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Relocating with Children? – Beware!

16th May 2017

CM v ER (AP) [2017] CSIH 18
In May 2016 the one year child in this case was taken from Australia to Scotland by his mother. A return ticket was booked for 8 August 2016. On 20 June 2016 the mother informed the father that she and the child were not returning. The father initiated proceedings under the 1980 Hague Convention and at a final hearing in November 2016 the Judge ordered the child’s return to Australia. The mother appealed. She claimed that the child had become habitually resident in Scotland. She said they had visited friends and family, and had registered for a dentist, doctor, with the library and for swimming lessons etc. The Inner House (Appeal Court) said she had simply taken steps to care for the child during a long holiday. Also the date of “wrongful retention” was 20 June 2016 when she told the father she was not returning the child. That made her argument even weaker as she then had to prove that the child had become so integrated at that date that he had lost his habitual residence in Australia. The Inner House did not accept that and agreed the child should be returned to Australia. This case serves as a reminder that the courts will rigorously uphold the Hague Convention except in the most extreme of cases. Accordingly if you are planning to relocate with your child outwith the UK without the other parent early legal advice is key to avoid unnecessary problems.

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