T. For An Order Under The Child Abduction And Custody Act 1985
| Jurisdiction | Scotland |
| Judge | Lady Paton |
| Neutral Citation | [2007] CSOH 43 |
| Docket Number | P2862/06 |
| Published date | 27 February 2007 |
| Court | Court of Session |
| Date | 27 February 2007 |
| OUTER HOUSE, COURT OF SESSION [2007] CSOH 43 | |
| P2862/06 | OPINION OF LADY PATON in the petition of T Petitioner; for An Order under the Child Abduction and Custody Act 1985 ________________ |
Petitioner: Burr, Advocate; Anderson Strathern
Respondent: Wylie, Advocate; J.K. Cameron; Digby Brown
27 February 2007
Whether Polish divorce decree gave father rights of custody within Hague Convention[1] The parties are Polish. They were married and divorced in Poland on 30 October 1993 and 19 March 2004 respectively. They have two children, both born in Poland, a daughter K and a son M, born on 28 March 1993 and 1 June 1999 respectively.
[2] The divorce decree granted by the Polish court as translated was in the following terms:
"2. Rules that the respondent [the mother] shall exercise the parental authority over the minor children: K born on March 28 1993 and M born on June 1 1999 and the petitioner's [the father's] parental authority shall be limited to co-decision-making in choosing school and profession and choosing the method of treatment in case of serious illness and that the respondent shall inform the [petitioner] of the minor children at the petitioner's demand and give him periodic information and shall give ready ear to the petitioner's remarks ...
4. Determines the access of the petitioner [the father] to minor children K and M on Wednesday and Saturday each week from 4 p.m. to 7 p.m. and every second week from Friday 4 p.m. to Sunday 7 p.m.; the petitioner is entitled to take the minor children outside their place of residence ..."
[3] In 2006, the respondent came to Scotland seeking employment. She managed to find a job and accommodation. She wished to remain in Scotland, and to have her children live with her. On 17 August 2006, the children were brought to Scotland by their maternal grandmother, to join their mother.
[4] The children's father (the petitioner) continued to live in Poland. He complained that the children had been wrongfully removed from Poland. He raised the present proceedings seeking the return of the children in order that a Polish court could deal with the parties' dispute. The respondent's primary defence was that the petitioner had no "rights of custody" in terms of the divorce decree, and did not qualify for the protection granted by Articles 3 and 5 of the Convention on the Civil Aspects of International Child Abduction (the Hague Convention). Those Articles provide:
"Article 3
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 ... 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 ...
Article 5
For the purposes of this Convention -
a) "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;
b) "rights of access" shall include the right to take a child for a limited period of time to a place other than the child's habitual residence."
[5] After sundry procedure, a debate on the question of rights of custody took place before me at a continued first hearing on 26 January 2007.
Submissions at the continued first hearing
Submissions on behalf of the petitioner
[6] Counsel for the petitioner stated that there was no dispute that the children's habitual residence was in Poland. The question was whether the petitioner's rights under the divorce decree, coupled with the Polish Family and Guardianship Code, amounted to "rights of custody". Counsel referred to articles 93(1) and 97 of the Polish Code. Those articles (translated) provide:
"Article 93. 1. Parental authority shall be vested in both parents ...
Article 97. 1. If parental authority has been vested in both parents, each of them has the obligation and the right to exercise it.
2. However, important matters concerning the child shall be decided upon by the parents jointly; in the case there is no agreement between them, the decision shall be made by the guardianship court."
There had been no derogation or suspension of the petitioner's rights under Articles 110, 111, or 112 of the Code. The opinion of a Polish lawyer Henryk Szulc, dated 27 December 2006, supported the view that the petitioner had rights of custody.
[7] The ability to co-decide as to choice of school was of particular significance, and indicated that the petitioner had rights of custody, as his parental authority extended to such a vital issue. Thus, quite apart from the Polish lawyer's opinion, it could be seen from the power relating to the choice of school that the petitioner had rights of custody. Even if there was a limitation on the pursuer's parental authority, he still retained the right to make a decision as to school.
[8] Counsel invited the court to prefer the opinion of Mr Szulc to that of Magdalena Guzewicz, a Polish lawyer instructed on behalf of the respondent. However even on the basis of the latter's opinion, the right to choose a school meant that the petitioner had rights of custody.
[9] The term "rights of custody" should be construed in its widest sense: In re B (A Minor) (Abduction) [1995] 2 F.C.R. 505, Waite L.J. at page 517E to 518; C v C (Minors) (Child Abduction) [1992] 1 F.L.R. 163, at page 170E. Moreover it was of importance that the petitioner's consent had been required for the children's passports. The clear implication was that the petitioner had a right to decide the children's place of residence in terms of country.
Submissions on behalf of the respondent
[10] Counsel for the respondent contended that the petitioner did not have rights of custody which would bring him under the Convention....
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