On 22 May 2015 the UK’s Supreme Court issued a decision in an international parental child abduction case called AR (Appellant) v. RN (Respondent) (Scotland)  UKSC 35. The issue before the Court was whether or not it should order the return to France of two children who had been living with their mother in Scotland since July 2013.
The situation that had arisen was as follows. The children were both born in France in August 2010 and June 2013. Their father was French and their mother was British and Canadian. Up until July 2013, the family lived in France although they periodically visited the mother’s family in Scotland. In July 2013 the mother and children moved to live in Scotland. According to the father’s evidence this was for the 12-month duration of the mother’s maternity leave, the younger child having just been born. The mother said that the move away from France had intended to be permanent although no plan had been made for the period of time beyond the 12 months that was going to be spent in Scotland.
After the move took place the father would visit his family in Scotland for several days per month. The mother and children visited the father in France for a holiday in September 2013 and again in October 2013. Upon their return to Scotland after this, the mother and children moved into private rented accommodation adjacent to the maternal grandparents, having previously lived with the maternal grandparents, where they continued to live.
The couple, who were unmarried, separated on 9 November 2013 on the basis of the husband’s infidelity. On 20 November 2013 the mother applied for a residence order in relation to the two children. The father, in turn, issued proceedings under the Hague Convention on the basis that the mother’s application for a residence order amounted to a wrongful retention of the children in the UK.
The father succeeded in the Scottish Court of Session, that Court noting, in deciding in the father’s favour, that “[t]his was a French family living in France” and that the stay in Scotland was to be of “limited duration”.
On an appeal against that decision, the Inner House of the Court of Session found in the mother’s favour. The Supreme Court agreed. The original judge was, the Supreme Court found, wrong to focus entirely on whether there had been a joint parental decision to move permanently to Scotland (the original judge finding that the intention to move there was to be, as noted above, of “limited duration”. In approaching the decision on this basis, the Supreme Court concluded that the original judge failed to apply guidance given in earlier decided cases. Parental intentions, whatever these are found to be, are a relevant factor – but they are not the only one. The fact that, as the original judge found, there was no joint parental decision to move permanently to Scotland was not the end of the matter. The Court stated that “[t]he important question is whether the residence has the necessary quality of stability, not whether it is necessarily intended to be permanent”. The original judge thereby failed to consider the “abundant evidence” relating to the stability of the mother and children’s lives in Scotland and the level of integration that had occurred. The Court found that the children were habitually resident in Scotland.
Usually cases that just turn largely on their own facts in this way will not get anywhere near the Supreme Court so it is interesting that this one did.