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International Private Law > Parent and Child > Flashcards

Flashcards in Parent and Child Deck (22):
1

Relevant legislation?

- Brussels bis II Regulation (parental responsibility
- Hague Convention 1980 (child abduction - removal/retention)
- Family Law Act 1986
- Adoption and Children (S) Act 2007

2

Doward

- jurisdiction under 1986 Act is determined on the date of application

3

Hill

- jurisdiction under s 10 of 1986 Act given to CoS where there is no habitual residence or continuing matrimonial proceedings

4

Woodock v Woodock

- ex parte application to High Court in Eng.
- registration for CoS judgement to be heard in Eng was competent under s27 of 1986 Act
- Held: Lord Ordinary unreasonably exercised discretion
- cannot make decision on child's welfare without mother being party proceedings
- interdict unecessary, reclaiming motion allowed

5

Brown, petr

Adoption at common law:

- adoption wholly or lawfully in country?
- concept substantially conform to Scottish concept?
- public policy considerations mitigating recognition?

6

Ponder v Ponder

- regardless of where parties lived, husband's domicile had not been abandoned: Sco
- therefore, Sco courts had jurisdiction to determine custody and access rights of both parents

7

Williams Petr

- child domicile was Sco, this is where child was living with father
- Sco courts had jurisdiction

8

Westergaard

- children should not be split by divorce

9

Radoyevitch

- court now entitled to be informed of arrangements of removal

10

Bordera

- parents resident in Spain and under this law they had equal rights
- mother = custody
- father = access
- Sco courts dismissed argument that father did not have custody rights
- agreement had preserved rights

11

D v D

- not possible to conclude 5 year old's habitual residence
- originally lived Ger, moved to Switzerland, mother removed to Scotland
- court ruled that Swiss residence had not been acquired so it was Germany

12

M, petr

- mother removed from Ireland to Scotland, father petitioned
- mother argued child did not like living in Ireland
- court held that such considerations not always essential to determine habitual residence

13

Soucie

- child's home, relationships, schooling, doctors/dentist, level of community involvement
- child age 3 went to Sco with mother for holiday but did not return
- principal obligation of convention is to return child
- should consider full situation of child
- no clear evidence that child had settled, court did not exercise discretion

14

Zenel v Haddow

- mother argued that father had consented to removal of child from Aus to Sco
- parents had not reconciled upon mother's return to Aus: mother removed child as agreed
- court agreed with mother
- dissenting opinion > consent had to be particular removal of child not 15 months prior

15

M v M

- father's mental problems and loss of job meant he could not apply for earlier proceedings
- this did not amount to acquiesence

16

MacMillan

- wrongful removal Canada to Sco
- father depression, alcoholic
- court held return was grave risk, return was refused

17

Urness v Minto

- age 12 and 9
- to what extent did court have to take into account age of children?
- both refused return to USA
- 12 was of maturity, 9 too young
- separating children was an intolerable situation

18

D v D

- mother argued she would suffer mental problems if child returned to Switzerland, child would too without her
- court deemed that she could live elsewhere in Switzerland
- mother's plea rejected, child returned

19

Singh v Singh

- age 10 and 13, both mature enough for opinions to be heard
- based on Urness: children should not be separated

20

Neulinger v Switzerland

- considers operate of Hague Convention in light of art8 of ECHR
- Swiss court rejected application of grave risk to child's health
- argued this breached art8 rights
- court had to provide in depth examination of family situation
- overall best interests of child = paramount consideration
- enforcing return of child was held to be unjustifiable interference with art8

21

Re F (A Child) 2007

- child’s application for intervener status in international child abduction case was refused
- no exceptional circumstances had been proved
- whilst children have a right to be heard, this is distinct from being party to proceedings
- consequences for future proceedings under Reg; risking magnification of representation in every case, complicating trial in what was essentially a summary process

22

Proceedings Brought by A 2010

- factors relevant in identification of HR under Brussels II in matters of parental responsibility include:

- duration, regularity, conditions, reasons for stay in MS
- child's nationality, schooling, linguistic knowledge, family and social relations