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A five-year-old boy at the centre of a transatlantic custody dispute should be returned from Scotland to the United States of America to live with his mother, a judge has ruled.

Lord Jones in the Outer House of the Court of Session held that the mother did not give her permission for the child to stay in Scotland with the father and that the retention of the child by the father without the mother’s consent was “wrongful”.

The couple, who started living together in San Diego, California at the beginning of 2006 before getting married in Las Vegas in March 2010, are the parents of the boy, who was born in the US in September 2007.

The father, a UK citizen, was brought up in a small town in Scotland and moved to the US in 1998, but returned to Scotland with the child in February 2011 after the couple’s relationship became “rocky”.

The mother, a US citizen, had rights of custody under the law of California, and while the father and son’s trip to Scotland was undertaken with the agreement of both parents, she claimed that the permission that she gave the father was conditional – only if the parties worked out their differences and decided to live together in Scotland, would they remain in Scotland together.

In May 2011, when it when it appeared that there would be no reconciliation and the father would not return the child voluntarily, she raised divorce proceedings in California, seeking custody of the child, and raised further proceedings under the provisions of theThe Hague Convention on International Child Abduction, which was incorporated into UK law by section 1(2) and Schedule 1 of the Child Abduction and Custody Act 1985.

Counsel for the father submitted that the child was “habitually resident” in Scotland, having been brought here to settle pursuant to an agreement between his parents which contained no reservation, and therefore the Hague Convention did not apply. In any event, he argued that the mother “acquiesced” in the child’s retention in Scotland within the meaning of Article 13(a) of the Convention, and that a summary return of the child would place him in an intolerable situation within the meaning of Article 13(b) of the Convention. The father relied on a number of messages which passed between the parties in March 2011, and argued that they demonstrated that the mother was consenting to a permanent, settled move to Scotland.

However, the mother’s position was that when the father travelled to Scotland with the their child, there was no agreement between the parties that the family would settle in Scotland; there was no subsequent acquiescence by her in the retention of their son in Scotland by the father; and there is no grave risk that a return to the United States would expose the boy to physical or psychological harm or otherwise place the child in an intolerable situation. Consequently, the child remained “habitually resident” in the US and should be returned there.

The judge held that the mother wanted to be reunited with the father and the child, and that she wanted the marriage to work, but that she neither consented to the child’s changing his habitual residence nor had she formed the intention that the child would settle in Scotland.

In delivering his opinion, Lord Jones said: “Although both parties hoped for a reconciliation, neither party knew whether or not that would happen. Relocation as a family was to depend on a full reconciliation, which had not yet happened, and never did. The mother did not consent to the child’s settling in Scotland with the father, in the event that she did not join them. Consequently, I hold that the child continued to be habitually resident in the United States and that, therefore, the retention of the child by the father in May 2011, without the mother’s consent, was wrongful, within the meaning of article 3 of the convention.”

The judge also held that the article 13(a) exception of acquiescence had not been established by the father and said there was “no evidence” to support his article 3(b) case that there would be “a grave risk that the child’s return would expose him to physical or psychological harm or otherwise place him in an intolerable situation”.