Petition Of Yg Against Eep
| Jurisdiction | Scotland |
| Judge | Lord Mulholland |
| Neutral Citation | [2017] CSOH 75 |
| Court | Court of Session |
| Docket Number | P178/17 |
| Published date | 10 May 2017 |
| Date | 10 May 2017 |
OUTER HOUSE, COURT OF SESSION
[2017] CSOH 75
P178/17
OPINION OF LORD MULHOLLAND
In the Petition of
YG
Petitioner
against
EEP
Respondent
Petitioner: Inglis; SKO Family Law Specialists
Respondent: Malcolm; Thorley Stephenson SSC
10 May 2017
Introduction
[1] This is a Petition seeking an order under the Child Abduction and Custody Act 1985 (the 1985 Act) for the return to Sweden of a young girl (the child) who was born in Sweden on 1 May 2009. The mother of the child is the respondent. The child resides with her mother in Scotland. The petitioner is the father of the child and resides in Sweden.
Background
[2] After her birth the child lived in Sweden with her parents who were then in a relationship. They have never been married to one another. They separated on or about August or September 2015. The respondent returned to Scotland in September 2015. The child stayed with the petitioner in Sweden. The respondent returned to Sweden in January 2016 and the child then resided with the respondent in an apartment, the petitioner moving to a new apartment. The petitioner had weekend and holiday contact with the child, as agreed between the respondent and the petitioner, although there is a dispute about the “take up” of the contact. On 7 June 2016 the respondent returned to Scotland with the child, unbeknown to the petitioner. In terms of the laws of Sweden, on said date the petitioner and respondent had joint custody of the child. The petitioner made application to the Swedish courts on 17 June 2016 for sole custody of the child. On 13 July 2016, Södertälje District Court in Sweden (the Swedish Court) appointed a Guardian ad litem to protect the interests of the child. The guardian attempted unsuccessfully to make contact with the respondent. Notwithstanding this failure, the guardian contested the petitioner’s application which included the demand for interim custody (6/13 of the inventory of productions). On 8 September 2016 the Swedish court ordered that the petitioner be granted sole custody of the child on an interim basis. On 16 September 2016 a detention order was issued for the respondent, in her absence, on the basis that there was probable cause to suspect that she had committed the offence of unlawful abduction of a child (judgment of the Swedish Court dated 10 November 2016 which is 6/4 of the inventory of productions). The detention order remains in force. On 5 October 2016 the Swedish prosecutor issued a European Arrest Warrant for the arrest and extradition of the respondent (7/1 of the inventory of productions).
[3] The application by the Swedish authorities for the arrest and extradition of the respondent was refused by a sheriff at Edinburgh Sheriff Court on 19 January 2017 (6/7 of the inventory of productions). The basis of the refusal was that the requirement of dual criminality (Extradition Act 2003 section 64(3)) was not met as the offence set out in the European Arrest Warrant was not an offence in Scots Law. The initial removal of the child from Sweden was not a breach of a court order as there was no court order in place at the time the child was removed from Sweden. Accordingly, no offence was committed in Scots law. This decision has not been appealed and proceedings are at an end in Scotland. However, the detention order issued in Sweden on 16 September 2016 remains in force.
The Present Proceedings
[4] The petitioner commenced the current proceedings on 23 February 2017 when the petition was lodged. On 9 March 2017 the court appointed Ceit‑Anna MacLeod, advocate as a child welfare reporter. Having interviewed the child at her school on 21 March 2017 Ms MacLeod prepared a report dated 23 March 2017. The report informed that the child did not want to speak with the reporter or offer comments or views about living in Scotland or returning to Sweden. The respondent lodged a report from a chartered clinical psychologist dated 30 March 2017 based on an interview with the child on 29 March 2017 which confirmed that the child does not wish to be removed from her maternal family and returned to Sweden to be with the petitioner, that such a return would have a negative impact on her psychological wellbeing and developmental functioning, at least in the short term, and that forced separation from the respondent would have a negative impact on her. The rules of the Court of Session (RCS 70.6) envisage that applications will normally be determined on affidavits and other documentary evidence. The Hague Convention process is of a summary nature. Affidavits were lodged from the petitioner (6/2, 6/8 and 6/14 of the inventory of productions), the respondent (dated 29 March 2017) and the petitioner’s Swedish attorney (6/15 of the inventory of productions). A number of documents were also lodged (6/1 to 6/19 for the petitioner and 7/1 to 7/6 for the respondent). I have read and considered all this material in reaching my decision. A second hearing took place on 3 and 4 April 2017 when submissions were presented by counsel on behalf of both parties.
The Applicable Law
[5] 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.
[6] 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.”
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.
[7] 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….”
[8] Article 13 of the Hague Convention provides as follows:
“Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that—
(a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or
(b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
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...”
[9] As Sweden and the United Kingdom are European Union states, the Hague Convention is affected by Council Regulation 2201/2003 (EU 2201/2003). In terms of section 1 of the 1985 Act the provisions of the Hague Convention are subject to Article 60 of EU 2201/2003 ((d) to (e)) by virtue of which the Regulation takes precedence over the Hague Convention, in so far as it concerns matters governed by the Regulation. In terms of Article 11.4 of EU 2201/2003 a court cannot refuse to return a child on the basis of Article 13b of the Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return.
[10] A number of cases cited to me are instructive in applying the relevant provisions of the Hague Convention, the 1985 Act and EU 2201/2003. In In Re M (Abduction: Rights of Custody) [2008] 1 AC 1288, a United Kingdom Supreme Court case, Baroness Hale of Richmond at paragraph 42 (page 1307) explained the policy considerations of the Hague Convention as follows:
“In Convention cases, however, there are general policy considerations which may be weighed against the interests of the child in the individual case. These policy considerations include, not only the swift return of abducted children, but also comity between the contracting states and respect for one another’s judicial processes. Furthermore, the Convention is there, not only to secure the prompt return of abducted children, but also to deter abduction in the first place. The message should go out to potential abductors that there are no safe havens among the contracting states.”
In respect of the application of Article 13b of the Hague Convention the authorities of the requested state are not to conduct their own investigation and evaluation of what will be best for the child and Article 13b should be applied restrictively so as the object of the Hague Convention is not to be defeated (In Re E (Children) (Abduction: Custody Appeal) [2012] 1 AC 144 per Baroness Hale of Richmond and Lord Wilson delivering the judgment of the court at paragraph 30 - page 160). Detailed...
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