Parent and Child

Question 1

Relevant legislation?

Answer 1

• Brussels bis II Regulation (parental responsibility
• Hague Convention 1980 (child abduction - removal/retention)
• Family Law Act 1986
• Adoption and Children (S) Act 2007

Question 2

Doward

Answer 2

• jurisdiction under 1986 Act is determined on the date of application

Question 3

Hill

Answer 3

• jurisdiction under s 10 of 1986 Act given to CoS where there is no habitual residence or continuing matrimonial proceedings

Question 4

Woodock v Woodock

Answer 4

• ex parte application to High Court in Eng.
• registration for CoS judgement to be heard in Eng was competent under s27 of 1986 Act
• Held: Lord Ordinary unreasonably exercised discretion
• cannot make decision on child’s welfare without mother being party proceedings
• interdict unecessary, reclaiming motion allowed

Question 5

Brown, petr

Answer 5

Adoption at common law:

• adoption wholly or lawfully in country?
• concept substantially conform to Scottish concept?
• public policy considerations mitigating recognition?

Question 6

Ponder v Ponder

Answer 6

• regardless of where parties lived, husband’s domicile had not been abandoned: Sco
• therefore, Sco courts had jurisdiction to determine custody and access rights of both parents

Question 7

Williams Petr

Answer 7

• child domicile was Sco, this is where child was living with father
• Sco courts had jurisdiction

Question 8

Westergaard

Answer 8

• children should not be split by divorce

Question 9

Radoyevitch

Answer 9

• court now entitled to be informed of arrangements of removal

Question 10

Bordera

Answer 10

• parents resident in Spain and under this law they had equal rights
• mother = custody
• father = access
• Sco courts dismissed argument that father did not have custody rights
• agreement had preserved rights

Question 11

D v D

Answer 11

• not possible to conclude 5 year old’s habitual residence
• originally lived Ger, moved to Switzerland, mother removed to Scotland
• court ruled that Swiss residence had not been acquired so it was Germany

Question 12

M, petr

Answer 12

• mother removed from Ireland to Scotland, father petitioned
• mother argued child did not like living in Ireland
• court held that such considerations not always essential to determine habitual residence

Question 13

Soucie

Answer 13

• child’s home, relationships, schooling, doctors/dentist, level of community involvement
• child age 3 went to Sco with mother for holiday but did not return
• principal obligation of convention is to return child
• should consider full situation of child
• no clear evidence that child had settled, court did not exercise discretion

Question 14

Zenel v Haddow

Answer 14

• mother argued that father had consented to removal of child from Aus to Sco
• parents had not reconciled upon mother’s return to Aus: mother removed child as agreed
• court agreed with mother
• dissenting opinion > consent had to be particular removal of child not 15 months prior

Question 15

M v M

Answer 15

• father’s mental problems and loss of job meant he could not apply for earlier proceedings
• this did not amount to acquiesence

Question 16

MacMillan

Answer 16

• wrongful removal Canada to Sco
• father depression, alcoholic
• court held return was grave risk, return was refused

Question 17

Urness v Minto

Answer 17

• age 12 and 9
• to what extent did court have to take into account age of children?
• both refused return to USA
• 12 was of maturity, 9 too young
• separating children was an intolerable situation

Question 18

D v D

Answer 18

• mother argued she would suffer mental problems if child returned to Switzerland, child would too without her
• court deemed that she could live elsewhere in Switzerland
• mother’s plea rejected, child returned

Question 19

Singh v Singh

Answer 19

• age 10 and 13, both mature enough for opinions to be heard

- based on Urness: children should not be separated

Question 20

Neulinger v Switzerland

Answer 20

• considers operate of Hague Convention in light of art8 of ECHR
• Swiss court rejected application of grave risk to child’s health
• argued this breached art8 rights
• court had to provide in depth examination of family situation
• overall best interests of child = paramount consideration
• enforcing return of child was held to be unjustifiable interference with art8

Question 21

Re F (A Child) 2007

Answer 21

• child’s application for intervener status in international child abduction case was refused
• no exceptional circumstances had been proved
• whilst children have a right to be heard, this is distinct from being party to proceedings
• consequences for future proceedings under Reg; risking magnification of representation in every case, complicating trial in what was essentially a summary process

Question 22

Proceedings Brought by A 2010

Answer 22

• factors relevant in identification of HR under Brussels II in matters of parental responsibility include:
• duration, regularity, conditions, reasons for stay in MS
• child’s nationality, schooling, linguistic knowledge, family and social relations