Outer House judge orders that child of Canadian and Englishman resident in Scotland be returned to Canada

Lady Wise
Lady Wise

A judge in the Outer House of the Court of Session has ordered that the young child of a Canadian citizen be returned to Quebec to live with her after an application was made for his return under the Hague Convention on Child Abduction.

The mother, ML, petitioned the court for an order after the father, JH, an Englishman living in Aberdeen, refused to return their child to her by an agreed return date. The child had been living with his father temporarily under the terms of a signed agreement since September 2020.

The case was heard by Lady Wise. The petitioner was represented by McAlpine, advocate, and the respondent by Cheyne, advocate.

Moved provinces

The child, referred to in proceedings as ‘Fraser’, was born in Canada in September 2019. He lived in Canada throughout the first year of his life other than during a visit to Scotland over the festive period in 2019 and 2020. The respondent and the petitioner were neither married nor co-habiting at the date of Fraser’s birth, although they had been in a relationship since 2016.

In June 2020, the respondent visited the petitioner and Fraser in Canada. The parties agreed in September 2020 that the respondent could take Fraser to Scotland for a period but that he must be returned to Canada no later than 15 December 2020. Fraser was not returned to Canada on that date, and the respondent refused to return him to the petitioner when she came to Scotland to collect him.

The petitioner raised proceedings seeking Fraser’s return in early February 2021. There were procedural delays caused partly by the late lodging of documentation that required to be considered by the petitioner and because of the late focus on the legal significance of the mother’s move from Ontario to Quebec six days before Fraser’s departure for Scotland in September 2020.

It was undisputed that the parties’ relationship was not a stable one, and that the petitioner had suffered from mental health difficulties from time to time. In June 2020, the petitioner was living in her mother’s home, which she and the respondent agreed was not the best place for the child to be cared for, leading to the discussion about taking him to Scotland. While Fraser was in Scotland, the respondent did not register him with a GP nor taken him to a nursery or other infant playgroup.

The petitioner contended that her move to Quebec, which was her province of birth, was intended to be permanent, and that her return there had resulted in Fraser’s habitual residence shifting there from Ontario with almost immediate effect. The position of the respondent was that Fraser had become habitually resident in Scotland by the agreed return date, and that he had been “in transit” from Ontario to Scotland during the petitioner’s move to Quebec.

The respondent argued that, as the petitioner had lived the greater part of her life in Ontario, and the child had lived there for almost all of his short life, any habitual residence in Canada in September 2020 was in Ontario. Further, at the time the petitioner arrived in Scotland to collect the child, he was not convinced that she had sought help for her mental health issues, as was also required by their agreement, and so made a decision that Fraser should remain with him.

Entirely artificial

In her decision, Lady Wise began by noting: “[Fraser] was a young infant who had been in the care of his mother throughout the first year of his life. Until he was brought to Scotland in terms of the agreement for an agreed limited period there was no question but that he would live wherever his mother lived.”

She continued: “It would be entirely artificial to regard Fraser as having retained a habitual residence in Ontario when he, his mother and their joint belongings had moved to Quebec with a plan to remain there, other than for the subsequent agreement to a limited period in Scotland.”

Moving on to consider whether Fraser lost his habitual residence in Quebec while he was in Scotland, she said: “The issue of habitual residence is now considered to be a fact sensitive one where the degree of integration by the child in a social and family environment requires scrutiny. As Fraser had been resident in Quebec for only a short period it might have been easier for him to lose that habitual residence and gain a new habitual residence in Scotland if the circumstances here were illustrative of stability.”

On whether this has happened in this case, Lady Wise explained: “The trip had all the hallmarks of an extended trip rather than a change of residence for the child. By 15 December 2020 Fraser had not been registered with a doctor and did not attend nursery or play group. That is what one would expect if the period in Scotland was in the nature of a visit or short stay rather than the acquisition of a stable residence.”

Considering whether there was a defence to his return in terms of the petitioner’s mental health problems, she said: “The voluminous material lodged supports a tentative view that both parties appear to have acted immaturely at times, but both have also exhibited a caring attitude towards their son. A careful analysis of the petitioner’s current mental health will be required. All I can say at this stage is that the respondent’s proposal that he return to Canada with the child if that is the decision of the court seems sensible.”

Lady Wise concluded: “If the parties cannot then agree on interim arrangements in terms of where the child should live and the contact he should have with the other parent, pending longer term decisions being made, that matter could be regulated within the court proceedings in Quebec.”

For these reasons, the petition was granted. A hearing was fixed to determine the specific arrangements for Fraser’s return to Quebec.

© Scottish Legal News Ltd 2021

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