Emily Bradbury, appearing for the respondent mother in a petition under the Hague Convention raised by the father, successfully argued that the children should not be returned to the Netherlands. The mother had lived in Scotland since the parties separated in 2015. The children came to live with her in 2022, after having been removed from their father’s care under a voluntary arrangement, by the Dutch Authorities. The Lord Ordinary refused the petition on the ground that the children were habitually resident in Scotland at the time of the alleged wrongful retention. They had only been residing in Scotland for three months before the alleged retention, however, the Lord Ordinary found that their integration into social and family life had been swifter due to their mother’s already established habitual residence within Scotland.
The Lord Ordinary further stated that even if habitual residence in Scotland had not been established, she would have exercised her discretion and refused to return the children as the conditions under Article 13 (a) and (b), as argued on behalf of the mother, were satisfied. Those being that the father had consented to their permanent retention in Scotland (Article 13(a)), and that there was a grave risk that the return of the children to the Netherlands would expose them to psychological harm and place them in an intolerable situation (Article 13 (b)).
The full judgment can be found here. Emily was instructed by Brodies LLP on behalf of the Respondent.