D. v. D. [2001] ScotCS 103

INCADAT legal file Hague parental abduction

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Aims of the Convention – Preamble, Arts 1 and 2
The court recalled that an order in favour of the Petitioner was not determinative of who should ultimately have care of the child, rather it was simply that the child should be returned to his State of habitual residence. Moreover, there was no requirement to go to a particular place in that jurisdiction or to reside with a specific person. Such issues along, with welfare questions, were for the local courts in the State of habitual residence to determine.
Habitual Residence – Art. 3
The court accepted that habitual residence is a factual concept and it endorsed the interpretation given in Dickson v. Dickson 1990 SCLR 692 [INCADAT cite: HC/E/UKs 73]. The trial judge noted that the requisite settled intention did not have to be to remain in the State of residence permanently or indefinitely, but could simply be to stay there for ‘some time’. He found that although there had always been a possibility that the family might move from Konstanz to enable the father to take up a promoted medical post, they had a settled intention to live there and had done so for an appreciable period by the time they went to Kreuzlingen. The trial judge regarded Kreuzlingen as being a substitute residence since it did not involve any intention to leave the general area in which they were living, albeit the family had crossed an international frontier. Their settled intention had not changed except as it involved the decision to live across the border. Turning to whether an appreciable period of time had elapsed the judge noted that the short distance of the move could not be ignored. He ruled that once the family had settled into their home, i.e. within a few days, they could be classified as being habitually resident there. The judge therefore found that the child was habitually resident in Switzerland at the date of the removal.
Grave Risk – Art. 13(1)(b)
The mother argued that a return would place the child at a grave risk of an intolerable situation. In this she produced psychiatric evidence that a return to Germany would reactivate her depression and affect her ability to care for the child. The trial judge rejected this evidence ruling that the mother would not be required to resume any form of relationship with the father. He found that there was no evidence a return to Switzerland would be intolerable for the child.