Two children can stay with their mother in Scotland as they are at “grave risk” of “psychological harm” if they live with their Dutch father in the Netherlands, a judge has ruled.
Lady Carmichael concluded the two kids – aged 15 and 12 – should not be sent back to the European state.
She made the ruling in a legal challenge brought by the children’s father – a man named as BW.
He claimed that his former wife CM took his kids from their home in the Netherlands and “wrongfully retained” them in Scotland.
His lawyers told the Court of Session that he agreed to allow CM to bring their children to Scotland for a holiday in May 2022. He said he didn’t agree to them going to live in Scotland and they should be returned back to him as they were “habitually resident” in the Netherlands.
The court heard that the two kids would prefer to live with him. But Lady Carmichael heard evidence how BW had engaged in “angry and aggressive” behaviour with the children.
He also told the children to tell their mother that they hated her and that he planned to kill himself if they left him.
The court heard that BW had a problem with alcohol and had been arrested for being intoxicated whilst in charge of a vehicle, while test also showed traces of cannabis in his system.
Dutch social workers were so concerned by BW’s behaviour that they “planned’ and “facilitated” the children’s move to Scotland from their home.
In a written judgement published by the court, Lady Carmichael ruled against BW. She wrote that lawyers had proven that the children were now “habitually resident” in Scotland.
She wrote: “There is a clear and consistent picture of an individual prepared to communicate in very inappropriate ways with his children with a view to influencing their opinions and behaviour towards both CM and towards himself.
“I am satisfied that there is a grave risk that the return of the children to the Netherlands would expose them to psychological harm and place them in an intolerable situation.
“I consider that is more likely than not that the children, if returned to the Netherlands, would immediately be subject to some form of inquiry and intervention by Dutch social services, on an emergency and unplanned basis.
“Given the circumstances in which they came to leave the Netherlands, it is inconceivable that they would, if initially in his care, remain in his care for long without the suitability of that arrangement being subject to scrutiny.”
The judgment explained BW and CM married and divorced in 2015.
Following the end of their marriage, the couple agreed that CM should return to Scotland whilst their children should continue living in the Netherlands.
However, the judgement told of how BW had issues with alcohol and how social workers in the Netherlands became concerned about how he was caring for the kids.
Social workers believed it was for the best for the children to go and live in Scotland.
But once they arrived, BW continued to contact them via WhatsApp.
In August 2022, he sent a message to one of the children in which he told him that he had been “stolen” and that he should phone the police.
One of the messages sent by BW read: “You better not be nice to the police over mum”.
The court heard that BW also “constantly told” the other child that she is going back to the Netherlands.
The court heard one recording which the child made of BW in March 2022 before she left the Netherlands.
Lady Carmichael said she listened to the clip and “formed the view” that BW’s manner in it was “one of uncontrolled anger”.
She wrote: “The language in which he addressed [the child] was very abusive indeed. To be addressed in such language, and in such a manner would, objectively, be likely to frighten and distress the person addressed, whether an adult or a child. It is difficult to form a judgment as to whether BW was intoxicated at the time of the interaction, as I do not know how he usually speaks.
“His speech does, however, sound slurred in the recording.”
The court heard that the children wanted to go back to the Netherlands. But Lady Carmichael believed that their views had been influenced by their dad.
Lawyers for CM said she should be allowed to stay with her children in Scotland. They argued that CM and her children were now “habitually resident” here and had integrated into their local community.
Lawyers for BW said he no longer abused alcohol.
However, Lady Carmichael ruled in favour of CM.
She wrote: “By the end of July 2022 they had spent nearly three months in Scotland. They began to integrate into the life of their local community at an early stage during their stay in Scotland. They had a stable home in Scotland from the point of their arrival in Scotland.
“Before the start of July 2022 their lives in Scotland had characteristics of stability and the sort of routine that would be usual for children of their ages integrated in the social environment of the place they were living.”
She added: “I dismiss the petition because the children were habitually resident in Scotland at the point at which it is alleged that they were wrongfully retained.
“Had I not been of that view, I would have exercised my discretion to refuse to return them to the Netherlands on the basis that the conditions in article 13(a), and, separately, 13(b) of the Hague Convention are satisfied.”