Parental international child abduction occurs when one parent (the abducting parent) takes a child out of the state where the child usually resides and places them in another state without the other parent's permission (the left behind parent), in violation of the left behind parent's right to decide where the child resides (the "right of custody"), or in violation of a court order.
The 1980 Hague Convention is a global agreement aimed at ensuring the prompt return of kidnapped children across international borders to the nations where they usually reside. A request for the child's return may be made under the Hague Convention if the child is kidnapped to or kept in a nation that has ratified the agreement (much of Europe, the US, Australia, and New Zealand are signatories). Each participating state has a Central Authority that is in charge of sending and accepting applications on behalf of parents who were left behind. Each signatory state's governments and courts cooperate extensively to ensure that kidnapped children are speedily returned to the nation where they usually reside.
You can ask for your child's return under the Hague Convention if they were taken to or kept in Scotland against your will by another Hague Convention state. If this happens, you should immediately get in touch with the Central Authority in your nation, who will send the Central Authority in Scotland your initial request for the return of your child. The Scottish Central Authority will next designate a specialised attorney to file a case for the child's repatriation before the Scottish Court of Session.
A request for the repatriation of a child removed from Scotland and kept in a Hague Convention state may be made in accordance with the Hague Convention. The alternatives available will largely rely on the state to which the kid has been transferred if the child has been taken to or kept in a nation that is not a signatory to the Hague Convention.
In accordance with the convention, a child will often be returned unless one of the limited, specific defenses is made.
A kid who, at the time the application is made, has been used to their new surroundings for 12 months following the unjustified removal or retention may not be returned, according to the court. The reason for this is that returning a child after they have spent a lot of time in a new environment may not be feasible or desirable without first weighing the pros and downsides. This is done in acknowledgment of the potentially harmful consequences that removing a child from their new environment might have on them.
If the parent who was left behind gave permission for the kidnapping or retention, the court is not required to give the kid back. It must be proven that there was consent at the time of the removal and that it had not been rescinded, whether the consent was express or inferred.
Acquiescence is a conclusion or implication made in light of the behaviour or inaction of the parent who was left behind in the wake of the kidnapping or retention. This may be inferred from behaviour that is inconsistent with a desire to urge the child's return or from a more passive action, such as failing to demand the child's return for an extended period of time.
If a child refuses to be returned, the court may decide not to. The child's objections will be considered by the court. Age, maturity, and the child's comprehension of the circumstances will all be taken into account. Scots law no longer presumes that children under the age of 12 are capable of developing an opinion, and instead will take into account the opinions of any kid who is "capable" of doing so.
If the child would be at "grave risk of physical or psychological injury or otherwise in an unbearable condition," the court has the option to refuse to order their return. The risk of harm only to the parent is insufficient. It is assumed that the court in the nation where the kid is to be repatriated has the authority to deal with the child's welfare issues and to impose enforceable protective orders where necessary (such as when there are claims of domestic violence).
Any parent in this scenario needs immediate professional counsel because applications under the Hague Convention are complicated. Our complete International Child Abduction Route Map and Glossary are available for download here. Our family law experts frequently receive instructions to either defend or secure the return of kidnapped children. For immediate help, get in touch with our family law team if your child has been taken abroad, you suspect that they might be soon, or if you've already arrived in this country with them and are dealing with a return request. Get the right legal advice!