Njc v Npc
| Jurisdiction | Scotland |
| Judgment Date | 10 June 2008 |
| Docket Number | No 39 |
| Date | 10 June 2008 |
| Court | Court of Session (Inner House - Extra Division) |
Court of Session Inner House Extra Division
Lord Osborne, Lord Hodge, Temporary Judge EF Bowen QC
Children and young persons - Child abduction - Wrongful removal - Child Abduction and Custody Act 1985 (cap 60), sch 1, arts 12, 13
The Child Abduction and Custody Act 1985 provides for the return of children to a country where they are habitually resident. Article 12 provides that where a child has been wrongfully removed and a period of less than a year has elapsed from such removal until the commencement of proceedings where the child is, the court is bound to order its return forthwith. Where more than a year has elapsed the court is bound so to order unless it is demonstrated that the child is now settled in its new environment. Article 13 provides that where removal of a child is wrongful, the court is bound to order its return, unless it is established that the petitioner's custody rights were not being exercised at the time of the removal or had consented to or acquiesced in removal, or that return would expose the child to physical or psychological harm or otherwise place it in an intolerable situation. The court may also refuse to order the return if the child objects to being returned and has attained an age or degree of maturity at which it is appropriate to take account of its views.
The petitioner and first respondent were married in the United Kingdom on 30 December 1989. A son was born to the couple in 1990; the fourth respondent, a girl, was born in 1993; the fifth respondent, a boy, in 1996; and the sixth respondent, a girl, in 1998. The first two children were born in England, the third in the USA, and the fourth in England. The family had travelled from England in 1994 to Mexico, on to the USA, returned to England in 1998, then to Spain where the family lived until the petitioner left in 2001, taking the fourth, fifth and sixth respondents with her to France. They were followed by the first respondent and the eldest son, and divorce proceedings and a custody action followed in the French courts. In 2002, the French Family Court pronounced an order that the parents were to exercise custody jointly, but that the eldest son was to reside with his father and the fourth to sixth respondents with the petitioner. Contact arrangements were established, divorce pronounced and an appeal in relation to the fourth respondent lodged by the first respondent refused. In July 2005, the first respondent while exercising custody rights removed all four children from France without the consent of the petitioner. The first respondent and the children travelled throughout southeast Asia for some six months, remaining in the Philippines for some time before returning to the United Kingdom in December 2006. They then lived in Dundee, a city with which they had had no previous connection. The first respondent was found guilty in absence in November 2006 of criminal charges in France in relation to his removal of the children. The petitioner, who had lost contact with them when they left France, on 17 November 2007, found a blog posted from Dundee with a photograph which contained a picture of her daughter, the fourth respondent. As a result of inquiries previously undertaken by Interpol and the Serious Organised Crime Agency, the first respondent had been discovered and arrested, appearing at Edinburgh Sheriff Court on 22 November 2007 when he did not consent to extradition and was released on bail. Bail was subsequently withdrawn following submission of a report by the curator ad litem appointed by the court in proceedings in the Court of Session, following the reclaiming motion of the first respondent against the Lord Ordinary's granting of a petition brought by the petitioner for an order returning the fourth to sixth respondents to France. The Lord Ordinary held that, although the petition for return of the children had been brought more than a year after they had started living in Scotland, they were not settled in their new environment. The objections stated by two of the children, the fourth and fifth respondents, were influenced by the first respondent and, in so far as they were their own, the objections were met by other factors or did not fall to be given weight greater than the general deterrence of the evil of child abduction.
The first respondent argued on his own behalf that the Lord Ordinary's opinion contained serious inaccuracies; failed to pay sufficient attention to the facts of the case; and did not pay due regard to the opinions of the children. Counsel for the petitioner and the curatorad litem for the fourth, fifth and sixth respondents submitted that the Lord Ordinary's opinion disclosed no error of approach and should be upheld.
Held that: (1) the first respondent had failed to establish settlement in terms of art 12 of any of the children concerned (paras44, 45); (2) the considerations of the first respondent's influence over the children in relation to their objection to the petitioner's request to return them to France had been properly taken into account along with the children's ages and other factors raised by them (para 46); (3) the appropriate interim measure was for the court to request the local council to supervise the residence of the children at their present place of residence (para 51); and appeal refused.
NJC brought a petition seeking an order for the return of three of her children to France. The father of the children was called as the first respondent. The children C, S and O were called as fourth, fifth and sixth respondents. A curator ad litem was appointed in respect of the children. Following the second hearing, the Lord Ordinary (Turnbull) found in the petitioner's favour, ordering the first respondent to return the children to France ([2008] CSOH 42). The first respondent reclaimed against the decision. The chief executive of the local authority and the principal reporter to the Scottish Children's Reporter Administration were called as the second and third respondents in the appeal. The three children were called as the fourth, fifth and sixth respondents. The court appointed a curator ad litem to the fourth, fifth and sixth respondents. At the appeal hearing, the petitioner and the curator ad litem of the children were represented, and the first respondent appeared on his own behalf. No appearance was made by, or for, any of the other respondents.
Cases referred to:
Anderson v HM AdvocateSCUNK 1996 JC 138; 1996 SCCR 114
Cannon v CannonUNKWLRFLRUNK [2004] EWCA Civ 1330; [2005] 1 WLR 32; [2005] 1 FLR 169; [2004] 3 FCR 438
HB (Abduction: Children's Objections) (Re)FLRUNKUNKFLRUNKUNK [1998] 1 FLR 422; [1998] 1 FCR 398; [1998] Fam Law 128 and [1997] 1 FLR 392; [1997] 3 FCR 235; [1997] Fam Law 312
Hogg v Motherwell District Council 12 December 2001, unreported
Ignaccolo-Zenide v RomaniaHRC (2001) 31 EHRR 7
J (Children) (Abduction: Child's Objections to Return) (Re)UNKFLRUNKUNK [2004] EWCA Civ 428; [2004] 2 FLR 64; [2004] 1 FCR 737; [2004] Fam Law 487
M and anr (Children) (Abduction: Rights of Custody) (Re)UNKWLRUNKFLR [2007] UKHL 55; [2007] 3 WLR 975; [2008] 1 All ER 1157; [2008] 1 FLR 251
N (Minors) (Abduction) (Re)FLRUNKUNK [1991] 1 FLR 413; [1991] FCR 765; [1991] Fam Law 367
Ralston v Secretary of State for ScotlandSC 1991 SC 336; 1992 SLT 687
Soucie v SoucieSCUNK 1995 SC 134; 1995 SLT 414; 1995 SCLR 203
T (Children) (Abduction: Child's Objections to Return) (Re)FLRUNKUNK [2000] 2 FLR 192; [2000] 2 FCR 159; [2000] Fam Law 594
TB v JB (Abduction: Grave Risk of Harm)FLRUNKUNK [2001] 2 FLR 515; [2001] 2 FCR 497; [2001] Fam Law 576
W v WSCUNK 2004 SC 63; 2003 SLT 1253; 2003 SCLR 685
The cause called before an Extra Division, comprising Lord Osborne, Lord Hodge, and Temporary Judge EF Bowen QC, for a hearing on the summar roll on 13 and 14 May 2008.
At advising, on 10 June 2008, the opinion of the Court was delivered by Lord Osborne-
Opinion of the Court-
[1] This is a petition brought under the Child Abduction and Custody Act 1985 (cap 60) at the instance of a French citizen. She was married to the first respondent on 30 December 1989. They were divorced on 28 October 2003. Together they have had four children, M, a male child now aged 17, C, a female child now aged 15, S, a male child now aged 11, and O, a female child now aged nine years. The present petition concerns the three children, C, S and O. The petitioner seeks an order for the return of those three children to France, where she lives. All four children at present live with their father, the first respondent, in Dundee. They are the fourth, fifth and sixth respondents.
[2] The petition came before the Lord Ordinary for a second hearing on 26 February 2008 and ensuing days. At that hearing the first respondent and the children C and S were separately represented. The child O did not enter the proceedings. At the second hearing evidence was presented in the form of affidavits and documentary productions. Following upon that hearing, the Lord Ordinary, on 4 March 2008, granted the prayer of the petition to the extent of ordering the first respondent to return the children, C, S and O, in terms of the Child Abduction and Custody Act 1985; he appointed the cause to the by order roll of 14 March 2008 to afford parties the opportunity to consider how best the court's order could be implemented. On 10 March 2008, the Lord Ordinary issued his opinion setting out the reasons for his decision. On 14 March 2008, at a by order roll hearing, the Lord Ordinary ordered the return of those children, as ordered by the interlocutor of 4 March 2008, to be implemented by the consent of the parties on 6 April 2008. Subsequently, the first respondent reclaimed the Lord Ordinary's interlocutor of 4 March 2008.
[3] On 28 March 2008, a curator ad litem was appointed by this court to the three children, C, S, and O. By a minute lodged on 21 April 2008, the curator ad litem intimated...
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