Njc V. Npc And Others For An Order Under The Child Abduction And Custody Act 1985

CourtCourt of Session
JudgeLord Hodge,Lord Osborne,Sheriff Principal E.F. Bowen
Neutral Citation[2006] CSIH 34
Publication Date11 June 2008
Docket NumberP160/08
Date10 June 2008


Lord Osborne Lord Hodge E F Bowen, QC [2006] CSIH 34



delivered by LORD OSBORNE

in the Petition of






For an Order under The Child Abduction & Custody Act 1985


Petitioner: J J Mitchell, QC; Innes; Drummond Miller WS

First Respondent: Party

Curator ad Litem: Kelly, QC; Pagan Osborne

10 June 2008

The Background Circumstances

[1] This is a Petition brought under the Child Abduction & Custody Act 1985 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 9 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 & 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 to the Court that she intended to enter the Process. Subsequently, on 9 May 2008, the curator ad litem lodged a Minute setting out the results of her investigations into the circumstances of the three children in question. She also stated that she had concluded that she did not support the first respondent's reclaiming motion.

[4] The history of the family, as ascertained by the Lord Ordinary, is described in

paragraphs [2] to [10] of his Opinion. Essentially, it is as follows. The petitioner and the first respondent were married in the United Kingdom on 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 while their parents lived in England. Around the end of 1994, the family left England, apparently with the intention of travelling to Colombia and Paraguay, where the first respondent intended to set up a religious community. The Lord Ordinary states that they reached Mexico, but illness and other problems brought their journey to an end. They appeared to have remained in Mexico, where the petitioner became pregnant, until sometime in 1996, when they moved to San Diego, California. The boy S was born there. They then seem 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.

[5] About four months after the birth of this last child, the family moved to Spain, where the first respondent 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 a 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 there. Within a few days, the first respondent had ascertained their whereabouts and had made contact. He and the eldest child M also obtained accommodation in that vicinity. Thereafter divorce proceedings and a custody action were initiated before the French Courts, which, in the event, proved lengthy and acrimonious.

[6] 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 established. 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.

[7] The first respondent was evidently dissatisfied with the outcome of those legal proceedings. On about 3 July 2005, while exercising contact rights to the three younger children, he removed all four children from the jurisdiction of the French Courts, without the consent of the petitioner. With the assistance of his sister, he had made arrangements to fly with the children to Switzerland and then 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 2006, when they returned to the United Kingdom. They then made their way, more or less immediately to Dundee, a city with which they had had no previous connection, where they have lived since.

[8] The Lord Ordinary explains in his findings that, at the date of their removal from France, the children were aged 15, 12, 8 and 6 years respectively. He considered that, in the first respondent's affidavit furnished to him, there was only the most superficial explanation of his actions, as described.

[9] Following the removal of the children from France, the petitioner immediately reported them missing to the police. An inquiry was launched, which appeared to trace their flights to Bangkok. Thereafter, however, their trail was lost. Throughout the entire period of their journeying, there was no contact or communication of any nature with the petitioner. Even after they had taken up residence in Dundee, no message of any kind was sent to her, until other events intervened.

[10] 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 these, the petitioner found a picture of her daughter, C, by now 14 years old. Thereupon, the petitioner took immediate steps to involve the French Authorities.

[11] In parallel with the petitioner's own inquiries, other procedures had unfolded in France. Criminal charges were brought against the first respondent and his sister, based upon the fact of the removal of the children from France in breach of a court order. On 20 November 2006, the first respondent was found guilty, in his absence, of these charges and sentenced to a period of 30 months imprisonment. A warrant for his arrest was issued. His sister, who was present at these criminal proceedings, did not contest them. She was sentenced to a suspended sentence of 15 months imprisonment. That sentence was appealed by the prosecuting authorities and on 10 October 2007, the Court of Appeal of Lyon quashed that sentence and imposed a sentence of one year's imprisonment. She was not present at that Hearing and a warrant was issued for her arrest.

[12] By late October 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. There have been several Hearings before the Sheriff in Edinburgh relating to the application for the extradition of the first respondent to France. On 26 March 2008 the Sheriff held that the offence stated in the European Arrest Warrant was an extradition offence for the reasons given in his Judgment of even date. The case was continued to a Notional Extradition Diet on 25 April 2008. Bail was continued. On 25 April 2008, on the joint motion of the parties, a further Notional Extradition Diet was ordered to take place on 20 May 2008. Once again bail was continued to that date. However, on 9 May 2008 at the request of the Procurator Fiscal, a further Hearing was convened before the Sheriff in the extradition proceedings. On that occasion, the Sheriff ordered the first respondent's bail to be withdrawn, having...

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