Parental international child abduction arises where one parent (the abducting parent) removes a child from the state where the child usually lives to another state without the consent of the child’s other parent (left behind parent) in breach of the left behind parent's right to determine where the child lives ("right of custody"), or in breach of a court order.
What is the 1980 Hague Convention on Civil Aspects of International Child Abduction?
The 1980 Hague Convention is an international convention designed to ensure the swift return of abducted children across international boundaries to the countries of their habitual residence. If a child is abducted to or retained in a country which is a signatory to this convention (most countries in Europe are signatories along with the US, Australia and New Zealand) an application can be made for return of the child under the Hague Convention.
Each participating state has its own Central Authority responsible for transmitting and receiving applications on behalf of left behind parents. Governments and courts in each signatory state work closely together to ensure that abducted children are returned to the country of their habitual residence as quickly as possible.
What can I do if my child has been taken to Scotland?
If your child has been taken to or retained in Scotland without your consent from another Hague Convention state then you will be able to seek their return under the Hague Convention.
If this occurs, you should urgently contact the Central Authority in your country who will transmit your initial application for return of your child to the Central Authority in Scotland. The Central Authority in Scotland will then appoint a specialist solicitor to raise an action in the Court of Session in Scotland for the child's return.
What can I do if my child has been taken from Scotland?
If a child has been taken from Scotland and retained in a Hague Convention state then an application for return of the child can be made under the Hague Convention.
If the child has been taken to or retained in a country which is not a signatory to the Hague Convention then the options available will largely depend on the state to which the child has been taken.
What defences can I make use of to help my child stay in Scotland?
The convention presumes that a child will be returned unless one of the few narrow defences is established, these include:
1. Settlement
The court can refuse to return a child who, at the time the application is made, has been settled in their new environment for 12 months following the wrongful removal/retention. The reason for this is that it may not be desirable or possible to return a child once they have spent considerable time in a new environment without an examination of the merits in doing so. This is in recognition of the potential adverse effects on a child of uprooting them from their new environment.
2. Consent
The court is not bound to return a child if the left behind parent consented to the abduction or retention. Consent can be express or implied and it must be shown that at the time of the removal there was consent which had not been revoked.
3. Acquiescence
Acquiescence is an inference or implication drawn from the left behind parent's behaviour or failure to act in response to the abduction or retention. This may be inferred from r conduct inconsistent with an intention to insist on the return of the child or from something more passive e.g. a failure to insist on the return of the child for a significant period of time.
4. Child's objection
The court may refuse to return a child who objects to being returned. The court will assess the child's reasons for objecting. Factors such as the child's age, maturity and understanding of the situation will be considered. The presumption that only children of 12 are capable of forming a view is no longer part of Scots law and the views of any child "capable" of forming a view will be considered.
5. Grave risk of harm
The court has discretion not to order the child's return if doing so would place the child at " grave risk of physical or psychological harm or otherwise in an intolerable situation ". Risk of harm to the parent alone is not sufficient. It is presumed that the court in the country to which the child is to be returned is able to put in place enforceable protective measures (e.g. where there are allegations of domestic violence), and otherwise to deal with welfare considerations in relation to the child.
How we can help
Applications under the Hague Convention are complex and any parent in this situation requires urgent expert advice. You can download our full International Child Abduction Route Map and Glossary here. Our specialist family lawyers are regularly instructed either to secure the return of abducted children or to defend applications for return. If your child has been taken abroad or you fear that this may imminent, or if you have arrived in this country with your child and are facing a return application, contact our family law team for urgent assistance.
