C. V. C. For An Order Under The Child Abduction And Custody Act 1985
| Jurisdiction | Scotland |
| Judge | Lord Turnbull |
| Neutral Citation | [2008] CSOH 42 |
| Court | Court of Session |
| Published date | 10 March 2008 |
| Date | 10 March 2008 |
| Year | 2008 |
| OUTER HOUSE, COURT OF SESSION [2008] CSOH 42 | |
| OPINION OF LORD TURNBULL in the Petition of C Petitioner; against C Respondent: for An Order under the Child Abduction and Custody Act 1985. ________________ |
Petitioner, Mitchell QC, Innes; Drummond Miller
First Respondent, Dowdalls; Bonar Mackenzie
Fourth Respondent, Jack; Anderson Strathern LLP
Fifth Respondent, Brabender; Morisons
10 March 2008
Introduction
[1] This is a petition brought under the Child Abduction and Custody Act 1985 at the instance of a French citizen. She was married to the first respondent and together they have four children, M a male child now aged 17, C a female child now aged 14, S a male child now aged 11 and O a female child now aged 9. The petitioner seeks an order for the return of the three younger children who presently live with their father, the first respondent, in Dundee. The children are listed as the fourth, fifth and sixth parties, in decreasing order of age, in the order of the Schedule for Service within the petition. I will refer to them throughout by their initials. I heard evidence and submissions over 26, 27, 28 and 29 February 2008. Evidence was presented by reference to affidavits and documentary productions. The first respondent and the children C and S were each separately represented. The child O did not enter proceedings.
Background
[2] All four of the children of the parties to this case have led an unusual life. The petitioner and the respondent were married in the United Kingdom on the 30 December 1989. The boy M was born on 24 June 1990, the girl C on 17 March 1993, the boy S on 27 October 1996 and the girl O on 2 August 1998. The first two children were born whilst their parents lived in England. Around the end of 1994 the family left, apparently with the intention of travelling to Columbia and on to Paraguay, where the father intended to set up a religious community. As I understood it, they reached as far as Mexico before illness and other problems brought their journey to an end. They appear to have remained in Mexico, where the petitioner again fell pregnant, until some time in 1996 when they moved to San Diego, California. The boy S was born there. They then seemed to have travelled around the United States of America to some extent, returning to England in 1998 where their fourth child the girl O was born.
[3] About four months after the birth of this last child the family moved to Spain, where the father had apparently obtained building work. The whole family lived in Spain until September 2001 when the petitioner left taking with her the children C, S and O. The eldest child M, then aged 11, was left in the care of his father and his paternal grandmother, who had by then been living with the family in Spain. The petitioner, with the assistance of her own parents, went to Saint-Etienne in South East France and obtained accommodation in a refuge. Within a few days the first respondent had ascertained their whereabouts and made contact. He and the eldest child M also obtained accommodation in the vicinity and a lengthy and acrimonious divorce and custody action was then initiated before the French Courts.
[4] On 12 February 2002 an order was pronounced by the French Family Court providing that both parents were to exercise custody jointly but that M was to reside with his father and the other three children were to reside with their mother. Contact arrangements were also put in place. On 28 October 2003 decree of divorce was pronounced, the residence arrangements for the respective children were affirmed and both parents were prohibited from removing the children from French territory without the consent of the other. The first respondent appealed against the custody decision, but only in so far as it related to the child C. On 10 January 2005 the decision of the Court at first instance was upheld by the Appellate Court in Lyon. Throughout this whole process, and thereafter, the children attended schools in Saint-Etienne and contact, including residential contact, took place on a regular basis. I have taken much of the history of the family up until 2005 from the reports prepared in connection with the French proceedings, which were lodged as productions on behalf of the petitioner and which I will discuss in more detail in due course.
[5] The first respondent was evidently dissatisfied with the outcome of these legal proceedings. On about 3 July 2005, whilst exercising contact rights to the three younger children, he removed all four from the jurisdiction of the French Courts. With the assistance of his sister he had made arrangements to fly with the children to Switzerland and then on to Bangkok. He and all four children then spent the next six months travelling around various parts of South East Asia until around February 2006, when they found themselves in the Philippines. They remained there until December 2007 when they returned to the United Kingdom. They then made their way more or less immediately to Dundee, where they have lived since.
[6] At the date of their removal the children were aged 15, 12, 8 and 6 years respectively. Within the first respondent's affidavit there is only the most superficial explanation of his actions. There is no explanation at all as to why he chose to include the two younger children, standing the fact that they were not included in his appeal against the decision of the French Family Court at first instance. The children's mother immediately reported them missing to the police. An enquiry was launched which appeared to trace their air flights to Bangkok. Thereafter their trail was lost. Throughout the entire period of their journeying there was no contact or communication of any nature with their mother. Even after they had taken up residence in Dundee no message of any sort was sent to her, until other events intervened.
[7] Throughout the time that her children were missing the petitioner had taken active steps to locate their whereabouts. Amongst other things she constantly used the internet to contact schools, churches and other organisations across the world. On 17 November 2007 she came across a "blog" posted by a teenage girl attending secondary school in Dundee. This young girl had included photographs of some of her own school friends on her site. On looking through this the petitioner came across a picture of her daughter C, by now 14 years old. She took immediate steps to involve the French authorities.
[8] In parallel with the petitioner's own enquiries other procedures had unfolded in France. Criminal charges were brought against the first respondent and his sister in light of the children's removal. On 20 November 2006 he was found guilty, in his absence, and sentenced to a period of 30 months imprisonment. A warrant for his arrest was issued. His sister, who was present and did not contest the proceedings, was sentenced to a suspended sentence of 15 months imprisonment. This sentence was appealed by the prosecuting authorities and on 10 October 2007 the Court of Appeal of Lyon quashed that sentence and imposed a period of one year's imprisonment. She was not present at that hearing and a warrant was issued for her arrest. I am not aware whether that warrant has ever been executed.
[9] By late October of 2007 information was available to suggest that the first respondent might be living in Scotland. Enquiries with a view to his extradition were made by Interpol and the Serious Organised Crime Agency, with the result that he was arrested and appeared at Edinburgh Sheriff Court on 22 November 2007. He did not consent to his extradition and was released on bail. The full hearing on his extradition is set for 10 March 2008.
[10] On the evening of 28 November 2007 the first respondent telephoned the petitioner. They spoke briefly and she was permitted to speak to her daughter C. This was the first contact of any nature which had occurred between the petitioner and any of her children since July of 2005. Although the petitioner had known of their general whereabouts since discovering the photograph, she still did not know their address or telephone number. She was not given either during this telephone conversation. Even after the first respondent's arrest, the initiation of the present proceedings and various different efforts to see her children, it was not until the fourth day of the hearing before me, Friday 29 February 2008, that the petitioner was able to do so.
The Present Application
[11] In the present application the first respondent, relying on the provisions of articles 12 and 13 of the Hague Convention on the Civil Aspects of International Child Abduction ("the Convention"), argues that I should refuse to make an order for the return of any of the children. Each of Counsel for the children C and S also argued that I ought to refuse to make an order for the return of the individual child which they represented. In doing so each relied upon the provisions of both article 12 and article 13 of the Convention, which are in the following terms:
Article 12
Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.
The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.
Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the...
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Njc v Npc
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