Perrin v Perrin
| Jurisdiction | Scotland |
| Judgment Date | 29 September 1993 |
| Docket Number | No. 6. |
| Date | 29 September 1993 |
| Court | Court of Session (Inner House - Extra Division) |
EXTRA DIVISION.
Lord Morton of Shuna.
Parent and child—Children and young persons—Conflict of laws—International child abduction—Whether removal of child wrongful—Petition brought shortly after one year from date of removal—Whether child settled in new environment—Whether petition should be granted—Child Abduction and Custody Act 1985 (cap. 60), Sched. 1, arts. 3 and 121
A couple married in France in May 1991, a child being born to them in September 1991. In June 1992 the mother left the father and returned to Scotland with the child. Following various court procedures in Scotland and France, the father petitioned the Court of Session in terms of art. 12 of the Convention on the Civil Aspects of International Child Abduction, seeking return of the child to France. The petition came before the court in July 1993, shortly after the first anniversary of removal of the child to Scotland. After a hearing based upon affidavit evidence the Lord Ordinary (Lord Morton of Shuna) ordered the return of the child. The only issues involved were: (a) whether the removal had been wrongful; and (b) whether, as the petition had been brought more than a year after the removal, it had been demonstrated that the child was settled in her new environment and, accordingly, whether, in the exercise of his discretion, the Lord Ordinary should refuse to order her return. In respect of the first matter, the Lord Ordinary had before him a letter from the French Ministry of Justice which informed the court that the removal had been
in direct contravention of the joint custody enjoyed by both parents in terms of art. 372 of the French Civil Code. The child being under two years old, the Lord Ordinary found that the affidavits showed little more than that she was healthy, and he did not consider that settlement in a new environment had been established. His Lordship accordingly ordered that the child be returned to France. The mother reclaimed.
Held (aff. judgment of Lord Morton of Shuna) (1) that, reading the Convention as a whole, and arts. 14, 15 and 18 in particular, wrongful removal or retention within the meaning of art. 3 meant something less than a full legal determination of custodial rights of parents and whether they had been breached, and if the removal or retention was, as here, prima facie wrongful, in the absence of any more specific determination, the Convention's provisions might be brought into effect; (2) that the letter from the French Ministry of Justice was clear and unambiguous and no other material document had been placed before the Lord Ordinary to controvert it; and, accordingly, (3) that the removal had been wrongful; (4) that proceedings were commenced only a short time after the 12-month period and, although it would in general terms be the case that, the longer the lapse of time after the first year following removal, the more likely it would be that the child would have settled in a new environment, where the lapse of time was short the quality of the evidence relied upon to establish settlement would have to be good; and (5) that the only point of substance for establishing this was that the child had lived more than half her young life in Scotland and had had a secure home with her mother for some four months before the hearing before the Lord Ordinary and that, adopting the constituents of settlement as being a physical element of relating to a community and environment and an emotional element denoting security and stability, the Lord Ordinary had been entitled to reach his decision; and reclaiming motion refused.
Re N. (Minors) (Abduction) [1991] 1 F.L.R. 413 (dictaof Bracewell J. at p. 418) applied.
Eric Serge Joseph Perrin petitioned the Court of Session in terms of the Child Abduction and Custody Act 1985, seeking an order in terms of art. 12 of the Convention on the Civil Aspects of International Child Abduction, reproduced in Sched. 1 to the Act, for the return of his child Camille to France, the child having been allegedly wrongfully removed from there by her mother, Mrs Sheena Anne Pearson or Perrin. The mother was called as respondent. The material averments and contents of the affidavit evidence appear from the opinion of the court.
The petition and affidavits came before the Lord Ordinary (Lord Morton of Shuna) for a hearing.
At advising, on 23rd July 1993, the Lord Ordinary pronounced an order for the return of the child to France. The judgment of the Lord Ordinary is sufficiently set forth in the opinion of the court.
The mother reclaimed.
The reclaiming motion called before an Extra Division, comprising Lord Murray, Lord Milligan and Lord Wylie, for a hearing.
At advising, on 29th September 1993, the opinion of the court was delivered by Lord Murray.
Opinion of the Court—The petitioner and the respondent married in France on 18th May 1991. They lived together in Myans, Savoie, France. Their child Camille Astrid Perrin was born on 19th September 1991 in France. On 17th June 1992 the respondent left the petitioner and returned to Scotland with Camille to the respondent's parents' home in the Lockerbie area. She raised proceedings for custody of Camille in Dumfries sheriff court, service being made upon the petitioner. He did not defend the action and the respondent was
awarded custody on 19th November 1992, decree being extracted on 4th December 1992. On 8th January 1993 the respondent was served with divorce papers in French court proceedings against her raised by the petitioner. The French court dismissed that action as incompetent on 12th March 1993, on the basis that jurisdiction was determined by residence of the spouse having care of the child. The petitioner appealed against that decision.
Following this judgment the petitioner took steps to invoke the Hague Convention on child abduction in order to obtain Camille's return to France. The petitioner applied to the French central authority under the Hague Convention, who then formally requested the relevant United Kingdom central authority, Scottish Courts Administration, to return Camille to France. On 30th June 1993 the petitioner presented this petition to the Court of Session seeking an order for the...
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