in respect of the move that they made and of the residents of the child. Both parties in this case had lodged affidavits which are sworn statements the court and they were at odds with each.

They were at odds with each other in their understanding of the basis on which the move had been made. So the petitioner Father said that he'd told the mother about his affair in May 2000.

Whereas she says she was ignorant of it until September or October of that year. The petitioner said that his wife moved with him only because she had nowhere else to go and that the plan that the plan was that she would move out.

She said that she was asked to hang on while he made a decision about the marriage and the affair. Now the petitioner said that it was his intention to stay in the Swiss town whereas the respondent said that he'd been applying for jobs elsewhere. The petitioneralso said that they took steps to set up home in the Swiss town where, if the respondent says they were camping out with only the bare essentials and that there was no arrangement for her to obtain a residence permit or to discuss enrolling the child in nursery.

The petitioner says it was intended that the child was stay in Switzerland with him whereas the respondent says that there was no such intention. So basically they were completely at odds on almost every point in relation to why they were there. Why were they in Switzerland? The court also took into account the fact that the petitioner moved to Switzerland with the respondent, but that when she did not leave, he returned to Germany.

00:13:42 David Lee, Host

Thank you, Susie. Obviously, as you say, there's two very different versions there. So, then you know what happened next, Debbie and why was this case so distinct and significant?

00:13:55 Debbie Reekie, Senior Associate & Solicitor Advocate

So, in the absence of a finding of habitual residence in Switzerland, there was no basis for the petitioner's claim, and the reclaiming motion should therefore be allowed and the prerogative petition refused. The circumstances that led to the court finding that the child was not habitually resident in Switzerland were that his parents did not agree or have a shared intention regarding the move they made and the residence of the child. Both parties in this case had lodged affidavits, which are sworn statements to the court, and they were at odds with each other in their understanding of the basis on which the move had been made.

The petitioner, the father, said that he'd told the mother about his affair in May 2000, whereas she said she was ignorant of it until September or October of that year. The petitioner said that his wife moved with him only because she had nowhere else to go and that the plan was that she would move out. She said that she was asked to stay while he decided about the marriage and the affair. The petitioner said that it was his intention to stay in the Swiss town, whereas the respondent said that he'd been applying for jobs elsewhere. The petitioner also said that they took steps to set up a home in the Swiss town, whereas the respondent said they were camping out with only the essentials and that there was no arrangement for her to obtain a residence permit or discuss enrolling the child in nursery.

The petitioner said it was intended that the child would stay in Switzerland with him, whereas the respondent said that there was no such intention. So, basically, they were completely at odds on almost every point in relation to why they were there. The court also considered the fact that the petitioner moved to Switzerland with the respondent, but that when she did not leave, he returned to Germany.

The case was significant because of the way it treated the competing evidence of the parties. So there was no joined-up evidence relating to their intentions, where they were going to live, or their child's habitual residence. One of the things I mentioned before is that when parents separate, their child's habitual residence can't be changed by one of them unless the other consents or agrees to that. And that just didn't happen in this case. Because their evidence was so at odds with each other, there couldn't be any kind of joined-up thinking made between them.

I think for lawyers, habitual residence is a concept that we all know about, and its application to particular facts and circumstances can be quite difficult. I think it's easy to see why the judge in the first instance found that the child was habitually resident there. You can understand why they reached that decision. I think for lawyers it's just really important to think quite carefully about a child's habitual residence, whether that has changed, and what the parties' thoughts and intentions are behind any kind of move, and what impact that's had on their child and the child's habitual residence.

00:15:06 David Lee, Host

Thank you, Debbie. Susie, just to wrap up, what changed because of this case, and why is it so important to the way that the law is applied in your field today?

The approach adopted in this case continues to be used today and has been referred to even in very recent judgments. Habitual residence continues to be key in cases of this nature, and it's important to remember that a person, a child, can only have one habitual residence at a time, so it can be very difficult when you have very quick moves.

The case was really a significant because of the way it treated the competing evidence of the parties, so there was no.

Joined up evidence relating to their intentions or on where they were going to live or on their child's habitual residence, and one of the things I mentioned before is is that when parents separate their child's habitual residence can't be changed by one of them unless the other consents are agrees to that.

And that just didn't happen in this case, because there evidence was so at odds with each other, there couldn't be any in kind of joined up thinking made between them.

I think for lawyers, habitual residence is a concept that we all know about and it's application to particular facts and circumstances can be quite difficult and I think it's easy to see why the judge in the first instance found that the child was habitually resident there.You can understand why, why they have reached that decision. And I think for lawyers it's just really important.

Quite carefully about a child's ability, a bit sure, residents and whether that has changed and what the parties, what their thoughts and intentions are behind any kind of move and what impact that's had on their child and the child's habitual residence.

00:15:06 David Lee, Host

Thank you, Debbie. Finally, Susie, just to wrap up, what changed as a result of this case and why is it so important to the way that the laws applied in your field today?

00:15:18 Susie Mountain, Partner

Law adopted in this case continues to be used today and has been referred to even in very recent judgments. Habitual residents continue to be key in cases of this nature, and it's important to remember that a person, a child could only have one habitual residence at a time, so it can be very difficult where you've got very quick moves.Each case does turn on its own facts, and the case law indicates that a child's habitual residence is the place where they are integrated in a social and family environment, and this can be demonstrated by a whole range of factors, as Debbie said at the outset, which might include the language the child speaks, where they go to school or nursery. Where they're registered with doctors and dentists and whether family and friends are based and the other key thing from this case is that the approach which was taken in relation to affidavits and whether disputed affidavits could be used as a substitute for oral evidence.

Has also been endorsed in cases which followed.

The approach adopted in this case continues to be used today and has been referred to even in very recent judgments. Habitual residence continues to be key in cases of this nature, and it's important to remember that a person, a child, can only have one habitual residence at a time, so it can be very difficult when there are very quick moves. Each case turns on its own facts, and case law indicates that a child's habitual residence is the place where they are integrated in a social and family environment. This can be demonstrated by a whole range of factors, as Debbie said at the outset, which might include the language the child speaks, where they go to school or nursery, where they're registered with doctors and dentists, and whether family and friends are based nearby.

Another key point from this case is the approach taken in relation to affidavits and whether disputed affidavits could be used as a substitute for oral evidence. This has also been endorsed in subsequent cases.

00:16:12 David Lee, Host

Thank you for explaining that really clearly. Susan, just to be crystal clear, if you can just explain what did happen to child's in this case, did the child continue living with the mother in Scotland as a result of this judgement.

00:16:31 Susie Mountain, Partner

So, as a result of this judgement, the child did remain living with mum in Scotland and that's as far as our knowledge takes us. Who knows what happened after that. So any decisions about what should happen in the longer term for the child would then have been taken by the Scottish courts moving forward.

00:16:49 David Lee, Host

Thank you very much to Susie Mountain and to Debbie Reekie for your expert insights today. You've been listening to an episode of The Case Files, which is part of Podcast by Brodies where leading lawyers and special guests share their Enlightened Thinking about issues and developments in the legal sector and what they mean for organisations, businesses and individuals, if you'd like to hear more, please subscribe to Podcasts by Brodies on all your favourite podcast platforms and for more information and insights, please visit brodies.com.