Judges rule Midlothian mum must take young son back to Australia

The High Court in Edinburgh.
The High Court in Edinburgh.

A Midlothian mum has lost an appeal not to return her young son to Australia.

The one-year-old’s Australian dad began the legal battle when his partner returned to Scotland last year on a three-month break but then refused to take the boy back.

The father – who hasn’t been identified – took the case to the Court of Session in Edinburgh last year to have his son returned to Brisbane so judges there can determine his future.

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

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 baby.

Lawyers acting for the mother appealed.

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

The written judgement told how, in 2010, the mum moved from Scotland to live in Australia.

Her British passport expired in August 2014 and she became an Australian citizen in January 2015.

The same year she became a naturalised Australian and met a man who later became her child’s father. When the infant was born, the Scottish woman and 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 for a three month stay.

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

However, in a legal document submitted to the court, 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.. From the moment I arrived on May 16 2016, I was thinking about how I was going to tell the petitioner I wasn’t going to come back.

“Once I was home, I felt even more certain that I just could not go back to Australia. My home is in Scotland and I want to be here with my child.”

The court heard that the woman told her partner that she was not coming back to Australia on June 20, 2016. He then sent an email to her asking her to come back to Australia.

He wrote: “Please forgive our differences ... I have been very emotional and angry about your intentions to keep our son in Scotland. I am asking you please come back to Australia with ... our son.

“Please let us resolve any issues or differences we have here. Please come home as we agreed on August 8.”

Lawyers for the dad had argued that international law dictated that since the child was born in Australia, the Australian courts should decide where the child should live.

Lawyers acting for the mother argued that the child should be allowed to stay in Scotland because his family lived here and that he had became “integrated” with Scottish society.

However, Lord Brailsford had concluded that the child should be returned to Australia.

Appeal judges agreed with their colleague’s decision.

Lady Paton wrote: “On that basis, 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.”