12 year old wins fight to stay in Scotland
15 Nov 04
Court sustains objections to returning to Ireland under Abduction Convention
A 12 year old boy has successfully resisted his father's attempt to have him returned to Ireland in terms of the Child Abduction and Custody Act.
Lady Smith in the Court of Session ruled that the boy, referred to only as S, would suffer detriment to his welfare were he to be returned to Ireland, where his Scottish father and American mother moved from Scotland in 2002.
The judge held that S's mother, who kept S in Scotland after deciding not to return from a visit in August this year, failed in an argument that the family had not become habitually resident in Ireland. But she accepted S's contention that he had been unhappy in Ireland and was positive and enthusiastic about being back with his old friends in Helensburgh, the family's previous home, despite not yet having permanent accommodation.
"Were I to order his return," she said, "his ongoing education would be immediately disrupted in a manner that would involve him returning to a primary school in Ireland which he disliked, where he was unhappy, where he has only one friend, and to a rural environment about which he feels very negative. There would thus be an immediate and detrimental effect upon his welfare.
"These are, in my judgment, exceptional circumstances and I am persuaded that I should exercise my discretion by refusing the prayer of the petition."
The full judgment can be read at www.scotcourts.gov.uk/opinions/P1582.html