Petition Of Gcmr For An Order Under The Child Abduction And Custody Act 1985
| Jurisdiction | Scotland |
| Judge | Lady Wise |
| Neutral Citation | [2017] CSOH 66 |
| Year | 2017 |
| Published date | 21 April 2017 |
| Docket Number | P1129/16 |
| Court | Court of Session |
| Date | 21 April 2017 |
OUTER HOUSE, COURT OF SESSION
[2017] CSOH 66
P1129/16
OPINION OF LADY WISE
In the Petition of
GCMR
Petitioner
for
an order under the Child Abduction and Custody Act 1985
Petitioner: Hayhow; Morton Fraser LLP
Respondent: N Gilchrist; Drummond Miller LLP
21 April 2017
Introduction
[1] The petitioner is 39 years old. He is Portuguese and has resided in the same region of Portugal throughout his life. He is the father of the child who is the subject matter of this Petition, a girl, IAR, who was born in Portugal in September 2006 and is now aged 10. The respondent, IAR’s mother, is also a Portuguese citizen. IAR was born in Portugal and lived there until December 2011 when she was wrongfully removed from the country of her habitual residence by her mother. The petitioner and respondent had litigated the issue of custody of their daughter and had been sharing her care equally by virtue of an order of their local court dated 10 September 2009. On discovering that the respondent had abducted the child, the petitioner took all reasonable steps to ascertain her whereabouts. He suspected she had gone to Brazil, a country in which she had lived for some years as a child. Between January 2012 and May 2016 he was unable to locate the respondent and IAR, despite having requested information about her whereabouts from a number of countries, including the United Kingdom. In May 2016 the respondent was located by the English central authority at an address in Hamilton, where she has resided for some years. There was a delay thereafter in the transmission from the Portuguese central authority to the English central authority of the petitioner’s application for the return of the child. In October 2016 the English central authority received the application and transmitted it to the Scottish central authority during the same month.
[2] It is not in dispute that the petitioner has rights of custody in respect of IAR in terms of Article 3 of the Hague Convention on the Civil Aspects of International Child Abduction, incorporated into domestic law as Schedule 1 to the Child Abduction and Custody Act 1985. Nor is it disputed that IAR was at the time of her abduction habitually resident in Portugal. The respondent concedes that she was wrongfully removed from the country of her habitual residence in a clandestine manner. In these circumstances the petitioner seeks an order for the return of IAR to Portugal in terms of the said Act of 1985.
[3] These proceedings were initiated by first orders granted by the Lord Ordinary on 22 November 2016. Accordingly, a period of almost five years passed between the wrongful removal and the raising of the petition for return. In those circumstances the respondent relies, inter alia, on the terms of Article 12 of the Hague Convention which provides an exception to the requirement to order the return of a child removed from his or her habitual resident forthwith if it is demonstrated that that child is now settled in his or her new environment. The respondent relies also on the provisions of Article 13 of the convention. Two separate defences to a return to the country of habitual residence are raised by her under that Article. First, under Article 13b it is contended that there is a grave risk that the return of the child would expose her to physical or psychological harm or otherwise place her in an intolerable situation and secondly and separately that the child IAR objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of her views.
[4] In relation to the issues of settlement and objection to return a remit was made on 30 November 2016 to a child psychologist to enquire into and report to the court on IAR’s views for assistance in the court’s determination. Dr Katherine Edward was instructed by the parties and her report now forms number 18 of process. In addition to the benefit of that report, I had before me also affidavit evidence from the petitioner, the respondent and a number of other witnesses, together with a large volume of documentary material. The basic facts of the wrongful retention are undisputed and in many ways the petitioner was not in a position to contest the facts stated in relation to the current circumstances of the child, having not seen her since September 2011. Standing the concessions made about rights of custody, habitual residence and wrongful retention, it was agreed that the onus was on the respondent to establish settlement and/or either of the Article 13 defences and I heard submissions on behalf of the respondent first. Unsurprisingly, there was a large measure of agreement in relation to the applicable law and I will summarise that in relation to each of the three issues first, before summarising each party’s argument.
(i) Article12 and Settlement
[5] Article 12 of the Hague Convention is in the following terms:
“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.”
The interpretation of Article 12 has been the subject of authoritative discussion both in this jurisdiction and in England. Reference was made to the Inner House decisions in Perrin v Perrin 1994 SC 45, Soucie v Soucie 1995 SC 134 and NJC v NPC 2008 SC 571. It is also important to understand that if it is shown that a child has become settled for the purposes of Article 12 the court then moves to a second stage of discretion and decides whether or not to return that child within the convention procedures. In Soucie v Soucie the Extra Division identified the correct approach as follows:
“…we consider that the proper question is whether the child is so settled in her new environment that the court would be justified in disregarding an otherwise mandatory requirement to have the child returned. This is another way of saying that the interest of the child in not being uprooted is so cogent that it outweighs the primary purpose of the convention, namely the return of the child to the proper jurisdiction so that the child’s future may be determined in the appropriate place. …this is not just a balancing exercise between the requirements of the convention on the one hand and the interests of the child on the other. Such a balancing exercise may be appropriate when considering the discretionary powers of the court under article 18, which will come into play if the proviso to article 12 is established or indeed if any of the matters contained in article 13 are established. Even in discretionary cases it has been said that it is for the court to conduct the necessary balancing exercise between what would otherwise be required by the convention and the interests of the children, but only where it can clearly be shown that the interests of the children require it, should the court refuse to order their return.”
In Perrin v Perrin the Extra Division cited with approval a passage from the judgment of Bracewell J in the case of R N (Minors) (Abduction) [1991] 1 FLR 413 at 418 which is in the following terms:
“What factors does the new environment encompass? The word ‘new’ is significant, and in my judgment it must encompass place, home, school, people, friends, activities and opportunities, but not, per se, the relationship with the mother which has always existed in a close, loving attachment, that can only be relevant in so far as it impinges on the new surroundings. Every case must depend on its own peculiar facts…whether or not the mother herself is settled in the UK is not a relevant factor. It is not the welfare test that I am concerned with in applying article 12.”
The more recent case of NJC v NPC 2008 SC 571 concerned a father who had taken his children from France and had moved around avoiding them being returned through concealment and subterfuge. There the children had been in Scotland for well over a year before the Petition was brought, but the clandestine nature of their presence here militated against a conclusion that they had become settled. It is noteworthy that the Extra Division in NJC cited with approval the English decision of Cannon v Cannon [2005] 1 WLR 32 where it was held that, when determining whether a child was “settled in its new environment” for the purposes of Article 12 of the convention, it was necessary to have regard to the emotional and psychological elements of settlement as well as the physical characteristics.
[6] Finally, the terms of Article 11 of Council Regulation 2201/2003 (hereinafter “Brussels II bis”) requires that “… when applying Article 12 and 13 of the 1980 Convention, it shall be ensured that the child is given the opportunity to be heard during the proceedings unless this appears inappropriate having regard to his or her age or degree of maturity.”
[7] Ms Gilchrist for the respondent submitted that on the facts of this case there was ample evidence for a finding that the child IAR is settled in Scotland in terms of Article 12 and that the consequent discretion not to return her should be exercised so that no order for her return to Portugal should be made. The respondent’s affidavit number 7/1 of process was referred to. It was submitted that the respondent has lived openly in Scotland for five years. This was a longer period than in any of the reported decisions. Unlike the cases of Cannon and NJC the respondent had not lived a clandestine,...
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