Could my husband apply to have our baby returned to England?

[mamabear2525]

Hi guys any advice would be appreciated.

I have separated from my husband and come back to Scotland with our baby. We have been here for 2 months. He just got arrested and charged for DA against me and is due for court in a few months. He has a no contact order against me also. For context - my baby was born in Scotland and we lived here for 2 months before relocating to England. The apartment has since been given up. I am doing everything to habitual residence here.

What are the chances he can bring us back to England pending an application to the court?

My solicitor says jurisdictional issues mean it is a risk. Does anyone have any advice / real experience?

Please be kind :)

I mean he can’t contact me directly anymore so through a third party he can have supervised in person visits to begin with the move forward from there.

Have you saved or screenshot texts so he can’t delete them?

Yes

But how do you actually propose supervised contact works? Often it's on the parent who made away to make the journey for contact

I mean because of the fact there is an actual protection order that he cannot contact me I guess this would be an issue even if we were in England? Maybe through family members, travelling with a baby this age would be difficult.

The judge can’t demand that you live anywhere

They can only order on behalf of the child

If you say you’re not moving then your ex would have no choice but to assume full custody if he insisted the child was returned to Manchester

Is he likely to want that?

I didn’t even know they couldn’t order my return. I thought because I’m her primary caregiver that would be implied that I have to return to? Tbh I think his family would. But as he has a DA case and admitted guilt I don’t think they’d want to give him custody? Unsure though I feel like family court is corrupted

@mamabear2525 What your solicitor is saying if i understand correctly, is he does not know for sure where any application would be heard.

It is where the child is ordinarily resident, which will be determined as time goes by on how long the child has resided at the current location.

So it depends on how long you have resided in Scotland, if such an application is made.

Slim chance

How is it corrupted?

The situation would be that the can't force you to move, but they can insist the baby returns to the original jurisdiction.

In practice this would mean him taking on primary carer role, or you moving. Is he likely to want or be able to take on primary care?

Established relationships and security in Scotland would be my priority now, and ensuring you keep the texts where he's given permission to relocate.

What's the general gist of those texts? Was it just 'im going to stay with family for a bit, back at some point' or an actual 'im moving up to Scotland do you agree'?

Just from anecdotal stories. I know no firm basis but that’s how it feels

So from my understanding, I think they can ask I return back with baby as they recognise I’m the primary carer.

also the texts confirm no set timeframe but he never explicitly agrees and does express emotional distress.

They can't demand that you return, you're an adult. But as he also has parental responsibility and you have moved away, they can insist that the baby returns. If you choose to relocate too that's your call

The fact that he never explicitly agrees to a permanent relocation is the biggest worry.

Highly, highly unlikely that you would have to move if baby is settled and there is an existing support structure around you both. Even if you had taken an older child with no permission and it was clearly the wrong thing to do, it would be extremely difficult for him to get a court to feel it was in the child's interests to be uprooted.

The only way he would really have had a realistic chance to affect this if he had managed to get a prohibited steps order before you left.

Yes on text. My solicitor advised me it could still be argued he did not fully understand it was a permanent move though
If it says no set time frame for RETURN, it does imply an expectation you would indeed return, so that's not evidence of him agreeing to you moving there.

What would need to be evidence is that your child wellbeing is negatively impacted by regular contact with his dad and maximised by you being in Scotland rather than England. Larger support from your family and friends is unlikely to meet the threshold.

What would meet the threshold do you think? I mean he has been arrested and charged (and admitted) offences for DA. We have no Homebase to return to as well.

I used the word threshold, but it's not an legally defined term. The judge has to consider what is in the best interest of the child. Parents wishes or needs don't usually come into it.

It is assumed, at least at the moment, that it is in the best interest of the child to have a regular relationship with both parents even if they have a criminal record, as long as they are not deemed to be a concern with the child.

Ultimately, the issue is if he were to ask for 50/50 care. If he only requests say every other weekend and holidays, the judge won't care where you live but the order might impose that you travel to his to facilitate contact. Again, it's about the best interest of the child, so travel length might comes into it.

Noone knows in advance what decision the judge will rule. You both have to convince them that what you are suggesting is what is in the best interest of your child.

Thanks for your response. Are you speaking from experience?

From dealing with similar situations, but not as a legally trained person.

thank you. Does it not make a difference that marac are now involved and child services said they would oppose any returns? I thought because of the safeguarding issue 50/50 would not be on the table.

If there is a report from professionals indicating why 50/50 would not be in the best interest of the child, that clearly goes in your favour. It's then a matter of whether he can defend the reasons stated.

I doubt it. Someone I know was a single parent in England with full custody from the courts and when social services started sniffing around him as he started slacking with his kids when he met a new woman, the mum (saw them a few times a year) took the kids to her home in Scotland in holiday and kept them there, she was told in court she could keep them and they are still there a year later from what I can gather.
Good luck X

I don’t think anyone can give you what you are looking for from this thread @mamabear2525. I’m not a family lawyer but I am a lawyer and what I can tell you is that cases in the family courts rightly are very fact sensitive, judges have a lot of discretion and the way in which the parties come across in court is very persuasive.

Your lawyers have obviously advised you that on the facts of your case, your ex can APPLY for an order that the child be returned. That doesn’t mean that he will or will not be successful just that he can get a court to hear the dispute.

Neither your lawyers nor anyone else who has previously faced this situation can tell you what the judge will decide. Factors which were persuasive to one judge may not be persuasive to another if the cumulative evidence favours one side or another. Speaking as a lawyer, it’s very easy to get sucked into believing one side of a story must be right but when you sit in court and hear both parties arguments there is generally merit in both sides and that’s why we need judges to make these difficult decisions. So the fact you might think it’s obvious that the child stays in Scotland due to the DA, your settled life there and the text from the dad, is your truth but may or may not be where the court ends up.

The only advice I can give is not to worry about this until it happens. Live your best life as if you are both staying in Scotland. Put down roots, don’t engage with the ex or his family in a way which can be used against you in court and just wait it out. The longer you stay in Scotland, the better the case will be for this to be permanent but there are no guarantees. But also, the application may never be made so don’t waste your life worrying about it or changing decisions unless and until it does. No decision you take now, whether that’s accepting a job, buying a house, starting a new relationship is irreversible if need be, so just get on with life and see what happens.