Outer House judge rules children of dual citizens acquired habitual residence in Scotland despite contract agreeing they would not
A judge in the Outer House of the Court of Session has ruled that two children of UK citizens who emigrated to New Zealand acquired habitual residence in Scotland following the couple’s divorce.
The petitioner, F, the child’s father, sought orders under the Child Abduction and Custody Act 1985 against his former spouse, M, arguing that they had only agreed to stay in Scotland temporarily. Both parties had held dual nationality of the UK and New Zealand since 2017.
The petition was heard by Lady Wise. The petitioner was represented by McAlpine, advocate, and the respondent by Hayhow, advocate.
The petitioner and respondent left the UK in 2009 to live and work in healthcare in New Zealand. Their daughter, “Madeline”, and son, “Duncan”, were both born there in 2014 and 2017 respectively. By 2019 there had been some difficulties in the parties’ marriage. As a result, they both signed an agreement to come back to the UK to live for a trial period of at least 12 months.
By April 2021 the marriage had broken down, with divorce proceedings initiated on 2 June 2021. The petitioner, who had taken a sabbatical from his employment in New Zealand for the duration of the trial, raised proceedings for the return of the children, contending they were being wrongfully retained in Scotland in breach of the agreement.
The terms of the agreement stated that New Zealand was to be the place of habitual residence for the children, and that the period of residence in the UK was not to affect this. Further, any agreement to remain in the UK with the children was to be a joint agreement, made upon a genuine belief of what was in the best interests of the children.
The respondent contended that the children had become habitually resident in Scotland by the relevant date, 3 June 2021. Both children had begun to attend school and nursery, and although this had been disrupted to some extent by the pandemic, they had made friends and been able to socialise with them outside those environments.
While the petitioner acknowledged the level of integration the children had achieved was substantial, he placed reliance on the agreed temporary nature of the stay in the UK as outlined in the agreement. Counsel for the respondent submitted that all of the evidence supported the view that the children’s residence in Scotland was stable and settled.
Not parcels of property
In her decision, Lady Wise said of the agreement: “Neither party disputes that it is an ex facie valid agreement made following independent legal advice on both sides and after certain adjustments and amendments to it were made on the basis of that advice. The respondent makes certain allegations about her husband’s behaviour towards her and the impact of that on her, but she does not suggest that she lacked capacity to enter into the agreement.”
She continued: “I accept the submission made on behalf of the petitioner that this agreement is, on the face of it, a detailed contract entered into by two highly educated professional people with the express purpose of regulating the care arrangements for their children during a temporary or trial period in Scotland.”
However, addressing whether the agreement had any effect on the children’s habitual residence, she said: “Indisputably the children’s integration [in New Zealand] ran very deeply. On the other hand, the move to Scotland was pre planned and carefully executed and for children of that age, a change in their place of residence for a year would always have amounted to a considerable alteration of the component parts of their world.”
She went on to say: “As Scotland was not in any sense a new or foreign country to either of the parties, there is no sense in which this family’s residence here could be seen as a transitory or unsettled presence in a foreign land. In summary, from the children’s perspective, there has been nothing remarkable about their lives in Scotland prior to June 2021. They have shared a home with both parents all year, attended school, visited extended family and socialised with friends.”
Lady Wise concluded: “Returning to the starting point of the clearly stated parental intention, I consider that it is a relevant and in this case quite important background factor, but one that is, in the particular circumstances, overwhelmingly outweighed by the undisputed evidence of the children’s unremarkably stable routine and existence in Scotland for a lengthy period. The parties cannot contract out of the Hague Convention to avoid their children becoming habitually resident in another state.”
She added to this: “Formal agreements entered into in good faith by two adults of sound mind should not be readily ignored or set aside. However, while the unusual feature of this case is the detail of the agreement and its formality, the principle remains the same. It accords with the policy of the Convention that children are not parcels of property whose future can be determined solely by the contracts or actions of adults.”
For these reasons, Lady Wise determined that the children had acquired habitual residence in Scotland, and accordingly refused the petition.