Court orders the return of a girl to Sweden after she was wrongfully removed by her mother to Scotland
Case comment on the Petition of YG v EEP  CSOH 75
On the 10th of May 2017 a Swedish man (YG, the petitioner) was granted a Court order for the return of his eight year old daughter to Sweden following her wrongful removal from Sweden to Scotland by her mother (EEP, the respondent).
Lord Mulholland in the Court of Session granted this order based on his view that “notwithstanding that the child objects to a return to Sweden… a return to Sweden is justified in all circumstances.” This decision reinforces the importance that Courts will place on the policy considerations underlying the Hague Convention on the Civil Aspects of International Child Abduction that abducted children should be swiftly returned to the place of their habitual residence.
The Court heard that after the child’s birth, she lived in Sweden with her parents who were then in a relationship. Following their separation, the respondent returned to Scotland in September 2015 whilst the child stayed in Sweden with the petitioner. The respondent returned to Sweden in January 2016 and from then on the child resided with the respondent whilst the petitioner had weekend and holiday contact. On 7th June 2016 the child was taken to Scotland by the respondent (unbeknown to the petitioner) and was not returned.
On 8th September 2016 the Swedish court ordered that the petitioner be granted sole custody of the child on an interim basis. Thereafter, on the 16th of September, 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 office of unlawful child abduction. This detention order remains in force. The Swedish prosecutor also issued a European Arrest Warrant for her arrest and extradition however this application was refused by the Scottish Courts on the basis that the requirement of dual criminality was not met as the offence set out in the European Arrest Warrant was not an offence in Scots law.
The petitioner commenced the current proceedings in the Court of Session in February 2017 seeking the return of his daughter to Sweden.
In terms of Article 12 of the Hague Convention, an order should be made for the return of a child wrongfully removed from the place of their habitual residence unless the requirements of Article 13 are met and the Court considers it appropriate to exercise its discretion not to order the child’s return.
The respondent therefore relied on Article 13 by arguing that there was a grave risk that her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. She also argued 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 her views.
Lord Mulholland held that there was no “grave risk” that the child’s return to Sweden would expose her to physical or psychological harm or otherwise place her in an intolerable situation. There was found to be no physical threat to the child from her father and that the child would be well protected by Swedish law. He further considered that adequate arrangements had been made to secure the protection of the child after her return to Sweden.
A child welfare reporter was appointed by the Court to record the views of the child in relation to whether or not she wanted to return to Sweden. The child refused to express any view to the child welfare reporter. However, some days later, a chartered clinical psychologist interviewed the child and heard that she objected to being returned to Sweden. She described returning to Sweden as making her “sadder than sad”. Lord Mulholland therefore accepted that the child objected to being returned to Sweden and “has attained an age and degree of maturity at which it is appropriate to take account of her views.”
In his written opinion, Lord Mulholland stated that:
“Notwithstanding that the child objects to a return to Sweden, I am of the view that a return to Sweden is justified in all the circumstances. Weighing up the child’s objection with all the other factors in the case, I am of the view that it is appropriate to order the child’s return to Sweden. These factors are that the Swedish Courts are best placed to determine what is best for the child, the need to respect the judicial processes of Sweden, a recognition of the options available to the Swedish courts, including the option of relocation, the expedition by the petitioner in seeking interim custody and an order under the Hague Convention for the return of the child, the fact that Sweden is a signatory to the United Nations Convention on the Rights of the Child which requires States to put the best interests of the child as a primary consideration, the need to deter child abduction, the measures which will be taken in preparation for the child’s return to Sweden and upon her return to Sweden to moderate the effects of the return, the fact that the child has spent a large proportion of her life in Sweden during which time she lived with the petitioner (in family with the respondent) and the fact that she lived in Sweden with the petitioner, and his paternal family, for four months whilst the respondent was living in Scotland. In my opinion these factors outweigh the child’s objection and the integration of the child in this country (having spent ten months here).”
Click here to read the full Opinion of Lord Mulholland.
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