Child in Scotland for medical reasons became habitually resident

A judge has held that a young child had become habitually resident in Scotland for the purposes of the Child Abduction Convention, though the reason for her initially remaining unexpectedly in Scotland was to receive treatment for a tumour that was discovered.

Lady Wise in the Court of Session gave the ruling in the petition by JTDK, an Irish national, for the return to Ireland of his daughter, to whom the judge gave the name Freya to protect her identity.

Freya, born in November 2016, lived in family in Ireland until December 2017 when she was brought by her Scottish mother, SJS, to Scotland for a planned visit. Shortly before the visit Freya's right leg had become swollen. At hospital an insect bite was diagnosed. Once in Scotland her leg seemed to be getting worse, and on a scan in Edinburgh a tumour in her pelvis was diagnosed. She required immediate admission and treatment including chemotherapy. JTDK, a farmer, visited her in Scotland when he could.

His petition was raised in November 2018; the question for the court was whether Freya had become habitually resident in Scotland by 3 October 2018, or possibly 4 September 2018 when SJS declared in the presence of a doctor that Freya would not be returning to Ireland.

For JTDK it was argued that the parties had agreed that Freya should not return to Ireland until the conclusion of her treatment; that chemotherapy (and and aborted operation) had continued until June 2018, with subsequent oral medication and removal of her central line on 3 October; and that he had consented to her staying in Scotland for treatment on the basis that she would return on that removal. Her presence in Scotland was wholly involuntary given her medical condition; the need to stay there for treatment for a grave illness precluded the putting down of roots required for acquisition of habitual residence.

SJS said she had told JTDK by early July that their marriage was over, and raised proceedings in late August for divorce and orders relating to Freya including interdict against her removal from Scotland. JTDK argued that SJS could be regarded as having taked advice with a view to trying to defeat her obligations under Irish law.

Lady Wise said the case was “particularly poignant”, and the family had suffered enormously as a result of Freya's diagnosis. She held that “the facts of the case illustrate that, albeit in difficult circumstances, the parties freely agreed that Freya should live here in Scotland with her mother, the respondent, throughout the duration of her treatment” She could have been transferred back to Ireland, and “While the decision was an emotional one, there was no compulsion about it at all and the child’s presence here and that of her mother cannot be said to have been involuntary in any sense”.

She added: “the fact that the parties did not originally intend permanent settlement in this jurisdiction is, while relevant, by no means determinative... An agreement that a child who is already present in the new jurisdiction remains here for a particular purpose or until the happening of a specified (although uncertain) event is similarly not inconsistent with the acquisition of habitual residence”.

Of events over the summer she observed: “What matters is that it is illustrative of an acceptance on the petitioner’s part at that time that, going forward, Freya’s environment would be in Edinburgh for the foreseeable future. Significantly, chemotherapy had ended by then. There is no evidence of the petitioner pressing for dates at that time when she might return to Ireland but rather an acceptance of roots being put down in this jurisdiction.”

Further, “Although [Freya's] residence here in Edinburgh with her mother started as being for a particular purpose, there is no doubt that Freya has enjoyed a stable and settled existence in this jurisdiction surrounded by very close family ever since her initial hospital stay in December 2017. Since the end of April 2018 her illness has restricted only slightly the type of activities in which as a toddler she is able to participate.”

She concluded: “In the circumstances of this unusual and rather sad case, Freya has now spent as much of her life here in Edinburgh as she did in Ireland. Her retention here in Edinburgh was not wrongful at the outset. It would have been wrongful had she been retained in Edinburgh inconsistently with the petitioner’s rights of custody which he was exercising at any time before she became habitually resident here. I find, however, that she was habitually resident here by about the end of July and certainly by early August 2018.”

But she observed: “I would add, however, that it does seem that the petitioner has attempted to be involved with his child as much as possible since the respondent decided not to return to Ireland and to settle here... I trust that the parties will be able to find a way to enable Freya to enjoy more extensive time with the petitioner and with her extended family in Ireland in due course.”

Click here to view the judgment.