The use of Foreign Experts in 1980 Hague Convention Cases: Return from Scotland to Switzerland
When dealing with a 1980 Hague Convention case where you are litigating in the country that the child has been abducted to, the role of a formal expert from where the child was abducted from can often be essential.
In a recent case my firm was involved in we acted for a father whose child had been abducted from Switzerland to Scotland.
The child in question was born in Switzerland and lived as a family with his mother and father until they separated around a year prior to the abduction. The child had been taken on a consensual holiday to France by his mother but was never returned to Switzerland. He was instead abducted to Scotland by the mother’s family, with the mother joining her son in Scotland at a later point.
We immediately asked the Scottish Court of Session to grant a return order under the 1980 Hague Convention for the child to be returned from Scotland to Switzerland.
Mother’s Defences
One of the mother’s defences was that the Hague Convention did not apply at all because she had not breached the father’s rights of custody. Rights of Custody are determined under the law of the country in which the child is habitually resident i.e. in this case Switzerland. The onus of proof in relation to rights of custody rests with the parent who is seeking the return order.
Immediate action taken
My firm immediately used our international contacts with foreign lawyers to make contact with an experienced Swiss child abduction lawyer, who was well versed in the 1980 Convention as well as domestics with family law. She was immediately engaged to provide an expert opinion report on whether the father’s rights of custody had been breached under Swiss law.
Result
The Judgment was issued on 30th October 2025 and unsuccessfully appealed; the appeal judgement is reported as Petition of HL (2025) CSIH 32. The importance of the Swiss expert’s opinion evidence is evident. The Judge was clear that, mainly as a result of the Swiss expert’s evidence, the mother’s defence that the Hague Convention was not engaged because she did not breach the father’s rights of custody under Swiss law, was unsuccessful. Ultimately, this child was returned from Scotland to Switzerland.
Conclusion
Any international parental child abduction case needs lawyers who are experienced in the area; can take swift action, and who ideally have the contacts and resources to contact foreign international lawyers to assist them in the return cases if needed. In Scotland 1980 Hague cases tend to take 6 weeks from start to finish, which is not a lot of time to prepare for a Court case that can be pivotal in the life of the children involved.
Marisa Cullen
Family Law Matters Scotland LLP
Queens House
19 St. Vincent Place
Glasgow, G1 2DT
Tel. No. 0141 420 2430
Email: marisa.cullen@flmscotland.co.uk
Read more about child abduction in Scotland.
Read more about child abduction.