The application related to two boys aged 14 and 12 at the date of the appeal hearing. Upon the divorce of the parents an order was made by the Court of Session in March 2003 requiring the boys to live with their father and affording the mother contact.
The mother did not manage to have contact with the elder child, who suffered from autism. She had contact with the younger child on several occasions up until 1 May. The mother was then prevented from travelling due to illness. In September 2003 the boys were unilaterally removed by the father to the United States.
The mother immediately contacted the Scottish Central Authority and return proceedings were commenced in Texas. The mother then sought to obtain a declaration from the Court of Session that the removal of the boys had been wrongful. On 13 August 2004 the Outer House of the Court of Session dismissed the mother’s application on the basis that the Article 15 declaration had not been sought by the American courts or administrative authorities. The mother appealed.
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