A recent case before the Court of Session throws up the problems that may face families who live apart in different countries, even where there is at first no family breakdown. The Child Abduction and Custody Act 1985 gives effect in Scots law to the 1980 Hague Convention on the Civil Aspects of Child Abduction. It is meant to give a parent whose child has been wrongfully removed from its home by the other parent a means to return that child to its home jurisdiction so that the courts there can sort out the parents’ disagreement.
Mr and Mrs R lived in France where their three children were born and both parents worked. After the birth of the youngest child the couple agreed that Mrs R would come with the children to live near her parents in Scotland for a year and that a longer term decision about where the family should live would be taken then. The oldest child was enrolled in nursery. The family home in France was sold. Mr R visited the family in Scotland and they took holidays together in France, but the parents’ relationship broke down after a few months living apart. Mrs R took court action in Scotland seeking a formal residence order for the children. Mr R applied under the Child Abduction and Custody Act 1985 (which gives effect in Scots law to the 1980 Hague Convention on the Civil Aspects of Child Abduction) for the children to be returned to France so that the dispute about the their future could be decided there, which Mrs R opposed.
The dispute turned on whether the children had become habitually resident in Scotland when the court proceedings began. The first judge thought not, because Mr R had not agreed that the children should stay permanently in Scotland, and they had therefore kept their French residence. The appeal court decided that they had become habitually resident in Scotland: though the agreement of both parents is a relevant factor in deciding whether children have changed their habitual residence, it is not the only one and, since Mrs R and the children had established a stable home in Scotland, this was enough to anchor them here.
The case highlights the unintended consequences of what probably began as a quite innocent family arrangement that suited everyone. Always hope for the best, but prepare for the worst: where families are going to be living in different countries for even relatively short periods, it is wise to seek advice beforehand about what might happen if things go wrong so that any possible protective steps can be taken before it is too late.