Court of Session Ruling on International Child Abduction
The Outer House of the Court of Session has recently given its decision in a difficult case relating to international parental child abduction.
The petition was brought to the court by a father seeking the return of his daughter, known as “IAR”, after she was wrongfully removed from Portugal and taken to live in Scotland by her mother.
Both parents are Portuguese citizens. Their daughter, IAR, was born in Portugal in 2006 and lived there until December 2011. Up until that time, both parents had been sharing the care of IAR equally by virtue of an order of their local court. When IAR was wrongfully removed by her mother in December 2011, her father took all reasonable steps to ascertain her whereabouts but he was unable to do so. It was not until May 2016 that he eventually discovered that IAR resided in Hamilton, Scotland with her mother.
The father, who continues to reside in Portugal, sought the return of his daughter under the Child Abduction and Custody Act 1985 which incorporates the Hague Convention on the Civil Aspect of International Child Abduction into Scots Law.
It was not disputed in this case that the father had rights of custody under this Act. Nor was it disputed that IAR was, at the time of her abduction, habitually resident in Portugal. The mother therefore conceded that IAR had been “wrongfully removed” from the country of her habitual residence in a clandestine manner. In these circumstances, the father lodged a petition seeking the return of IAR to Portugal in terms of the 1985 Act.
However, the mother relied on an exception to the requirement to order the return of a child wrongfully removed from his or her habitual residence (found in Article 12 of the Hague Convention) by arguing that IAR was now settled in her new environment in Scotland and should therefore not be returned to Portugal. She also relied on two other defences under Article 13 of the Hague Convention, namely that “there is a grave risk that her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation” and 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.”
In coming to her decision, Lady Wise heard evidence that IAR had met many of her developmental milestones in Scotland such as starting formal education, becoming fluent in English, making friends and developing interests. She also heard evidence that, if IAR were ordered to be returned to Portugal, her education would suffer as she was unable to read or write in the Portuguese language. Further to this, she heard evidence from child psychologist Dr Katherine Edwards that IAR had expressed a number of clear objections about returning to Portugal.
Lady Wise therefore found in favour of the mother and decided to exercise her discretion in favour of refusing to grant an order returning IAR to Portugal. She concluded that: “to require a 10 year old girl to leave her home of several years and return to what she now feels is a foreign country, when the prospect makes her feel sad, upset and angry would be contrary to her best interests. IAR’s strongly held views, coupled with the length of time she has been settled here, lead to those interests prevailing when balanced against the primary purpose of the Convention.”
This decision highlights a number of important issues relating to the law of international child abduction. Please contact a member of our Family Law Team if you need advice on any area of family law, including further information if you are planning to relocate abroad. Fill in our enquiry form or telephone us on 0131 229 5046. We look forward to hearing from you.
This article was co-written by Rachel Cooper (firstname.lastname@example.org)