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Supreme Court denies return of children to France

The Supreme Court has dismissed a French father’s bid to have his two daughters returned from Scotland.

In Re AR (Children) (Scotland), the girls’ mother, represented by James Turner QC, was a British citizen who gave birth to them in France while in a relationship with the father. The family often visited the mother’s parents who lived in Scotland.

In July 2013, the mother took the children to Scotland to live while the father stayed in France. He had agreed to the move, however, the parents both gave different reasons for his agreement. The father claimed that the plan was for the mother to spend 12 months in Scotland as part of her maternity leave. After that she would return to France. However, the mother claimed that they had agreed she would leave France permanently.

A few months after the move, the mother discovered that the father had been unfaithful, ended the relationship and began legal proceedings to secure a residence order for the children. Such an order states which parent a child or children should live with.

In response, the father launched proceedings of his own under The Hague Convention on the Civil Aspects of International Child Abduction. This is an international treaty which facilitates the return of children who have been taken out of their home country by a parent.

The Outer House of the Court of Session, one of the two parts of Scotland’s highest civil court, ruled in the father’s favour. The judge at that hearing ruled that the children legally lived in France and granted the father’s appeal.

This decision was then reversed by a judge in the Inner House of the Court of Session, the other part of the Scottish civil court. That court ruled that the initial judge had made a mistake “in treating a shared parental intention to move permanently to Scotland as an essential element in any alteration of the children’s habitual residence”. This means that, under the Hague Convention, even if the father’s account of the parents’ agreement was true, it would not be adequate grounds on its own to order the children’s return. The Inner House also ruled that the amount of time the girls lived in Scotland was sufficient to establish residence there.

The father then appealed to the UK Supreme Court against the Inner House’s ruling. His lawyer argued that there had been no error on the part of the original judge.

In the Supreme Court’s judgment, Lord Reed said he was “unable to accept that submission”. He emphasised that while parental intentions were important in these kinds of cases, “they are not the only relevant factor”. He concluded that the Inner House’s decision was correct.

The father’s appeal was unanimously dismissed by Lord Reed and the other four justices who heard the case.

Read the Supreme Court judgement here.

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. As well as pieces from our family law solicitors, guest contributors also regularly contribute to share their knowledge.

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