Children to remain with mother even though she abducted them

A court has ruled that two children should remain with their mother even though she abducted them and retained them unlawfully.

Shannon Bateson, Solicitor in our family law team reports on this recent case.

The case involved a Polish couple who moved to Scotland with their three-year-old son in 2013. They then had a second son who was born in 2015.

The family remained in Scotland until July 2021, when they returned to live in Poland. The couple then separated.

The mother brought the two children to Scotland for a holiday in January 2023 and was meant to return after a week.

However, they did not go back.

The father began legal proceedings for their return, and it was conceded by the mother that the children had been habitually resident in Poland at the time and the father had custody rights under Polish law.

It therefore followed that under the Hague Convention on the Civil Aspects of International Child Abduction 1980 art.3, the children were being wrongfully retained in Scotland and the court should order their return.

The mother and son opposed the return orders sought by the father.

They claimed that he was violent and abusive, that his abusive conduct had taken place over several years, and that their mental health had suffered as a result.

They said the son had thoughts of suicide because of both the father’s conduct and negative experiences at school in Poland, and that his mental health had improved when he returned to Scotland.

The court refused the father’s petition.

It took into account that both childrenobjected to being returned to Poland and were of an age and maturity at which it was appropriate to take account of their respective views.

The son had held a consistent, reasoned and strong view that he did not want to live in Poland and did want to live in Scotland. He had spent most of his childhood in Scotland. He identified as being Scottish and felt more integrated into the Scottish community.

He struggled at school in Poland, where he was isolated and bullied. In contrast, he had settled well in Scotland, he had a good group of friends, he was making good progress, and his mental health had improved.

The younger son had been born in Scotland and had also spent most of his childhood there. His teacher’s opinion was that from at least September 2022 he had expressed the view that he considered himself to be Scottish, that he missed his friends from Scotland and that he had concerns about his school in Poland.

An order to return the younger son would have one of two possible consequences: it would either force the return of the older son if both were to remain in their mother’s care, or it would deprive one of the boys of the care of their mother should one child stay in Scotland and one return to Poland.

It was not in the interest or general welfare of either to be separated from their mother or their sibling.

For more information about the issues raised in this article or any aspect of family law please contact Shannon on 01228 516666 or click here to send her an email.