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Last Updated: Friday, 30 March 2007, 16:08 GMT 17:08 UK
Abduction law decides girl's fate
Coat of arms
The convention applies to under-16s, the court heard
A 14-year-old girl has been ordered to return to Australia despite her desire to stay in Scotland with her mother.

The Court of Session in Edinburgh said the girl, known as EM, should return to comply with the Hague Convention on International Child Abduction.

She was born in Scotland but emigrated with her parents in 1998. They split up in 2005 and were granted joint custody.

A judge said the girl had been habitually resident in Australia and a court there should decide care plans.

The court heard that the girl decided to return to Scotland with her mother in January.

The teenager was "happy and well settled in Scotland" and wanted to stay with her mother and extended family.

Judge Lord Malcolm was told she wanted to maintain a good relationship with her father and would be willing to spend long holidays with him.

She had suffered repeated vomiting and stomach pains which cleared up after she arrived back in the country of her birth, the court heard.

Given EM's age and maturity it might be said that an Australian court is likely to uphold her wishes and sanction her care in Scotland
Lord Malcolm

The girl objected to being sent back to Australia and was concerned the upheaval would trigger a recurrence in her health problems.

However, Lord Malcolm said that in order to comply with the convention, he would make the order requested by the father to have her returned.

He said: "I find nothing of sufficient weight nor of such a special nature as would justify a refusal to implement the scheme of the convention, namely that it should be the Australian court which weighs EM's views in the balance when determining the future arrangements for her care.

"Given EM's age and maturity it might be said that an Australian court is likely to uphold her wishes and sanction her care in Scotland, thus there is little to be gained from an order for her return.

"However, until she reaches 16 years of age the convention applies to her, and I have decided that it should be implemented in this case."

'Added factor'

The judge said there was an "added factor" in the girl's case because of anxieties about her vomiting problems.

However, he said if the mother went back with her to Australia that would help reassure the teenager.

The purpose of the convention is that disputes, such as where a child lives, should be settled by the courts where the youngster was habitually resident prior to removal.

Lord Malcolm said it was only in exceptional cases that a refusal of a return order would be justified and added that this was not such a case.

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