A father who took his three children to live in Scotland has been ordered to return them to England following a court application by their mother. 

Case Background 

The mother and father, both born in Albania, were married in 2010. The father became a British citizen in 2007, and the mother moved to England in 2011. Their children were born in England. In December 2021, the father and children relocated to Scotland after the mother had left the family home. 

Legal Proceedings 

In May 2022, the mother initiated proceedings in England for the children’s return. However, in July 2022, the judge determined that the courts in Scotland had jurisdiction over the children, as they were habitually resident there. This decision preceded the revelation that the father had commenced divorce proceedings in England in May 2022, claiming English jurisdiction. 

Jurisdictional Dispute 

The mother made an informal application before the July order was sealed, arguing that the English court had jurisdiction under the Family Law Act 1986 due to the ongoing divorce proceedings. Despite this, in September 2022, the judge ruled that the English court still lacked jurisdiction, citing the Hague Convention on Parental Responsibility and Child Protection 1996, which granted jurisdiction to Scotland. 

Court of Appeal Ruling 

The Court of Appeal overturned this decision, stating that the 1986 Act was applicable because the Hague Convention set international, but not internal, jurisdiction. The English courts had jurisdiction since matrimonial proceedings were ongoing in England. The judge’s conclusion that the children were habitually resident in Scotland was also invalid, as it excluded the material fact that the children had only lived in Scotland for three months. 

Conclusion 

The Court of Appeal ruled that the children remained habitually resident in England and should be returned. This decision underscores the importance of correctly interpreting jurisdictional laws within the UK.