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Child abduction: recent developments

18 August 14

Two recent cases seeking the return of a child from Scotland, one concerning a young child and one an older child, have delivered contrasting results

by Rhona Adams

International child abduction remains a hot topic. An average of two children per day are taken out of the UK by one parent without the consent of the other, double the number of 10 years ago. It is, of course, much harder to secure the return of children taken to a jurisdiction that is not a signatory to the Hague Convention on the Civil Aspects of Child Abduction 1980.

Ninety-two countries have now signed up to the Convention, the most recent being Japan, which acceded in January, and Iraq, in April of this year.

Scotland continues to see its fair share of Convention cases. Many resolve at an early stage. However, one case earlier this year reached the Inner House, JP, Petitioner [2014] CSIH 19 (11 February 2014). This involved the wrongful retention in Scotland of a child aged three, previously habitually resident in Canada. The mother and child had travelled to Scotland in August 2012 with the consent of the father. It was found that the mother ended the parties’ relationship in October. The father raised an application in the Court of Session in November 2013.

The mother argued that as more than one year had elapsed and the child had become settled in her new environment, the court’s discretion should be exercised against ordering her return. At first instance, Lord Armstrong accepted this argument. The father reclaimed, arguing that had proceedings been raised only a few weeks earlier, within a year of the child’s wrongful retention, the court would not have had any discretion. In exercising his discretion, the Lord Ordinary had considered the matter of the child’s residence rather than simply whether the child ought to be returned to her country of habitual residence for a decision on residence to be made there. Further, settlement in Scotland had not been satisfactorily established. The Inner House upheld the reclaiming motion. Lady Paton, delivering the court’s opinion, commented that the Lord Ordinary’s decision did not accurately reflect the issue before the court. He had strayed into considering the matter of residence. Further, the mother had not adequately established that the child was sufficiently settled in Scotland so as to justify disregarding the otherwise mandatory requirement to return the child. She added that, even if there had been a basis on which the court could legitimately have exercised its discretion, it would not have been minded to do so in this case.

Child's wishes

Contrast this with the case of PH, Petitioner, [2014] CSOH 79 (30 April 2014). This involved a child K, aged 13 years and nine months, who had been living with her mother in Norway since November 2012. In October 2013, K returned to Scotland for a contact visit with her father, at the end of which she did not return to Norway but remained with her father and started to attend a local high school. K was resolute that she was not returning to Norway.

The mother returned to Scotland to seek the return of her daughter. The police, the social work department and the press were all involved. She failed to persuade her daughter to return and, in February 2014, lodged a petition seeking an order for return.

On joint motion, the court appointed a child psychologist to explore whether the child did object to returning to Norway, if so why, and whether she was sufficiently mature for the court to take account of her view. The psychologist reported that the child held strong, rational and articulately expressed views about not wishing to return, and that she possessed a degree of maturity perhaps greater than one would expect for her age.

It was submitted for the father that this was an exceptional case, in that the child was sufficiently mature, had a strong and rationally held view, and had not been influenced by parental pressure. Article 13 of the Convention applied and the court ought to refuse return on the basis that the child had attained a suitable age and degree of maturity for her views to be given weight.

Lord Doherty refused the prayer of the petition, commenting that there were in this case “powerful child-centric considerations against which the policy of the Convention ought to carry little weight”. There can be little doubt that this was an unusual case, and that the onus on a respondent seeking to defend a Hague Convention application remains heavy.

Rhona Adams, partner, Morton Fraser LLP

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