Petition Of Ks Against Mg
| Jurisdiction | Scotland |
| Judge | Lord Pentland |
| Neutral Citation | [2017] CSOH 26 |
| Docket Number | P428/16 |
| Date | 17 February 2017 |
| Court | Court of Session |
| Published date | 17 February 2017 |
OUTER HOUSE, COURT OF SESSION
[2017] CSOH 26
P428/16
OPINION OF LORD PENTLAND
In the Petition of
KS
Petitioner
against
MG
Respondent
Petitioner: Rattray; MHD Law LLP
Respondent: Shewan; Thorley Stephenson
17 February 2017
Introduction
[1] In this Petition the father of a 10‑year‑old boy, to whom I shall refer as “P”, seeks an order for return of the child to Poland under and in terms of the Child Abduction and Custody Act 1985. P was born on 11 October 2006. He and his parents are Polish citizens. P currently lives with his mother, the respondent, in Scotland.
[2] After his birth P lived in Poland with his parents, who were then in a relationship. They have never been married to one another. The petitioner and the respondent separated in 2011. Following the separation, P lived with the respondent in Poland. The petitioner continued to have regular contact with the child.
[3] In about September 2012 the respondent moved to Scotland in order to find employment in this country. P remained in Poland with the petitioner. At that time the child’s grandmother and great grandmother helped the petitioner to look after the child.
[4] In about August 2013 the respondent’s mother travelled with the child to Scotland. The reason for and circumstances surrounding this visit are not agreed in the parties’ pleadings, but it is unnecessary for me to resolve this aspect of the dispute. This is because following the commencement of proceedings by the petitioner in this court for return of the child, the respondent agreed to return him to Poland and he went back to that country in about December 2013. The respondent remained in Scotland where she has established a new relationship. She and her new partner have young twins.
[5] Following P’s return to Poland, the parties engaged in child welfare proceedings before the District Court in Poznan. I shall have more to say about these proceedings later. P lived with the petitioner in Poland until 22 August 2015 when the respondent removed him to Scotland; he has been in her care in this country since then. The respondent avers that she decided to take the child to Scotland based on advice from her Polish lawyer that she was entitled to do so under and in terms of an order of the District Court initially made on 31 October 2014 and finally confirmed on 21 July 2015 after an appeal to the Regional Court. The petitioner disputes this interpretation of the District Court’s ruling.
The Present Proceedings
[6] The present proceedings have a somewhat unfortunate history. They were commenced in May 2016. Later that month the court appointed Mr Alan Inglis, advocate, as a child welfare reporter. Having visited the child, Mr Inglis prepared a report dated 26 May 2016. He said in his report that he had no doubt that P would be very upset if he was required to return to Poland. He added that there did not appear to be any reliable information at that time to enable him to evaluate P’s level of maturity. A second hearing initially took place on 27 June 2016. At that hearing the court issued a request to the Polish authorities in terms of Article 15 of the Hague Convention for a determination as to whether the removal of the child by the respondent in August 2015 was wrongful. The second hearing was continued to allow this process to be followed through. It transpired that there is no mechanism in Poland for such a referral. Accordingly, the case called again before the Lord Ordinary in July 2016 when parties were allowed a continued second hearing on a date to be afterwards fixed. Thereafter the respondent’s solicitors withdrew from acting for her. I understand that this was at least partly because of the appointment of a judicial factor to a firm of solicitors she had instructed at local level. Legal aid difficulties ensued.
[7] Following some further procedure, the case came before me in December 2016 when the respondent appeared on her own behalf with the assistance of an interpreter. It was clear that she could not be expected to conduct the case in person in view of the complexity and technicality of the issues. She did not have a good understanding of the difficulties which had arisen with her former solicitors and she was unclear about the availability of legal aid. In the circumstances, I urged her to renew her efforts to obtain legal representation and I asked the clerk of court to assist by contacting the Scottish Legal Aid Board. The representation and funding problems were resolved over the Christmas and New Year period and on 10 January 2017 the case called before me again. On that date, I appointed Mr Inglis to provide a second report on the child’s up‑to‑date views on being returned to Poland. Mr Inglis prepared a further report dated 16 January 2017, having again visited the child. The case came before me for a substantive second hearing on 2 February 2017, at which both parties were represented by counsel.
The Applicable Law
[8] Section 1 of the Child Abduction and Custody Act 1985 provides inter alia that the provisions of the Convention on the civil aspects of international child abduction signed at the Hague on 25 October 1980 (“the Hague Convention”) as set out in Schedule 1 to the Act shall have the force of law in the United Kingdom.
[9] Article 3 of the Hague Convention provides as follows:
“The removal or the retention of a child is to be considered wrongful where -
a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”
[10] Article 5 of the Hague Convention provides inter alia that: “rights of custody” shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence.
[11] Article 12 of the Hague Convention provides as follows:
“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.”
[12] Article 13 of the Hague Convention provides:
“The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.”
[13] Article 11(2) of Brussels II bis (Council Regulation (EC) 2201/2003) provides:
“When applying Articles 12 and 13 of the 1980 Hague 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.”
The Issues in the Case
[14] There are two issues in dispute between the parties. They are:
1. Whether the removal of P by the respondent from Poland on 22 August 2015 was in breach of the petitioner’s rights of custody; and
2. If the child’s removal was in breach of the petitioner’s rights of custody, whether the court should refuse to order the return of the child because he objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of his views.
The First Issue
[15] The first issue turns on the meaning and effect of the order of 31 October 2014 made by the District Court in Poznan. The respondent accepts that the petitioner has rights of custody within the meaning of the Hague Convention, but argues that the District Court gave her permission to remove the child to live with her in Scotland and that accordingly the petitioner’s rights of custody have not been breached.
[16] Under Polish family law the Guardianship Court may, where a child’s parents are living apart, entrust the exercise of parental authority to one of the parents. At the same time the Court may limit the parental authority of the other parent to specific powers and duties in relation to the child. These powers derive from Article 107 of the Polish Family and Guardianship Code.
[17] By the first paragraph of its formal ruling issued on 31 October 2014 and finally confirmed on 21 July 2015 after an appeal to the Regional Court, the District Court decided that custody of P was awarded to the respondent. There was some initial doubt at the hearing before me as to whether the term “custody” was an entirely accurate translation. Any difficulty was resolved by the lodging of a Joint Minute by which the parties agreed that the terms “custody” and “execution of parental authority” in the District Court Order are interchangeable and have the same meaning under Polish law.
[18] In the same paragraph of its ruling the District Court restricted the parental authority of the petitioner to the right to participate in decisions regarding the most important matters in P’s life.
[19] In addition to its formal ruling, the District Court issued detailed written reasons for its decision. In the legal opinions obtained by the parties from Polish lawyers, consideration was given to the extent to which it is legitimate under Polish law to have regard to the written reasons issued by a court when a question arises as to the meaning and effect of the court’s formal ruling. In the opinion of 16 September 2016 provided by the expert instructed for the ...
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