In August 2020, the Court of Session made the decision in a case of child abduction that was frankly unexpected. In this blog we will look at what happened and what it means fo0r cases of residence and contact with a foreign element.
Facts of the Case
The petitioner, the father, lives in Poland. He and the Polish mother lived together till the child was 7 years of age. Thereafter he had contact with his daughter till June 2019 when the mother brought her to Scotland, where they continue to reside. This was a wrongful removal in terms of article 3 of the Hague Convention on the Civil Aspects of International Child Abduction. A petition was lodged in the Court of Session seeking the return of the child to Poland.
The sole defence presented on behalf of the mother and the child, (who was separately represented) was based on article 13 of the Hague Convention. A report had been obtained from a member of the bar which set out the child’s objections to a return to Poland. The Lord Ordinary held, and this was not challenged, that she is of an age and degree of maturity as required. Having reviewed much written documentation and affidavits, the judge in the first instance decided that the “gateway” test in article 13 had been met, the Lord Ordinary exercised his discretion in favour of a return order. her views to be taken into account. As a result he was not obliged to send her back to Poland; rather he enjoyed a discretionary power, to be exercised “at large”, to grant or refuse such an order.
What does the law say?
In article 13 cases the age and sufficient maturity test, once passed, is a gateway to the court exercising a discretion, authoritatively said to be “at large”, as opposed to being directed by the Convention to return the abducted child. In the present case, given the terms of article 11 of the Council Regulation, the long term decision on residence remains 6 with the Polish Court. It must be informed of any non-return order and its reasons, and its judgment in resolution of the parental dispute will be directly enforceable in Scotland. This is a key factor. The question is whether in the meantime the child should be returned to Poland pending that decision. In this regard courts are increasingly giving weight to the views of the child. A child-centric approach is required, with her interests and general welfare at the forefront. The focus is not on the moral blameworthiness of the abducting parent, nor on notions of deterrence. While Convention considerations will always be relevant, the further one is from the main aim of a speedy return, the less weighty they will be. If a child is integrated in the new community it is relevant to consider the effect of a further, and unwanted, international relocation pending the long term decision.
What did the Court decide?
The court, on appeal, was not satisfied that the Lord Ordinary exercised his discretion in accordance with settled legal principles. He required to weigh in the balance the child’s current circumstances. Instead he placed great importance on the decision of the Polish court, and apparently regarded it as determinative of the welfare issues. That court was considering a different question, with the answer based on the evidence before it, and when the outcome of a move to Scotland could be no more than a matter of prediction and opinion. The important point is that the Lord Ordinary required to carry out his own assessment on the evidence before him, not simply enforce the Polish judgment. It was an important part of the background circumstances, but not at the expense of other material considerations. This was a child objection case and the maturity of the child and the time passed along with the requirement for the law to be "child-centric" in accordance with Lady Hale's previous decisions. The Appeal Court quashed the original decision. The main reason: though not determinative, the court places considerable weight on the child’s views. The appeal court made a non-return order authorising the child to remain in Scotland.
What does this mean for you?
I can safely say that this case went the way it did because of circumstances specific to it and not because the appeal changes the law. The Lord Ordinary placed too much emphasis on one element. there were also other elements where the child was happy and settled and a return to Poland would have had a negative effect upon a child that could express her view.
If you are wanting to move to another Country with your child where the other parent has contact, shared residence or some other order in relation to the Children (Scotland) Act 1995, then you cannot simply move. You will require a Specific Issue Order from the Court. This is a complex area of the law however, we are very experience in this particular area and can help you navigate this complex area.
If you need help in this or any other child law area then please contact us.