W. v. W., 2004 S.C. 63 IH (1 Div)

INCADAT legal file Hague parental abduction

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The application related to four children aged between 3 1/2 and 9 at the date of the hearing. The eldest child was a child of the mother by a previous relationship. The family emigrated from Scotland to Australia in 1998. The youngest child was born in Australia in 1999.
The parents separated in November 2001. A court order made on 14 January 2002 awarded the father contact rights in respect of the children. Several days later the mother unilaterally removed the children to Scotland. The father petitioned for the return of the children.
At trial on 25 March 2003 it was conceded that the removal had been wrongful. The Outer House of the Court of Session refused to make a return order. The Court found that the eldest child objected to being returned and it exercised its discretion not to return her.
The other children were not returned as to separate them from their sister would place them in an intolerable situation, see: PW v. AL or W 2003 SCLR 478 [INCADAT Reference: HC/E/UKs 508]. The father appealed.