Lord Ordinary refuses to authorise return of children to father with alcohol issues in Netherlands

About this case:

• Citation:
  [2023] CSOH 34
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lady Carmichael

Petitioner BW, the father of children referred to as “Anna”, 15, and “Finn”, 12, contended that their mother, CM, had wrongfully retained them in Scotland after they were brought there in May 2022. It was common ground that both parents had parental authority in relation to the children, with CM asserting that the children became habitually resident in Scotland after they were brought over.

The petition was considered by Lady Carmichael in the Outer House of the Court of Session. D Reekie, solicitor advocate, appeared for the petitioner and Bradbury, advocate, for the respondent.

Planned with assistance

In 2015 the petitioner and CM divorced. They agreed that CM would return to Scotland and the children would stay in the Netherlands in the care of their father. Dutch social services became involved with the family in 2020 after concerns were raised about the petitioner’s problematic use of alcohol. Social workers became concerned in early 2022 that matters were deteriorating, which led to social worker SJ contacting CM to ask whether the children could come to Scotland.

In May 2022, CM brought the children to Scotland with the petitioner’s consent. His position was that he had only consented to them coming to Scotland for a holiday and, while he did not specify a date at which wrongful retention occurred, he expected them to return to attend school in the Netherlands “after the end of July 2022”. It was CM’s position that there was a grave risk that a return to the Netherlands would expose Anna and Finn to harm or otherwise place them in an intolerable situation.

For the petitioner it was submitted that it was understood by him and by the children that the Scotland visit was only a holiday. Anna and Finn had conveyed that understanding to others, including the reporter appointed to ascertain their views. The children had not been deregistered from all services in the Netherlands and remained registered with opticians and a doctor in the Netherlands as of November 2022.

Counsel for the respondent submitted that the move to Scotland had been planned with the assistance of social workers, and the authorities in the Netherlands had closed their case on the basis that the children were no longer resident there. Both had a settled family life with their mother in Scotland, had begun school in Scotland and had become part of the local community.

Swifter integration

In her decision, Lady Carmichael began by noting: “This is not a situation in which CM established a new place of residence for herself in 2022. She had already been living in Scotland since 2015. She is Scottish. She attends university in Scotland and lives close to members of her family. Her settled situation is one which of its nature lends itself to swifter integration into the local community for the children than would likely be the case if she had no previous connection with Scotland, and with the area where she lives.”

On the reasoning behind the children’s stay in Scotland, she said: “The Dutch authorities actively sought the cooperation of CM in having the children come to live with her long term. By the end of July 2022 they had spent nearly three months in Scotland. There is no dispute that they initially had some classes online in Dutch, but they also began attending school in Scotland before the summer holidays in 2022. They began to integrate into the life of their local community at an early stage during their stay in Scotland.”

She went on to say: “I am unable to attach significant weight to the account from the children that they understood they were coming to Scotland only for a holiday. I attach relatively little weight to the circumstance that the children may have remained registered with some services in the Netherlands. Unlike education services, they are not services that are used continuously. CM is unlikely to have had any pressing reason to deregister the children from those services, and is unlikely to have known of any planned appointments with them.”

Lady Carmichael concluded on the issue of risk: “I consider that is more likely than not that the children, if returned to the Netherlands, would immediately be subject to some form of inquiry and intervention by Dutch social services, on an emergency and unplanned basis. Given the circumstances in which they came to leave the Netherlands, it is inconceivable that they would, if initially in his care, remain in his care for long without the suitability of that arrangement being subject to scrutiny.”

The petitioner’s application was therefore refused.