(Outer House, Court of Session, 12 May 2017)

Background: The parties married in Spain in March 2012. The respondent, a Spanish national, gave birth to a child (‘EVSM’) in September 2012, in Spain. The petitioner, EVSM’s father, resides in Spain and has raised divorce proceedings in a local Spanish court. In July 2016, while the petitioner was exercising rights to custody over EVSM, the respondent travelled to Scotland and has been living here since with EVSM. The respondent has conceded that there had, on the face of it, been a wrongful removal of EVSM from Spain. However, she contends that the petitioner consented to that removal. The parties present conflicting accounts of the circumstances of EVSM’s removal from Spain.

Held: The removal of a child is considered wrongful under Article 3 of the Hague Convention on the Civil Aspects of International Child Abduction if (a) it is in breach of custody rights under the law of the State in which the child was habitually resident, and (b) those rights were actually being exercised or would have been exercised but for the removal.

The respondent relied on the Article 13 defence of consent, but the court concluded that as her account was “on balance, improbable and likely to be untrue”, she had failed to satisfy the requirements of the defence, in that she was not able to establish that the petitioner gave “real, positive and unequivocal” consent to the removal of EVSM.

The court also considered the question of whether it would have exercised its discretion to return EVSM to Spain had the defence been successfully argued, concluding that it would have been minded to make an order for the return of the child.