Igr (ap) For Orders Under The Child Abduction And Custody Act 1985
| Jurisdiction | Scotland |
| Judge | Lord Brodie |
| Neutral Citation | [2011] CSOH 208 |
| Year | 2011 |
| Published date | 20 December 2011 |
| Docket Number | P1136/11 |
| Court | Court of Session |
| Date | 20 December 2011 |
| OUTER HOUSE, COURT OF SESSION [2011] CSOH 208 | |
| P1136/11 | OPINION OF LORD BRODIE in the Petition of IGR (AP) Petitioner; for orders under the Child Abduction and Custody Act 1985 ________________ |
Petitioner: Hayhow, Advocate; Wright & Crawford, Solicitors
Respondent: Innes, Advocate; Morisons, LLP
20 December 2011
Introduction
[1] This is a petition for a return order under the Child Abduction and Custody Act 1985 in respect of a child, a boy, E, who was born in Poland on 25 September 2007, who is a Polish citizen and who was removed from Poland and taken to Scotland on 28 February 2009. The petitioner, an Egyptian national resident in Poland, is the father of the child. The respondent, a Polish national currently resident in Scotland together with E, is the mother. The petitioner and the respondent were married on 3 March 2005.
[2] First orders in the petition were granted on 14 October 2011. The petition was served later that day. Answers were received, although late, on 21 October 2011 and the petition continued, in terms of RCS 70.6(5)(c), to what was designated as a second hearing.
[3] The petition came before me for hearing on 24 November 2011. Counsel for the petitioner, Mr Hayhow, confirmed that his motion was for grant of the prayer of the petition which sought an order for the return of E to Poland. He accepted that if the court was minded to make such an order, the specific arrangements for its implement might usefully first be discussed at a By Order hearing. Counsel for the respondent, Miss Innes, conceded that the removal of E from Poland on 28 February 2009 had been "wrongful" in terms of article 3 of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction ("the Hague Convention") and had been in breach of the petitioner's "rights of custody" in terms of article 5. Article 12 of the Hague Convention was therefore engaged. Nevertheless, the respondent sought to resist an order for his return. Miss Innes accepted that in these circumstances the onus was upon the respondent, as the party opposing return, to establish a basis upon which the prayer of the petition should be refused. She indicated that she would argue that the petitioner had acquiesced in the respondent retaining E in Scotland; that there was a grave risk that his return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; that the child is now settled in his new environment; and that in an exercise of its discretion, the court should not order the child's return.
[4] I heard submissions by counsel under reference to affidavits, an unsworn statement by the petitioner, a letter from the respondent, and the other productions, on 24 November 2011 and the following day. No oral evidence was led. I also had regard to the terms of a letter from the Social Work Manager Children and Families and Justice, dated 23 November 2011 (based on a visit by an identified qualified social worker to the respondent's home address on 22 November 2011), which had been sent to the court and which was received as number 18 of process. I shall refer to this as "the social work report". The social work report gives an account of certain complaints made by the respondent against the petitioner which, in line with the approach to be taken when considering conflicting affidavits (see D v D 2002 SC 33 at para 8) standing the petitioner's denial, I cannot regard as proved. In addition there is information, based on the letter writer's own assessment of the position as well as the observations of the social worker who made the home visit, which would indicate that E is currently well cared for.
The facts
Uncontroversial facts
[5] A certain amount appeared to be uncontroversial as between the parties.
[6] The parties married on 3 March 2005. They had met in Egypt when the respondent was there on holiday. The respondent had previously been married and has an eighteen-year-old son by that marriage. He lives in Poland with his father. The petitioner came to reside in Poland in about February 2006. The respondent is a trained teacher but has not worked recently in this capacity. She and the petitioner had a coffee shop business in Poland which got into financial difficulty and had to be closed. The respondent worked subsequently in Warsaw as a product manager.
[7] The respondent left Poland, together with E, and came to Scotland on 28 February 2009. As at that date the respondent, the petitioner and therefore E, were all habitually resident in Poland. Since her arrival she has lived in three addresses in Airdrie: from February 2009 until March 2010 at the first address, from March 2010 until February 2011 at the second address and thereafter at the third address. There has been telephone communication between the parties initiated by the respondent since the respondent's arrival in Scotland but the respondent has never disclosed her address to the petitioner. The parties have not seen one another and the petitioner has not seen E since he left Poland in February 2009.
[8] The respondent has applied for and been allocated a National Insurance number. She has applied to register under the Accession State Worker Registration Scheme. She has claimed Child Benefit for E. She is currently self-employed. She is a student at Motherwell College.
[9] E has a good command of English. He attends a local nursery. He is also cared for by a local childminder, LCC, with whom he has a good relationship, when the respondent is studying or at work. The assessment of the responsible social work authority is that E is thriving in his mother's care in Scotland.
[10] On 27 October 2011, subsequent to service of the petition the respondent raised divorce proceeding in Warsaw District Court - 7th Civil Registry (Sad Okregowy w Warszawie VII Wydzial Cywilny Rejestrowy) seeking, inter alia, orders allowing the child to reside with her and depriving the petitioner of contact. Under cover of e-mail dated 7 December 2011, and therefore after the conclusion of the hearing on this petition, the respondent's agents sent my clerk a copy Decision of what is described in the accompanying translation as the 7th Civil Registry Department of Warsaw Circuit Court dated 28 November 2011 ruling that, as matters stood, the court did not have jurisdiction in the matter of parental responsibility in respect of E. The Decision of the Polish court applies article 8 of Council Regulation (EC) 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility ("Brussels II bis") which provides that jurisdiction depends on the habitual residence of the child. As the Polish court explains, article 12 of Brussels II bis makes provision for prorogation of jurisdiction where all holders of parental responsibility agree and doing so is in the best interests of the child. However, as the divorce proceedings had not been served on the petitioner, jurisdiction on that ground could not yet be established.
[11] The petitioner has the necessary permission to work in Poland. He has applied for a residence permit. He has not yet secured it.
Disputed or doubtful facts
[12] The respondent alleges that the petitioner has been violent towards her while they were living together and that she left him after a violent incident on 12 or 13 February 2009. This the petitioner disputes. I am not in a position to determine the truth or otherwise of the respondent's allegations of a history of physical violence towards her but the affidavit of the respondent's friend, B S-M, supports the respondent's account of a row between the respondent and the petitioner on or about 13 February 2009 in consequence of which the respondent left and stayed with B S-M until her departure for Scotland. That is inconsistent with the petitioner's reference to his returning from work on 28 February 2009 to find the respondent and E gone. The respondent disputes that the petitioner was in work at that time.
[13] According to the affidavit of AMK, a Polish national and friend of the respondent with whom she and E lived when they first came to Scotland, E "speaks very good English. He understands Polish words but doesn't speak this language ...He speaks only English". The respondent does not address E's ability to speak Polish in her affidavit. I confess that I would consider it surprising were it to be the case that the respondent, currently in the situation of a single mother and a native speaker, never uses Polish with her child with the result that E has no command of that language. On available information, I do not accept it as established that E has no fluency in Polish.
[14] The respondent claims that she told the petitioner that she intended to go to the United Kingdom before she left Poland and that two days after her arrival that she telephoned the petitioner and told him that she was in Scotland. Moreover, the respondent's position is that the petitioner had her mobile telephone number which he has used to call her using the United Kingdom national code. The petitioner's position is that telephone calls were initiated only by the respondent and that it was only in February 2011 that he learned that respondent was in the United Kingdom (by reason of a money transfer through Western Union) and in April 2011 that he learned her address (from an internet posting). According to the respondent it was the petitioner who specified the country of destination in the instructions for the money transfer.
[15] The petitioner claims to have been in employment part-time from 28 October 2011 at a monthly salary of zł 2000. The respondent has no knowledge of this. Miss Innes, on behalf of the respondent, expressed scepticism as to whether the documentation apparently supporting the fact that the petitioner was employed was genuine.
[16] The petitioner...
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