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On appeal from: [2014] CSIH 95

The Supreme Court unanimously dismissed the appeal concerning proceedings under the Child Abduction and Custody Act 1985 to secure the return of the appellant’s children from Scotland to France, where he was resident.

The appellant argued that the proceedings seeking a residence order in respect of his children and an interdict against him removing them from Scotland was a wrongful retention within the meaning of the Hague Convention on the Civil Aspects of International Child Abduction, art 3, as the children were habitually resident in France immediately before the proceedings commenced.

Although the Outer House of the Court of Session originally concluded that the children were still habitually resident in France on 20 November 2013, the Inner House reversed the decision on the basis that shared parental intention to move permanently to Scotland was not an essential element in any alteration of the children’s habitual residence.

In delivering its judgment the Court stated that, for the purposes of habitual residence, the stability of the residence, rather than the degree of permanence, is important. In determining habitual residence, it stated that the focus is upon the situation of the child; the intentions of the parents being merely one of the relevant factors. The Court reasoned that the degree of the child’s integration into social and family environment in the country must be assessed. It therefore reasoned that the children were habitually resident in Scotland within the meaning of the Convention as their life there had the necessary quality and stability, with their social life and much of their family life being there too.

For judgment, please download: [2015] UKSC 35
For Court’s press summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII