Man wins bid to have child sent to Australia from Midlothian

The written judgement was issued at the Court of Session. Picture: Ian Georgeson
The written judgement was issued at the Court of Session. Picture: Ian Georgeson

An Australian man has won his Scottish legal battle to have his one-year-old son returned to Brisbane so judges there can determine the child’s future.

The father – who has not been identified – instructed lawyers to go to the Court of Session in Edinburgh last year.

The wholesale car trader objected to his estranged Scottish partner’s refusal to return to Australia from her parents’ home in Midlothian in June 2016.

The woman – who also was not identified – returned to Scotland in May 2016.

Her relationship with the child’s father had become “troubled” and her partner agreed to allow her to go to Scotland for a three-month break with the baby.

But the woman refused to return – prompting the man to begin a legal battle.

Judge Lord Brailsford ruled in November 2016 that international law dictated that the child should be returned to Australia, the country where he was born.

The Scottish judge ruled that judges in the Commonwealth country were best qualified to determine issues such as residence and contact for the infant.

But lawyers acting for the mother appealed, arguing that Lord Brailsford had misunderstood the law.

On Friday, civil appeal judges Lady Paton, Lord Drummond Young and Lord Glennie ruled that their colleague had acted correctly.

In a written judgement issued at the Court of Session, Lady Paton wrote: “On the basis of that evidence, it cannot in our opinion be said that the conclusion reached by the Lord Ordinary was not reasonably open to him.”

The judgement tells of how the mother moved from Scotland to live in Australia in 2010.

It also reveals how her British passport expired in August 2014 and how she became an Australian citizen in January 2015.

The same year she became a naturalised Australian, the woman met a man who later became the father to her child. When the infant was born, the Scottish woman and the Australian man “lived together as family”.

Lady Paton wrote that on May 16 last year, the woman and her child travelled to Scotland on a return air ticket.

The court heard the man had agreed to allow her to go to Scotland with their child for three months.

However, in a legal document, the woman said she wanted to live full time in Scotland. She said: “I was just desperate to be home. I wanted to have family and friends around me. I have always known that I wanted to be in Scotland, but for such a long time I had been longing for it.”

Lawyers for the father argued that international law dictated that, since the child was born in Australia, the courts there should decide where the child should live. The court heard that the Australian judges should also decide contact issues.

Lawyers acting for the mother argued that the child should be allowed to stay in Scotland because his family lived here and because he had became “integrated” with Scottish society. However, Lord Brailsford concluded that the child should be returned to Australia. Appeal judges agreed.

Lady Paton wrote: “The Lord Ordinary was all the more entitled to conclude that the child had not so integrated into Scottish social and family environment as to lose his habitual residence in Australia.”


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