Child abduction case commentary

Should an order seeking the return of two children to Spain be granted? A recent case explored this dilemma. The case law in this area continues to evolve with the children’s views playing an ever-growing role in the decision-making process.

The Petition of FPS for Orders under the Child Abduction and Custody Act 1985

[2024] CSOH 45

Background

The case called before Lord Stuart in the Outer House of the Court of Session. The issue to be determined by the Court was whether an order seeking the return of two children to Spain should be granted. The order was sought by the children’s father, the Petitioner (referred to as FPS). The First Respondent, the children’s mother, did not consent. The other Respondents did not enter process, but the children’s mother shall be referred to as the First Respondent throughout for accuracy. The children had been exercising contact with their mother in Scotland, having travelled to visit her with the Petitioner’s mother on 14^th December 2023. They were due to return with the Petitioner’s mother on 19^th December 2023. However, the children, notably taken to the airport by the Petitioner’s mother, refused to board the plane returning to Spain. The eldest child placed his passport together with his younger sibling’s passport in the bin at the airport. It was conceded on behalf of the First Respondent that i) the children were habitually resident in Spain, ii) the Petitioner held custody rights and iii) at the relevant time, 19^th December 2023, the Petitioner was exercising those rights. The children’s views were taken as part of the Court proceedings by way of a Child Welfare Reporter and the matter then proceeded before Lord Stuart in the Outer House.

The Law

The Hague Convention on the Civil Aspects of International Child Abduction (‘the Hague Convention’) is given its legal powers in the United Kingdom by The Child Abduction and Custody Act 1985. As both Spain and the United Kingdom are signatories to the Hague Convention, its terms require to be applied in this case with particular focus on Article 3 and Article 12. Article 3 is repeated at length below and Article 12 can be found here. 

Article 3

“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.”

The leading case law on the issue where a child objects to being returned is noted in re M [2007] UKHL 55 and the words of Lady Hale in this case highlight that the purpose of the Convention is to protect children, not the adults. It was further noted that the Court must take account of the Convention policies alongside any other factors and that no one factor, whether that be the Articles themselves or the children’s views, would be wholly determinative but rather it required to be considered as a whole.

Petitioner’s position

The Petitioner sought an order for return of the children. The First Respondent had already made various concessions as narrated above, and on that basis the Petitioner invited the Court to apply Article 3 to make an order for the return of the children. It was acknowledged by the Petitioner that the children had expressed their views that they did not wish to return to Spain, albeit the Petitioner did not accept that those views were genuine. Furthermore, the Petitioner addressed the Court on the issue of discretion and why the Court should not exercise it in this case. The Petitioner had obtained an order from the Spanish Courts that the children were to reside in Spain and invited the Court to take note of the terms of that, namely that it had already been decided that the children had a happy and settled life in Spain. It was submitted on behalf of the Petitioner that this, together with the concessions made by the First Respondent and the terms of Article 3, meant that an order for return of the children should be made notwithstanding the children’s views. Once in Spain any further procedure could be taken, however the appropriate step was to make an order for return and then deal with any matters arising thereafter.

First Respondent’s position

The First Respondent’s case was simplistic in nature; that Article 3 compelled the Court to make the order sought by the Petitioner unless Article 13 applied. The children’s objections were the sole basis of the First Respondent’s case, and she invited the Court to apply significant weight to the children’s views given the severity of the extent to which they had expressed their unwillingness to return to Spain and conversely to the fact that the children had noted they were happy and settled in Scotland.

Decision

After careful consideration, and notwithstanding the concessions made by the First Respondent, which amounted to confirmation that the children had been wrongfully retained, Lord Stuart refused to order the return of the children to Spain. Lord Stuart advised that he reached this decision taking into account many factors, such as the strength of the children’s views and the authenticity of those views while balancing those views against the general Convention rules, as well as the principle of the children’s general wellbeing and welfare.

Analysis

The Petitioner’s case met the criteria of Article 3, in that the children had been wrongfully retained. Article 12 of the Hague Convention provides that where a child has been wrongfully retained in terms of Article 3, and less than one year has elapsed since the wrongful retention, then an order for return must be made. So why did that not happen in this case?

The First Respondent argued that Article 13 applied and that the terms of the views of the children were so strong that the order for return should be refused. Article 13 states:

“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. In considering the circumstances referred to in this article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.”

The First Respondent’s position was that she accepted that the Petitioner had been exercising custody rights and it was also accepted that the children would not be in grave danger should they be ordered to return. However, she solely relied upon the children’s refusal to return. The First Respondent argued that given their age and the strength of their views, such that they sought to get rid of their own passports, the order for return should not be made. As part of the proceedings, the children’s views were taken by a very experienced and well-respected Kings Counsel, Ruth Innes, in her capacity as a Child Welfare Reporter. This was a key piece of evidence given that the sole basis of the First Respondent’s case was that the children did not want to return. Accordingly, significant weight was attached by Lord Stuart to the findings of that report. The children described in detail the various aspects of their life in Spain that they did not like and, contrastingly, those aspects of their life in Scotland that they thoroughly enjoyed. The children felt very strongly that they were happier in Scotland and were very worried that if they were ordered back to Spain they would not be allowed to return to Scotland. In my view, somewhat crucially, the First Respondent was also able to confirm to the Court that the children were content and well cared for in Scotland. I do not believe it would have been enough if the children had expressed they did not wish to return to Spain in the same terms that they did but were indifferent about their life in Scotland. Accordingly, in this case I believe it was the combination of both their strong wishes not to return to Spain alongside the positive outlook on Scotland that the boys adopted that added strength to the First Respondent’s position. The Petitioner did try to persuade the Court that the children’s views should not be given too much weight on the basis that they had been influenced by the First Respondent. However, this argument was unsuccessful. Lord Stuart was not persuaded that the children had been influenced by the First Respondent in any way.

Given the significant concessions made by the First Respondent, it may be thought on first assessment that it was rather surprising that Lord Stuart did indeed refuse to make such an order. However, this does provide us with an insight as to where the law is heading. The judiciary is very much adopting a child-focused and, in some cases, child-led perspective when making significant decisions. It is also worth noting the fact that the First Respondent was not in attendance at the airport when the children refused to board the airplane. In my view that was very significant as it likely added weight to the strength of the children’s wishes not to return to Spain by removing any assertion of coercion of the children, at least at the time of the initial act of refusal. It is also interesting to note that Lord Stuart comments in his Opinion about the way in which the Petitioner presented his case insofar as he did so only in such a way to further his own case, without providing the Court with an accurate and complete account of the reality of the position. Any litigator should take note of this comment. It often serves your client best to address any shortcomings in their case rather than to simply ignore them. The First Respondent was not afraid to make concessions where it was clear those would be made by the Court in any event but rather focused on the areas of her case in which she had a realistic prospect of success. My own view is also that the simplicity of the First Respondent’s position and the way in which her case was presented likely contributed in part to the outcome.

This judgement was closely followed by the Petition of TS where Lady Carmichael refused to order the return of a child to Russia, similarly on the basis of the child’s objection. The significance of these decisions is not to be undermined. This now forges a new road ahead for those practising and advising on issues of international child abduction. These are not the first refusals in Hague Convention cases, and it is clear that the Court is very much taking a child-centred approach, even where the legislation may not favour such an outcome at first glance. It can perhaps best be summarised by the words of Lord Malcolm in W v A 2021 SLT 62: “But now the focus is on the best interests of the child at the heart of the proceedings, not least since this is the core value running through the Convention.” The case law in this area continues to develop and it will be interesting to continue to watch it evolve with the children’s views playing an ever-growing role in the decision-making process.

Written by Tom Main, Associate at Aberdein Considine